Gillion Pty Ltd v Scenic Rim Regional Council
[2012] QPEC 33
•2 May 2012
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2012] QPEC 33
PARTIES:
GILLION PTY LTD (ACN 102 972 001)
(Appellant/Respondent to subject application)AND
SCENIC RIM REGIONAL COUNCIL
(Respondent)AND
GERARD ELLEN
(22nd Co-Respondent/Applicant in this application)AND
JENNIFER PEAT
(55th Co-Respondent/Applicant in this application)AND
ALISON RIP
(63rd Co-Respondent/Applicant in this application)AND
JOHN STOTSCHEK
(72nd Co-Respondent/Applicant in this application)AND
STEWART WRIGHT
(83rd Co‑Respondent by election)FILE NO/S:
4506/11
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:
2 May 2012
DELIVERED AT:
Brisbane
HEARING DATE:
2 April 2012
JUDGE:
RS Jones DCJ
ORDERS:
1.The proposed development is an extractive industry for the purposes of Schedule 11 of the Sustainable Planning Regulation 2009.
2.The subject development application was required to be referred to the Chief Executive, Department of Transport and Main Roads.
3.The current failure to refer the development application to that department is excused.
4.I will hear from the parties (if necessary) as to any further consequential orders.
CATCHWORDS:
PLANNING AND ENVIRONMENT – STATUTORY CONTSTRUCTION – issue of whether the subject development application was required to be referred to the Department of Transport and Main Roads – whether extraction of water from the aquifer of the subject land constituted extractive industry for the purposes of the Sustainable Planning Regulation 2009 – where the respondent council treated the substantive application as being one for commercial ground water extraction as defined under its planning scheme – where respondent council’s planning scheme contained a further specific definition of extractive industry
Acts Interpretation Act 1954 (Qld), s 14A
Integrated Planning Regulation 1998 (Qld), Schedule 4
Mineral Resources Act 1989 (Qld)
Sustainable Planning Act 2009 (Qld), ss 250, 251, 252, 254, 440.
Sustainable Planning Regulation 2009 (Qld), s 13, Schedule 7, Schedule 11
Transport Infrastructure Act 1994 (Qld)Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) CLR 297; [1981] HCA 26.
Institute of Patent Agents v Lockwood [1894] AC 347
Maryborough Investments Pty Ltd v Fraser Coast Regional Council (2010) QPEC 113
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1988] HCA 28.COUNSEL:
Mr R. Laidley for the applicants (the 22nd, 55th, 63rd and 72nd co-respondents)
Mr J. Lyons for the respondent/appellant
Mr S. Ure for the respondent council
Mr S. Wright, appeared in person as the 83rd co‑respondent and as the representative of a number of other co‑respondents
SOLICITORS:
McCarthy Dury Lawyers for the applicant/co‑respondents
HWL Ebsworth, Lawyers for the applicant/respondent
Corrs Chambers Westgarth for the respondent council
This application is concerned with a preliminary point raised by a number of applicants/co‑respondents. The preliminary point is identified in the orders made by his Honour Judge Rackemann on 19 March 2012:
“[W]hether the development application was required to be referred to the Chief Executive administering the Transport Infrastructure Act 1994.”
For the reasons given below, the orders of the court are:
1.The proposed development is an extractive industry for the purposes of Schedule 11 of the Sustainable Planning Regulation 2009.
2.The subject development application was required to be referred to the Chief Executive, Department of Transport and Main Roads.
3.The current failure to refer the development application to that department is excused.
4.I will hear from the parties (if necessary) as to any further consequential orders.
Background
The substantive proceeding involves an appeal by Gillion Pty Ltd (“Gillion”) against the decision of the respondent, the Scenic Rim Regional Council, to refuse its development application for a material change of use of land located in the Mount Tamborine region.
