Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2020] QPEC 47 [2021] QPELR 809

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2020] QPEC 47 PARTIES: CLEANAWAY SOLID WASTE PTY LTD (appellant) v IPSWICH CITY COUNCIL (respondent) And QUEENSLAND ELECTRICITY TRANSMISSION CORPORATION LIMITED TRADING AS POWERLINK QUEENSLAND (first co-respondent by election) And CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING (second co-respondent by election) And DR CORNELIA TURNI (third co-respondent by election) And ROSEMAREE THOMASSON (fourth co-respondent by election) FILE NO/S: 4101 of 2019 DIVISION: Planning and Environment Court PROCEEDING: Application in Pending Proceeding ORIGINATING COURT: Planning and Environment Court of Queensland, Brisbane DELIVERED ON: 15 September 2020 DELIVERED AT: Brisbane HEARING DATE: 30 July 2020 JUDGE: Williamson QC DCJ -- 1 of 13 -- 2 ORDER: 1. The appeal proceed to be heard and determined on the basis of the plans of development listed in ‘Annexure A’ to the appellant’s amended application in pending proceeding, filed 1 June 2020. 2. The appeal be listed for review at 10:00 am on 18 September 2020. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – where appeal against the respondent’s decision to refuse a development application to expand an existing landfill facility – where appellant proposes to change the development application – whether the change results in substantially different development – whether the change would cause a referral agency to assess the application against, or having regard to, a matter other than a matter it must have assessed the application against when the application was made – whether the change to the development application is a minor change as defined in the Planning Act 2016. LEGISLATION: Planning Act 2016, Schedule 2. Planning Regulation 2017, Schedule 10 & Schedule 24. Planning & Environment Court Act 2016, ss 10 and 46. CASES: Dempsey v Brisbane City Council [2012] QPELR 396 Jimboomba Lakes Pty Ltd v Logan City Council & Anor [2015] QPELR 1044 Macquarie Leisure Operations Ltd v Gold Coast City Council & Ors [2007] QPELR 418 COUNSEL: Mr G Gibson QC with Mr J Houston for the appellant Mr C Hughes QC with Mr Lyons for the respondent Mr J Ware for the second co-respondent by election Dr C Turni, self-represented Mrs R Thomasson, self-represented SOLICITORS: Allens Lawyers for the appellant McInnes Wilson for the respondent HopgoodGanim for the second co-respondent by election [1] This is an appeal against Council’s decision to refuse a development application seeking approval to extend an existing landfill facility. The appeal has progressed to the point where the issues in dispute have been formally notified. In that regard, Council, and two of the co-respondents by election, have notified they will contend the development application should be refused. Extensive reasons for refusal have been identified. [2] In response to the reasons for refusal, the appellant (Cleanaway) seeks to make changes to its development application. The changes are embodied in a suite of amended plans of development, which are identified in ‘Annexure A’ to an amended application in pending proceeding, filed 1 June 2020 (the amended suite of plans). Cleanaway seeks an order that the appeal proceed to be heard and determined on the basis of the amended suite of plans. -- 2 of 13 -- 3 [3] The court can only consider the amended suite of plans in the appeal where the extent of the change proposed is a ‘minor change’.1 This phrase, for the purpose of a development application, is defined in Schedule 2 of the Planning Act 2016 (PA) as follows: “minor change means a change that— (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; or…” [4] It is for Cleanaway to establish that the changes embodied in the amended suite of plans satisfy the ‘minor change’ definition. To discharge its onus in this regard, Cleanaway relied upon an extensive body of affidavit material. That material demonstrates the changes proposed satisfy subparagraphs (a)(ii)(A), (B), and (E) of the minor change definition. No party to the appeal suggested otherwise. [5] The issues to be determined in this application relate to subparagraphs (a)(i), (a)(ii)(C) and (a)(ii)(D) of the minor change definition. For the reasons that follow, Cleanaway has established that these limbs of the definition are also satisfied. [6] The only active party to oppose the minor change application was Dr Turni. She contends the changes proposed to the development application do not meet subparagraph (a)(i) of the minor change definition. This raises the following question for determination: whether the changes embodied in the amended suite of plans result in ‘substantially different development’. [7] It is necessary to set out some background before dealing with the above question. 