Boral Resources & Anor v Council of the Shire of Pine Rivers
[1998] QSC 94
•15 May 1998
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No. 9516 of 1997
Before Mr Justice Ambrose
[Boral Resources & Anor v Council of the Shire of Pine Rivers & Ors ]
BETWEEN:
BORAL RESOURCES (QLD) PTY LIMITED
ACN 009 671 809
First Applicant
AND:
CSR LIMITED ACN 000 001 276
Second Applicant
AND:
COUNCIL OF THE SHIRE OF PINE RIVERS
First Respondent
AND:
IAN ALBERT RETTKE
Second Respondent
AND:
ROSINA ANN RETTKE
Third Respondent
REASONS FOR JUDGMENT - B.W. AMBROSE J.
Judgment delivered 15 May 1998
CATCHWORDS: SUBDIVISION OF LAND - disclosure - Judicial Review - locus standi - sufficient interest to come within the category of “persons aggrieved” within s. 20(1) of the Judicial Review Act 1991 - improper exercise of power.
Local Government (Planning and Environment) Act 1990
Environmental Protection Act 1994
Judicial Review Act 1991
Counsel:Mr R.J. Traves for the applicants, the second and third respondents Mr Ian Albert Rettke and Mrs Ann Rettke
Mr A.N.S. Skoien for the respondents, the first and second applicants Boral Resources (Qld) Pty Ltd and CSR Limited ACN 000 001 276
Solicitors:Hemming & Hart Solicitors for the applicants, the second and third respondents Mr Ian Albert Rettke and Mrs Ann Rettke
I.R. Pepper Solicitors for the respondents, the first and second applicants Boral Resources (Qld) Pty Ltd and CSR Limited ACN 000 001 276
Hearing Date: 12 May 1998
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No. 9516 of 1997
Before Mr Justice Ambrose
[Boral Resources & Anor v Council of the Shire of Pine Rivers & Ors ]
BETWEEN:
BORAL RESOURCES (QLD) PTY LIMITED
ACN 009 671 809
First Applicant
AND:
CSR LIMITED ACN 000 001 276
Second Applicant
AND:
COUNCIL OF THE SHIRE OF PINE RIVERS
First Respondent
AND:
IAN ALBERT RETTKE
Second Respondent
AND:
ROSINA ANN RETTKE
Third Respondent
REASONS FOR JUDGMENT - B.W. AMBROSE J.
Judgment delivered 15 May 1998
This is an application by the second and third respondents for an order that the first and second applicants disclose documents in their possession by producing within seven days a further list of those classes of document specified in a letter from the solicitors for the second and third respondents to the solicitors for the first and second applicants dated 23 January 1998.
A further order is sought that the first and second applicants within fourteen days produce for inspection the documents contained in that the further list of documents.
The first and second applicants oppose the making of the order.
It is convenient to state briefly the nature of the application pending in this Court in respect of which the further disclosure of documents is sought.
On 21 October 1997 the first and second applicants applied for a judicial review of a decision by the first respondent made on 22 September 1997 approving a subdivision of land owned by the second and third respondents.
The grounds upon which the order to review is sought are set forth in Paragraph 4 of the application.
Essentially it is contended firstly that the decision resulted from an improper exercise of power conferred by s.5.1 of the Local Government (Planning and Environment) Act 1990 and secondly that there was no evidence or other material to justify the making of the decision in that the first respondent:
(a)failed to take into account relevant parts of the first respondent’s Strategic Plan for the Shire of Pine Rivers;
(b)failed to take into account certain recommendations of an employee of the first respondent;
(c)reached a decision contrary to the requirements of certain parts of the Strategic Plan of the first respondent in the absence of any evidence “or other material” upon which the first respondent could be satisfied that the requirements of the Strategic Plan had been met;
(d)based its decision on the existence of a particular fact referred to in the Strategic Plan when that fact did not exist.
It is contended in the application for review that the applicants are aggrieved by the decision of the first respondent in that their interests “are adversely affected by the decision insofar as their lawful, current and future conduct of extractive industry on land adjacent and immediately proximate to the subject land is concerned.”
By order made by Derrington J. on 5 December 1997, the applicants and the respondents were required to make discovery “of any documents relevant to the issues herein” on or before 18 January 1998. It was also ordered that the parties have inspection of documents on or before 28 January 1998.
