Barro Group Pty Ltd v Girgenti
[2000] QPEC 75
•27/11/2000
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 out by or on behalf of a public sector entity authorised under a State law to carry out the work. Such work does not require a development permit from the council.
The Department of Transport (DOT) is carrying out road works on the Bruce Highway between Eleanor Creek and Gap Creek. Nordev Contractors Pty Ltd (Nordev) has a contract entered into in about June 2000 worth $1,095,404.00 to supply 60,000 tonnes of gravel for that job. The gravel apparently has to be of a particular size. To be useable the gravel must be crushed and screened. Pursuant to an arrangement with the Respondent, Nordev extracts the gravel from a pit on the Respondent’s land using an excavator or loader and it is then transported by truck some 350m where it is put through “the crusher, screening and conveyor system.” It is then stockpiled and before being transported to the job it is blended with cement and water. The gravel has to be crushed to make it useable. As at the 19th September Nordev had extracted, crushed and screened all of the gravel and transported 12,000 tonnes to the job. The balance was stockpiled. If Nordev was prevented from using the stockpiled gravel it would face a loss of about $500,000. To transport the gravel 20 kms to an alternative crushing site would increase the cost to Nordev by about $240,000. This extra cost was not factored into its contract with DOT. These figures were not disputed by the Applicant. The gravel is said to be essential for the proper and orderly completion of the road works.
The Respondent contends that the work undertaken by Nordev is operational work carried out on behalf of a public sector entity – DOT – authorised under a State law – TIA– to carry out the work. The DOT is a public sector entity as such an entity is defined in Schedule 10. It is agreed that Nordev is carrying out the work on behalf of DOT and that to allow Nordev to do so DOT (or Nordev as its agent) is with the consent of the Respondent, temporarily occupying and using the Respondent’s land pursuant to a TIA notice under ss 183 and 184 TIA dated 26 June 2000. The Respondent’s land is principally used for growing sugar cane and to a lesser extent for cattle.
Under s.183 TIA the Chief Executive DOT or anyone authorised in writing by the Chief Executive may “temporarily occupy and use land and do anything on the land that is necessary or convenient” to carry out miscellaneous transport infrastructure works which this work is conceded to be.
The Respondent concedes that for Nordev’s work (i.e. the use and occupation of the land by DOT) to amount to exempt development it must come within either para (a) or para (e) of the definition of “operational work in s.1.3.6 IPA. Those paragraphs define operational work as:
“(a) extracting gravel, rock, sand or soil from the place where it occurs
naturally; or(e)undertaking work (other than destroying or removing vegetation) in, on, over or under premises that materially affects premises or their use.”
“Premises” includes land, schedule 10 IPA.
If the work does not come within paras (a) or (e) it is clearly assessable development requiring a development permit. The Applicant relies on schedule 8, Part 1, sec. 6, IPA which provides that assessable development includes development prescribed under a regulation under the Environmental Protection Act 1994 (EPA) for sec.6 for carrying out an environmentally relevant activity under that Act.
If the work carried out by Nordev amounts to the start of a new use of the land then it is prima facie assessable unless it is exempt. See Environment Protection Regulation 1998, s.63A and Schedule 9, s.1.3.5 IPA (definition of material change of use of premises) and Schedule 1 items 20(b) and 22(b) EPR. For reasons which I will refer to later I think the work does amount to the start of a new use of the premises. The extraction of the gravel is though exempt development because it is clearly within para (a) of the definition of operational work. I think that para (e) of that definition encompasses work other than the extraction of gravel because such work is already dealt with in para (a). It is difficult to understand precisely what is meant by para (e) but I do not think it encompasses crushing and screening. In my view IPA by its incorporation of Schedule 1, EPR evinces an intention to include the extraction, crushing and screening of gravel as assessable development unless it can clearly be said to be exempt. Para (a) is clear so far as extraction is concerned. In my view had the legislature intended to also make crushing and screening exempt it would have included that work in para (a). In the circumstances of the present case I do not think that the crushing and screening is work which materially affects the land or its use. I agree with Mr Baulch S.C. that the land merely provides a site for that to happen. I cannot agree with Mr Monteith S.C. that to set up a crushing and screening plant materially affects the land or its use in a relevant sense because it has an effect which is material or amounts to a use that the land would not otherwise be put to. I concede though it is a fine line and minds could differ.
The application was argued on the premise that use pursuant to ss 183 and 184 TIA is subject to IPA. The State is bound by IPA and it cannot otherwise than by IPA make exempt what IPA makes assessable. IPA not TIA governs whether development is exempt or assessable and in the present case IPA only exempts the extraction of gravel.
