Bixtell Pty Ltd v Redland Shire Council

[2003] QPEC 4

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Bixtell Pty Ltd  v Redland Shire Council [2003] QPEC 004

PARTIES:

BIXTELL PTY LTD
Applicant

and

REDLAND SHIRE COUNCIL
Respondent 

FILE NO:

D4779/2002

DIVISION:

Planning & Environment Court

PROCEEDING:

Application 

ORIGINATING COURT:

Brisbane

DELIVERED ON:

19 February 2003

DELIVERED AT:

Southport

HEARING DATE:

12 December 2002

JUDGE:

Alan Wilson SC

ORDER:

It is declared that:

The respondent local government, in exercising the power provided for in conditions 3 (to approve a development program), 7 (to approve a landscaping plan) and 15 (to cause work to be done) and in ensuring compliance with condition 32 (the quarry shall be restored to a safe and satisfactory state) of the Development Permit issued in accordance with the Order of his Honour Judge Row dated 10 April 1992 in respect of the land described as Lot 1 on Registered Plan 109322 being land situated at 708 Mount Cotton Road, Sheldon is not restrained to or restricted by the “finished surface level” shown in plan B1158 a copy of which plan is part of Exhibit BR-2 to the affidavit of Birthe Rixon filed in these proceedings by leave on 12 December 2002.

CATCHWORDS:

PLANNING & ENVIRONMENT –  CONSENT ORDER FOR DEVELOPMENT, WITH CONDITIONS – CONSTRUCTION OF CONDITIONS - construction of conditions of approval forming part of consent order permitting development – whether local authority strictly bound by plans and drawings referred to in conditions in Order – whether applicant seeking actual change in development approval or conditions.

Brisbane Town Plan 13 June 1987
City of Brisbane Town Planning Act 1964-86
Local Government (Planning and Environment) Act 1990
Integrated Planning Act 1997

Cases considered:

Corporation of the City of Adelaide v City of Salisbury 100 LGERA

Rhema Management Services Pty Ltd v Council of the Shire of Noosa (2000) QPELR 15
Scott v Wollongong City Council (1992) 75 LGRA 112

COUNSEL:

Mr S Keim for the applicant
Mr P R Smith, solicitor, for the respondent
Mr D Polzi, objector, on his own behalf 

SOLICITORS:

Lestar Manning Lawyers for the applicant 
Deacons for the respondent

1. The applicant owns land at 708 Mount Cotton Road, Sheldon which has been used for quarrying.  In 1992 this Court made an Order, by consent, concerning the ongoing quarrying operations, and the rehabilitation of the land after they finished. That occurred in 1996, and since then the applicant has taken fill onto the former quarry site. The parties agree the 1992 Order remains operative.

1. In fact, three forms of permit apply to the present use of the land, for waste disposal and land fill:

(a)        the consent Order of this Court of 10 April 1992;

(b) Redland Shire Council approvals to dispose of solid waste, under s 118B of the Environmental Protection Act (1994), and to dispose of construction and demolition waste under s 16(1) of the Environmental Protection (Interim Waste) Regulation 1996, both issued by the respondent to the applicant on 14 December 1998;

(c)        EPA Environmental Authority No. SR 1182 for environmentally relevant activities: ERA 20(b) and 75(a)(vi), granted to the applicant on 12 April 1999.

1. The land has a frontage to Mount Cotton Road.  It is included in the rural/non-urban zone and is designated rural/non-urban on the respondent’s strategic plan map.  Rural and other non-urban uses which assist in maintaining the non-urban character of the area (e.g. extractive industries) are anticipated uses in that zone.  The land to the north (Lot 3 on SP 127599) is also used as a quarry.  The parcel to the east (Lot 2 on RP 216886) is vacant; the property faces Mount Cotton Road on the west and, on the south, the land (Lot 2 on RP 109322) is used for residential purposes.

1. The applicant’s current activity involves depositing fill to restore the site.  It receives waste at the rate of 1200-1500 cubic metres per week, and uses heavy machinery to fill the holes left by the quarry.  The applicant’s clients include the respondent Council, which pays the applicant to deposit waste collected from households and businesses, and its own earthworks and park maintenance, in the former quarry.

1. The original Order of 10 April 1992 contained conditions relating to the quarrying operation the applicant’s predecessor (Stradbroke Transport Services Pty Ltd) wished to continue, and also purported to deal with the future conduct of those activities and, relevantly here, the rehabilitation and restoration of land after they had been completed.  