Various directions to achieve an efficient disposal of the applicant’s application for judicial review were given. All parties were given liberty to apply. Paragraph 15 of the order provides:-
“15.The aforesaid directions are without prejudice to the right of the second and third respondents to argue that this Honourable Court has no jurisdiction to hear the application for judicial review and/or that in the exercise of its discretion it ought not hear the said application. The said directions are also without prejudice to the rights of the second and third respondents to argue that the applicants have no standing to bring the application and are not ‘aggrieved persons’ within the meaning of the Act.”
On 10 November 1997 an affidavit of Richard Dennis Meiklejohn was filed on behalf of the first applicant. The following paragraphs of that affidavit read:-
“(10)I believe that registration of the subdivision survey plan for the subject land poses a real risk to the continuance of operations at the Boral Quarry because:
(a)Boral may be required to expend time and money which it would otherwise not have been required to spend to attempt to ensure that the subject land is not exposed to noise or dust omitted from the Boral Quarry;
(b)Boral may be required to cease its operations at the Boral Quarry either in whole or in part in respect of action taken by the first, second or third respondents or by any future owner of the subject land or by some other interested party as a consequence of the exposure of the subject land to noise or dust omitted from the quarry;
(c)Boral may be required to compensate the second or third respondents or any future owner of the subject land or any other interested party for any breach of common law or statutory rights arising from the exposure of the subject land to noise or dust omitted from the Boral Quarry;
(11)I believe that there is a serious risk that the abovementioned threats to the operation of the Boral Quarry may result in these operations becoming unprofitable and may force Boral to reduce its workforce at the Quarry.
(12)I believe that any such adverse impact upon the operations of the Boral Quarry as deposed to herein which may arise upon registration of the subdivision survey plan for the subject land could not be adequately or sufficiently remedied by an order for damages. ”
An affidavit of Roland Geoffrey Bendall in similar terms was filed on behalf of the second applicant on the same day.
Those paragraphs of the affidavits of Mr Meiklejohn and Mr Bendall to which I have referred were initially obviously directed to obtain an interlocutory injunction restraining the second and third respondents from registering their plan of survey of the subdivision consequent upon the first respondents approving their application on 22 September 1997.
Town Planning consent to conduct quarry operations on land involved in this application for review was given on and subsequent to 8 February 1990.
It is unnecessary to analyze in detail the conditions imposed for the maintenance of planning consent. It suffices to say that to obtain that planning consent, Boral provided various expert reports relating to the effect on amenity of adjacent lands thought likely from the conduct of quarry operations on the land involved. It is clear that these reports dealt with what needed to be done to reduce as far as possible adverse environmental impact and I assume the acceptable impact was specified. I would assume this to be the situation from the content of Condition 4 headed “Operating Programme” on pp. 1 and 2 of the Planning Permit. In particular it is clear that there were expert reports relating to the effect of blasting, dust and noise which would seem to be the principal matters affecting amenity. As well as that there would seem to be reports relating to the nature of the traffic that would be generated in removing spoil from the quarry after it had been mined. I infer the same things were done by C.S.R. in respect of its application.
The operator of the quarry was required to take various measurements and keep various records relating to quarry operations. These records were made to allow the first respondent Council to inspect them from time to time and presumably determine the effectiveness of compliance by the operator with the conditions imposed upon the grant of planning consent. Periodically experts were required to monitor the effectiveness of dust and air pollution measures on the site and copies of such reports were required to be provided to the Council.
Detailed provision is made in the planning consent to ensure that the noise level resulting from quarry operations and the transport of quarry material was in accordance with guidelines set out in an expert’s report.
Quarry operations are required to be conducted between 7 a.m. and 5.30 p.m., Monday to Friday and between 7 a.m. and 12 noon on Saturday. Transport of material of quarry products may only be carried out between the hours of 6 a.m. and 5.30 p.m., Monday to Friday and 6 a.m. to 12 noon on Saturdays.
Again there are time constraints upon the conduct of drilling operations, blasting and the movement of heavy transport vehicles to and from the site.
The conditions of Town Planning consent are long and detailed and it is unnecessary for me to make further reference to them.
On 14 March 1996, Boral was granted a licence under the Environmental Protection Act 1994. That licence was conditional upon compliance with various requirements contained in Schedules to the licence.