The Respondent submitted that if the crushing and screening work did not come within para (e) it was, with stockpiling, nevertheless a use of the land which is incidental to and necessarily associated with the use of the land for extracting gravel within the definition of “use” in Schedule 10.
In my view it is clear on the evidence that crushing and screening are separate and additional processes to extraction and go “beyond mere extraction and involve a voluntary extension of what the operation would otherwise involve.” Both processes could be carried out elsewhere on a site specifically authorised for them. Mr Rains of Nordev implied that an authorised crushing site does exist some 20 km from the subject land. See Boral Resources (Qld) Pty Ltd v. Cairns City Council (1997) 2 Qd R 31 at 35-36 which was a case with some similarity to the present although the definition of “use” while similar to the present was differently worded. Were it not for this decision and the particular fact situation now before me I would have had no difficulty in declaring crushing and screening to be assessable development.
According to Boral the following factors are relevant to whether a use, work or process is incidental to and necessarily associated with an authorised use or operation:
(a)Whether the additional process constitutes a use which is unavoidably involved in the authorised operation.
(b)Whether the authorised operation will become uneconomic unless the additional process is included within it.
(c)Whether the additional process can be regarded as inevitably involved in the authorised operation.
(d)Whether the authorised operation is the significant use and the additional process is only insignificantly present so that it can be regarded as no more than merely technically in existence.
(e)The character of each operation or process.
See also Agtec Holdings Pty Ltd –v- Kilcoy Shire Council [1999] QPELR 208 at 213-215.
Apart from the fact that the TIA notice refers to the removal (extraction) and crushing of material (gravel) I would not consider crushing and screening to be uses unavoidably or inevitably involved in the extraction process nor as uses only insignificantly or technically present. Their character is also different to extraction. The evidence does however satisfy me that in this particular instance the extraction of gravel by Nordev would become uneconomic and financially ruinous unless the extracted gravel could also be crushed, screened and stockpiled as required by Nordev’s contract and envisaged by DOT and the TIA notice. Relevant to this conclusion is also the fact that the local authority and the Environmental Protection Agency have advised Nordev and the Respondent that all of the activities or uses are exempt. I consider this advice to be wrong but its effect on the economics of the whole operation are readily apparent. Some may doubt why the economics of a particular operation or use should be a relevant consideration in this context but at least in a situation such as the present where the use is of a temporary nature it does facilitate recognition of a situation which all involved consider lawful. A somewhat different approach may be required if all of the activities were being carried on permanently. The economic factor is probably not necessarily a relevant factor in all cases but only those warranted by their particular circumstances. I regard the possibility of financially ruinous consequences as allied to the economic factor certainly in a temporary use situation such as the present. For similar reasons stockpiling in this case would be incidental to and necessarily associated with the extraction process and the same could be said for its removal from the premises; without being able to remove the gravel there would be no point in extracting it. See Pioneer Concrete (Qld) Pty. Ltd. –v- Brisbane City Council (1980) 44 LGRA 346 at 358-9 and Noosa Shire Council –v- Settlers Cove Development Pty. Ltd. (1996) 93 LGERA 232 at 243-4. But for Nordev's antecedent contract with DOT crushing and screening would have been assessable development. Any increase in the future cost of road works must be related back to IPA, alternatively development approval should be sought for such activity associated with exempt extraction under a TIA notice.
The letter which accompanied the TIA notice of entry refers to the need to meet "environmental and legislation requirements" and I think the requirements of IPA are just that. Nordev is engaged in consultant engineering and earthmoving contracting activities. It owns mobile crushing equipment and carries on contract mobile crushing operations. It has been granted an itinerant licence NR269 under EPA “in respect of carrying out the environmentally relevant activities” encompassed by items 20(c) and 22(c) Schedule 1, EPR “as an itinerant activity throughout Queensland”. The licence is described as an “environmental authority” and is issued subject to conditions. The notes accompanying the licence advise that the licensee may have additional legal obligations under the EPA, the Contaminated Land Act and other obligations at law created by the Federal, State and Local Governments.
On 23 June 2000 the Operations Manager (Licensing), Townsville of the Environmental Protection Agency, wrote to Nordev advising that in the view of the agency "NR269 authorises extraction, crushing, screening and stockpiling at sites not subject to the provisions of the Integrated Planning Act 1997", that the Agency had determined that the subject quarry site (Ollera Creek quarry) was not abandoned and recommencement of the ERAs was not a new use and not subject to IPA1997 and that Nordev's itinerant licence authorised those activities at the quarry. On 31 August 2000, the agency repeated this advice to the Applicant's solicitor adding that the pit was on freehold land and had a long history of use from time to time as required to fulfil Department of Main Roads (MRD) contracts for the reconstruction and maintenance of the Bruce Highway.