1 s 46(3), Planning & Environment Court Act 2016. -- 3 of 13 -- 4 [8] Cleanaway operates an approved landfill facility and waste transfer station at Chum Street and Rhondda Road, New Chum. In June 2018, Cleanaway made a development application to Council to expand the approved use. The application was impact assessable and triggered referral to the first and second co-respondent by election. Approval was sought for approximately 7.5 million m3 of additional landfill capacity, achieved over a number of stages. 2 The development application did not propose a change to the type, or annual rate, of waste material currently received at the landfill facility. [9] The proposed expansion involved a number of elements, which are described in the Ovenden report at paragraphs 32 to 34. In summary terms, the elements are as follows: (1) a lateral extension to the landfill, equating to an area of approximately 2.34 ha; (2) a vertical extension to the landfill up to a maximum pre-settlement height of RL 85m AHD; (3) modifications to landform grades to, inter alia, improve surface water management, and to reduce leachate generation and differential settlement; (4) the provision of a resource recovery centre for sorting, removing and stockpiling received materials; (5) the provision of new water management infrastructure; (6) the provision of vegetated screening bunds; (7) the construction of a new internal road; and (8) a rehabilitation strategy for recognised environmental values on the land. These elements are depicted in plans of development, which were marked exhibit 2. [10] A number of specific features of the development can be identified in the plans marked exhibit 2. [11] The crest (or peak) of the final landform is located towards the south-western corner of the fill area footprint. Within that area, the final landform comprises new fill placed upon existing fill. A ‘piggy back’ liner is proposed between existing fill and new fill. This aspect of the development represents the vertical extension discussed in item (2) in paragraph [9]. [12] The lateral extension discussed in item (1) in paragraph [9] is depicted in an area described as ‘Proposed Cell 6 (eastern extension)’. It is located in the north-eastern corner of the development footprint. [13] The waste material is to be placed in stages, and visually screened by a 12 metre high perimeter bund and screening bund. In the early stages of development, a bund is located towards the south-western end of the fill area adjacent to, and sitting above, the peak height of the final landform. The bund progressively extends towards the north-eastern corner of the fill area as the stages of filling are completed, and the final landform is achieved. Portable screening barriers between 6 and 8 metres in height are also proposed. They are intended to move with the progression of the filling activity to provide supplementary screening. [14] Typical cross-sections through the landfill indicate the final landform includes one of two capping methods, namely a phytocap and geosynthetic liner cap. The evidence establishes that: (1) the phytocap can be landscaped with trees, shrubs and grasses; and (2) the geosynthetic liner cap can be landscaped, but is suited to shrubs and grasses only. The extent proposed for each cap type is not indicated on the plans of development. 2 Affidavit of Gregory John Ovenden, exhibit GJO-1 (Ovenden report), paragraph 34. -- 4 of 13 -- 5 [15] The plans of development depict a leachate pond in the north-eastern corner of the fill area. This pond is intended to collect leachate conveyed by pipes located around the perimeter of the fill area. The pond is intended to replace two existing leachate ponds located in the south-eastern part of the fill area, which are to be decommissioned as part of the expansion. A new road is proposed around the northern, eastern and southern sides of the leachate pond. [16] The plans of development identify an existing sediment basin in the south-eastern corner of the fill area. This basin is to be decommissioned. The proposed plans provide for three new sediment basins, namely ‘Sediment Basin A’, ‘Sediment Basin B’ and a ‘High Efficiency sediment basin’. Basin A and B are located on the eastern side of the fill area. The plans indicate they receive stormwater conveyed by pipes and vegetated channels located around the perimeter of the fill area. A new road is proposed to the west of Basin A. The High Efficiency sediment basin is located at the north-western edge of the fill area. [17] The development application includes a rehabilitation strategy for the land, which has recognised environmental value. The strategy is articulated in pictorial form in the development plans. The areas to be rehabilitated are located to the south, south-east and east of the fill area. All areas to be rehabilitated are within the boundaries of the land the subject of the development application. [18] The amended suite of plans were marked exhibit 3. Mr Ovenden, Cleanaway’s town planning witness, examined these plans to identify the changes proposed to the development application. With the assistance of a number of technical experts, Mr Ovenden identified the changes in Table 3 of his report. Prima facie, the changes are intended to