Boral Resources (Qld) Pty Ltd v Bundaberg Regional Council
[2014] QPEC 32
•6 June 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Boral Resources (Qld) Pty Ltd v Bundaberg Regional Council [2014] QPEC 32
PARTIES:
BORAL RESOURCES (QLD) PTY LTD (ABN 46 009 671 809)
(applicant)and
BUNDABERG REGIONAL COUNCIL
(respondent)FILE NO/S:
46/14
DIVISION:
Planning & Environment
PROCEEDING:
Hearing of an application
ORIGINATING COURT:
Planning & Environment Court of Queensland
HEARING DATE:
20 May 2014
DELIVERED ON:
6 June 2014
DELIVERED AT:
Brisbane
JUDGE:
RS Jones DCJ
ORDER:
This proceeding is adjourned to allow the parties to consider these reasons.1.
2. One or both of the parties are to notify my associate no later than 4.00pm 27 June 2014 as to whether or not the matter is required to be relisted.
3. In the event that the parties have not given such notice by 4pm 27 June 2014, the application will be dismissed.
CATCHWORDS:
PLANNING LAW – APPLICATION – whether application to extend operation period of an existing quarry a permissible change of a development application pursuant to s 367 of Sustainable Planning Act 2009 – whether change to development condition extending period of operation of quarry results in a substantially different development – or require referral to additional concurrence agencies – or require impact assessment where previously activity did not – or cause the development to which the change relates to include any prohibited development – or whether change to the development application likely to cause a person to make a properly made submission objecting to the proposed change
Sustainable Planning Act 2009
Integrated Planning Act 1999
Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303
Boughey v R (1986) 161 CLR 10
Tillmans Butcheries Pty Ltd v Australian Meat Industry Employees’ Union (1979) 27 ALR 367
Christian Outreach Centre v Toowoomba Regional Council [2012] QPELR 542
Firefast Pty Ltd v Ipswich City Council & Ors [2006] QPEC 076
Cemax Australia Pty Ltd v Bundaberg Regional Council [2009] QPEC 20
Scanlan Property Group Pty Ltd v Sunshine Coast Regional Council [2012] QPELR 394
Holcim (Australia) Pty Ltd v Bundaberg Regional Council(No 2) [2014] QPEC 029
Broad v Brisbane City Council & Anor [1986] 2 Qd R 317
Ogilvy v Council of the Shire of Redland & Ors (1996) QPELR 205
Baglow v Livingstone Shire Council (1983) QPLR 352
Prime Group Properties Ltd v Caloundra City Council & Ors [1995] QPLR 147
COUNSEL:
Mr D Gore QC with Mr Loos of counsel for the applicant
SOLICITORS:
Corrs Chambers Westgarth for the applicant
Mr M Connor, solicitor from Connor O’Meara Solicitors for the respondent
This proceeding is concerned with an application pursuant to s 369 of the Sustainable Planning Act 2009 (“SPA”) seeking approval of a change to a condition concerning the operating period permitted for well established quarrying activities carried out by the applicant, on the basis that the change constituted a “permissible change” for the purposes of s 367 of the SPA. For the reasons set out below, the orders of the court are:
1. This proceeding is adjourned to allow the parties to consider these reasons.
2. One or both of the parties are to notify my associate no later than 4.00pm 27 June 2014 as to whether or not the matter is required to be relisted.
3. In the event that the parties have not given such notice by 4pm 27 June 2014, the application will be dismissed.
Background
The applicant is the registered proprietor of land upon which it operates a quarry. That involves, among other things, the extraction of material, the processing and stockpiling of material and, thereafter, the transporting of processed material to various destinations. The quarry is a hard rock quarry which, as I understand it, is mostly processed for uses such as concrete and road base/pad mix. The subject development approval is a Town Planning Consent Permit issued by the statutory predecessor of the respondent on 22 March 1999. That consent was issued following an appeal to this court which was determined by consent orders made by Skoien DCJ (as he then was) on 6 January 1994. Those orders included a number of conditions which, as a consequence of the court proceedings, found their way into the consent permit issued by the respondent’s predecessor. Relevantly condition 1.2 provided:
“This permit shall be in force from the date of the permit to a date fifteen (15) years from that date. From that date of the Permit and all other permits or approvals shall cease to have any force or effect.”
