Burnett Shire Council v. Freshcoast Pty Ltd

[2007] QPEC 4

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Burnett Shire Council v Freshcoast Pty Ltd [2007] QPEC 004

PARTIES:

BURNETT SHIRE COUNCIL

Applicant

V

FRESHCOAST PTY LTD ACN 105 708 807

Respondent

FILE NO/S:

2743/2006

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

2 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

14 December 2006

JUDGE:

Alan Wilson SC, DCJ

ORDER:

1 Declare that the respondent’s manner of its use of land namely Lot 2 on RP199546 County of Cook Parish of Takalvan for the purposes of ‘rural industry – packing shed for fruit and vegetables’ is in breach of condition 16 of the Development Approval authorising the use

2 Order that the respondent, its servants or agents, cease use in breach of condition 16

3 Further Order that the operation of order 2 be suspended for four months from the date of this order; and that the parties have liberty to apply on seven days notice 

CATCHWORDS:

PLANNING LAW – CONDITIONS OF USE – construction of conditions – meaning and effect of the word ‘generally’ – restraining orders – postponement of effect of restraining order

Integrated Planning Act 1997, s 4.1.21(1)(a)

Cases considered:
Caloundra City Council v Taper Pty Ltd [2003] QPELR 558
Hawkins and Izzard v Permarig Pty Ltd & Brisbane City Council (No 1) [2001] QPELR 414

Queensland Cement Limited v United Global Cement [1999] QPELR 167
Warringah Shire Council v Sedevcic (1987) 63 LGRA 361
Woolworths Ltd v Caboolture Shire Council & The Warehouse Group (Australia) Pty Ltd [2004] QPELR 634

COUNSEL:

S M Ure for applicant

M Hinson SC for respondent

SOLICITORS:

Finemore Walters and Story

Payne Butler Lang

1. This is an application by Council for a declaration that Freshcoast is using its packing shed at Boona Road, Bundaberg in a manner which breaches a condition attached to approval of the use for that purpose, and an order that it be restrained from continuing the alleged breaches. 

1. The land is in a rural area and since 1990 Freshcoast and its predecessors have had permission to use the premises for a purpose described as ‘rural industry – packing shed for fruit and vegetables’,  subject to a particular condition:

The hours of operation for the approved purpose shall be generally limited to 6am to 6pm daily (emphasis added)

1. To the west of the premises there are four houses, and the residents of two of those houses have filed affidavits in support of Council’s application.  One resident, Mrs Maskell, exhibits a diary she has kept of activities on Freshcoast’s premises between June 2005 and September 2006.  Her evidence was unchallenged and establishes that the premises are routinely being used later than 6pm, and that trucks are coming and going up to 9pm, and sometimes later.

1. The word ‘generally’ is defined in the Macquarie Dictionary as ‘usually, ordinarily’.  The Australian Oxford Dictionary defines it as ‘usually; in most cases’ or ‘for the most part’ or ‘in most respects’.

1. Conditions of this kind are not Acts of Parliament and the process of construction should not be undertaken in any overly technical way[1].  Other cases show the application of the word ‘generally’ usually (and unsurprisingly) involves questions of fact, and degree[2].  I am satisfied that, for the purposes of the relevant condition here, the proper meaning is that for the most part, usually, or in most respects the operations should occur within the period 6am – 6pm.

   [1]Hawkins and Izzard v Permarig Pty Ltd & Brisbane City Council (No 1) [2001] QPELR 414, at 416

   [2]Caloundra City Council v Taper Pty Ltd [2003] QPELR 558, at 573-574

1. The evidence is persuasive that condition 16, construed in this way, has been breached as a result of operations which frequently, and commonly, take place well after 6pm.

1. This Court has power to make declarations about the lawfulness of land use: Integrated Planning Act 1997, s 4.1.21(1)(a); (and, the construction of planning instruments: s 4.1.21(1)(b)). The breach constitutes non-compliance with a development approval: s 4.3.3.

1. Freshcoast nevertheless resists a restraining order or petitions, in the alternative, for suspension of any order for a period of about four months.  Evidence from its witnesses shows, and I accept, that it has been attempting to reduce the extent of operations after 6pm, and is also taking steps to construct new cold rooms and storage facilities on another property, reducing the use of this facility.

1. It is accepted that orders of the kind sought here are discretionary[3].  The fact any breach exposes the party subject to the restraint to penalties for contempt means the order must be expressed in clear terms; and, Mr Hinson SC submitted, the use of words like ‘generally’ invites future debate about not only the condition itself, but any restraining order based upon it.  The argument is not without substance; but the analysis of the meaning of the word set out earlier shows any difficulty for a court at a later date, grappling with the question whether the restraining order has been breached, would not be insurmountable.  No unfairness or injustice falls upon the respondent if it is simply compelled, as a consequence of an order of that kind, to comply with a condition which always involved relatively straightforward matters of fact and degree.

   [3] Warringah Shire Council v Sedevcic (1987) 63 LGRA 361; Queensland Cement Limited v United Global Cement [1999] QPELR 167

1. The matters said to warrant a restraining order in this case were helpfully summarised in submissions from Mr Ure, for the Council.  This is, I accept, not a case involving a simple technical breach but one which has been prolonged, and can fairly be described as flagrant.  It is continuing.  The respondent could not reasonably have doubted its actions amounted to breaches and, indeed, so much is effectively conceded in the affidavits filed on its behalf. 

1. The breaches involve unpleasant impacts on the amenity of local residents.  I accept that some of the difficulties are caused by the timing of the operations and activities of growers whose produce is delivered to and processed at the premises, and that some urgency arises because that produce is perishable, but those are not matters of sufficient weight to justify refusal of a restraining order.  They are relevant, however, to the question whether its operation should be postponed for a time to allow Freshcoast to reorganise its affairs.

1. The premises process over two million kilograms of grape tomatoes each season and have five permanent employees with, at times, up to 35 people engaged in processing.  In Woolworths Ltd v Caboolture Shire Council & The Warehouse Group (Australia) Pty Ltd [2004] QPELR 634 it was held that the question of postponement involves a balancing of competing elements including, of course, the need to uphold planning law, weighed against the risk of harm to other innocent victims including, here, other growers and the respondent’s employees.

1. It is also material that Freshcoast conducts its own farming operations on this property and, if restrained, needs to consider a variety of interests.  Its manager deposed that the shifting of the operations, which will require Council approval, is likely to take some months.  The postponement sought by Freshcoast was four months, with liberty to apply.  In all these circumstances, that is not unreasonable.

1. There should be orders by way of a declaration that the respondent has conducted its operations in a manner which is in breach of the condition and that it should be restrained from doing so, but with the operation of that order postponed for four months.