Austin BMI Pty Ltd v Ipswich City Council & Ors [2026] QPEC 17

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Austin BMI Pty Ltd v Ipswich City Council & Ors [2026] QPEC 17 PARTIES: AUSTIN BMI PTY LTD (ACN 164 204 308) (applicant) v IPSWICH CITY COUNCIL (first respondent) And CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE AND PLANNING (second respondent) And CLEANAWAY SOLID WASTE PTY LTD (ACN 120 175 635) (third respondent) And HAENKE NO 3 PTY LTD (ACN 625 930 921) (fourth respondent) FILE NO/S: 652 of 2026 DIVISION: Planning and Environment PROCEEDING: Change application for a minor change to a development approval ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 11 May 2026 DELIVERED AT: Brisbane HEARING DATE: 5 May 2026 JUDGE: Williamson KC DCJ ORDER: - CATCHWORDS: PLANNING AND ENVIRONMENT – APPLICATION – where a change application seeking a minor change to an extant development approval – where the Court is the responsible entity for assessing and deciding the change application – whether the changes proposed to the -- 1 of 10 -- 2 development approval result in substantially different development for the purposes of subparagraph (b)(i) of the definition of ‘minor change’ in Schedule 2 of the Planning Act 2016. LEGISLATION: Planning Act 2016, ss 78, 78A, 79, 81, 81A and Schedule 2 CASES: Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27 COUNSEL: Mr S Holt KC for the applicant Mr T Gallienne (solicitor) for the first respondent Ms L Donaldson (solicitor) for the second respondent Mr R Allen (solicitor) for the fourth respondent SOLICITORS: McCullough Robertson for the applicant McInnes Wilson for the first respondent HopgoodGanim for the second respondent Project Legal for the fourth respondent [1] The applicant (Austin BMI) is developing land located at New Chum with a resource recovery and landfill facility. The project is assessable development authorised by, inter alia, an extant development approval granted by the Court on 11 March 2024 (the Court approval). The Court approval was granted subject to conditions following a contested hearing: Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27 (the RFJ). [2] Austin BMI have commenced preparatory work for the project along with the detailed design process. As the reasons for judgment referred to above reveal, the project is a complex one. Unsurprisingly, it has emerged during the detailed design process that changes are required to the approved development to reflect ‘on the ground’ circumstances. Austin BMI has elected to change the Court approval to reflect this by way of a ‘change application’ under ss 78 and 78A of the Planning Act 2016 (the PA). The change application is advanced as one seeking a ‘minor change’ as defined in Schedule 2 of the PA. [3] The change application, which proceeded by way of Originating application to the Court as the responsible entity, was listed for hearing on 5 May 2026. Council and the Chief executive did not oppose the application. The third respondent, Cleanaway, did not file an entry of appearance and did not want to be heard in relation to the application. [4] The fourth respondent, Haenke No 3, opposed the change application and led evidence in support of its position. A single ground of refusal was advanced, namely, it asserted the changes proposed to the Court approval would result in substantially different development, thereby failing subparagraph (b)(i) of the minor change definition in Schedule 2 of the PA. [5] At the completion of the hearing on 5 May 2026, I intimated that orders would be made in accordance with the draft provided to the Court on behalf of Austin BMI. The effect of the draft order is to approve the change application. At the time the intimation was given, I indicated reasons would be provided in due course. What follows are the reasons for approving the change application. -- 2 of 10 -- 3 [6] By way of background, on 11 March 2023, final orders were made in appeal number 912 of 2020. The orders allowed an appeal against Council’s deemed refusal of a development application and granted, subject to conditions, two development permits. The permits, which attach to land situated at Whitwood Road and Barclay Street, New Chum, authorise the following assessable development to occur, namely: (a) a material change of use for Special Industry (landfill, waste transfer station, resource recovery and ancillary industrial activities), Caretaker Residence and Environmentally Relevant Activities (Nos. 60(2)(h), 33 and 62); and (b) operational work (vegetation clearing). [7] The approved development comprises two broad components, namely a landfill and resource recovery facility. The development is described at paragraphs [44] to [109] of the RFJ. Save where necessary, I do not intend to repeat what is set out in these parts of the RFJ. It is sufficient to say that I have had regard to paragraphs [44] to [109] and adopt the contents for the purposes of these reasons. [8] The Court approval includes, inter alia, two sets of conditions. First, a set of ‘assessment manager’ conditions. Second, a set of referral agency conditions advanced by the Chief executive to reflect relevant State agency interests. The former require, inter alia, development to occur in accordance with a number of approved plans, including a general arrangement plan. A number of elements of the development can be identified on this plan including: (1) the