For the sake of completeness, I should note that the original application and appellant in the proceedings before this court was not the applicant here but another company Smith Premix Pty Ltd. The applicant became the registered proprietor of the land and operator of the quarry thereon on 29 January 2004.
Obviously, as a consequence of condition 1.2 of the permit issued on 22 March 1999, quarrying would have had to cease on 23 March 2014. The applicant seeks in effect a five year extension applying for a change to condition 1.2 to read:
“This permit shall be enforced from the date of the permit to a date 20 year from that date. From the date of the permit or other permits or approvals over the site shall cease to have any force or effect.”
If the relief were granted that would see the quarrying operations on the subject land end on 23 March 2019.
To preserve the applicant’s rights under the original permit, following an application to this court on 13 March 2014, Rackemann DCJ ordered that the permit would continue to have force and effect until “The date when the Planning & Environment Court finally determines application No. 46 of 2014, or earlier order of the court.”
Initially the respondent, as the relevant local authority, opposed the relief sought by the applicant. However, it would appear that that course of action was more precautionary in the sense that the respondent wanted to be satisfied about the mitigation of, in particular, potential ongoing negative impacts on amenity of nearby residents. Sometime between its initial opposition and the hearing of this application the respondent changed its position and no longer opposed the relief sought and considered that I “would be persuaded” that the criteria prescribed in s367 of the SPA had been met.[1]
[1]Transcript (T) 1-36 L 5-8
The quarry is located at 373 Back Windermere Road, Inness Park. Inness Park is a relatively small community located east of the major regional city of Bundaberg. To the south of Inness Park is another small community known as Coral Cove. Both Inness Park and Coral Cove are situated on the coast between the relatively large centre of Bargara to the north and the relatively small community of Elliot Heads to the south. Although the quarry’s address is identified as being at Inness Park it, broadly speaking, could be seen as also forming a part of the Coral Cove area. Residential development of small lot and larger lot type lies to the east, northwest and further removed to the north.[2]
[2]See generally figures 1 and 2 in exhibit “PAK-1” to the affidavit of Paul King sworn 15 April 2014.
The quarry is identified as a Key Resource Area (KRA) “KRA87” for the purposes of the State Planning Policy, December 2013 (SPP).[3] Another quarry owned and operated by Holcim (Australia) Pty Ltd (Holcim), which is also a Key Resource Area “BargaraKRA”, lies in close proximity to the north on the same (western) side of Back Windermere Road. Holicm is also in the process of seeking approval to commence quarrying operations on another area of land to the immediate southwest of the subject land on the south western corner of Back Windermere Road and Barolin Homestead Road. That application is the subject of a “call in notice” pursuant to s 425 of the SPA.[4] At the time of the hearing of this application no relevant decision had been made in respect of the call in notice and its progress was unknown. Holcim is not only seeking to commence quarrying on the area to which I have just referred but was also the successful applicant in proceedings before this court for relief similar, but not identical, to that being sought by the applicant here. The SPP at page 45 notes the State’s interest in mining and extractive resources and, in respect of development applications concerning such resources relevantly states:
[3]See exhibit 1.
[4]Exhibit 3.
“The development application is to be assessed against the following requirements:
(1) The development ensures that:
(a)For development within a resources/processing area for a KRA – the undertaking of an existing or future extractive industry development is not significantly impeded; and
(b)Sensitive land uses are avoided within the separation area for a resource/processing area of a KRA; and
(c)For development within the transport route separation area of a KRA – the number of residents adversely affected by noise, dust and vibration generated by the haulage of extractive materials along the route does not increase;
(d)For development adjacent to the transport route – the safe and efficient use of the transport route by vehicles transporting extractive resources is not adversely affected.”
At page 129 of the affidavit of Ms Amanda Helliwell sworn 12 March 2014, is a copy of a document titled “Bargara key resource area…”. That document identifies three things in particular. First, what is described as the “resource/processing area”. Second, areas of land described as “separation area”. Third, transport route centrelines. The evidence suggests that the primary transport route for haulage trucks from the subject land is to the west via Barolin Homestead Road and to the north and northwest via Back Windermere Road and Windermere Road.