The Schedules indicate steps that are required to control dust generated by quarry operations and to ensure the specified noise limits are not exceeded. The licence requires that Boral monitor and report various matters relating to the conduct of quarry operations. In particular the licence requires Boral to conduct a monitoring programme for dust “in ambient air”. In particular, one of the sites at which dust must be sampled is at the south-west of the quarry site near Adsett Road. The samples must be collected in accordance with standard requirements and records must be kept of the monitoring of “particulate in ambient air”. In particular the licence approves a document described as “Boral Quarry Division Quality Assurance Manual - Environmental Management - Petrie Quarry” dated Rev 0-April 1992.
For reasons which are not entirely clear to me the second and third respondents seek disclosure of that material from the first and second applicants. No similar disclosure seems to be sought from the first respondent. However that does not weaken the position of the second and third respondents on their application.
In my view to the extent that it is the decision of the first respondent that the applicants seek to have reviewed, it would obviously be relevant on the review application to canvass all the material which the first respondent had in its possession and presumably was or should have been aware of at the time the decision was made.
Indeed for the applicants a rather technical approach has been adopted. It is contended on their behalf that they have in fact obtained copies of various documents from the first respondent and have had regard to the content of minutes of the meeting and that it is sufficient for their purpose simply to look at that material and contend that on its face and disregarding any other factual matters within the knowledge of the first respondent, the first respondent clearly acted improperly and without evidence and contrary to the requirements of its Strategic Plan.
It is unnecessary for me to address the sufficiency of such an approach upon a review application of this sort. That is a matter which undoubtedly will be dealt with when the matter comes on for hearing.
There are two questions to be debated upon the review hearing. The first one which the second and third respondents have made it clear from the beginning will be stoutly contested is whether the applicants have a sufficient interest to come within the category of “person aggrieved” within s.20(1) of the Judicial Review Act 1991.
There was placed in evidence a letter written by Environmental Solutions and Investigations to the Department of Environment concerning the Environmental Authority Licence No. SR 856 seeking a “review of original decision” with respect to CSR’s quarry.
Reference to that letter makes it clear or at least likely that a licence was given to CSR along the same lines as the one given to Boral in March 1996. The letter written on behalf of CSR certainly suggests that matters of noise and dust were considered together with the effect of ground vibration from blasting etc.
It is abundantly clear from the Council records which were in fact obtained on behalf of the applicants that the Council gave a great deal of thought and consideration to differences in expert opinion advanced as to the effect of noise on residential amenity of the land of the second and third respondents. Nobody seems to have made much complaint about the effect of dust to the Council prior to its approving the proposed subdivision although effort was made upon this hearing and I assume it will be made upon the review hearing to suggest that that was another aspect of the conduct of quarry operations which was not sufficiently addressed by the first respondents in approving the subdivision.
To deal with the effect of noise generated by quarry operations, two further conditions of subdivisional approval were imposed -
“1.That the Director, Development and Environment be authorized to include a suitably worded property note for the two allotments warning potential purchasers of possible noise from the quarries and that the quarries are planned to extend towards this property.
2.That a suitably located and appropriately worded sign to the satisfaction of the Director, Development and Environment be erected in a prominent location on both allotments giving a similar warning to the property note and this be fully maintained by the applicant until the allotments have been sold.”
It emerges from perusal of the Council records placed before me that by letter dated 29 August 1997, Boral advised that it intended to seek judicial review of any Council decision approving the subdivision for which the second and third respondent had applied.
The Council seems to have noted this threat and to have proceeded nevertheless to grant subdivisional approval.
Under the scheme of the Local Government Act in force at the time neither of the applicants for judicial review had a locus standi to challenge in the Planning and Environment Court on planning grounds the decision of the Council to permit the second and third respondents to subdivide their land. Presumably that is why the first applicant wrote its letter to the Council of 29 August 1997 in an endeavour to object as forcefully as it could to the approval of the second and third respondents’ application for subdivision.
No doubt that will be a matter debated upon the hearing of the application for review and it is unnecessary and undesirable for me to attempt to give further consideration to it on an application of this sort.
There was obviously vigorous debate in the Council as to whether subdivisional approval ought be granted; it was ultimately determined that it should be granted.
