In brief

The case of We Kando Pty Ltd v Maranoa Regional Council [2021] QPEC 1 concerned two interrelated proceedings by the Applicant in the Planning and Environment Court. The first was an appeal against the decision of the Maranoa Regional Council (Council) to refuse an extension to the relevant currency period. The second was an originating application, being a change application for a minor change to the relevant development approval. The parties agreed that both proceedings be heard and determined, “such that they would ‘rise and fall together’” (see [14]).

The subject site was located on a remote area within a large parcel of “unremarkable rural grazing land”. The proposed development was for a high impact industry and environmentally relevant activity for regulated waste storage. The proposed waste facility was intended to facilitate the removal of sewerage sludge and residues (K130 waste) from coal seam gas drilling, construction and operational activities, and was proposed to operate as follows:

  1. K130 waste is to be transported from coal seam gas facilities to the subject site.

  2. K130 waste is to evaporate in two storage ponds, leaving approximately 10% as sludge.

  3. The sludge is to be transported for composting at the Applicant's Chinchilla facility.

The Court approved a development application for the proposed waste facility in early January 2015. It was the subject of a change application for a minor change which was resolved with the consent of the parties by an order of the Court on 17 July 2017 (2017 Order), which included the insertion of a condition stating a deadline for making further development applications necessary for the approved material change of use to commence (Condition 4A).   

The Applicant sought to extend the currency period for a further two years from the date of the judgment, and to change the conditions of the development approval to delete Condition 4A, and to allow the processing of additional waste types at the subject site.  

The Court ordered that the currency period be extended for a period of two years, allowed the change application for a minor change, and ordered that the parties prepare amended conditions of approval. 

Details of the change application for a minor change

The changes sought by the Applicant were to change the storage structure of the proposed waste facility and incorporate a different mix of biodegradable waste. This would involve partitioning the two proposed storage ponds into five smaller ponds, comprising the following: 

  1. Two K130 ponds.

  2. Two ponds to accept drill muds from well construction. 

  3. One pond to accept oily water from "mechanical workshops, vehicle wash-down facilities and coal seam gas processing facilities". 

It was submitted that the proposed changes came within the definition of a minor change in the Planning Act 2016 (PA), however, the Court had regard to compliance with the current planning scheme and issues of need, both of which were also relevant to the currency period extension. 

Statutory framework

The Bungil Shire Council Planning Scheme (Bungil Scheme) was in effect when the development application was made. The Maranoa Regional Council Planning Scheme (Maranoa Scheme) was later adopted on 27 September 2017. 

In assessing the change application for a minor change, section 81(4)-(5) of the PA requires that the Court "must" consider the Bungil Scheme and "may give weight" to the Maranoa Scheme. Section 81(2)(d)(a) of the PA further requires that the Court consider "all matters [it] would or may assess against or have regard to, if the change application were a development application". As the development application was impact assessable, this includes "any other relevant matter, other than a person’s personal circumstances, financial or otherwise" under section 45(5)(b) of the PA. 

The appeal in respect of the extension to the currency period was carried out by way of a hearing anew. Section 87(1) of the PA provides that the Court “may consider any matter [it] considers relevant”. In this case, this included evidence of mental health issues suffered by the Applicant's operations manager who, by mistake, failed to comply with the 2017 Order. A key policy consideration was to avoid the making of a fresh development application where development was ready to commence.

Industrial use on rural land was compliant with the planning instruments

The Applicant argued that there was compliance with the provisions of the Bungil Scheme encouraging economic activity in the Rural Zone without adversely impacting on other rural uses, rural amenity and character. In reply, the Council relied upon non-compliance with the Strategic Framework and Rural Zone Code of the Maranoa Scheme.  

No land was mapped in the Industrial Zone under the Bungil Scheme. Discreet areas of land near Roma were mapped in the Industrial Zone under the Maranoa Scheme. It was not contended that there was “any meaningful policy change” between the Bungil Scheme and Maranoa Scheme as they related to development in the Rural Zone. 

The Court found that there was no sound planning basis for the proposed development to be located on land mapped in the Industrial Zone. In summary, the Court found as follows: 

  1. Notwithstanding that the proposed development was not contemplated in the Rural Zone Code, this did not expressly discourage an industrial use on rural land.

  2. The potential adverse impacts could be appropriately managed by conditions.

  3. The proposed site was an isolated area which avoided adverse amenity impacts or environmental harm.

  4. If developed on land in the Industrial Zone, the proposed development would utilise 51% of the available land due to the requirement for separation of the site, which could result in an inefficient use of the land. 

There was a planning and economic need for the proposed development

The Court found there was a planning and economic need for the proposed development for the following reasons:

  1. The proposed development would provide competition in the industry.

  2. The proposed location would enhance the efficiency of transport operators.

  3. There was demand for treatment to occur offsite from coal seam gas operations.

  4. It was not viable to otherwise carry out the intended operations at the Roma sewerage treatment plant.

The Court also found that the proposed use was consistent with community expectations, and also that it was of no consequence that there was no demonstrated community need for the proposed development.

Conclusion

The Court approved the change application for the minor change and allowed the appeal to extend the currency period.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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