1. In September last year the applicant’s representatives conferred with officers of the Council with a view to devising a rehabilitation plan and, for that purpose, submitted a written proposal which included some drawings.  Under that proposal the land which had been used for quarrying would, apparently, be filled with waste to a higher level than appeared in some drawings referred to in the original Order.  Council took the view that the level was an integral part of the Order, and:

(a)        Council could not consider any revision of it (under the new plans and drawings proposed by the applicant) without an amended Court Order; and/or

(b)        if amendment was to be made to the original plans that could only be effected by an application for a Material Change of Use which would be impact-assessable under the town planning scheme.

1. The 1992 Order arose out of an appeal to this Court.  It appears that, in 1990, the Council granted the operator at the time consent to continue working an existing quarry, but subject to certain conditions set out in a letter 17 July 1990.  As the Order of 10 April 1992 shows, the appeal was against certain of those conditions; and, the appeal proceeding was resolved by the consent order of that date which, on its face, allowed the appeal, and gave consent to the application subject to the following relevant conditions:

(1)        A development program shall be approved by the respondent for works on areas subject of this application generally in accordance with and as an extension of those plans prepared by Ross Campbell and Associates Pty Ltd and submitted in association with the application except where varied to comply with conditions of this approval.  For each successive twelve-month period a program shall be submitted to the respondent stated [sic] the anticipated quantity of extraction.  This program shall effectively describe the proposed operations for the relevant twelve-month period and shall also identify progress made in achieving the planned stages of development as originally contained in the initial application.

…

(3)       At twelve (12) monthly intervals commencing from the date of this Order, the appellant shall submit to the respondent a detailed report prepared by a registered professional engineer or other suitable qualified person, outlining the extent of works to be carried out in succeeding years in accordance with a development program to be approved by the respondent.  The reports will include the following:

(iv) proposed landscaping and reclamation works to be carried out during the year;

…

(4)       Unless otherwise agreed to in writing by the respondent, the appellant shall at all times comply with all restoration, upgrading and landscape requirements as set out in the development program.

…

(7)        Further to Condition 4, those parts of the site which have previously been excavated shall be revegetated, planted and landscaped in accordance with a landscaping planting plan acceptable to the Respondent.  This work shall be carried out and completed prior to the expiration of the term of this consent approval.

…

(13)      Reclamation and restoration works shall be completed within one (1) year of cessation of operations or within one year of the date of expiration of consent, whichever is the earlier.

…

(32)      This approval shall operate for a period of ten years only from the date of this Order.  Upon expiry of this consent approval the quarry shall be restored to a safe and satisfactory state, in accordance with the conditions of this approval.

1. The application originally brought in this matter[1] sought wide-ranging relief, in the form of declarations that the levels mentioned in the plans referred to in the 1992 Order (and, in particular, Condition No 1, above) were minimum, not maximum levels, and the applicant and Council could vary conditions of the Order in writing “to the extent envisaged by the Order without further application for a development approval being made...”.  The making of all the declarations applied for would, it can readily be foreseen, have placed the Council in the position where it could probably not resist agreeing to raise those levels.

   [1]  Filed 5 December 2002

1. At the hearing, however, the relief sought was much reduced, and the applicant sought only a declaration:

That the respondent local government, in exercising the power provided for in conditions 3 (to approve a development program), 7 (to approve a landscaping plan) and 15 (to cause work to be done) and in ensuring compliance with condition 32 (the quarry shall be restored to a safe and satisfactory state) of the development permit issued in accordance with the order of his Honour Judge Row, dated 10 April 1992 in respect of land described as lot 1 on registered plan 109322 being land situated at 708 Mount Cotton Road, Sheldon is not restrained to or restricted by the “finished surface level” shown on plan B1158 a copy of which plan is part of Exhibit BR-2 to the affidavit of Birthe Rixon filed in these proceedings by leave this day.

What the applicant seeks, then, is a declaration that the respondent Council is not restrained by condition 1, and plan B1158 of the original approval, from approving restoration of the excavated lands including upgrading, landscaping, vegetation and planting works beyond that level, as the finished surface.  In wider terms, the applicant asked for a declaration about the limits of the Council’s discretion to approve restoration work under the conditions which were part of the Order and, thus, the limits of lawful use of the land which may be approved or required by the Council exercising the discretion, if any, granted to it under those conditions.

