Australia: Proposed changes to a development application for commercial groundwater extraction were found to be permissible changes

IN BRIEF

The case of Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2017] QPEC 24 concerned an application to the Planning and Environment Court made by an Applicant to make changes to the development application the subject of the appeal.

The Applicant made a development application for a development approval for a commercial ground water extraction use on land at 22-26 Power Parade at Mount Tamborine which involved the following proposal:

  1. the extraction of water from a sub-artesian source assessed by bore;
  2. the storage of extracted water on-site in large water tanks; and
  3. the transportation of water off-site using a single transporter along a defined route.

The Council decided to refuse the development application and the Applicant appealed against the Council's decision. The Applicant subsequently made an application to the Court to make changes to the development application the subject of the appeal.

The Court found that the proposed changes were a minor change for the purposes of section 350 of the Sustainable Planning Act 2009 (SPA) and that the appeal would proceed with the changed development application.

PROPOSED CHANGES WERE LIMITED TO THE TRANSPORTATION OF EXTRACTED GROUNDWATER FROM THE SUBJECT LAND

The Applicant proposed the following changes to the development application:

  • the water extracted from the subject land would be transported by vehicles owned by third parties rather than by a vehicle owned by an entity related to the Applicant;
  • the water extracted from the subject land would be delivered not only to one bottling facility as identified in the development application but also to:
    • the community of Mount Tamborine and nearby areas, including to residents and businesses;
    • other bottling facilities away from Mount Tamborine;
    • in the case of an emergency, other bottling facilities for charitable purposes; and
    • in the case of a fire emergency by fire services vehicles, "the location of fire for fire fighting purposes".

The Court observed that the changes proposed by the Applicant were limited to the confines of the original proposals and would not change the operational matters related to the transportation of the extracted groundwater from the subject land.

PROPOSED CHANGES WOULD NOT RESULT IN A SUBSTANTIALLY DIFFERENT DEVELOPMENT WITHIN THE MEANING OF SECTION 350(1)(D)(I) OF THE SPA

In determining whether the changes proposed by the Applicant were a minor change under section 350 of the SPA, the Court considered whether the proposed changes would constitute a substantially different development under section 350(1)(d)(i) of the SPA.

In considering whether the proposed changes would not result in a substantially different development, the Court had regard to the Statutory Guideline 06/09 Substantially different development when changing applications and approvals.

The Court was satisfied that the changes proposed by the Applicant would not result in a substantially different development and were a minor change for the purposes of section 350 of the SPA in that:

  • the proposed changes would not remove a component that is integral to the operation of the development in that it would not change the core component of the proposed development;
  • the proposed changes would not result in a change to the scale or intensity of the proposed use in that no changes were proposed to the following (at [24]):
    • "the maximum annual extraction";
    • "the hours of operation";
    • vehicle numbers, movements and maximum size
    • "the built form or layout of the development in terms of scale, bulk and appearance";
  • no additional parcel of land would be required to accommodate the proposed changes;
  • given that the proposed changes were not related to the proposed use, being a "commercial ground water extraction" use, the proposed changes would not change the character or ability of the proposed development to operate as intended;
  • the proposed changes would not cause any significant traffic or transport planning issue in that:
    • they would not generate more than eight low level traffic movements;
    • the transportation of water in the cases of emergency would occur on limited occasions and for a limited time;
    • the deliveries to residents and businesses would be limited by the nature of supply and demand;
    • the number of truck movements would be ultimately limited by conditions.

Accordingly, the Court made the following orders:

  • a declaration that the proposed changes to the development application the subject of the appeal were minor changes;
  • the appeal would proceed on that basis;
  • costs of the application would be determined later.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Ian Wright
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