landfill; (2) the resource recovery area; (3) an infrastructure area; (4) a leachate and landfill gas management area; (5) a southern sediment pond; and (6) an eastern sediment pond. [9] The landfill component involves the progressive filling and rehabilitation of a void created by open cut mining. It is to be filled with non-putrescible waste. Prior to filling the void with waste, it is to be partially dewatered and backfilled to create an engineered platform upon which a composite liner will be placed. The platform includes a 5 metre thick compacted clay layer. [10] The resource recovery area sits between the landfill and infrastructure area. It was described at paragraph [58] of the RFJ as follows (footnotes omitted): “The sorting, processing and recycling area adjoins the eastern edge of the infrastructure area. It is about 10 ha in size (approximately 300m long x 350m wide). The plans of development reveal it will contain recycled product storage bays, three recovery and processing sheds and a bin storage shed. The sheds will be constructed generally in accordance with a concept building design, which contemplates the sheds being 15 metres in height and finished with a dark subdued colour palette. This, in combination with a 30 to 40 metre vegetated buffer that surrounds the edge of the sorting, processing and recycling area, is to ensure the built form merges into the landform and vegetation. The sheds have also been positioned to screen activities from viewing points to the east. Processing of material will occur within the sheds. This will assist in the mitigation of amenity impacts, such as those related to dust, odour and noise emissions.” [11] Beneath the sorting, processing and recycling area is carbonaceous material susceptible to spontaneous combustion. The footprint of this material is mapped on -- 3 of 10 -- 4 an approved plan. Condition 20(i) requires the mapped material to be removed and placed in the flooded part of the void (to be cooled, extinguished and deprived of oxygen). The process and procedure adopted to achieve this is to be the subject of a management plan. [12] Condition 20(i) is in the following terms: “Backfilling of former mining void … (i) The backfill material is to include all material from spontaneous combustion areas or ‘hot spots’ on the site, which must be broken in to matter with no more than 300mm dimension in any plane and placed into water in the prior mining void and extinguished. The process and procedures, including certification by an appropriately qualified and experience (sic) person for the extraction and construction methodology and certification that all spontaneous combustion or other hot spot areas (mapped or unmapped) have been removed from the site must be set out in a management plan provided to Council for assessment and approval in accordance with condition 3(c)(i).” [13] Condition 20(i) is not limited in its application to mapped material susceptible to spontaneous combustion. The condition requires backfill to include ‘all material’ (i.e. mapped and unmapped) from spontaneous combustion areas or ‘hot spots’. [14] Two related conditions were included in the Chief executives’ referral response. The first is condition 10, which is consistent in substance with condition 20(i) and states: “10. The spontaneous combustion area mapped in the western batter spoil within the Spontaneous Combustion Plan, prepared by ATC Williams, dated 18 December 2020, Fig 14 Rev A must be excavated and then submerged into a part of the void that will not be dewatered beyond the long-term ground water level RL 18, prior to construction of the 5 metre compacted fill layer in the relevant cell.” [15] The second is condition 11. The condition is directed towards unmapped heated material and how it is to be managed. Condition 11 states: “11. Develop and implement a management plan for the treatment and/or appropriate disposal of any unmapped heated material identified outside of the spontaneous combustion areas as identified on the plan Spontaneous Combustion Plan, prepared by ATC Williams, dated 18 December 2020 Fig 14 Rev A exposed during construction or operations of the activity.” [16] Condition 11 admits of the prospect that unmapped heated material may be identified. Material of this kind is to be subject to a management plan. The plan is directed towards the ‘treatment and/or disposal’ of the unmapped material. The use of ‘and/or’ admits of three options: (1) the hot material may remain in place but is treated; (2) the hot material is removed and disposed of appropriately; and (3) a combination of (1) and (2). The affidavit material exposes that Austin BMI seeks, by its change application, to pursue a course consistent with (3). -- 4 of 10 -- 5 [17] The change application does not seek to amend condition 11 of the referral agency response. [18] Conditions 20(i), and 10 and 11 of the referral agency response: (a) are directed to a reason for refusal at trial, namely whether the risk to the landfill liner associated with underground fires, caused by spontaneous combustion, could be appropriately managed: paragraph [254](e) and p.181, para 18 of the RFJ; and (b) are consistent with the finding at paragraph [256] of the RFJ that the asserted risk to the landfill liner could be appropriately managed through the imposition of conditions, namely ‘a condition…requiring the combustible material to be removed and then submerged in that