1. The central issue, then, is whether the final restored level of the quarried land is restricted by the drawings referred to in the conditions of the order and, in particular, the level shown in B1158.  The applicant contends this is, essentially, a matter of discovering the proper construction of those conditions.  The Council argues, however, that those conditions are sufficiently clear and the applicant is, in fact, attempting to change them, and to do so in a way which offends the relevant legislation (Integrated Planning Act (1997)), and the “finality” principle.

1. This Court has power to make declarations under IPA s 4.1.21:

(1)      Any person may bring proceedings in the Court for a declaration about –

(a)      a matter done, to be done or that should have been done under this Act; and

(b)      the construction of this Act and planning instruments under this Act; and

(c)      the lawfulness of land use or development; and …

1. An analysis of the conditions of approval set out earlier tends to support the proposition that it was anticipated when the order was made that, in the course of quarrying and restoration, variations may be necessary to the levels, etc in the plans which formed part of the original development application, and were referred to in the conditions.  The words used in condition 1 suggest the plans were not intended to set strict or absolute guidelines,  because the works need only accord generally with them; they were to be part of a “development program” which was not, itself, final but would be submitted to the Council for approval, according to a subsequent timetable; and, the plans themselves could, clearly, be “...varied to comply with conditions of this approval”.

1. Under condition 3, the respondent was given power to approve the contents of a detailed report (at 12-monthly intervals) which had to include proposed landscaping reclamation works to be carried out in the ensuing 12-month period and which would, themselves, form part of that “development program”.  Clearly, then, the respondent could require landscaping and reclamation works which departed from the works generally authorised by the plans, including plan B1158 – i.e., if the Council required landscaping and reclamation works that exceeded the final levels in that plan, compliance with that requirement would be a variation, tolerated, apparently, under condition 3.  Conditions 4, and 7 also support a construction which suggests the original development program, and the annual ones which followed it were to meet Council’s approval but, at the time the Order was made, were less than final in form.  The word “landscaping” obviously comprehends changes in the contours and levels of the affected land.

1. Condition 13, dealing with “reclamation and restoration” works is directed towards ameliorating the long-term impacts of the previous, quarrying use.  The applicant contends that, in this context, it is not unreasonable to view the “finished surface” levels in plan B1158 as a minimum level for this reclamation and restoration work.

1. Condition 32 requires restoration to a “...safe and satisfactory state, in accordance with the conditions of this approval”.  It is difficult to see, in light of the anticipated length of the quarrying operations (10 years), the nature of that activity, and the wording of the various conditions themselves, how this can be seen as anything other than a very general requirement, and one to which the original and subsequent “development programs” will have some relevance.  

1. The various references to “landscaping”, “reclamation works”, “restoration”, “reclamation and restoration works”, and restoration to “a safe and satisfactory state”, in conjunction with the phrases used in condition 1 which indicate something less than absolute compliance (“...generally in accordance with and as an extension of those plans…”) and the possibility of future variation, point strongly to the construction for which the applicant contends and I am satisfied that the levels mentioned in the plans referred to in condition 1 were never intended to be, and are not, absolute or immutable.

1. Further support for this conclusion can be drawn from the reference, in those conditions, to the word “restore”.  The usual meaning of that word is to bring something back to its former, original or normal condition, or to re-establish: Macquarie Dictionary.  The use of the word also suggests that it was contemplated, at the time the original order was made, that this land might eventually be brought back to its original level, rather than that set out in the plans referred to in condition 1.

1. The Council submits, however, that what is sought is in fact a change in the original development approval, or the conditions of approval themselves, rather than construction of them and a declaration about their meaning.  The Council says the applicant’s attempt to paint those conditions as ones which contain elements of uncertainty disguises an attempt to achieve an actual change to one, or both of the development approval, and the conditions.

1. Under IPA s 3.5.24 a change may be made to a development approval if it is a minor change to the application itself but, by virtue of s 3.5.24(5) that section does not apply if the change is to a condition.  Rather, s 3.5.33 applies if a person wishes to change or cancel a condition, and no assessable development would arise from that change or cancellation.  If the original approval was granted by an Order of this Court then the Court, alone, can approve a modification: Rhema Management Services Pty Ltd v Council of the Shire of Noosa (2000) QPELR 15.