achieve an improved development outcome for elements (3), (5), (6), (7) and (8) discussed in paragraph [9] above. [19] Having regard to the amended suite of plans, Table 3 of the Ovenden report, and the technical reports referred to therein, the changes proposed to the development application can be summarised as follows: (a) greater detail is provided as to the extent, and specification, of the phytocap and geosynthetic liner cap; (b) the plans clarify the extent of the ‘piggy back’ liner proposed at the interface between new and existing waste; (c) the final contours of the landform have been re-shaped to smooth out the surface of the fill to allow for a perimeter bund, and to blend surface levels with surrounding levels; (d) whilst subparagraph (c) has not caused the overall volume, or peak height, of the landfill to increase, it has resulted in changes in levels, namely: (i) the height of the finished levels across the landform have, in general terms, increased in the order of 1 to 2.5 metres; (ii) the height of the finished levels of the landform across Cell 6 have increased by 2 to 4 metres, with an area near the crest of the perimeter bund increased by 5 to 6.4 metres; -- 5 of 13 -- 6 (e) the proposed leachate pond is re-located to the south of the landfill in an already disturbed area so as to reduce the impact of the development on existing native vegetation; (f) with respect to the management of stormwater and the location and configuration of sediment basins, the amended suite of plans depict: (i) Sediment Basin A orientated 90 degrees to the east, and re-described as ‘Proposed Sediment Basin 1’; (ii) Sediment Basin 1 operational during Stages 1 and 2 of the development, and then decommissioned; (iii) a new sediment basin, namely ‘Proposed Sediment Basin 4’ located to the north of Sediment Basin 1 and operational during Stages 3 and 4 of the development; (iv) Sediment Basin B replaced with ‘Proposed Sediment Basin 2’, which starts out significantly smaller than Basin B and increases in size as each stage of filling is completed; (g) modest design changes are proposed to enhance the perimeter bund discussed above, coupled with the introduction of additional temporary screening bunds – this is intended to provide greater screening of the landfill operation; (h) changes have been made to the rehabilitation strategy to reflect the matters discussed above; and (i) three design errors have been corrected, namely: (i) a proportion of the proposed access road along the eastern boundary of Cell 6 has been relocated within the landfill footprint so as to connect to an existing internal access road; (ii) leachate pipes and a vegetated grass channel adjoining Cell 6 have been relocated to correspond with the new road alignment; and (iii) the proposed internal access road to the south of Sediment Basin 1 was deleted from the plans for Stage 1 and 2 because it will not be constructed until Stage 3. [20] Do the amended suite of plans result in substantially different development? [21] This is a question of fact and degree. Guidance can be taken from Schedule 1, paragraph 4 of the Development Assessment Rules. The schedule contains a list of non-exhaustive considerations that may, not must, result in a substantially different development. As the schedule makes clear, it is the particular circumstances of each case, in the context of the changed proposal, which must be considered. [22] As a matter of fact and degree, I am comfortably satisfied the changes embodied in the amended suite of plans do not result in substantially different development. This is so for the following reasons. -- 6 of 13 -- 7 [23] The changes proposed will not introduce a new use. [24] The nature, scale and intensity of the material change of use for which approval is sought will not change as a consequence of the amended suite of plans. That the scale and intensity of the use applied for remains unchanged is confirmed once it is appreciated that key features of the development remain unchanged, namely the overall extent of the development footprint, hours of operation, the type of waste received, the volume of fill received, and the annual rate at which waste material is received. [25] The changes proposed do not alter the manner in which the use is intended to operate, nor remove a material (or important) feature of the development. [26] The changes are intended to achieve one, or a combination, of the following objectives (either directly or as a consequential change): (1) provide design detail that was absent from the development application, or required clarification; (2) ameliorate the visual impacts of the proposed development, particularly the final landform; (3) ameliorate the impact of the development on known environmental values; (4) improve the environmental rehabilitation outcome for the land; (5) improve the design of stormwater and leachate management measures; and (6) correct errors in the original design. That these objectives underlie the proposed changes to the development application is confirmed by