part of the void which will not be dewatered’. [19] The approved plans depict the southern sediment pond adjoining the south-western edge of the landfill and the southern side of the leachate and landfill gas management area. Condition 22(g) of the Court approval requires all of the sediment ponds to be ‘…redesigned to contain the 100-year ARI (1% AEP) 24-hour rainfall-runoff event’. Details for assessment are to be provided to Council for approval in accordance with condition 3(c)(i). [20] The site infrastructure area is located to the west of the resource recovery area. It is described at paragraph [57] of the RFJ as follows (footnotes omitted): “The site infrastructure area adjoins the eastern edge of the buffer area. It is through this area that the integrated waste facility is accessed from Austin Street. In this location there is an administration office, carpark, weighbridge, wheel wash, water tanks, ‘untarping areas’ for B-Double trucks, caretaker’s accommodation and a workshop/fuel storage. The proposed concept rehabilitation plan indicates this area, and the access to it, will be landscaped. The footprint of the infrastructure area sits predominantly, if not entirely, within the Regional Business and Industry Investigation Zone of the planning scheme.” [21] The changes proposed to the Court approval are set out in an affidavit of Mr Garred, who is a qualified town planner. I accept Mr Garred’s summary of the changes proposed, which accords with my examination of the approval, the bundle of amended plans and the draft order provided to the Court on 5 May 2026. [22] In summary terms, the changes proposed involve amendments to approved plans and conditions to reflect: (1) general layout and earthworks changes to the access road, infrastructure area and associated workshop and fuel storage; (2) an increase in the size of the southern sediment pond to achieve compliance with condition 22(g); (3) consequential changes to the development layout caused by (2); (4) a proposed change to condition 20(i) and (t) in relation to the management of material susceptible to spontaneous combustion; and (5) changes to the pad level and layout of the resource recovery area by reason of items (2) and (4). [23] None of the respondents took issue with the changes identified in items (1) to (3) and (5). -- 5 of 10 -- 6 [24] The fourth respondent accepts the changes identified in items (1) to (3) and (5) are minor changes as defined in Schedule 2 of the PA. It also accepts that these changes are meritorious. In this regard, Mr Allen, who appeared for the fourth respondent, submitted that each of the changes, save for item (4) above, represented an improvement to the approved development. I accept this submission. It is made good having regard to the substantial body of affidavit material filed in support of the change application. [25] The sole issue in dispute was directed to item (4). The fourth respondent contended the change proposed to condition 20(i) (and to a lesser extent condition 20(t)), going to the management of material susceptible to spontaneous, resulted in substantially different development and was not a minor change as defined. Mr Allen conceded that, if contrary to his submission, the change did not result in substantially different development, there was no reason to warrant refusal of this aspect of the change application having regard to its merits. Mr Allen’s concession was a fair one and accords with my view of the affidavit material in support of the change application. [26] Condition 20(i), in the amended form proposed by Austin BMI, is as follows (with amendments underlined): “(i) The backfill material is to include all material from spontaneous combustion areas or ‘hot spots’ on the site (other than material below the approved finished levels of the Resource Recovery Area pad), which must be broken in to matter with no more than 300mm dimension in any plane and placed into water in the prior mining void and extinguished. Material from spontaneous combustion areas or ‘hot spots’ on the site below the Resource Recovery Area Pad and otherwise identified within the area shown on Exhibit MAD-2 to the Affidavit of Mark Andreas Dekker affirmed on 1 May 2026 in Planning and Environment Court Proceeding No. 652 of 2026 may remain in situ provided it is capped with a minimum 1.5m thickness compacted clay liner and then covered with a minimum 300mm thickness hardstand material and finished no higher than the approved finished levels of the Resource Recovery Area pad. Further, the minimum 1.5m thickness and minimum 300mm thickness compacted clay capping system must connect with and be mechanically keyed into the 5m thick clay landfill batter liner required by condition 20(t) below and be maintained at all times. The process and procedures, including certification by an appropriately qualified and experience (sic) person for the extraction and construction methodology and certification that all spontaneous combustion or other hot spot areas (mapped or unmapped) have been removed from the site or clay capped must be set out in a management plan provided to Council for assessment and approval in accordance with condition 3(c)(i). Operational works applications which relate to the above areas must address the above requirements.” [27] The amendments proposed to condition 20(i) depart from paragraphs [58] and [256] of the RFJ. Rather than remove and place all material