(Rackemann DCJ - 17 June 2015)
Neilsens Quality Gravels Pty Ltd v Brisbane City Council  QPEC 29
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 submission.
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 allowed (s367(c)).
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 non-compliant water;
- 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 application:
The changes would not result in substantially different development because:
- 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 because:
- 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; and
- the mechanism to deal with water is similar to that which was approved and was designed to achieve the same outcomes in impact mitigation.