Barro Group Pty Ltd v Girgenti - [2000] QPEC 75

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION: BARRO GROUP PTY LTD -v- GIRGENTI
PARTIES: BARRO GROUP PTY. LTD.

Applicant
and
GIUSEPPE ROSARIO GIRGENTI
Respondent

FILE NO:  P & E 321 of 2000, Townsville
PROCEEDING:  Application for declaration
HEARD AT:  Townsville
DELIVERED ON:                  November 27, 2000
DELIVERED AT:                   Townsville
HEARDING DATE/S:           Sept 13, 22, Oct 16 and 25, 2000
JUDGE:  Judge C.F. Wall Q.C.
ORDER:  Application dismissed

CATCHWORDS: Use of land pursuant to sections 183 and 184 Transport Infrastructure Act for extraction, crushing, screening and stockpiling of gravel - whether exempt or assessable development under the Integrated Planning Act

COUNSEL: J.R. Baulch SC; A.R. Monteith SC and D.G.H. Turnbull
SOLICITORS: Wilson Ryan & Grose; Roberts Nehmer McKee

This is an application for a declaration that the removal of gravel, its crushing, screening and stockpiling on Lot 1 RP 737718 and Lot 2 RP 715258 is unlawful and contrary to the provisions of the Integrated Planning Act 1997 and/or the Environmental Protection Act 1994. By “removal” the Applicant means “extraction”.

The Respondent's land is zoned Rural B. under the Planning Scheme for Thuringowa City Council. The planning scheme is a transitional scheme and under the scheme the land can only be used for an extractive industry with the consent of the council i.e. with development approval.

The use of the land for the extraction, crushing, screening and stockpiling of gravel is occurring under or as a result of a notice issued under ss. 183 and 184 of the Transport Infrastructure Act 1994 (TIA). These activities would appear to come within the definition of “extractive industry” in the planning scheme.

A development permit from the council is necessary for assessable development but not for self-assessable or exempt development, s.3.2.4(1) and (2) Integrated Planning Act (IPA). It is an offence to carry out assessable development without a development permit, s.4.3.1 IPA. Self-assessable development has no application in this case. For present purposes, all development is exempt development unless it is assessable development, s.3.1.2(1) IPA. For the purposes of a transitional Planning Scheme the term "assessable development" has the meaning ascribed to it in s.6.1.1 IPA. "Exempt development" is defined in Schedule 10 as development other than assessable or self-assessable development. IPA binds all persons including the State, s.1.5.1(1) IPA.

In the present case "assessable development" means development specified in Schedule 8, Part 1 IPA and to the extent that it is not inconsistent with Schedule 8, Part 1 development that before the commencement of IPA would have required an application to be made for town planning consent for uses that were permissible, (s.6.1.1. IPA “assessable development” definition, paras (a) and (b)(ii)). S.3.1.2(2) IPA provides that Schedule 8 may identify exempt development that a Planning Scheme cannot make assessable development. Schedule 8 does that in Part 3. Schedule 8 Part 3, s.17 IPA is relied upon by the Respondent for the contention that the present activity is exempt development. Sec. 17 exempts operational work if the work is carried…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] QPEC 75
Decision Date: 27/11/2000

CaseChat Overview and Summary

The case of Barro Group Pty Ltd v Girgenti involved an application for a declaration that the extraction, crushing, screening, and stockpiling of gravel on two lots of land were unlawful and contrary to the Integrated Planning Act 1997 and/or the Environmental Protection Act 1994. The Respondent's land was zoned Rural B under the Planning Scheme for Thuringowa City Council, and under the scheme, the land could only be used for an extractive industry with the consent of the council. The use of the land for the extraction, crushing, screening, and stockpiling of gravel was occurring under or as a result of a notice issued under sections 183 and 184 of the Transport Infrastructure Act 1994. The issue before the court was whether the activities were exempt or assessable development under the Integrated Planning Act. The court found that the extraction of gravel was exempt development, but the crushing, screening, and stockpiling of the gravel was assessable development requiring a development permit. The court also found that the Respondent's argument that the use of the land was lawful because it was lawful before the commencement of the Integrated Planning Act was unsuccessful.

The court dismissed the application for a declaration, finding that the extraction of gravel was exempt development under the Integrated Planning Act, but the crushing, screening, and stockpiling of the gravel was assessable development requiring a development permit. The court also found that the Respondent's argument that the use of the land was lawful because it was lawful before the commencement of the Integrated Planning Act was unsuccessful, as the use of the land had ceased before the commencement of the Act and had not been resumed until after the commencement of the Act under a new notice and involving a different contractor. The court found that the use of the land was not the type of use which was protected by section 1.4.6 of the Integrated Planning Act, as the use was not governed or permitted by the planning scheme.

Orders