Whether change to proposed development a minor change – change required referral to an additional referral agency – ss.350, 440, 441 and 840 Sustainable Planning Act 2009
Facts: An application had been brought for Orders that changes to the proposed development constituted a minor change for the purposes of s.4.1.52(2)(b) of IPA and s.350 of SPA.
The development application was for a material change of use and for a development permit for reconfiguring a lot to facilitate a staged residential subdivision.
The relevant changes to the proposal involved a change in design and construction of a proposed bridge connecting the subdivision on an island pad to the south; filling part of a proposed lagoon; the fill on the island pad was to be increased by about 1.1m; and backfilling to the west of the island pad.
The filling of the lagoon involved filling below RL 5m AHD. That required referral to the Department of Environment and Resource Management (DERM). An acid sulphate soil issue arose calling up the referral agency.
The Respondent submitted that pursuant to s.350(1)(d)(ii) the change was not a minor change. The Appellant relied upon ss.350(2) and (3) to contend that the requirement that the application be referred to DERM as an advice agency was not fatal. In so doing it emphasised the different roles and responsibilities of advice agencies and concurrence agencies under the IPA.
The Appellant also submitted that even if the change were not a minor change, the Court retained a discretion based upon ss.440, 441 and 840 of SPA.
Decision: The Court held, in refusing the application, that:
- Notwithstanding a significantly different visual appearance of the new bridge when compared with the original design, this change could only be described as minor when considered in the light of the nature and extent of the proposed subdivision.
- Sub-sections (2) and, in particular, (3) of s.350 did not have the meaning and effect contended for by the Appellant. The trigger for the referral had nothing to do with any changes to the "applicable law", but was instead a direct consequence of proposed new works. The Explanatory Notes to the Sustainable Planning Bill 2009 were clearly against the position adopted by the Appellant.
- Sections 440, 441 and 820 of SPA did not assist the Applicant. ss.440 and 820 had no relevance in the circumstances of this application as it did not involve compliance, non-compliance or partial compliance with a statutory provision. Section 441 gives wide powers to the Court to make Orders it considers appropriate in the circumstances of each case. However, any Order must be made in accordance with the relevant law. To make the Orders sought by the Applicant would be in direct conflict with, and defeat the intent of, s.350(1)(d)(ii) of SPA and, accordingly, would not be "authorised".
- Given the level of unresolved differences of opinion between the parties' experts, the Court was not sufficiently satisfied that the proposed changes would not result in a substantially different development by introducing significant new impacts and/or increasing the severity of known impacts.
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