Charters Towers Operations Pty Ltd v Charters Towers Regional Council

Planning Act 2016, s. 60(3)(b).

Buderim Private Hospital v Maroochy Shire Council & Anor [1996] QPELR 251.

Charters Towers Operations Pty Ltd v Charters Towers Regional Council [2025] QPEC 12.

Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51.

K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40; [2021] QPELR 518.

Metroplex Management Pty Ltd v Brisbane City Council & Ors [2010] QCA 333.

SLS Property Group Pty Ltd v Townsville City Council [2011] 2 Qd R 166.

Mr. M. Batty KC and Ms. J. Bowness for the appellants.

Mr. E Morzone KC and Mr. N. Batty for the respondents.

[1] On 11 June 2025 I delivered reasons in this appeal ("the first reasons").[1] In essence, I found that the development could not be approved in its current proposed form, but that a reduction of the scale and bulk of the development may result in an acceptable impact and hence it may be able to be approved in part, subject to certain conditions. These reasons should be read in conjunction with the first reasons.

[2] The appeal was adjourned for further review after the primary reasons had been considered by the parties. A further hearing occurred on 4 August 2025. Part of the material put before the Court on that later date included plans ("the amended plans") provided by the appellant and which were designed to represent the development according to what was suggested in the first reasons as possibly representing an acceptable impact, subject to further submissions. Subject to what follows about the height of the buildings above the ground, it is uncontentious that they do that.

[3] The respondent maintains its opposition to the appeal, and hence the granting of the application in part. In essence it contends that while the Court has the power to issue a part-approval for a development application, it should not do so in this case because;

a) In some respects, the amended plans reveal a changed application and so they may not be able to be approved solely as a part approval, and may also require a successful minor change application to be made; and

b) The amended plans represent a development that remains too large in bulk and scale to overcome the continuing non-compliance with the planning scheme, and which continues to represent an unacceptable impact. In that respect the respondent places particular reliance on issues of visual amenity and character, social impacts and town planning.

[4] Broadly speaking, the appellant seeks the part approval of the development, in accordance with the amended plans. It submits that minor change applications are not required and that the suggested part approval results in a development that causes an acceptable impact, especially in light of the proposed conditions.

[5] The parties' submissions necessarily raise issues as to the appropriate content of conditions, were the approval to be granted in part.

Is a material change of use application required?

[6] The respondent accepts that the Court has the power to approve the development in part.[2] It also accepts that the majority of the development comprised in the amended plans represents a part approval of the development application. It however, somewhat tentatively, submits that there are some aspects of the proposed changes which may fall outside the scope of a part approval and in fact represent a change to the development. If there was a change to the proposed development, it is submitted that a minor change application may be required. The respondent does not contend that these matters would be a reason to refuse approval, but rather is raised in an effort to ensure that the issues are determined under the correct legislative framework. The appellant has made an oral application for a minor change, if it is required. It is not.

[7] The features that the respondent contends may amount to a change to the development Application "include":

"(a) a reduction in the area and units accommodated in Stages 2-4. This is not a situation where the Court is being asked to only approve an unmodified Stage 1 to 3 and delete the balance. Instead, the Appellant is asking the Court to approve a modified development without having made a formal change application to regularise the abovementioned changes;

(b) a 2.5m increase in the width of the vegetation area along the southern side of the building group;

(c) a new 15m wide vegetation area along the western side of the building group;

(d) areas of varying narrower widths of vegetation along the southern edge of the car parking and extending partially along the western side boundary and along the northern site boundary that incorporates stormwater treatment."[3]

[8] Although the submission is made in non-exhaustive terms as to the changes to the original development application, no other amended features are submitted to amount to changes to the original development application.

[9] The power to approve a development application in part is separate to the power to approve a minor change to the application.[4] The power to approve a development application in part does not include a power to approve something which is "materially different" to what is contained in the development application, other than the fact that it is only part of what was applied for.[5] Whether a part approval represents a "materially different" development is necessarily an evaluative judgment that involves, at least, matters of fact and degree. The word "materially" qualifies the absolute term "different", and introduces the need for that evaluative judgment. That a part approval will cause relatively minor adjustments to the design or construction of the development "would be a matter for consideration as part of any future development application for building works",[6] if it is otherwise assessed as not resulting in a materially different development.

