Cemex Australia Pty Ltd v. Bundaberg Regional Council

[2009] QPEC 20

[2009] QPEC 20

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 825 of 2009

CEMEX AUSTRALIA PTY LIMITED (ACN 099 732 297)	Appellant
and
BUNDABERG REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 01/04/2009

ORDER
CATCHWORDS: Integrated Planning Act 1997 s3.5.33 - town planning consent permit under earlier legislation arising pursuant to a successful developer appeal to the Courts was by its terms to be in force for 15 years - that period about to expire - relevant development condition changed to allow 20 years - assumed interests of local people and the wider public interest considered

HIS HONOUR:  The Court makes an order in terms of paragraph 1 of the originating application filed on the 25th of March, 2009, to the following effect:

"That Condition 1.2 of the town planning consent permit dated 12 April 1994 in relation to land described as Lots 28 and 29 on Registered Plan No. 194897, Lot 30 and Part Lot 31 and Lot 35 on Registered Plan No. 194898, Lot 2 on Registered Plan No. 129987, Lot 33 on Registered Plan No. 194898, Easement A in Lot 29 on Registered Plan No. 194897 and Easement B in Lot 30 on Registered Plan No. 194898 in the County of Cook, Parish of Barolin situated at Cockerills Road, Innes Park, Bundaberg be changed from:

'1.2  This Permit shall be in force from the date of issue to the date fifteen (15) years from that date.  From the date of issue all other permits or approvals over the site shall cease to have any force or effect to 1.2  This Permit shall be in force from the date of issue to the date twenty (20) years from that date.  From the date of issue all other permits or approvals over the site shall cease to have any force or effect.'"

The permit referred to arises from an order of Judge Skoien made in Bundaberg P & E Appeal Number 15 of 1993 on the 17th day of December 1993.  The appellant in that proceeding was CSR Limited, the respondent the Council of the Shire of Wongarra.  It will be noted from the title of the proceedings that the identities of the appropriate participants may have changed.  The present applicant now has the benefit of the town planning consent.

Notwithstanding the date of the Court order, it dates from the 12th of April 1994.  It is about to expire.  It is unnecessary, I think, to go through the complicated transitional provisions in the Integrated Planning Act 1997 (IPA) whose effect is to bring the matter within the scope of the new legislation, which of course is not in force at all times.

It was vital for the applicant to get to the Court before the expiration of the permit as reference to Coominya Sand and Gravel Pty Ltd. v Esk Shire Council [2007] 1 QR 223 dramatically demonstrates. That concerned a town planning consent like the present one, granted by the Council under the Local Government (Planning and Environment) Act 1990 on 12th of May, 1995.

Application was made, as the one before me has been, under section 3.5.33 of the IPA to the Court as "the entity that decided the condition".

In Coominya Sand and Gravel, the difficulty, which has been successfully avoided here, was that by the time the application filed in this Court shortly before the expiration of the development permit came on for hearing, the permit had expired.  Judge Rackemann, affirmed by the Court of Appeal, was constrained to hold that in that situation there was nothing that could be renewed or extended.

The application before the Court today contains a prayer for other relief in terms of an interim order which might operate for the period running until the Court might be able to determine the principal application Coominya Sand and Gravel identified the potential availability of such an order.  There is no need to consider any interim relief in these circumstances.

It is clear, I think, that in IPA a time limitation is regarded as a condition upon a development approval of an ordinary kind, see section 3.5.31.(1)(a). Section 3.5.33 applies where a person wants to change a condition and "(b) no assessable development would arise from the change".

One can envisage scope for an argument that assessable development arose from a change of condition which extended the temporal aspect of a development.  Here, that's sought to be done in respect of a quarry operation.  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 over which a development approval remains current.

I have had occasion myself to extend a currency period in a similar way in Firefast Pty. Ltd. v Ipswich City Council [2006] QPEC 76. That case illustrates a concern, which I think the Court ought always to have, about the implications of the change of condition. It goes without saying that the change presently sought is going to have impacts on people who find themselves in the vicinity of an operating quarry, and indeed the haul routes which serve it.