1. The term “assessable development” is defined in IPA, schedule 10 to include development specified in schedule 8, part 1, or development declared under a planning scheme to be assessable.  While it is clear the original application itself involved assessable development, the same cannot necessarily be said of the matters referred to in the numbered parts of the original Order which are referred to, in its terms, as “conditions”.  In Rhema (supra) a similar question arose, and Quirk DCJ said, at 16:

Counsel for the respondent Council however posed the question, whether, in reality, some at least of these matters might be better regarded as being part of the substance of the approval rather than being conditions of approval of the kind with which s 3.5.33 is intended to deal.  This proposition would suppose some mutual exclusivity between the concepts of a “development approval” and “conditions of approval” to exist.  While I understand the point it raises, in my view, complexities the solution of which is not to be found in the Act or in the law dealing with those concepts.  The law as it relates to building control and town planning has generally recognised that conditions of approval may be seen as an important component of the approval itself.  This is exemplified by the law regarding the “severability of conditions”.  To give but one example, in Kingsway Investments v Kent City Council (1971) AC 72, Lord Morris observed at 102:

“There might be cases where permission is granted and where some conditions, perhaps unimportant or perhaps incidental, are merely superimposed.  In such cases if the conditions are held to be void the permission might be held to endure just as a tree might survive with one or two of its branches pruned or lopped off.  It will be otherwise if some condition is seen to be a part, so to speak, of the structure of the permission so that if the condition is hewn away the permission falls with it.”

When this Order was made in 1992 the matters described in it as “conditions of approval” were accepted and identified as such, and I do not think it is proper to attempt to reopen the matter now.  Further, for the reasons given earlier, it is quite impossible to say that what is now proposed constitutes a change in those conditions.  Rather, as analysis of the words used in the conditions showed, they are (deliberately, it may be assumed) imprecise and if, as a consequence, discerning any change or alteration in them is a difficult exercise, that is not a matter about which the Council, as a party to the original consent Order, can now reasonably complain.

1. The fact that what is sought is a declaration concerning conditions, and not the original development itself, also makes it difficult to see how any change in the levels to which the Council might ultimately agree could be categorised as “assessable development”.  In any event, it is not necessary to determine the matter because, for the reasons given earlier, I am not persuaded that what is sought here involves any change or cancellation of a condition, and s 3.5.33 does not apply.  Nor, for the sake of completeness, can it be said s3.5.24 has any relevance: this application does not appear to involve an attempt to change the nature or effect of the original approval in any way at all, and relates only to the meaning of conditions attached to it.

1. The application was also resisted, as I understand the Council’s submission, on the basis that the proposed declaration would invest the Council with a power it does not have and which rests, under IPA, only in the Court.  The argument assumes, of course, that the relief the applicant seeks involves a change in the original development approval or the conditions (ss 3.5.24, or 3.5.33) when, as had been shown, neither apply and what is, instead, requested is merely a declaration about the construction – the meaning and effect – of the conditions originally attached.

1. Last, the Council argued that the proposed relief would offend the “finality” principle, under which permission for development (and the conditions attached to it) in the town planning sphere cannot, later, be varied to alter the character of the development in some significant respect – whether by significant changes in the form of approval, or conditions, or by some attempt, at first instance, to retain or reserve a power to alter those things later[2].  Condition 1, which introduces the concept of plan B1158 is, however, not a restriction of approved works in accordance with the plans, but, rather, the basis for the subsequent approval of a series of 12-month development plans (which the respondent has been active in enforcing)[3].  While it was held, in Corporation of the City of Adelaide v City of Salisbury[4] that a condition that landfill not exceed a height to be determined by a Council was invalid because it offended this principle, the argument was raised here in circumstances where the respondent consented to the original Order and has, apparently, been content to work within its terms for over a decade – and has not, in these proceedings, (or at any previous time) sought to attack those conditions.  It is not appropriate for it to attempt to do so now, in this manner. 

   [2]  Scott v Wollongong City Council (1992) 75 LGRA 112, at 118

   [3]  Affidavit of Rixon, Exhibit BR-3

   [4] 100 LGERA at 160

1. In any event, I am not persuaded the conditions offend the principle.  As Samuels AP went on to say in Scott (supra), at 118:

It is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed.  Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of the proposal with absolute precision.

Again, in light of the nature of this development, and the period of time in which the work would be performed, the conditions here are clearly of that kind.

1. The declaration sought does not bind the Council to accede to whatever new levels may be proposed in the additional material which, according to Mr Clegg’s original submission, will be submitted to it when and if permission is sought to fill to a level above that mentioned in plan B1158.  It merely clarifies the respondent’s position under the conditions originally attached to the Order and, in light of the fact those conditions contain some imprecision, and intrinsic tension the declaration now proposed is appropriate. It is appropriate to order, then, in the terms sought by the applicant.

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