For present purposes four things can be said about this advice:
(a)The licence recognises that other State legislation may impose obligations on Nordev (and implicitly on the owner of the land)
(b)It assumes that extraction, crushing, screening and stockpiling is occurring at a site not subject to the provisions of IPA.
(c)It assumes that the site was not abandoned and recommencement of extraction, crushing, screening and stockpiling is not a new use and not subject to IPA.
(d)It assumes that IPA has not altered the position of a TIA notice of entry and use of land.
In relation to each, IPA is other relevant State legislation, the site is subject to IPA to the extent I have already mentioned, whether the activities amount to a new use of the site must be determined by reference to IPA and IPA does bind the State and thereby does affect the ambit of activities allowed under a TIA notice. I should also mention that the Thuringowa City Council takes the view that no development permit is required “as the activities are being carried out under the provisions of the TIA”.
The Respondent's alternative contention is that the use of the land for extracting, crushing, screening and stockpiling gravel pursuant to a notice of entry under the TIA is lawful because it was lawful before the 30 March 1998, the date IPA commenced. Reliance is placed on S.1.4.6 IPA and reference was made to the definitions of "lawful use" and "material change of use" in ss.1.3.4 and 1.3.5.
The Applicant conceded that before IPA commenced activities such as it now complains of carried out pursuant to a notice under the TIA or a like notice constituted a lawful use of the land and were not subject to the planning scheme of the local authority, see Local Government (Planning and Environment) Act (PEA) s.1.4 (definition of "Crown Land") and s.2.21(2)(b) Transport Infrastructure (Roads) Act 1991, s.7.6(1) and TIA s.33. This I think is a crucial distinction between then and now. IPA binds the State and exempt development is not assessable development under the transitional planning scheme. Fewer activities are encompassed by exempt development in the present case (Schedule 8, part 3, s.17) than was the position under the PEA when land was used pursuant to a TIA notice.
The Respondent contended that the relevant use for this argument was the extraction of material which, it was submitted also encompassed its crushing, screening and stockpiling. The land is predominantly used for sugar cane and cattle. The quarry pit which has been used for some time and from time to time under TIA notices and like notices. Material from the pit has been used since the early 1980's to complete works contracts for MRD. MRD has occupied the land from time to time pursuant to the provisions of the TIA or earlier Acts. In about August 1996 MRD occupied the land and authorised W Wall & Sons to carry out works on its behalf by entering upon the land for the purpose of extracting, crushing and stockpiling material form the pit. The material was then extracted over a few weeks in 1996 and crushed and stockpiled in January-March 1997. Other contractors acting on behalf of MRD, entered the land and removed the material as and when it was required for works contracts. The last load of material for that particular job was removed from the land in March 1998. Penna & Co Pty Ltd entered and used the pit on behalf of MRD in September 1994 as did Brabon Haulage in February 1985 and Readymix in 1986. The use by W. Wall & Sons may have been under the same TIA notice used by Penna & Co.
The plan and the drawing attached to the Nordev TIA notice of entry show the "existing pit" and the area of "new excavation" for Nordev's purposes which is an area 50m x 150m and the proposed location of the crushing plant. The "new area" is effectively a continuation of the existing pit. MRD considers "the operation (by Nordev) as a continuation of the occupation of the land under the provisions of the TIA".
The use of the land for MRD purposes seems to me to be an occasional use depending on what roadwork is being undertaken, its location, when it is undertaken, and perhaps the choice of contractor. In this sense it is not a continuing uninterrupted use but one which occurs from time to time but from an existing albeit expanding pit or quarry located on the land.
One must ask “what, according to ordinary terminology, is the appropriate description of the purpose being served by the use of the premises at the material date”, the 30 March 1998? Hudak –v- Waverley Municipal Council (1990) 18 NSWLR 709 at 714. The land was being lawfully used for cattle, sugar cane and occasionally for extractive industry purposes as a result of TIA notices or the like. That was its use at the relevant or material date. Before that date the land was occasionally and legislatively converted to Crown land not subject to the relevant planning scheme. So far as the resultant use was concerned it was a temporary occupation and use by the Crown and its servants or agents for a particular purpose and because of s.2.21(2)(b) PEA that use was not subject to the planning scheme for as long as the premises remained Crown land, i.e. for the duration of the occupation and use. The Respondent did not possess any equivalent use rights, the Crown did subject to the statutory regime in force from time to time. There was no right in the Respondent to use the land for such a purpose; there was a right in the Crown exercisable from time to time depending on the particular circumstances. The use of the land for such a purpose was not by virtue of the planning scheme rather it was because the planning scheme was deemed not to apply when it was so used but in saying this I recognise that s.1.4.6 does not say “a lawful use because of (or under or by reason of) the planning scheme” but merely “a lawful use” of the premises. After 30 March 1998 the Crown still had a right to use the land for a similar (but not identical) purpose but it was more circumscribed and not as extensive. The Respondent had no non-conforming use rights which he could register with the Council.
