Bixtell Pty Ltd v Redland Shire Council

[2003] QPEC 32

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Bixtell Pty Ltd v Redland Shire Council & Anor [2003] QPEC 032

PARTIES:

BIXTELL PTY LTD  ACN  010 292 341
Applicant

v

REDLAND SHIRE COUNCIL
Respondent

and

DUILIO POLZI

Co-Respondent

FILE NO/S:

664 of 2003

DIVISION:

Planning and Environment Court

PROCEEDING:

Application (Preliminary Point)

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

29 July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2003

JUDGE:

Quirk DCJ

ORDER:

-

CATCHWORDS:

BUILDING CONTROL AND TOWN PLANNING – town planning – extractive industry – whether conflict between town planning permit and EPA licence – whether town planning permit prevails over EPA licence

COUNSEL:

Mr S Keim for the Applicant
Mr J Houston for  the Respondent
Mr S Keliher for the Co-respondent

SOLICITORS:

P & E Law for the Applicant
Deacons for the Respondent
McAuliffe & Associates for the Co-respondent

1. This matter involves an ongoing dispute about an extractive industry in the Redlands Shire.  A Town Planning Permit for the use was issued in 1992.  In the time since a number of permits and licences have been issued pursuant to differing control regimes.

1. The applicant is presently before the court seeking an amendment of the conditions of approval which involves an extension of the permit for a period of two years to enable a plan of rehabilitation to be completed.  Among other things there is a dispute about the mode of rehabilitation to be employed.  The applicant has put forward a proposal but it is not acceptable to the Council which has indicated that it has consulted a recognised expert in this area (Mr Kershaw) and wishes to see his recommendations implemented.

1. On this occasion I am asked to make a ruling in regard to the interaction between the original Town Planning Permit (particularly condition 27) and a licence issued by the Environment Protection Authority (particularly conditions G.40 and G.41 of that licence).

1. Condition of the Town Planning Approval provides:

“All statutory and any other applicable requirements of any Commonwealth or State Government Department, Statutory Body representing the Crown or other corporate body under the authority of some Act … shall be complied with, provided that where any such requirement other than a statutory requirement conflicts with any requirement of the Respondent, it shall be determined by the Respondent which requirement shall prevail or what other action shall be taken.”

1. The licence in question is one required for an environmentally relevant activity pursuant to s.87 of the Environmental Protection Act. It was argued on behalf of the applicant that its contents were accordingly statutory requirements within the meaning of condition 27 of the Planning Permit. This would seem to be so and the question therefore arises whether any conflict between the licence and the requirement which the council seeks to impose (namely that rehabilitation occur in accordance with the recommendations of Mr Kershaw) so that, pursuant to condition 27, the former prevails to exclude the latter.

1. The applicant drew attention to conditions G40 and G41 of the licence which provide:

“The holder of this environmental authority must develop and provide to the administering authority a landfill unit rehabilitation plan at least 12 months before the expected final disposal of wastes in the landfill unit.  The rehabilitation plan must detail the actions the holder of this environmental authority intends to take to implement the requirements of this environmental authority in respect of the final cover system and the program of post-closure care.”

The holder of this environmental authority must have due regard to any comments made by the administering authority on the landfill rehabilitation plan.”

1. In fact the applicant’s rehabilitation proposal has been put to the Environmental Protection Authority which has indicated that it has no problems with it.  Neither has it any difficulties with the recommendations of Mr Kershaw which the council favours.

1. To answer the determinative question in this matter, the control regimes of the Integrated Planning Act and the Environmental Protection Act must be seen in perspective.  The EPA licence is concerned fundamentally with the protection of the environment.  In a case of this kind the conditions of the licence are intended to allow the authority an input into the landfill rehabilitation plan to ensure that appropriate environmental protection measures are adopted.  “Due regard” must be had to any “comments” made by the Authority in that sense.

1. This wording is guarded although common sense might suggest that if a specific comment called for something to be done or not to be done failure to do so, might well not constitute due regards being paid to the comment.  Nevertheless an opportunity to make comment falls well short of giving the EPA over-riding authority over requirements imposed by the Planning Authority in the context of another control regime and that appears to be what has happened here.

1. The Planning Authority’s control over restoration or reclamation of the subject land after extraction activity is embodied in a raft of conditions which are part of the Town Planning Approval (conditions 3, 4, 7, 13-16 and 32).  Considerations other than environmental protection (e.g. public safety) (see condition 32)) are involved.  It is difficult to read the EPA licence as purporting in any way to interfere with the carefully formulated regime of the Planning Permit.  I am quite unable to see that there is any conflict (within the meaning of condition 27) between the EPA’s preparedness to accept the applicant’s proposal and the council’s requirement that Mr Kershaw’s recommendations be adopted, a position which is equally acceptable to the EPA.

1. I am therefore not prepared to make the ruling sought by the application and the application must be dismissed.