The reduction of stages 2 to 4 of the original development application.

[10] It will be recalled from the first reasons, that what was suggested was the omission of a number of demountable accommodation buildings from each of stages 2 to 4 from the southern aspect of those stages, necessarily together with the associated walkways and similar structures associated with those buildings, and the movement of the fencing, acoustic barriers and vegetation lines to align with the adjusted southern boundaries of the residential accommodation.[7] No issue is taken with the movement of the fencing, acoustic barriers and vegetation lines, although issue is taken with other matters concerning the vegetation. It was also suggested that the complete omission of the demountable accommodation buildings in stage 7, and the omission of the overflow carpark, could occur. In actual terms, the part approval on that basis would result in the omission of six demountable accommodation buildings in stage 2, and 12 from each of stages 3 and 4. As noted in the first reasons, each demountable building contains four rooms. No issue is taken, for present purposes, with the complete omission of the accommodation buildings in stage 7 and of the overflow carpark.

[11] The issue presently agitated is that while the complete omission of a stage of the development falls within the concept of a part approval, the partial omission of accommodation buildings in those stages does not. I cannot agree.

[12] The statutory source of the power to approve in part makes no mention of any limitation of the power to specific types of development applications. Further, the respondent's contention puts an unnecessary gloss on the concept of a "materially different" development. While it is true that the facts in SLS Property Group involved the part approval of the proposed development by way of an approval of the whole of only one of two proposed stages, the earlier cited ratio from that decision does not turn on that factual issue; it is of general application. The obiter observations of Kefford DCJ in K&K (GC) Pty Ltd v Gold Coast City Council are one example of how a single-stage development might be granted a part approval. The respondent conceded in submissions that a part approval can be granted in the case of a single stage development, but then argues that a different test applies for a multiple stage development. There is no warrant for different tests for different applications based on the number of stages being sought.

[13] The presently suggested part approval involves the complete removal of the subject demountable buildings, not a part of any of them. It also involves the complete removal of the associated walkways running east-west, and the truncation of two walkways running north-south. They are all at the southern end of the original proposal, and are conveniently removed without affecting any other part of the proposed development. Their removal does not affect pedestrian communication with the remaining parts of the development, and they are not so interconnected as to pose practical problems with the functioning of the rest of the development, if removed. Put another way, there is no mutual dependence[8] on that part of the original application which is sought to be removed by part approval and that which remains. This issue does not require that a minor change application be made, and it is a valid exercise of the power to approve in part.

Do any of the asserted changes of vegetation represented in the amended plans amount to a change of the development application?

[14] As can be seen from paragraph 7 herein, the remaining matters are concerned with what is said to be changes to the vegetation shown on the amended plans when compared with the original plans in three areas. I accept that they do not amount to changes to the development application, largely for the reasons propounded by the appellant.

[15] The respondent's submissions seem to be premised on the assumption that the site plans are to be taken to be the definitive and detailed version of the proposed development, to the exclusion of any other submitted plans. It is an assumption that cannot be validly made.

[16] First, all the plans for the proposed development, and in this case, the amended plans, must be considered as a whole. That is, in light of each other.

[17] Second, full detailed design is often left until the assessment manager has decided that the development should proceed, so as to avoid unnecessary expense at the preliminary stage.[9] However, detailed design will be required when it is necessary to establish that the proposed development is feasible.[10] That is not the case here. The detail of the vegetation is a necessary component but still peripheral to any issues of feasibility of the development, if approved in part, and can be dealt with by way of the necessary building works application.