The legislative framework
As stated, this application was brought pursuant to s 369 of the SPA. It relevantly provides:
“Request to change development approval
(1)If a person wants to make a permissible change to a development approval, the person must by written notice ask the following entity (the responsible entity) stated for the change or approval to make the change –
(a) …
(b) If the approval was given by the court – the court:
…”
Section 367 deals with what is a permissible change for a development approval and relevantly provides:
“(1)A permissible change, for a development approval, is a change to the approval that would not, because of the change –
(a) Result in a substantially different development; or
(b)If the applications for the approval were remade including the change –
(i)Require referral to additional concurrence agencies; or
(ii)For an approval for assessable development that previously did not require impact assessment – require impact assessment; or
(c)For an approval for assessable development that previously required impact assessment – be likely, in the responsible entities opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed; or
(d)Cause development to which the approval relates to include any prohibited development…” (emphasis added)
Section 374 relevantly provides:
“Responsible entity to assess request
(1)To the extent relevant, the responsible entity must assess the request having regard to –
(a)The information the person making the request included with the request; and
(b)The matters the responsible entity would have regard to if the request were a development application; and
(c)If submissions were made about the original application – the submission; and
(d)Any notice about the request given under s 373 to the entity; and
(e)Any pre-request response notice about the request given to the entity.
(2)For subsection (1)(b), the responsible entity must have regard to the planning instruments, plans, codes, laws or policies applying when the original application was made, but may give the weight it considers appropriate to the planning instruments plans, codes, laws or policies applying when the request was made.”
As identified above, the relevant “responsible entity” for this proceeding is this court.
Consideration
In this case the “development approval” for the purposes of s 367 is a Town Planning Consent Permit granted under the then Local Government (Planning & Environment) Act which, under the subsequent Intergraded Planning Act 1999 (IPA) had effect as a continuing, as if it were “development permit” for the purposes IPA and then subsequently the SPA. In the event that this application were successful it would not create a new approval but result in a change to a condition of the original approval.
As to Ss 367(1)(a)(b) and (d), the evidence is that the change to condition 1.2 would not result in a substantially different development or involve any prohibited development. In Firefast Pty Ltd v Ipswich City Council & Ors[5] Robin QC DCJ considered that where a time period was all that was under consideration, no assessable development resulted. Later in Cemex Australia Pty Ltd v Bundaberg Regional Council[6] his Honour relevantly said:
“The course of authority including Coominya Sand and Gravel, appears to demonstrate an acceptance that assessable development does not arise from a change by way of increasing the number of years which a development approval remains current.”
I respectfully agree. No assessable development would arise if the proposed change was approved.
[5](2006) QPEC 076.
[6](2009) QPEC 20.
As to s 367 (1)(b)(i), at the time the original permit was issued there were no entities described as “concurrence agencies”. Those agencies were a creation under IPA. Having regard to the nature of the change involved here I am satisfied that no issue involving additional concurrence agencies arises.
Accordingly the only live issue in this application, in my view, is whether the change would be likely to cause a person to make a properly made submission objecting to the proposed change. The first matter to be dealt with in this regard is to determine what the legislature intended when it chose to use the word “likely” in s 367(1)(c). In the Oxford English Dictionary, Second Edition, Volume XII, among other things, “likely” is defined to mean “2. Probably, in all probability”. And, the word “probably” is defined to mean, among other things “1. In a way that proves itself to ones reason for acceptance or belief plausibility; in a way that seems likely to prove true; with likelihood (though not with certainty). Now rare.” The word “probable” is defined to mean, among other things “3a. Having an appearance of truth; that may in view of present evidence be reasonably expected to happen or prove true; likely… d. Likely to be (something specified).” In the Third Edition of the Macquarie Dictionary, “likely” is defined “1. Probably or apparently going or destined (to do, be, etc)… 2. Seeming like truth, fact, or certainty or reasonably to be believed or expected probable… 5. Probably…”. Probable is defined “1. Likely to occur or prove true… 2. Having more evidence for than against…” And “Probably” is defined “… in a probable manner; with probability; in all likelihood.”