the evidence of a number of experts relied upon by Cleanaway, namely Messrs Ovenden, Green, Clark, Chenoweth, Welchman, Francis and Ms Salt. I am satisfied the evidence establishes that the changes proposed meet the above stated objectives, and do not have the unintended consequence of resulting in substantially different development. [27] At first blush, the most significant change to the development application involves re-shaping the final landform, which has increased the finished levels of the landfill. This is discussed in paragraphs [19] (c) and (d) above. The primary impact that can be said to arise from this change is a visual/character impact. This impact was examined by Mr Chenoweth. He considered the change, and its impact, having regard to: (1) the location of likely sensitive receptors affected by the change; (2) the viewing distance for each of the receptors to the proposed development; and (3) the proposed landscaping regimen intended to mitigate visual and character impacts. Having regard to each of the factors, and Mr Chenoweth’s evidence, I am satisfied the re-shaping of the landform, and any subsequent increase in height, will not give rise to a new visual, or character, impact. Nor will the changes exacerbate a known visual, or character, impact. [28] In support of her position, Dr Turni filed an affidavit and written submissions. These documents collectively raised a wide range of technical criticisms about the amended suite of plans. A useful summary of most, but not all, of the criticisms advanced by Dr Turni can be identified from the conclusion to her written submissions, which states:3 3 Ex.10, p.14. -- 7 of 13 -- 8 “In conclusion, the amendments that have been proposed as minor have not been clearly defined in the sense that final designs have not been provided by Cleanaway and the expert (sic) have only given provisional assessment (sic) as the details for final assessment were not there. Therefore, most of these assessments are not completed and need assessments by other agencies that will insist on full details. To have this added to the appeal means that a whole assessment of these proposed changes has to be undertaken, which will add to the cost of the court case for the residents of Ipswich who are ultimately paying for the representation.” [29] The points that can be discerned from the above submission are: (1) the changes proposed have not been clearly defined in ‘final designs’; (2) the expert evidence given in support of the proposed changes are ‘provisional assessments’; (3) the assessments that need to be carried out by ‘other agencies’ are not completed because of the absence of final details; and (4) a ‘whole assessment’ of the changed application is required, which will add to the cost of the litigation. [30] With respect to item (1), I do not accept that Cleanaway’s minor change application failed to ‘clearly define’ the changes proposed to the development application. Extensive affidavit material has been filed in support of the application, which includes a large body of expert evidence. That evidence identifies, in clear terms, the changes proposed, and examines the consequences of the changes. I am satisfied the evidence establishes that the changes do not result in substantially different development. It is to be noted in this regard that none of Cleanaway’s experts were required for cross-examination by Dr Turni. [31] With respect to item (2), I do not accept that the expert evidence relied upon by Cleanaway in support of its application is unreliable because it is founded upon ‘provisional assessments’. This is a characterisation given to the evidence by Dr Turni. It is characterised in this way because she contends the opinions expressed by the experts were not informed by ‘final designs’. [32] It is correct to say that the level of detail provided in the amended suite of plans is unlikely to be suitable, in its present form, for construction purposes, let alone represent the ‘final’ design for the expanded landfill facility in every respect. It does not however follow that the views expressed by the experts in reliance upon those plans are provisional, or unreliable, for the purposes of determining this minor change application. To the contrary, I am satisfied, having regard to all of the affidavit material, there is sufficient information to identify the changes proposed to the development application. There is also sufficient information to determine the consequences of the changes proposed. For the reasons given above, I am satisfied the changes proposed do not result in substantially different development. [33] With respect to item (3), Dr Turni suggested the changes proposed to the development application require a new assessment to be undertaken by a number of entities, including Council, the Environmental Protection Agency, and the Department of State Development, Manufacturing, Infrastructure and Planning. It was submitted that a new assessment was required given the technical issues said to arise as a consequence of the relocated