In brief

The case of Baker v Chief Executive, Department of State Development, Manufacturing, Infrastructure and Planning & Anor [2021] QPEC 10 concerned an originating application to the Planning and Environment Court (Court), which sought declarations and orders that a development application did not trigger or require assessment by the Chief Executive, Department of State Development, Manufacturing, Infrastructure and Planning (DSDMIP).

The Applicant submitted to the Bundaberg Regional Council (Council) a development application for a material change of use to increase the density of an existing tourist park (Development Application) located at 159 Mon Repos Road, Mon Repos (Site). The Site is mapped as within a "wetland protection area" and adjoins a wetland which is classified as being of high ecological significance under the Environmental Protection Regulation 2019 (Qld).

The Applicant sought declarations from the Court that DSDMIP was not required to assess the Development Application because the Development Application did not trigger referral agency assessment in respect of a material change of use of premises in a wetland protection area under the Planning Regulation 2017 (Qld) (Planning Regulation).

The Court ultimately determined that the Applicant did not provide sufficient evidence to support the Applicant's contention that the Development Application did not trigger referral agency assessment.

DSDMIP confirmed that it would assess the Development Application under the Planning Regulation 2017 (Qld) and subsequently directed that the Development Application be refused

The Court noted that the Development Application was assessed by DSDMIP under Schedule 10 (Development assessment), Part 20 (Wetland protection area), Division 4 (Referral agency's assessment), Table 3 (Material change of use of premises in wetland protection area), Item 1 (Table 3) of the Planning Regulation, which relevantly states as follows (emphasis added):

Table 3—Material change of use of premises in wetland protection area

Column 1

Column 2

1 Development application requiring referral
 
 

Development application for a material change of use that is assessable development under a local categorising instrument, other than a material change of use relating to a domestic housing activity, government supported transport infrastructure or electricity operating works, if—

(a) all or part of the premises are in a wetland protection area; and
(b) the material change of use involves operational work that is high impact earthworks in a wetland protection area.

2 Referral agency

The chief executive


In constructing Table 3 of the Planning Regulation, the Court referred to the definition of "operational work" in Schedule 2 (Dictionary) of the Planning Act 2016 (Qld) and "high impact earthworks" in Schedule 24 (Dictionary) of the Planning Regulation, which relevantly states as follows (emphasis added):

"operational work means work, other than building work or plumbing or drainage work, in, on, over or under premises that materially affects premises or the use of premises."

"high impact earthworks—(a) means operational work that changes the form of land, or involves placing a structure on land, in a way that diverts water to or from a wetland in a wetland protection area"

DSDMIP issued a Referral Confirmation Notice to the Applicant stating that DSDMIP would assess the Development Application under Table 3 of the Planning Regulation, and subsequently directed the Council to refuse the Development Application.

Applicant argued that DSDMIP was not entitled to assess the Development Application as the Development Application did not trigger or require assessment by DSDMIP

The issue before the Court was whether the operational work proposed in the Development Application involved the placing of a structure on land, in a way that diverts water to or from the wetland of high ecological significance adjacent to the Site.

Court was not directed to the evidence required to convince the Court to make the requested orders

In the application before the Court, the Applicant carried the onus of proving the matters necessary to the declarations it sought, and of persuading the Court that the declarations and orders should be made (Kin Kin Community Group Inc v Sunshine Coast Regional Council & Ors [2010] QPEC 144; [2011] QPELR 349 at 353).

The Court noted the following in respect of the evidence the Applicant provided to the Court to persuade the Court to make the requested orders:

1. The Applicant gave "no comprehensive analysis of the hydrological conditions underlying the site", but did produce a report concerning bore holes drilled in October 1981 and October 2018, and the rate of percolation for the Site (at [11]).

2.  The evidence of the Applicant's engineer included the following (at [11]):

"Due to the high permeability of the upper sand layer, rain falling in the site will infiltrate directly into the sand rather than run across the surface. It will then move downwards until it reaches the clay layer at depth.

It is the shape of the clay layer at depth that determines the catchment flowing to the wetland not the surface shape."

3.  The Applicant's engineer was unable to identify the extent to which water entering the ground moved either to or from the adjacent wetland (at [12]).

The Court noted that the absence of a hydrological investigation meant that the Court was unable to confirm whether the Development Application would satisfy the definition of High impact earthworks, as there was a lack of evidence demonstrating whether water on the Site would move either towards or away from the protected wetland area should the proposed development the subject of the Development Application proceed.

Conclusion

As the Applicant did not discharge the onus of proving that the proposed orders and declarations sought from the Court ought to be made, being that DSDMIP was not required to assess the Development Application, the Court dismissed the application.

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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