Planning and environment – request to change a
development approval – proposed change to water treatment
train for proposed quarry – where changes to configuration
and operation of ponds, but with no new or increased impacts
– whether substantially different development –whether
changes would be likely to provoke a properly made
Facts: This was an application, pursuant to
section 369 of the Sustainable Planning Act 2009 (SPA), for a
permissible change to a development approval granted by the Court
on 14 May 2014 for a material change of use (MCU) for an extractive
industry, MCU for environmentally relevant activity and operational
works at land located at Brendale and Bald Hills.
The proposed changes related to the way water on the land was to
be dealt with.
The relevant provisions of SPA were:
the proposed changes must not result in substantially different
development (s367(a)); and
the proposed changes must not be likely, in the responsible
entity's opinion, to cause a person to make a properly made
submission objecting to the proposed changes if the circumstances
As approved, the proposal included a series of ponds. The
proposed changes involved:
the introduction of flocculent to the wastewater as part of
normal pond operations to accelerate the settlement of fines,
instead of a free-settlement process and instead of flocculation
only being added as a contingency measure in the event of
consequential changes to the pond arrangement to resolve safety
problems caused by the on-site geotechnical conditions; and
a consequential diversion of stormwater that originates from
the external industrial estate land to pond 3 instead of diversion
to ponds 4 and 5.
Decision: The Court held, in allowing the
The changes would not result in substantially different
the proposed changes were limited to the water management
circuit and did not have any effect on the nature or extent of the
extractive industry; and
the changes would not result in any significant new flooding
impacts than those of the approved design.
The changes would not be likely, in the responsible entity's
opinion, to cause a person to make a properly made submission
objecting to the proposed change if the circumstances allowed
whilst water quality and water quality management was raised in
some of the submissions for the original approval, none raised a
comment or an objection about the particular water treatment system
used to deliver the outcomes or effects;
what the applicant proposed to do with the ponds or even the
use of the pond was not commonly acknowledged in the submissions;
the mechanism to deal with water is similar to that which was
approved and was designed to achieve the same outcomes in impact
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