susceptible to spontaneous -- 6 of 10 -- 7 combustion and ‘hot spots’ in the partially dewatered void, the amended condition permits the material, where located below the approved finished levels of the resource recovery area, to be capped. The proposed cap is a composite system comprising a 1.5 metre thick clay liner covered with a minimum of 300mm of hardstand. The cap is to be ‘keyed’ into the 5 metre thick clay landfill liner. The requirement to key the cap into the landfill liner is also required by way of a proposed amendment to condition 20(t). The final particulars of the design, having regard to the terms of the amended condition, is intended to be the subject of a development application for operational works. [28] The amended condition, which reflects a different risk management response to a known site constraint, is consistent with condition 11 of the referral agency response to the extent a plan for the treatment ‘and/or’ disposal of unmapped hot material is to be developed and implemented. The amended form of condition 20(i) however goes further than condition 11. The former requires a development application to be made to Council for the works to be assessed. The latter involves a less formal approach. It requires the development and implementation of a management plan. [29] The need for the amendment to condition 20(i) (and 20(t)) of the Court approval was explained by Mr Dekker. He has day-to-day involvement with the proposed development, which has spanned several years. [30] Mr Dekker described the works that have commenced on the site to implement the Court approval. This has included, as I have said, the removal of material susceptible to spontaneous combustion and the placement of it underwater in the former coal mining void. The evidence establishes that this process has not gone as anticipated in the resource recovery area. [31] The approved plans identify a pad level for the resource recovery area. It slopes from about RL 88m AHD (in the north-west) to RL 77m AHD (in the south-east). Mr Dekker explained that the approved pad levels were fixed having regard to an estimated volume of spontaneous combustion material beneath the resource recovery area. As the excavation and placement of this material has occurred, the estimate has proven to be inaccurate. While the average depth varies, geotechnical information suggests material susceptible to spontaneous combustion is in fact 15 metres deeper than previously assumed. [32] At first blush, it might be thought that the response to this change in circumstance is a simple one; remove all of the material susceptible to spontaneous combustion irrespective of its depth. Mr Dekker’s evidence however establishes that the solution is not that simple. Removing all of the material creates a different issue. It would lower the resource recovery pad to such a level that a depression in the contours of the site is created. This is problematic for the management of overland flow and leachate. The depression would act as a sink capturing water, impeding stormwater drainage. This could lead to flooding impacts during significant rainfall events. The undesirability of this is made clear in the RFJ. It has the potential to cause overland flow to mix with waste, which, in turn, is treated as leachate that must be managed. [33] The change to condition 20(i) is an alternative approach to the management of the risk identified at paragraphs [254](e) and [256] of the RFJ. The condition addresses the risk by introducing a barrier to prevent the ingress of oxygen to material susceptible to spontaneous combustion, thereby minimising the risk of re-heating and -- 7 of 10 -- 8 combustion. This approach, as was explained by Dr Williams, has been successfully employed at other rehabilitated coal mining sites. In his view, the alternative approach will be successful here for a number of technical reasons. It is unnecessary to repeat them here. It is sufficient to say that I accept Dr Williams’ evidence, which was unchallenged. He was not required for cross-examination. Further, it is not difficult to accept Dr Williams’ technical evidence once it is appreciated that the material said to be susceptible to spontaneous combustion will be covered by a 2.1 metre thick composite layer comprising: (1) a 300mm thick concrete slab, which provides the finished floor level for the resource recovery area; (2) a 300mm thick layer of hardstand; and (3) a 1.5 metre thick clay liner, which will be keyed into the adjacent 5 metre thick clay layer forming part of the composite landfill liner. I am satisfied each of these layers, taken in combination, will provide an effective barrier to appropriately manage the risk discussed at paragraphs [254](e) and [256] of the RFJ. [34] It was common ground between the parties, including the fourth respondent, that the substantially different development test: (1) is to be considered broadly and fairly; and (2) turns on matters of fact, degree and impression. I am satisfied the evidence establishes, as a matter of fact and degree, that the changes proposed to the Court approval will not result in substantially different development. In this regard, I am comfortably satisfied the changes do not alter the nature, scale and intensity of the approved use. Further, the changes, considered broadly and fairly, are beneficial, improving the development outcome overall. By way of example, this can be demonstrated