[18] There is a difference in the apparent width of the vegetation strip along the southern boundary adjacent to the buildings as between the original site plan[11] and the amended site plan.[12] However, there was a discrepancy between the original site plan and the original landscaping plan,[13] the latter of which showed the broader strip of vegetation now represented on the amended site plan. It was always part of the original application. No issue was taken by the respondent with it on the original landscaping plan. As regrettable as it is that the original site plan did not accurately represent this, the correction of that error does not amount to a changed application. Notably, some of the amendments to the site plan were made at the request of the respondent,[14] suggesting there was no confusion about the intent that they be part of the development.

[19] The same explanation applies to the asserted new 15 metre wide vegetation area along the western side of the buildings and those areas adjacent to the car parking area.

[20] In any event, these are all matters of detail that will be addressed in detail in the later approval processes, including the precise dimensions of the vegetation areas, and are not matters which require fine consideration or resolution at this stage.

[21] None of the asserted changes to the site plans results in a "materially different" development from that originally applied for, as that term is properly understood. The changes to the number of accommodation buildings in stages 2 to 4 fall within the parameters of a part approval of the original development application, and the other matters are not changes at all.

Does the proposed part approval result in a development that represents an unacceptable impact?

[22] The respondent submits that, independently of the above issue, the proposed development ought not be approved in the form reflected in the amended plans, as it still results in a development that has an unacceptable impact. Given the issues that are the focus of the respondent's submissions, as noted earlier, additional separate reports were tendered from Ms Morrissy and Mr Buckley (town planning), Mr Butcher and Mr Curtis (visual amenity/landscaping and character) and Ms Ashford and Ms Bennett (social issues). Each testified on the resumed hearing, except Ms Bennett who was not required for cross-examination.

[23] There was a notable degree of cross-over between the evidence of the respective witnesses. Many of the issues raised in the evidence will be best dealt with separately when considering the issue of what lawfully imposed conditions should be imposed.

Ultimately both parties accepted that the real issue on the further hearing was whether, given the balancing of the various considerations that were recognised in the first reasons, the appellant had demonstrated that the proposed part approval represented an acceptable impact, subject to lawfully imposed conditions. That is, the issue is not whether the proposed part development could be better placed elsewhere, nor whether it could be improved if it were to remain on the present site, particularly in terms of visual impact and amenity, it is the acceptability, or otherwise, of the application actually being considered.

[24] I am satisfied that the proposed part approval, as represented on the plans, including the amended plans filed on the resumed hearing,[15] and subject to the conditions and one other matter to be discussed shortly, represent an acceptable impact and that the appeal should be allowed subject to clarification of the conditions to be imposed.

[25] There is a strong need for the non-resident workforce accommodation in the Charters Towers area, for the reasons expressed in the first reasons. My satisfaction of that need issue has only been strengthened by the contents of Exhibit 48, which was tendered on the resumed hearing.

[26] There are aspects of the proposed part approval that mean that, as I noted in the first reasons, [16] the development would retain something of an appearance of a fenced compound, and Mr Curtis' observations about the repetitive appearance of the buildings and their limited separation are well made. Further, Mr Buckley is correct when he refers to the proposed use as being a one-off use that does not have the "benign" features of the boarding schools in the area. It can also be accepted, as raised by Ms Bennett, that it might have been more beneficial if a gym was proposed inside the development, but given its proposed location the residents have access to the nearby rugby fields, and there are gym facilities in town, a few kilometres away. This might have been a matter of more weight had the proposed development been located many kilometres out of town, and isolated from any other facilities, but it is not.

[27] Again, it is not an issue of whether the proposed development is ideal, it is whether the impact is acceptable. That is an evaluative judgment about which reasonable minds can legitimately disagree. A real influence on my decision is the fact that I intend to impose a condition that the site be decommissioned by a set date, unless the need for construction workers for the Copperstring project has earlier ended, and subject to a discretion in the Council to extend the date to allow for legitimate contingencies that are presently unforeseen. To adapt what I observed in the first reasons, "an incursion by a [non-ideal] facility into a particular locality may be more acceptable for a shorter period than for a longer one.".[17] That is a relevant consideration in the balancing exercise to be undertaken.