leachate ponds; impacts on koalas; slope stability of the phytocap and ‘piggy back’ liner; and the design of the perimeter bund. -- 8 of 13 -- 9 [34] It is correct to say that the changed application will need to be reviewed by Council and the Department. There is, however, nothing unusual or telling about this. They are parties to the proceeding. All parties to this appeal are expected to keep their position under review, particularly in response to a change to the development application. This is to ensure the undertaking given under s 10(2) of the Planning & Environment Court Act 2016 (PECA) is complied with. In such circumstances, I am satisfied the need for Council and the Department to undertake a review of the amended suite of plans is not of itself an indicator that the changes to the development application result in substantially different development. [35] That is not to say the need to undertake a ‘further review’ may never be an indicator of a change that is other than a minor change. It has been held (in the context of the repealed Integrated Planning Act 1997) that a change to a development application was not minor because the exigencies of litigation would have unduly constrained the assessment manager, and referral agencies, from properly examining the merits of the changed proposal in all of the circumstances4. Putting to one side whether this proposition holds in the context of the minor change definition in the PA, I would, in any event, only expect such a point to arise in rare circumstances and be supported by clear evidence. Here, there is no evidence to establish this is such a case. I am satisfied the exigencies of litigation would not unduly restrict the Council, or any other entity, from reviewing the amended suite of plans in accordance with s 45(5) of the PA and, in turn, forming a view about the merits. [36] With respect to item (4), as I said above, the amended suite of plans will need to be considered by all parties to review their respective positions in the appeal. This will inevitably involve additional cost. This is not, in my view, relevant to whether the amended suite of plans result in substantially different development. [37] The four criticisms that can be discerned from the summary of Dr Turni’s submissions, and dealt with above, do not represent the only points made against the minor change application. Three further issues can be discerned from the body of Dr Turni’s written submissions, and affidavit. [38] First, Dr Turni raised a plethora of technical matters critical of the merits of the amended suite of plans. In response, Mr Gibson QC and Mr Houston submitted that the issues raised in this respect were not relevant to the minor change application. I agree. The issues raised by Dr Turni in this respect are relevant to the determination of the appeal proper and do not inform whether the amended suite of plans satisfy the minor change definition. [39] For completeness, it is to be noted that Mr Gibson QC and Mr Houston helpfully prepared comprehensive written submissions in response to Dr Turni’s criticisms of the merits of the amended suite of plans. Set out in those submissions are extensive references to the large body of expert evidence responsive to Dr Turni’s criticisms. Whilst I express no view at this stage about the merits of the amended suite of plans in light of Dr Turni’s criticisms, I can indicate that I was satisfied the nature of the criticisms raised do not stand in the way of a conclusion that the changes proposed do not result in substantially different development. 4 Macquarie Leisure Operations Ltd v Gold Coast City Council & Ors [2007] QPELR 418. -- 9 of 13 -- 10 [40] Second, Dr Turni submitted that the changes proposed to the phytocap and ‘piggy back’ liner were substantially important changes, and, as a consequence, not minor. More particularly, it was submitted:5 “Essentially this means that if the phytocap and the piggyback (sic) needs significant engineering works and the phytocap are substantial (sic) important for the rehabilitation as they are supposedly the only caps that allow tree growth which is what is needed for the rehabilitation to former (sic) landscape and koala habitat, then these are not minor amendments. If you shift a leachate pond to a new location to avoid the smell which is essential for the acceptance of this landfill, then this is important to the development and again not a minor amendment.” [41] Dr Turni sought to advance the above submission by reference to Jimboomba Lakes Pty Ltd v Logan City Council & Anor [2015] QPELR 1044. At paragraph [14] of that judgment, his Honour Judge Everson said: “On a simplistic view it could be stated that the changes the subject of the application merely seek to lessen impacts of the development and provide an appropriate design solution to the problem of providing a flood free access for prospective residents. The proposed development remains a proposal for a relocatable home park. Such a simplistic approach ignores the limited scope contemplated for a