by reference to the change that involves lowering the pad level for the resource recovery area. By lowering the elevation of the pad, and the built form that sits upon it, the visibility of this part of the development is further reduced, minimising the potential for adverse visual amenity impacts. Such an outcome is consistent with the findings at paragraphs [580] to [585] of the RFJ. [35] Given the evidence establishes: (1) compliance with s 79(2) of the PA with respect to proof of owner’s consent; (2) the proposed changes to the Court approval meet the definition of minor change in Schedule 2 of the PA; and (3) the changes proposed are, overall, meritorious; I had no difficulty concluding that the change application should be approved. [36] The fourth respondent’s case against approval was limited to condition 20(i). It submitted the change proposed to the condition ‘is...of such a degree that it changes the methodology of addressing a major risk from the development and results in a substantially different development’. This proposition was advanced in reliance upon an affidavit of a mining engineer, Mr Donegan. [37] As I understand Mr Donegan’s evidence, it is his view that the change to condition 20(i) will not effectively manage the risk to which it is directed, namely it will fail to protect the landfill liner. He expressed the following conclusion in this regard: “In my view the original condition requiring all hot ground to removed or extinguished was to mitigate the risk of hot ground to make the site inert from the risks created by past coal mining. If the hot ground is removed or extinguished, the coal as the energy source is removed, and there is no energy source and the hot ground cannot regenerate. If not removed or extinguished and the coal remains but is clay capped, cracking over time can introduce Oxygen and the capping can actually -- 8 of 10 -- 9 exacerbate the problem by retaining the heat but not preventing the ingress of Oxygen.” [38] The above conclusion makes two points that are developed in the preceding paragraphs of Mr Donegan’s affidavit. Mr Donegan seeks to undermine the effectiveness of the proposed 1.5 metre clay cap as a risk mitigation measure by suggesting that: (1) the presence of the clay cap will not starve the hot material susceptible to spontaneous combustion from oxygen – the temperature of the underlying material may dry out the cap, causing it to crack and thereby provide avenues for the ingress of oxygen; and (2) the clay cap, even if it remains intact, will not allow the underlying material to cool as it will trap, and preclude the transfer of, heat. [39] Mr Holt KC raised several legitimate objections to Mr Donegan’s evidence. It is unnecessary to dwell upon the objections because, even if admissible, the evidence does no more, in my view, than establish there is good reason to be cautious about the proposed amendment to condition 20(i). That point can be readily accepted. I also accept this is precisely the approach adopted by Austin BMI, and Dr Williams, in suggesting the proposed amendment to condition 20(i). [40] Dr Williams explained, in considerable detail, and by reference to project experience, the mitigation measures proposed in the amended form of condition 20(i) and why, in his view, they would be successful. Dr Williams was not required for cross- examination. His unchallenged explanation greatly assisted me. The explanation is cogent and I accept it. The evidence establishes that the risk of concern to Mr Donegan has been acknowledged, is well understood and can be managed in an acceptable way. [41] While this is sufficient to dispose of the fourth respondent’s contentions, for completeness, I observe that Mr Donegan’s evidence fell well short of persuading me that the change in approach to risk management inherent in the amended form of condition 20(i) was unmeritorious. Indeed, I have misgivings about accepting Mr Donegan’s evidence without significant qualification given the affidavit states that: (1) he acted on ‘…a summary of the changes…” proposed but does not identify whether the summary included the precise terms of condition 20(i) in its amended form; and (2) he was unable in the time available to “…look at all of the material filed by BMI…”. [42] Contrary to the fourth respondent’s submissions, I am satisfied the changes proposed to condition 20(i) do not result in substantially different development. In my view, while the change proposed alters the way in which a known site constraint (and acknowledged risk) will be managed, it does not sound in a change to the nature, scale or intensity of the use approved. Nor will it exacerbate known impacts. Rather, the change is intended to ensure an existing constraint, which has proven to be more extensive than first assumed, will be appropriately managed in light of the known risks. It is not difficult to conclude this intention is achievable and appropriate given Dr Williams’ evidence (which I accept) and the requirements of condition 11 of the referral agency response in relation to unmapped material. -- 9 of 10 -- 10 [43] The evidence comfortably demonstrates the changed approach to the management of material susceptible to spontaneous combustion is meritorious. Further, the evidence establishes that, when considered broadly and fairly, all the changes proposed to the Court approval will deliver an improved development outcome. -- 10 of 10 --