In certain circumstances the words, “probably” and “likely” would be able to be used interchangeably however, not necessarily so in every case. As was observed by Gibbs CJ in Boughey v R[7] “it is trite to say that the meaning of a word will be influenced by the context in which it appears.”
[7](1986) 161 CLR 10: see also at pp 20 per Mason, Wilson and Deane JJ and at p42 per Brennan J.
During submissions being made by Mr Gore QC, senior counsel for the applicant, dealing with this issue, I interrupted him at one stage by saying to the effect that usually when I used the word “likely” it was in the context of it meaning probable, and that I would take some convincing to construe it otherwise. Wisely, as it turned out, notwithstanding that interruption, Mr Gore continued his submissions on the point and referred me to the cases dealt with below.
In Boughey the High Court was concerned with a criminal matter and in particular whether or not an action on the part of the appellant was “likely to cause death”. It is difficult to imagine a case more distinguishable from that which I am now dealing with. Notwithstanding, Gibbs CJ took the view that where used “likely” meant “probable” and not “possible”. Brennan J (as he then was), clearly concerned with criminal liability issues considered that where used the word “likely” should be understood to mean “probable not possible”.[8] The plurality (Mason, Wilson and Deane JJ relevantly said:[9]
“It is true that the meaning of the words ‘probable’ and ‘likely’ is liable to vary according to the context in which they are used:… In the context of the content of the element necessary to constitute common law murder, the gravity of the charge requires that the content of the requirement that an accused knew of the probability or likelihood that his acts would cause death be not discounted. Even in that context, however, it will ordinarily suffice to convey what is involved in the requirement if the direction to the jury is framed in the words of the joint judgment in Crabbe, namely, that the accused knew that death or grievous bodily harm was the probable or likely consequence of his act and if reference is made that a distinction which was there stressed, namely, the distinction between what is probable or likely on the one hand and what is only possible on the other. …”
There the plurality was addressing a submission made on behalf of the applicant to the affect that first, where the word “likely” was used in the relevant act it was a synonym of “probably”. Second, that so understood, the word “likely” meant “more likely than not” in the sense of more than a 50 per cent chance.[10] Their Honours’ reached the conclusion that where used in the act there was strong support “in the code itself” for the conclusion that the word “likely” was not used with that meaning intended. Their Honours concluded by stating that the ordinary meaning of the word “likely” was to “convey the notion of a substantial – a real and not remote chance regardless of whether it is more or less than 50 per cent...”.[11]
[8]At p 42.
[9]At p 20.
[10]See at pp 18-19.
[11]See at p 21.
In Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees’ Union Deane J said:[12]
“The word ‘likely’ can in some context, mean ‘probably’, in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a 50 per cent chance… It can also, in an appropriate context, refer to a real or not remote chance or possibility regardless of whether it is less or more than 50 per cent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to ‘prone’, ‘with a propensity’ or ‘liable’.”
[12](1979) 27 ALR 367 at 380.
In Australian Telecommunications Commission v Kreig Enterprises Pty Ltd[13] Bray CJ was concerned with an action in negligence brought by the Commission against Kreig Enterprises. As a consequence, it was necessary to construe a section of the Post and Telegraph Act 1901-1973 (Cth) which relevantly provided: “In circumstances in which the person or a servant of the person has reasonable cause to believe that the doing of the work is likely to interfere with or damage property under the control of the Post Master General…”. After considering a number of authorities Bray CJ said:[14]
“I do not, however, regard these difficult semantic questions about the proper meaning of familiar adjectives in the various formulations of common law doctrine as decisive of the point in issue, or even very relevant. The common law depends on concepts not on words. It is not bound to the particular phraseology adopted by a particular court. It can be refined on or expounded in more or less detail according to the circumstances of the particular case. Here we are concerned with the word ‘likely’ in a statute. As I have said, the ordinary and natural meaning of the word is synonymous with the ordinary and natural meaning of the word ‘probable’ and both words mean, to adopt the expression of Lord Hodgson in the passage previously quoted, that there is an odds on chance of the thing happening. That is the way in which statutes containing the words have usually been construed… particularly this is so when the statute is a penal statute… or, I think, where as, here, an additional liability in tort beyond the common law liability is being imposed.” (emphasis added).