minor change to an application. It is not the role of the court to undertake a comprehensive investigation an analysis of any change sought to be made to a development application. This is expressly provided for in the IDAS process. The limitation in s 350 of SPA that the change not result in a substantially different development means that the proposed change must not be essential, material or important in the context of the development application.” (emphasis added) [42] As I have already observed, the limitation on the court’s power to consider a change to a development application is prescribed by s 46(3) of PECA. This provision enables the court to consider a change to a development application, but only where it is a ‘minor change’. This is a defined phrase in Schedule 1 of PECA. It is defined by reference to the definition in Schedule 2 of the PA, which is set out in paragraph [3]. [43] The definition of minor change in the PA does not, in combination with s 46(3) of PECA, preclude the court from considering a change to a development application that is characterised as essential, material or important. Rather, the provisions, taken in combination, permit the court to consider a change where it is satisfied that, inter alia, it would not result in substantially different development. Central to this test is the result of the change to a development application, rather than the significance of the change itself. That this is so has long been recognised by the court: see for example Dempsey v Brisbane City Council [2012] QPELR 396, [20]. To the extent it is submitted the decision in Jimboomba Lakes suggests otherwise, I am not persuaded that such an approach is correct having regard to the definition of ‘minor change’ in the PA, which is the definition to be applied to the application presently before the court. 5 Ex.10, p.4. -- 10 of 13 -- 11 [44] Here, it can be accepted that all of the changes proposed are important. They are intended to address notified reasons for refusal. That they are important does not however answer the question posed in paragraph [6]. Having regard to the evidence before me, I am satisfied that question is resolved in the negative, irrespective of the importance of the changes. [45] Third, it was submitted by Dr Turni that the change to the location of the leachate ponds requires Cleanaway to obtain an approval from the Department of Environment and Science and to refer the application to the Department of State Development, Manufacturing, Infrastructure and Planning. The Chief Executive for the latter department is a party to this appeal. [46] It was not made clear by Dr Turni why the changes proposed to the development application triggered the need for a further approval, and/or additional referral. In any event, neither issue stands in the way of this application being allowed because: (1) even assuming an unidentified ‘further approval’ is required from the Department of Environment and Science, this does not engage any limb of the minor change definition in Schedule 2 of the PA; and (2) the Chief Executive, who is an active party to this proceeding, is a referral agency and does not support Dr Turni’s contentions. In this regard, Dr Turni did not direct me to any provision in the Planning Regulation 2017 (Regulation) to establish the amended suite of plans trigger an additional referral as contemplated by subparagraph (a)(ii)(C) of the minor change definition. This is in circumstances where Mr Ovenden carefully examined the Regulation with this aspect of the minor change definition in mind. He expressed the view that no referral was triggered as a consequence of the change. I am satisfied this is the true position, and, in turn, accept that subparagraph (a)(ii)(C) of the minor change definition is satisfied. I note that Mr Ovenden was not cross-examined by Dr Turni to suggest otherwise. [47] For the reasons given above, I am satisfied the three further reasons advanced by Dr Turni in opposition to the minor change application ought not be accepted. [48] Finally, I pause to observe that Mr Hughes QC and Mr Lyons, who appeared for Council, quite properly drew my attention to a potential referral point arising from the change and its association with mapped koala habitat in a koala habitat area located outside of a koala priority area. [49] The evidence established that the development application was properly made on 18 July 2018. At this time, there was no trigger contained in the Regulation in relation to a development that interfered with koala habitat in a koala habitat area where located outside of a koala priority area. On 7 February 2020, this position changed. The Regulation was amended to include such a trigger. Relevant mapping identifies an area of koala habitat on the land the subject of the application, which is in a koala habitat area located outside of a koala priority area. [50] The development application in its original form ‘interferes’ with koala habitat in the now mapped koala habitat area on the land. The proposed change to the