[28] On the other hand, I have given little weight to speculative hypotheses that were raised, such as how the facility's residents might behave if walking back from town, about whether they might use the nearby school grounds for recreational activities and whether students might be tempted to approach the accommodation facility. That is a non-exhaustive list of the hypotheses raised but, while they are theoretically possible, there is no solid basis advanced for thinking they might come to fruition.

[29] I made my tentative views known as to why a part approval might be appropriate in the first reasons, primarily summarised at paragraphs 295 to 304, but also contained elsewhere in the reasons. It is unnecessary that I traverse the whole of the evidence adduced on the resumed hearing. A lot, but not all of it, was in effect a reiteration of earlier adduced evidence about which I had made findings, either finally or tentatively. It is sufficient to say that, subject to one matter to be dealt with immediately below and some further issues to do with the imposition of lawful conditions, the evidence on the resumed hearing has confirmed my tentative views expressed in the primary reasons as to the acceptability of the proposed development being approved in part on the basis outlined therein.

[30] The one matter referred to immediately above is concerned with the heights of the buildings. I am satisfied that the scale plans provided means that, where dimensions are not provided, a sufficient understanding of the height of the various buildings can be appreciated by reference to the scale provided, to the extent necessary for the purposes of considering the appeal. What cannot be appreciated is the actual height of the various buildings from ground level (either natural ground level, or as defined in the planning scheme).

[31] The demountable accommodation buildings are 2.4 metres, plus an allowance of about 30 centimetres for the depth of the floor construction and associated under floor plumbing, etc and about 20 centimetres for a tilting roof; an overall height of about 2.9 metres. Those accommodation buildings adjacent to the 1.8 metre fence lines directly visible from Phillipson Road and Deanes Road will therefore be exposed by perhaps up to 1.1 metres, although some of that exposure will be softened by the landscaping. The site falls away a total of about 5 metres from the south-west corner to the north-east corner. Mr Butcher noted that most of that fall was along Phillipson Road, but there is also a fall along Deanes Road. The fence line can be presumed to follow that fall.[18]

[32] The Concept Earthworks Plan[19] shows that the majority of the intended fill is in the area of stages 5 and 6, but that there is also intended to be, for present purposes, some comparatively light cutting of the ground near the eastern end of the Phillipson Road boundary of the site and also along Deanes Road. This may tend to expose a little more of the adjacent demountable accommodation buildings.

[33] I had assumed at the first hearing, perhaps erroneously, that the "pads" on which each demountable building was situated would be stepped down, if and as necessary, to follow the slope of the land, after the planned earthworks cut and fill. The respondent has now satisfied me that, while the assumption is open,[20] it is not necessarily the case given the material placed before this Court. There is nothing in the material requiring that the pads be stepped down if and as necessary to follow that slope, nor as to the height of the stilts on which the demountable buildings will sit to keep them off the ground. The consequence is that, as an extreme scenario, all buildings could be kept at the same floor level, meaning that the buildings in the north-east corner of the site would be placed on stilts some 4.5 to 5 metres high, and others at various heights between ground level and that height. While that is an extreme scenario, it is fuelled in part by the appellant's suggestion of a condition that buildings be no higher than 8.5 metres from the ground, which is admittedly the height threshold in AO1 of the planning scheme. Nonetheless, the possibility of that height limit highlights the impact that the height of the buildings from the ground will have in terms of visual amenity and character.

[34] Any length of stilt will add to the visibility of the demountable buildings adjacent to the Phillipson Road and Deanes Road fence lines. It was, and remains, my intention to limit the visibility of those buildings to the extent possible. A modest stilt of, say about 30 centimetres to allow under building access would not be of particular further impact. It may be necessary to hear further submissions on that height.