[13](1976) 14 SASR 303.
[14]At p 312.
Obviously, Bray CJ decided the matter without the benefit of the consideration of the High Court in Boughey nor that of Deane J in Tillmanns Butcheries. Also, in this case I am not concerned with construing a statute which imposes a penalty and/or any liability in tort or otherwise (although Mason, Wilson and Deane JJ were in Boughey). Section 367(1)(c) is concerned with the question of whether or not the proposed change of the development approval would be likely to cause a person to make a properly made submission objecting to that change. Notwithstanding these matters the observations of Bray CJ are, broadly speaking, consistent with the dictionary definitions of the words “likely” and “probable/probably” referred to above.[15]
[15]Also per Gibbs CJ and Brennan J in Boughey.
It was contended on behalf of the applicant that where used in s 367(1)(c), “likely” ought be construed to mean, as Gibbs CJ and Brennan J did in Boughey, namely, “probably”, that is to say more likely than not or more than a 50 per cent chance. It was submitted that in this court the word has been construed differently. In Christian Outreach Centre v Toowoomba Regional Council[16] Searles DCJ concluded that for the purposes of s 367(1)(c) of SPA it meant a “substantial chance, a real, not remote chance, regardless of whether it is more or less than 50 per cent.”[17] It would appear in reaching that conclusion his Honour was not referred to the earlier decision of Rackemann DCJ in Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council[18] where it was said:
“It is not always easy to rule out the possibility that any change might provoke an objection. That is particularly so because it is rare for the court to have material from particular perspective submitters. In those circumstances, the court is called upon to assess the relevant likelihood on the balance of probabilities and on the assumption that those who might otherwise have had the opportunity of making a submission objecting to the change would make their decision as to whether or not on a reasonable basis.” (emphasis added)
[16](2012) QPELR 542 at paras 29 and 30.
[17]See also KT Corporation Pty Ltd v Logan City Council (2006) QPELR.
[18](2012) QPELR 394 at 395.
I am not convinced that Rackemann DCJ was in fact expressing the opinion that where used in s 367(1)(c) of the SPA, “likely” should be construed as meaning probably or more likely than not. His Honour’s choice of words by no means, in my respectful opinion, make it clear that was what was intended and in context it is very much open that His Honour was simply observing to the effect that the court was required to determine on the balance of probabilities (i.e. the civil standard) whether an adverse submission was likely or not.
After considering those cases and reading the word in the overall context of s 367, I have reached the conclusion that, contrary to my initial view, the word “likely” should not be given the meaning contended for by the applicant. It seems to me that it was not the legislature’s intention to limit the operation of subsection (1)(c) to only those cases where, after some form of forensic analysis, the “responsible entity”, in this case the court, was satisfied that it was more likely than not (i.e. better than 50/50) that a properly made submission opposing the change would be made. In my opinion, what was intended was for the court to decide on the relevant material whether the proposed change was “likely” in the sense of being liable or prone to provoke such a submission. That intention would be best achieved by construing the word in the manner adopted by the plurality in Boughey. That is, “likely” should be construed to mean “to convey the notion of a substantial – a real and not remote chance regardless of whether it is more or less than 50%”. In any event, even if I were wrong about that and the proper test was that it had to be probable that such a submission would be made I would still, for the reasons dealt with below, refuse to grant the relief sought. That is because I have concluded that it was more likely than not that the proposed change would cause a person to make a properly made submission for the purposes of s 367(1)(c) of the SPA.
I am conscious that much of what is set out above is a repeat of what I said in Holcim (Australia) Pty Ltd v Bundaberg Regional Council(No 2)[19], delivered on 30 May 2014. However, in circumstances where that application was successful and this one not, I thought it was appropriate to set my reasons out in full rather than simply paraphrase what I said in that earlier case.