It is clear from the Council’s file that a great deal of consideration was given to the effect of noise and the generation of vehicular traffic as a consequence of the conduct of quarry operations on the applicant sites. Against all this however, it is necessary to keep in mind that the site in respect of which subdivisional approval was sought has an area of roughly 19 hectares. The subdivision approved results in two allotments, the first being about 16 hectares and the second about 3 hectares. The smaller area has already constructed on it a dwelling house.
It is unclear on the material just where the smaller 3 hectare subdivision is located with respect to either quarry. It suffices to say however that 3 hectares might comprise an area of roughly 300 metres x 100 metres. A 16 hectare area of course might have dimensions something in excess of 500 metres x 300 metres. The areas of the approved subdivisions therefore are quite large and undoubtedly members of the Council before deciding to approve the subdivision inspected the land to be subdivided and presumably were aware of the location of the two proposed subdivisions and the distance between the closest permissible limit of Quarry operations and the approved subdivision and the width of Dayboro Road separating the CSR Quarry site from that subdivision. Reference to scale plans put in evidence upon the application indicates that those distances are significant - in the vicinity of 60 or 70 metres at the least. This is something which they kept in mind undoubtedly when arriving at their final decision.
The further discovery sought is outlined in a letter from the solicitors for the second and third respondents to the solicitor for the first and second applicant, dated 23 January 1998. For the purpose of convenience I will refer to that letter which asserts essentially that the further and better particulars given of the applicant’s claims and assertions to be found in an affidavit by Mr Meiklejohn and an affidavit by Mr Bendall both sworn 7 November 1997 have raised matters in respect of which the applicants must in fact have documents not yet disclosed. In the course of that letter it is observed -
“At paragraph (2) of both the Meiklejohn and Bendall affidavits it is alleged that both of your clients ‘profitably operate a quarry at Dayboro Road, Whiteside. We require both of your clients to disclose their financial records as they relate to the quarry.”
“Paragraph (4) of both affidavits state that both quarries operate pursuant to Town Planning Consent Permits. We require your clients to disclose all documents relating to the application for those Consent Permits and the issue of the Consent Permits including all correspondence between Council and your clients.”
“At Paragraph (5) of the Meiklejohn affidavit it is deposed that the Boral Quarry is operated pursuant to an Environmental Authority Licence. We require you to disclose all documents including applications and correspondence relating to the first applicant’s application for a licence pursuant to the Environmental Protection Act with respect to its quarry.”
“Similarly at paragraph (5) of the Bendall affidavit it is suggested that an application has been made to the Queensland Department of Environment pursuant to the Environmental Protection Act. We also require the second applicant to disclose all relevant documents relating to this application including all correspondence and file notes of conversations with Departmental officers.”
While this application for review will not amount to a re-hearing of the application of the second and third respondents for subdivisional approval, it is clear that the matters in respect of which discovery is sought relate directly to the matters advanced on behalf of both applicants to support their status as “aggrieved persons” and thus entitled to seek a judicial review of the way in which the Council approved the second and third respondent’s subdivision.
In my view it will be essential on the judicial review to determine the Town Planning constraints and Environmental Licence constraints upon the lawful operation of the quarries. It may well be the case, indeed, it probably is the case one would think that the first respondent was aware of the part played in the lawful conduct of a quarry of compliance with an Environmental Licence of the sort obtained by Boral in March 1996 and of the sort presumably which CSR is in the process of obtaining. It is contended on behalf of the second and third respondents that if compliance with the conditions of the Planning consents and the Environmental Licences ensure that there will not be a significant adverse effect on residential amenity of house sites on the land the subject of the subdivisional approval, then this is a matter relevant upon consideration of the issues to be canvassed on the judicial review and in particular the complaint that “there was no evidence or other material to justify the making of the decision.”
In my view the further discovery sought by the second and third respondents relates directly to issues raised by the applicants in their application for review particulars of which they have provided upon request. In my view they are relevant both to the issue as to whether the applicants are “persons aggrieved” within s.20(1) of the Judicial Review Act and also to the substantive issues to be debated as to whether the first respondent improperly exercised its power because there was no evidence or other material to justify making its decision to approve the subdivisional application of the second and third respondents.
I therefore make orders in terms of paragraphs 1, 2 and 3 of the summons filed on the part of the second respondent and the third respondent on 5 May 1998.
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