The proposed use of the land by Gillion is the extraction of groundwater for commercial purposes. As I understand it, water is removed from the aquifer via a bore and pump/pumps. It is then transferred into tankers, transported from the site, processed and eventually sold as bottled drinking water. Some storage capacity will also be located on site. It was uncontroversial that under the development application the projected production of extracted water would be between 23.5‑29 million litres per annum, which equates to a throughput tonnage of between 23.5‑29 thousand tonnes per annum. Each transport tanker carries approximately 28,200 litres, or approximately 28.2 tonnes, of water and it is expected that approximately 20 loads per week will be transported from the site.[1] The proposed use is impact assessable under the relevant planning scheme and falls within the definition of “Commercial Ground Water Extraction”. The planning scheme also, within its dictionary, defines Extractive Industry.
[1]Humphreys Reynolds Perkins report, February 2011, para 5.2.3; part of Exhibit 1.
Relevant statutory and planning provisions
Sections 250, 251 and 252 of the Sustainable Planning Act 2009 (SPA) are concerned with identifying for the purposes of the Act who is an advice agency, who is a concurrence agency and who is a referral agency. Section 254 of the SPA deals with the jurisdiction of referral agencies:
“Jurisdiction of referral agencies for application—generally
(1)A referral agency has, for assessing and responding to the part of an application giving rise to the referral, the jurisdiction or jurisdictions prescribed under a regulation.
(2)If 2 or more entities prescribed as referral agencies are the same entity (however called), the entities are taken to be a single referral agency with multiple jurisdictions.”
Section 13 of the Sustainable Planning Regulation 2009 (SPR) provides:
“For sections 250(a), 251(a) and 254(1) of the Act—
(a)schedule 7, column 2 states the referral agency, and whether it is an advice agency or a concurrent agency, for the development application mentioned in column 1; and
(b)schedule 7, column 3 states the jurisdiction of the referral agency mentioned in column 2.”
Relevant to this application, Schedule 7, column 2 of the SPR provides that a development application for a development made assessable under a planning scheme requires referral to the chief executive responsible for the administration of the Transport Infrastructure Act 1994 if the development:
“(a)is for an aspect of development identified in Schedule 11; and
(b)is for a purpose or purposes mentioned in Schedule 11, column 1; and
(c)exceeds the threshold, or combined threshold, in Schedule 11, column 2 or 3 for the purpose or purposes.”
Schedule 11 is concerned with “Thresholds for development not contiguous to state-controlled roads”. Under the heading:
“Material change of use made assessable under a planning scheme, temporary local planning instrument or preliminary approval to which section 242 of the Act applies.” (emphasis added)
Schedule 11 then goes on to identify particular uses and threshold levels for each of those uses dependent upon the population of the relevant local government area. Relevant to this application, Item 22 of Schedule 11, under the “Purpose” column, provides:
“Extractive industry (including mineral processing, refinery and smelter).”
The relevant threshold is:
“Using machinery having an annual throughput of product of 10,000 t.”
It can be seen that the projected throughput tonnage of the proposed use is about 2½ times the prescribed tonnage threshold.
Similar provisions existed under the Integrated Planning Regulation1998 in Schedule 4. The term “extractive industry”, however, is not defined in either the SPA or the SPR.
Under the planning scheme the term “extractive industry” means:[2]
[2]Beaudesert Shire Planning Scheme 2007, S1-5.
“The undertaking of dredging, excavating, quarrying or sluicing activity and any other mode of obtaining extractive materials, which is carried out within or on the land, including removal of same from a site, whether or not conducted on a commercial basis.
The term includes, as ancillary uses the storage, loading and cartage of extracted substances that are washed, screened, crushed or have undergone other treatment processes or any work, administration or accounting in connection with such activity.”
Certain exemptions to that definition are identified but are not relevant to this application.
As has been identified, the proposed use involves the commercial extraction of ground water. The planning scheme relevantly provides:[3]
“Commercial Groundwater Extraction means the extraction of groundwater resources and the removal of that resource from a property for the purpose of sale. The term includes the treatment and storage of extracted groundwater resources.”
[3]Beaudesert Shire Planning Scheme 2007, S1-3 – S1-4.
The arguments
The applicant’s argument is to the effect that the term “extractive industry”, where it appears in the SPR, should not be read down or made subordinate to the meaning given to specified activities under the respondent’s planning scheme. It is submitted that when looked at objectively and where the natural and ordinary meaning of the words “extractive” and “industry” are given, the proposed use is an extractive industry for the purposes of SPA and the SPR and that consequence should not be defeated because the council had decided to classify the proposed use as something other than extractive industry.[4]
[4]Applicant’s written submissions, paras [10]-[15].