[19](2014) QPEC 029
It is not irrelevant that the quarry produces what the State considers to be a “key resource”. However, and while there is no direct evidence about this, I do not think it would be unreasonable to proceed on the basis that while that may affect the way some residents decide whether or not they object, it is unlikely to affect most potential submitters. I accept that the quarry has abided by all the conditions imposed upon it under the current permit and other relevant laws. I also accept that the reason for this application was not as a consequence of any untoward or otherwise blameworthy conduct on the part of the applicant. Further, I also accept the expert evidence relied on by the applicant, particularly that emphasised during submissions, dealing with traffic, noise and dust. In this context Mr McClurgh (the traffic engineer relied on by the applicant) concluded:
“In summary, the Boral Quarry currently operates in accordance with the initial approval conditions, including the initial and updated Quarry Management Plan (QMP).
Whilst the permissible change application is to extend the life of the quarry, Boral will continue to operate the quarry in accordance with the QMP. That is, the quarry will continue to haul approximately 200cu.m per day, generate approximately 22 return vehicle trips per day (ie 22 vehicles in plus 22 vehicles out) and continue to utilise the approved KRA haulage routes.
Importantly, the haulage routes are all of an acceptable standard for quarry trucks and adequate safety/capacity and minimal conflict with private vehicles.”[20]
[20]Affidavit of Brett Andrew McClurg, exhibit BAM-1, at p 4 (court document 12).
Mr King (the expert relied on by the applicant dealing with noise and dust) concluded in his report:[21]
[21]Affidavit of Paul Anthony King, exhibit PAK-1 at p15-17 (court document 11).
“44.My inspection of the quarry identified that at the time of inspection, what I considered to be appropriate noise and dust mitigation measures were in operation.
…
46.On the basis of my inspection, the site is well managed and employs appropriate noise and dust control measures.
…
56.The quarry is well buffered to sensitive receptors (residential) by both distance and topographic screening (vegetated mounds and quarry working area elevations).
57.The continuation of site operations for a further 5 years would result in extraction and processing being located in and adjacent to areas that are either currently worked or have been worked in the past. On this basis, future activities on the site will be located no closer to offsite receptors and shall be provided with shielding from the existing mounding … thus future operations will have no greater potential for amenity impact than current or past activities.
58.It is my conclusion that the quarry can continue to operate for a further 5 years within the amenity standards of its present approvals and on this basis will not result in unacceptable amenity impacts at surrounding residential areas.
59.Further, should a development application be made for approval of the quarry, on the basis of my inspection, such an approval should be granted on the basis of current development approval conditions relating to noise and air quality (dust) amenity.”
While I have no reason to doubt that the applicant adopts best practices in its operating procedures, its quarrying on the subject land would, from time to time, still have a negative impact on the amenity of the surrounding residential areas. This is implicit in the report of Mr King and his reference to, by way of examples, “… future operations will have no greater potential for amenity impact than current or past activities.” And “… the quarry can continue to operate for a further five years within the amenity standards of its present approvals and on this basis will not result in unacceptable amenity impacts at surrounding residential areas.” The latter statement is consistent with the fact that in the last five years there were few complaints concerning the quarry and none in the last two years.[22]
[22]Affidavit of John Ian Taylor, at para 4 (court document 13).
On behalf of the applicant it was submitted:[23]
[23]Applicant’s written submissions at para 37.
“Boral submits that it is unlikely that the change would cause a person, taking a rational view of the matter, to object to the change, because:
(a)there is no change to the quarry operation which has been well established for decades;
(b)the recent complaint history is low or minimal;
(c)the lodgement of an objection would be perceived to lack utility, given:
(i)the matters referred to in subparagraphs (a) and (b) hereof;
(ii)that the Council would be known to be supportive of the extension of time;
(iii)that, given the matters just referred to, the pursuit of an appeal against a Council approval would be risky.”
I accept that there would be no change in the operation of the quarry and that the complaint history is low, even arguably minimal. I also accept that, armed with the knowledge that the respondent was generally supportive of the application, some residents might be deterred from taking objection. I also accept that, given the expert evidence referred to together with that of the town planner relied on by the applicant to pursue opposition to the relief sought in this court on the part of any potential submitter, might involve an element of “risk”. The risk of losing and of being exposed to adverse cost orders. However, as was observed by Rackemann DCJ in Scanlon Property, the operation of s 367 is not concerned with whether or not a submitter’s objection would be ultimately upheld by this court, the real issue is whether the change would be likely to cause a person to make a negative submission. I also consider that Mr Gore was correct in saying that the issue of “risk” in this context would only apply to a “narrow category” of potential submitters.[24]
[24]T1-32 L32.