development application intends to address this, in part, by repositioning the development footprint in a manner that reduces the extent of, but does not eliminate, interference with the koala habitat in the koala habitat area. There are locations where the development footprint depicted in the amended suite of plans is located within an area mapped as koala habitat in a koala habitat area. -- 11 of 13 -- 12 [51] Subsection (a)(ii)(D) of the minor change definition, which is set out in paragraph [3] above, requires consideration to be given to this question: whether ‘a change’ to a development application would cause a referral agency to assess the application against (or have regard to) a matter other than one it must have considered when the application was made. [52] It was appropriate for this question to be considered in this case about the mapped koala habitat. It is resolved in the negative. This is so for two reasons: (1) the relevant provisions of the Regulation, and referral trigger, were not in force when the application was made and not a matter that could have been considered when the application was made; and (2) it is not the change to the application that gives rise to the ‘new matter’ to be considered for the definition - the issue arises by reason of a change in the law. That a change in the law does not preclude the court from considering a change to an application is confirmed by the explanatory notes to the Planning Bill 2015. In dealing with the minor change definition the notes state, in part: “… the clause does not prevent a change being made simply because a change to a planning instrument or law would now require the development application as it was originally made to include prohibited development, additional referral or public notification.” [53] Mr Gibson QC and Mr Houston submitted there was, in any event, a further compelling reason why subsection (a)(ii)(D) of the minor change definition was not engaged by the amended suite of plans. It was submitted the change does not engage s 16B of Schedule 10 of the Regulation. For the reasons that follow, I agree. [54] Section 16B of Schedule 10 to the Regulation identifies when development interfering with koala habitat in a koala habitat area outside of a koala priority area constitutes assessable development. The provision states, in part: “16B Assessable development—development interfering with koala habitat in koala habitat areas outside koala priority areas (1) Development is assessable development to the extent the development involves interfering with koala habitat in an area that— (a) is a koala habitat area; but (b) is not a koala priority area. (2) However, subsection (1) does not apply to the extent the development— … (d) is carried out under a development permit given for an application that was properly made before 7 February 2020; or (e) is consistent with a development approval— -- 12 of 13 -- 13 (i) in effect for the premises on which the development is carried out; and (ii) given for an application that was properly made before 7 February 2020.” [55] The trigger is engaged where development interferes with koala habitat in a koala habitat area outside of a koala priority area. The phrase “interfering with koala habitat” is defined in Schedule 24 of the Regulation to include: “interfering with koala habitat – (a) means removing, cutting down, ringbarking, pushing over, poisoning or destroying in any way, including by burning, flooding or draining, native vegetation in a koala habitat area…” [56] Mr Gibson QC and Mr Houston submitted that the amended suite of plans do not involve development that will interfere with koala habitat as defined. I accept this submission. It was supported by evidence establishing that the mapped koala habitat, coinciding with the development footprint, has already been cleared pursuant to an operational works approval granted by Council on 4 February 2020. That the development does not involve ‘interfering with koala habitat’ means s 16B of Schedule 10 of the Regulation is not engaged and, as a consequence, does not give rise to assessable development in this context. [57] I also accept that, even assuming the amended suite of plans involve development interfering with koala habitat as defined, the existence of the approval given on 4 February 2020, and the subsequent clearing works, engage the exceptions stated in subsections (2)(d) and (e) of s 16B of Schedule 10 of the Regulation. That the exceptions are engaged mean the interference with koala habitat on the land is not assessable development. [58] For the above reasons, I am satisfied the changes proposed to Cleanaway’s development application fall within the minor change definition in Schedule 2 of the PA. [59] I will make an order that the appeal proceed to be heard and determined on the basis of the amended suite of plans, which are identified in ‘Annexure A’ to Cleanaway’s amended application in pending proceeding, filed 1 June 2020. The appeal will be listed for review at 10:00am on 18 September 2020. -- 13 of 13 --