[35] It was always the intention that some of the non-residential buildings, such as the reception and kitchen buildings have a greater height than the accommodation buildings and the first aid building, due mostly if not wholly to the design of their respective roofs. However, the appellant informs that the intention is not to have a domed roof on the kitchen as depicted in the photograph in exhibit 7.[21] I assume then it will be a sloped roof, as per the reception. The reception has a height of about 4 metres, without allowing for any stilts. No elevation plan has been provided of the kitchen, but I assume it would have the same height given its co-location with the reception. Their greater height will largely be enveloped by the surrounding buildings when viewed from the roads, given the slope of the land, if they follow the slope of the land. The higher fence height from the Richard Street perspective will ameliorate some of that extra height. They will remain more observable if viewed from the driveway entrance of the development, but only to a limited extent. Again, if they were stood on modest stilts, that would not change and would result in an acceptable impact.

[36] The respondent submits that it is undesirable that the development be approved when the appellant could obtain approval to alter the height of the land, and thereby affect the findings about visual amenity and character. I agree. Without the benefit of submissions, I am unclear whether the necessary controls on the part approval are best achieved by an amendment of the relevant plans or by the imposition of lawful conditions. I will hear the parties on that topic, unless an agreed position can be reached.

What are the appropriate lawfully imposed conditions?

[37] By the time of the resumed hearing there had been considerable agreement as to the wording and content of the appropriate lawfully imposed conditions on any part approval, if one was to be granted. However, a number of issues remain in dispute. It is convenient when discussing the appropriate conditions, to refer to the amended document handed to me during the resumed hearing ("the suggested draft conditions"), even though it does not represent a fully agreed position between the parties. As it transpires, the document was not marked as an exhibit, and I now mark it as exhibit 49. A failure to mention any of the suggested draft conditions should be taken as an acceptance of the appropriateness of it, and the lack of any need to comment upon it.

[38] Condition 1 will need to be updated to reflect the various further amended plans, if any.

[39] Condition 4 is appropriate given the findings as I have made as to the use being "strictly limited" to the period of the construction phase of the CopperString project, for the reasons outlined in the first reasons. The definite decommissioning date is desirable also for the reasons outlined therein.

[40] There is no need for the conditions previously marked 7 and 8, but now deleted from the suggested draft conditions. The decommissioning will require a building works approval, and the detailed plans will be required to be submitted, also for a building works approval, in the usual course once the part approval is granted.

[41] The currently proposed condition 7 must not, for the reasons outlined earlier, allow for a maximum height of 8.5 metres. The appellant accepts that even though that is the threshold referred to in AO1 of the planning scheme, it is open to this Court to impose a condition with a lower height. On the basis of the earlier observations, it is likely that a maximum height of 3.5 metres for the demountable accommodation buildings and the first aid building is appropriate and 4.5 metres for the other buildings. Whether that is to be measured from ground level (as defined in the planning scheme) or the natural ground level is a matter that the parties should consider, and can be the subject of further submissions if agreement is not reached.

[42] The currently proposed condition 8 is affected by the observations in the immediately preceding paragraph.

[43] The appropriateness of the use of the term "natural ground level" in proposed condition 9 also rises and falls on issues raised in the preceding paragraphs. There has been some debate over the use of terms "provided" or "prepared and submitted" in the suggested draft conditions. The appropriateness of one over the other depends on the context of the proposed condition. Here, I consider it should read prepared and submitted, although it is not a strong preference. The words "for approval" are appropriate. Although a building works approval is required in any event, that approval process will not necessarily consider issues such as the adherence to the first reasons and these reasons. The approval process referred to in proposed condition 9 will take this into account.

[44] As to the Landscape Establishment and Maintenance Program referred to in proposed condition 14, there is a need to ensure that the vegetation used will reasonably be expected to provide the necessary coverage and softening of the structures at an early time, given the limited life of the use. This was acknowledged by the only landscaping expert called in the hearing, Mr Butcher. This will likely be achieved by the use of vegetation that has quick growth rates and of mature plants and trees. The proposed condition should reflect this requirement.

[45] The proposed condition at 14 b) does not reflect the shortened time frame. It is appropriate that the proposed condition provide for approval by Council, with the approval to be assessed against criteria including the first reasons and these reasons. The use of the word "generally" is appropriate so as to allow for unforeseen contingencies in the maintenance of the vegetation.

[46] The deletion of the previously proposed conditions 19 and 20 is appropriate. These are matters that will be considered as part of the building works approval.