Any submission of course has to be one made on a reasonable basis. However, that expert evidence of the type addressed above exists, does not rule out the making of a properly made submission objecting to the change. In Broad v Brisbane City Council and the Baptist Union of Queensland, a decision of the then full Court of Queensland, Thomas J (as he then was) said: [25]
[25](1986) 2 Qd R 317 at 319-320.
“The real criticism of His Honour’s use of these perceptions is not so much that they were subjective as that they were vague, irrational or incapable of adequate explanation. Common lawyers and men of equity alike have a healthy and long-standing distrust of the mystical explanation, and of the alleged factor which cannot be rationally justified. The question arises whether the use of the present criteria was impermissible or unsafe in principle. I do not think that they were. The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce. All counsel agreed that the provision of a funeral parlour was a good example of an institution which, whilst discreet in its conduct and relatively small in its production of physical consequences, would be likely to have an effect in the way of ‘atmosphere’. Whether this is described as prejudice or otherwise does not matter. It is a recognisable and normal enough perception of the ordinary resident.
These remarks are not intended to encourage resort to vague statements as justification for an irrational conclusion. But it is necessary to recognise that if some matters in this area, although intangible and difficult to articulate, may be real and may be properly taken into account. Aesthetics may of course be a relevant consideration in a town planning decision although the basis of the opinion may be difficult to explain. It follows that although some of the particular factors upon which His Honour relied were admittedly vague, they were not necessarily invalid or improper considerations. No error of law is disclosed on this point.”
To similar effect were the observations of de Jersey J (as he then was):
“There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses but also the resident’s objective perception of his locality. Knowing the use to which a particular site is or may be put, may affect one’s perception of amenity.
It is unnecessary in this case for me to attempt to any further elucidation of the concept of amenity. Such a task would in any event be difficult as the approach of the Court of Appeal in Re Ellis and the Ruislip-Northwood Urban District Council…tends to confirm. Bankes LJ there said (p 364) that amenity is a term of ‘such very wide significance’ and went no further. Scrutton LJ was specific to the point of saying (p 370) that the term meant ‘pleasant circumstances or features, advantages’. Eve J (p 374) however was not prepared to ‘hazard any opinion’ as to the proper construction of the word’.”
In Primegroup Properties Ltd v Caloundra City Council & Ors[26] Skoien SJ DC said:
“I have decided that, as separate components, no unreasonable adverse impact on the nearby residents in the form of noise, light or unpleasant odours would be caused by this development. But the concept of amenity is far broader then that. In Broad v Brisbane City Council… de Jersey J said…
The resident/objectors gave evidence of their actual perception and the fears they held of the effect of the development. Their fears were, I thought, sometimes overstated, even unlikely. However I accept that the actual perception which the residents claim to have is genuinely held. That perception is one of residential amenity. Provided that perception can be seen to be reasonably held in an objective sense, it should be given considerable weight…
In deciding what other reasonable perceptions of amenity of the residents I am conscious that I must apply ‘the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notions not affected by some special sensitivity or eccentricity.’”
[26](1995) QPLR 147 at 150-151.
I accept that caution has to be exercised in attempting to draw inferences about what would be likely to occur in this case based on what has occurred in respect of the proposed new Holcim quarry. That project involves a “greed field” site and is impact assessable. The proposal attracted 81 submissions which were assessed and categorised by Ms Helliwell, a solicitor employed by Corrs Chambers Westgarth on behalf of the applicant.[27]
[27]There were 54 submissions to the Call in Notice of which 47 were opposed. (Ex 3 at p 3).
Without dealing with each and every one of those submissions, some general and some more specific matters can be identified. First, it is tolerably clear, as I observed in Holcim, that some submitters are inclined to attribute blame for perceived nuisances to the wrong quarry. Second, not all of the nuisances complained of in fact emanated from any quarry but from other sources. The third general observation is that a significant number of the submissions were of a “pro forma” type. That of course does not mean that they should therefore be ignored. However, it has to be recognised that there is a real prospect that some of the submissions made might not have been if not for this process, often commenced and followed through with by more motivated residents.