Mr. Baulch SC contended that there was no maintenance by the Respondent of any use. He submitted there was no use other than when the Director-General, Department of Transport compulsorily used the land. In such a case the Respondent “doesn’t have a choice in it, he doesn’t have a relevant intention about abandoning the use or maintaining it” and in the circumstances “it’s a nonsense to say that it’s a continuing use where it is an occasional compulsory acquisition of material from his property”.
The resolution of this issue involves “matters of fact and degree” (Woollahara Municipal Council –v- Banool Development Pty. Ltd. (1973) 129 CLR 138 at 140) and the line to be drawn “may be an extremely fine one” (Eaton & Sons Pty. Ltd. –v- Warringah Shire Council (1972) 25 LGRA 369 at 372). A provision such as s.1.4.6 is “designed to preserve and protect existing rights” and “ought to be liberally construed”. (Fogg ‘Land Development Law in Queensland’ p. 671 and Parramatta City Council –v- Brickworks Ltd. (1972) 128 CLR 1 at 25).
The authorities also speak of the relevance as factors to consider of the physical operations on the land and the intention of the owner of the land. The physical operations were carried out transiently and not by the owner or according to or with regard to his intention but I concede that they nevertheless amounted to a lawful use of the premises. The fact that the use (for extractive industry purposes) was occasional and not constant is not necessarily fatal to the Respondent's argument but its resumption from time to time had nothing to do with his intention. The use before 30 March 1998 and its use since, notwithstanding a break of more than 2 years, is the same use or type of use; the “purpose being served by the use of the premises” is the same.
On balance however I do not think that the relevant use of the premises in this case is the type of use which is protected by s.1.4.6(1) IPA. The “use” signalled out for protection is a use governed or permitted by the planning scheme. Immediately before (and after) 30 March 1998 the use of this land according to the planning scheme was for Rural B purposes. That use has not changed or been restricted, lessened or dismissed by IPA. Alternatively at the time IPA commenced no use was being made of the premises pursuant to the TIA. That use had ceased and it could not have been said that any such use of the premises would again be made after that date. In fact it was not until 26 June 2000 that such use of the premises again commenced and that occurred as a result of a new notice under the TIA involving a new job and a different contractor (Nordev). Each TIA notice represented the start of a new use of the premises. The use of the premises by the Director-General pursuant to a TIA notice immediately before 30 March 1998 had ceased by that date. The Director-General did not again so use the premises until 26 June 2000 and then did so pursuant to a new notice under the TIA. This was the start of a new use of the premises albeit for a similar purpose.
Alternatively again it was the re-establishment on the premises of a use that had been abandoned. In Hudak, supra, Mahoney JA said at p. 713 "Abandonment ordinarily involves, at least as one part of the concept, that, at the relevant date, the land was being used for the purpose claimed as the existing use and that that use has subsequently been given up or has ceased.”
In the present case the use of the premises involving W. Wall & Sons and the MRD haulage contractors ceased before 30 March 1998. That use then was “no longer in existence”. See Shanahan Crash Repairs Pty. Ltd. –v- Port Adelaide City Corp. (1978) 20 SASR 491 at 511 and Hudak, supra, at p. 716. The use of the land was discontinued or terminated and it was not known if it would ever recommence or commence afresh. Each case is different and notwithstanding the distinction suggested by Prof. Fogg, supra, at p. 687 between “abandonment” on the one hand and “discontinuance”, “cessation”, and “termination” on the other I think they are synonymous in the circumstances of this case. The physical cessation of relevant activities is a relevant consideration in this area. See William McKenzie Pty. Ltd. –v- Leichhardt Municipal Council (1964) 10 LGRA 137. It is not without relevance that the notice under the TIA is headed “Temporary Occupation and Use of Land – Notice of Entry or Permission to Enter“. In my view the development in the present case started after 30 March 1998 and would, but for the effect of Boral in this particular instance and to the extent already indicated, be assessable development. See IPA s.1.4.6(4).
Sec. 6.1.51A IPA was also referred to in argument. The Respondent conceded on the facts here that it had no application and I think that concession is correct.
For these reasons the application will have to be dismissed.
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