[47] The proposed conditions 18 and 18A are concerned with the ASIP. Several comments are required about this topic.

[48] I accept that the ASIP should be developed, if possible, in a manner that is harmonious with the applicable Social Impact Management Plan ("SIMP"), and which is yet to be produced by Powerlink. However, it is also desirable that the ASIP be produced as soon as possible, and it is not known when the SIMP will be published. For those reasons, I do not accept that it should be settled prior to the approval of the development. Accordingly, its terms should be settled prior to commencement of the use, but with a condition that, if it is settled prior to the publication of the applicable SIMP, it be revised within three months of publication of the applicable SIMP.

[49] Further, I accept that there is a need for flexibility in the ASIP. For example, curfew hours cannot be properly understood until the shift hours are known, and the required bus routes and timetables require some degree of input from the workers. It should be a requirement that it is updated no less than every 12 months from the date of commencement of use, or since the last revision, whichever is the earlier. A copy of the originally implemented ASIP, and of each revision, should be required to be sent to Council within 10 days of its implementation.

[50] It is common ground between the experts that the four matters contained in Ms Bennett's report of 23 July 2025.[22] They should each be included in the ASIP. Other matters raised in Ms Bennett's report should also be considered.

[51] Further, the ASIP should be a publicly available document, as a means to ease any community concern that the conduct of the facility will be unregulated, and to provide a means for feedback or complaint by the community.

[52] There is dispute between the parties as to whether the terms "approved by the Chief Executive", and similar phrases, or "prepared and submitted to Council" should appear in proposed conditions 28, 29, 31, 32, 36, 37 and 40. As earlier observed, the appropriate wording depends on the particular condition being considered. Specifically, where the matter has been of contention in the appeal, I consider it appropriate that the condition require that approval be given, which approval will be guided by the considerations raised in the first reasons and these reasons, factors which may not figure in the building approval process, and the like. Where that is not an issue, the various approvals processes will cover the appropriate considerations prior to approval and undertaking of those works. None of these proposed conditions fall within that category.

[53] In relation to the proposed condition 30, the deleted words appear to be superfluous, as they would likely be conducted under the supervision and inspection requirements of Council. Nonetheless they do no harm.

[54] In relation to the proposed condition 37, I accepted that the addition of the word "assessable" is desirable for clarity, given certain earthworks can be undertaken under the planning scheme without the need for approval.

[55] In relation to the previously proposed condition 46, it seems unnecessary given Council has its powers of inspection and enforcement available to it anyway.

[56] The appeal will be allowed, and the development application allowed in part, on the bases referred to in the first reasons and these reasons and subject to the provision of suitable form of draft Orders and an appropriate suite of conditions, either reached by agreement or after further submissions.

[1] Charters Towers Operations Pty Ltd v Charters Towers Regional Council [2025] QPEC 12.

[2] Section 60(3)(b) of the Planning Act 2016.

[3] Respondent's written submissions, paragraph 9.

[4] SLS Property Group Pty Ltd v Townsville City Council [2011] 2 Qd R 166, [10]; Metroplex Management Pty Ltd v Brisbane City Council & Ors [2010] QCA 333, [64], [69].

[5] SLS Property Group Pty Ltd v Townsville City Council, supra at [21].

[6] K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40, [246]; [2020] QPEC 40; [2021] QPELR 518.

[8] SLS Property Group Pty Ltd v Townsville City Council, supra at [13].

[9] Buderim Private Hospital v Maroochy Shire Council & Anor [1996] QPELR 251, 254.

[10] Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51, [75].

[12] Affidavit of Ulani Sephine Powell, affirmed 28 July 2025, exhibit USP-7 page 9.

[14] Affidavit of Ulani Sephine Powell, affirmed 28 July 2025, exhibit USP-7 page 4.

[15] Attached tom the affidavit of Ulani Sephine Powell, affirmed 28 July 2025, exhibit USP-7 pages 9-23.

[20] See for example exhibit 7, paragraphs 123 and 124.