Planning and Environment Court of Queensland allows an application to add land the subject of a development application

In brief

The case of Kenfrost (1987) Pty Ltd (ACN 082 384 325) Trustee Under Instrument 716471770 v Cairns Regional Council & Ors [2022] QPEC 48 concerned an application in pending proceeding to the Planning and Environment Court of Queensland (Court) to change a development application (Change Application) to include new land to act as a buffer to adjoining agricultural uses (Proposed Change), and to seek orders permitting the hearing of the appeal against the refusal of that development application on the basis of the Change Application.

The Court allowed the Change Application, finding that it would not result in substantially different development.

Background

The Applicant originally applied for the following (Original Application) (at [1]):

"(a)   a development permit for reconfiguration of a lot (three lots into 65 lots, new road, and balance); and

(b)    a preliminary approval for a material change of use, including a variation approval to override the Cairns planning scheme to establish use rights associated with the Low-Density Residential Zone".

The Original Application was refused by the Cairns Regional Council (Council). A substantive appeal by the Applicant against the Council's refusal of the Original Application was listed for hearing in the week commencing 31 October 2022 (Appeal) (at [3]). The Council was joined by two co-respondents by election.

The Council did not dispute the Change Application, but maintained its opposition to the proposed development in the Appeal. The First Co-Respondent by Election opposed the Change Application on the basis that the Proposed Change was not a minor change since it would result in "substantially different development" (at [7]).

Section 46(3) of the Planning and Environment Court Act 2016 (Qld) (PECA) states that the Court cannot consider a change to a development application unless the change is only a "minor change" to the development application (at [10]).

The Court thus had to determine whether the Proposed Change was a "minor change" for the purpose of section 46(3) of the PECA.

Court finds that the Proposed Change is a "minor change" for the purpose of section 46(3) of the PECA

The Court considered schedule 2 of the Planning Act 2016 (Qld) (Planning Act), which defines a "minor change" as a change that meets the following two limbs (at [11]):

"(a)    for a development application—

(i)    does not result in substantially different development; and

(ii)    if the application, including the change, were made when the change is made—would not cause—

(A)    the inclusion of prohibited development in the application; or

(B)    referral to a referral agency if there were no referral agencies for the development application; or

(C)    referral to extra referral agencies; or

(D)    a referral agency, in assessing the application under section 55(2), to assess the application against, or have regard to, a matter, other than a matter the referral agency must have assessed the application against, or had regard to, when the application was made; or

(E)    public notification if public notification was not required for the development application…".

The Court relevantly affirmed that a change to a development application that is characterised as "essential, material, or important" does not necessarily transcend the definition of "minor change" in schedule 2 of the Planning Act, citing the case of Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2020] QPEC 47; [2021] QPELR 809 (at [13]).

Court finds that the Proposed Change will not result in "substantially different development"

In respect of the first limb in subparagraph (i) of the definition of "minor change", being the requirement that the change does not result in substantially different development, the Court recognised that although "substantially different development" is not defined in the Planning Act, the relevant principles are "well established" (at [12]).

The Court considered schedule 1 of the Development Assessment Rules which states a non-exhaustive list of circumstances in which a change may be deemed to result in "substantially different development" (at [15]). The Court observed that the list concentrates on changes that would involve "new, additional, or increased impacts" as opposed to "changes which tend to ameliorate impacts" (at [16]).

The Court found that even though the Proposed Change "results in the application applying to a new parcel of land", which is one of the circumstances listed in schedule 1 of the Development Assessment Rules, it does not trigger any of the other listed circumstances (at [18]).

The Applicant submitted that the Proposed Change will result in an improvement to the development in that "…the result of the proposed change is to ameliorate the potential for impacts on adjoining rural land further south by incorporating a buffer which will operate to reduce the impacts of the proposed development on surrounding agricultural uses" (at [21]).

The First Co-Respondent by Election argued that the Proposed Change is not a "minor change" for the following reasons (at [25]):

1. The Change Application and material filed in support of the Change Application do not sufficiently establish that it is a "minor change".

2. Alternatively, it includes new rural land which would be effectively "urbanised". The new land may facilitate the proposed scale and intensity of urban development which would not be possible but for the inclusion of the new land and thus "…manifests in a 'substantially different development'".

The Court disregarded the first argument, finding that the material is sufficient to establish that the Proposed Change is a "minor change" and that it identifies the Proposed Change in sufficient detail (at [26]).

In respect of the second argument, the Court found that the argument "…appears to be concerned with possible future applications to change the development application or, perhaps, the consequences of approval of the development application" (at [28]). The future use of the relevant land, the Court found, was a matter to be explored in the Appeal and not one that renders the Proposed Change "substantially different development" (see [28] and [29]).

The Court observed that, in respect of the substantive issue of whether the Proposed Change is or is not a "minor change", the development still seeks to facilitate a residential subdivision, despite the application applying to a new parcel of land (at [31]).

The Court made several other observations in relation to the Proposed Change, including the following (at [31]):

• It will not change the number of lots or the lot layout.

• It will not change the built form of the development or introduce a new use.

• It will not remove a component integral to the operation of the development.

• It will not impact the traffic flow or the transport network.

• It does not require removal of an incentive or an offset component.

• It will have no impact on the provision of infrastructure provision.

• It will not increase the severity of known impacts.

The Court reiterated that whether the Proposed Change "…may introduce new impacts because of the uncertainty of what use will be made of the small sliver of land between the vegetated buffer and the southern boundary of the residential lots…" is a matter to be determined at the Appeal (at [32]).

The Court was satisfied that the Proposed Change will not result in "substantially different development".

Court finds that the Proposed Change is consistent with subparagraph (ii) of the definition of "minor change"

In respect of the second limb in subparagraph (ii) of the definition of "minor change", the Court was satisfied that sub-subparagraphs (A) to (E) do not apply to the Proposed Change. In particular, the Court found that the Proposed Change would not result in the following (at [17]):

• The inclusion of prohibited development in the development application.

• The need for referral to any referral agency.

• A change to the level of assessment of the development application.

Conclusion

The Court held that, considered "broadly and fairly" (at [12]), the Proposed Change will not result in "substantially different development" and was a "minor change" for the purpose of section 46(3) of the PECA despite it resulting in the application applying to a new parcel of land (at [33]).

Accordingly, the Court allowed the Change Application and made an order permitting the hearing of the Appeal on the basis of the Change Application.

The Court also clarified that this finding was not "…in any way, an endorsement of the change or the proposed development", which would be subject of the Appeal (at [34]).