Notwithstanding the above, the submissions raise a number of more specific and relevant matters. First, given the location of the quarries and the proximity and density of the surrounding residential areas, the number of submissions is significant. Second, and associated with the first matter, it is clear that quarrying, be it existing or proposed, is a matter of real concern to a number of surrounding residents. Third, and of some significance in this case, is that a number of submitters raised expectations about the remaining operational terms of the existing quarries.[28]
[28]Affidavit of Amanda Mary Helliwell sworn 16 April 2014, Exhibit “AMH-6” at p383-399 (court documents 14 & 15).
I respectfully agree with the observations made by other judges of this court to the effect that while the number of “objections” may be a relevant fact, the court must consider and take into account the substance (or lack thereof) of such objections. As Quirk DCJ observed in Ogilvy v Council of the Shire of Redland & Ors[29] cases are not decided by “opinion poll”.
[29](1996) QPELR 205 at 210: See also Baglow v Livingstone Shire Council (1983) QPLR 352 per Row DCJ.
However, as identified above, a material number of the submitters opposing the proposed Holcim quarry made specific reference to their expectations about the closure of quarries in the area including the subject. The Holcim development application was lodged with the respondent in January 2013.[30] Expectations ranged from anywhere between 2 years and the “not too distant future” to 10 years. Most, broadly speaking, stated a range of between 4 to 6 years,. These time estimates need to be treated with considerable caution of course. It is tolerably clear that many of them are not directly related to the date of the submission. There is also uncertainty in many cases as to exactly which quarry is being referred to. Further, some time estimates seem to be based on what people were told at or about the time they were looking to settle in the area. Finally in this regard the range of expectations varies considerably.[31] Nonetheless, being mindful of these difficulties, I still consider that these references provide evidence of a genuine desire on the part of a not insignificant number of residents to see all quarrying in the area cease at the earliest possible date.
[30]Exhibit 3 at p 2.
[31]Refer generally to exhibit “AMH-6” at p383-399 of affidavit of Amanda Mary Helliwell sworn 16 April 2014 (court documents 14 & 15).
.
Finally in this context, while the very low number of complaints relating to the existing use is relevant, it is far from conclusive. It would be wrong to infer from that evidence that the change to condition 1.2 was one not likely to attract genuine and reasonable objection. That residents do not complain about an existing use which has a fixed end date is an entirely different situation, in my opinion, from that where, if not opposed, that use and its associated impacts on amenity would continue for a further 5 years.
On balance, I consider that while this case can be distinguished from the proposed Holcim quarry with an expected life of, at this stage, 15 years, it would not be unlikely (even on the balance of probability test) that a change which would see the subject quarry continue to operate at its current capacity and under its current operating regime, to cause a person to make a properly made submission objecting the proposed change. The conclusion that I have reached in this case is not in conflict with that I reached in the Holcim matter. In Holcim the term of actual quarrying (without blasting) and processing operations are to cease by 30 November 2014. A significantly different scenario to that of continuing to at or nearly, mid 2019.
Ordinarily, the conclusion that I have reached would see the application refused. However, as I observed in Holcim and above, the hypothetical submitter has to be expected to act sensibly and rationally. He would realise that it is in no ones interest not to have existing stockpiles removed and the site rehabilitated and that outright refusal of this application would be likely to lead to a successful development application to the respondent which might not be limited to only facilitating site rehabilitation but might also permit quarrying to continue for a period of time, even up to 5 years. In this proceeding, unlike the situation in Holcim, a conditional extension was not canvassed and, having regard to a number of the matters raised herein, I am reluctant to dismiss the application without giving the parties the opportunity to consider these reasons.
Accordingly, the orders I will make are:
1. This proceeding is adjourned to allow the parties to consider these reasons.
2. One or both of the parties are to notify my associate no later than 4.00pm 27 June 2014 as to whether or not the matter is required to be relisted.
3. In the event that the parties have not given such notice by 4pm 27 June 2014, the application will be dismissed.