Although none chose to participate in the 1993 appeal, there were submitters in respect of the application which underlay the consent flowing from Judge Skoien's order.  Those, I am unsurprised to learn, involved the usual concerns that people have about quarry operations.  The Court has before it today evidence respecting some of those concerns, such as noise - in this instance - from the acoustic expert.  There is affidavit material from relevant experts in other fields too.

Some of the concerns of the early 1990s have dissipated.  In particular, one that the quarry operation would sterilise, in an unacceptable way, possibilities for residential development in the vicinity.  As things have turned out, the pattern of residential development has not been what was anticipated previously.  Indeed, the Council's planning scheme has changed in a way which offers positive encouragement to the quarry operation, and in far greater measure than did the planning arrangements in the early 1990s.

It is not only the Council's planning which acknowledges the importance of the relevant quarry resource.  It is specifically recognised in State Planning Policy 2 of 2007 "Protection of Extractive Resources" and the associated guideline.  There is an established public interest in the exploitation of this particular resource.  What is at risk of being sterilised now is the quarry resource.

Its continued availability will preserve an element of competition in the market which otherwise would disappear.  It also offers employment.

The Council is fully supportive of the present application, Mr Connor indicating that had it been the "entity" for purposes of section 3.5.33, it would certainly have approved the change of condition sought. I took him to be saying to the Court, as well, that if a new development application were made, the Council would look favourably on it. It is unattractive to contemplate forcing the applicant to the considerable trouble and cost involved in proceeding in that way.

I referred to the acoustic expert's evidence before the Court.  The Court is told that blasting, which was one of the unwelcome impacts of the quarry, not only as a proposal, but during its actual operations, is no longer required.

MR BOWIE:  Your Honour, I ought to make one point clear.  Mr Douglas's affidavit makes it clear that there is no blasting proposed for the consent quarry, but the adjoining quarry - which is not the subject of this application - has some very limited blasting still to go.  I think your Honour should know that.  It should affect nothing, but we want to be clear.

HIS HONOUR:  Realistically, the Court ought to accept that there will be local people displeased by the order that is made.  None of the objectors chose to become part of the 1993 appeal.  Were the situation otherwise, my view would have been that submitters or objectors who have been involved in the Court proceeding would have the right to be afforded the opportunity to participate in this application.  If Office Park Developments Lennon Pty ltd v Brisbane City Council [2006] QPEC077.  The Courts ought to give careful consideration in such applications as to what notice of them, if any, should be given to persons other than the local government.

The absence of persons in that category does not, in my view, relieve the Court from having to consider the likely impacts of extended operations of the quarry. Section 3.5.33(7) requires the submissions to be taken tin account to the extent relevant. The nature of impact which caused concern has been disclosed to the Court in the applicant's material, and there is nothing surprising there.

The Court has to make a judgment, which it does, giving some weight to what local people will be subjected to in consequence of the order.  At the end of the day, greater weight ought to attach to the matters of public interest, which I have adverted to above.  Mr Conner said the Council's instructions was that the incidence of complaints to it about the quarry has been reducing over recent years.  To an extent the Court may assume that in arriving at its stance it has considered not only the wide public good, but also the interests of those located close to the subject site.

The last subject for comment is the lateness of the application.  Concern might arise that the Court is being placed under undue pressure in circumstances like the present where a quick decision is called for in circumstances which appear sympathetic for the applicant and employees, et cetera.

That concern is alleviated to some extent by the possibility of interim relief being granted for a short extension while a wider inquiry is made, with time no longer a threatening factor. 

Mr Bowie has explained to the Court the commercial circumstances in which his client found itself.  The quarry resource is coming to the end of its useful life.  The resources on the site are found in various pockets throughout the site.  Considerable investigation has been required in order to enable the applicant to form a commercial judgment as to whether this extension ought to be sought. 

As it happens, a good deal of the additional five years is likely to be devoted to restoration of the site to put it in an acceptable condition after the quarrying. 

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