The applicant’s position was supported by Mr Wright, who appeared in person and on behalf of a number of other co‑respondents.
On behalf of Gillion, it is submitted to the effect that, in circumstances where the proposed use is clearly identified under the planning scheme as commercial groundwater extraction and not as extractive industry, there is no scope for the operation of Schedule 11 of the SPR. In this context, particular emphasis is placed on the words “material change of use made assessable under a Planning Scheme”. In Gillion’s written submissions, it is asserted that:
“18.The operative words in Schedule 7 and Schedule 11 of the SPR that are relevant are that the development application must be for a ‘material change of use made assessable under a Planning Scheme’. Accordingly, it is the Planning Scheme to which regard must be had to determine whether the use of the subject of the development application is ‘extractive industry’. …”
The respondent’s primary position was that it would abide the order of the court. However, during argument Mr Ure, counsel for the respondent council, made submissions which were generally supportive of Gillion.
The Chief Executive’s position
On 19 March 2012, Judge Rackemann ordered, among other things, that the Chief Executive administering the Transport Infrastructure Act 1994 be notified of this proceeding and, if appropriate, leave be granted for the Chief Executive to be joined as a co‑respondent in the appeal. On 20 March 2012, Gillion’s solicitors wrote to the Chief Executive notifying him of the substance of the development application. The Chief Executive was also asked for the department’s position on whether the application should have been referred to it pursuant to SPR.[5]
[5]Exhibit PJB-6 to the affidavit of Mr P Bittner, filed 30 March 2012.
On 28 March 2012, the Department of Transport and Main Roads responded:[6]
[6]Exhibit 2.
“In accordance with the court order, the Department of Transport and Main Roads (the department) has considered whether or not it should have been a referral agency on the above appeal’s [sic] development application for a material change of use for commercial groundwater extraction.
The department has satisfied itself that it is not triggered as a referral agency for this development application under schedule 7 of the Sustainable Planning Regulation 2009.
The Beaudesert Shire planning scheme provides a specific definition for the proposed activity being ‘commercial ground water extraction’, which provides for the extraction as well as the removal of the resource from a property for the purposes of sale.
As the scheme provides a specific definition for the activity, the department does not believe that the definitions for extractive industry or industry (low or high impact) under the planning scheme are applicable, and the proposal should not be assessed as being extractive industry under schedule 7 which would therefore mean the development would not be referrable to TMR.”
It appears from that correspondence that the department approached the matter along the lines advanced by Mr Lyons, counsel for Gillion. It seems to be implicit in the department’s response that if the proposed use had been determined to be an extractive industry under the planning scheme, then it probably would have considered that the relevant provisions of the SPR had been met and, accordingly, would have considered itself to be a referral agency.
Consideration
The respondent’s planning scheme clearly intended to distinguish uses of this type from the operation and effect of its definition of extractive industry. It is also tolerably clear, as Mr Ure pointed out, that historically the term “extractive industry” has been used by the state and local authorities primarily to catch the activity of extracting from the ground resources such as sand, gravel, rock and clay.[7] This theme tends to be repeated in the phrase “extractive industry” where it is used in Schedule 11 of the SPR, referring as it does to “… including mineral processing, refinery and smelter” and to the machinery throughput being expressed in tonnages. Of course, that those inclusive words have been used does not necessarily exclude the industry of extracting anything else other than minerals from the ground. The words do, however, tend to add a context or flavour generally consistent with the more traditional meaning of extractive industry.
[7]Some examples of this can be found in Exhibit 4.
In this context, I note that in the material tendered by Mr Ure (Exhibit 4) there is an extract form the Butterworths Australian Legal Dictionary, which defines the term “extractive industry” in the more traditional manner. One wonders, however, whether when that definition was formulated, the extraction of ground water to be later sold as bottled drinking water was an industry within the contemplation of the authors of that learned publication.
Perhaps of most significance in this context is the definition given to “extractive industry” and “extractive resources” in the State Planning Policy 2/07.[8] In that policy, an extractive industry is one involved in the extraction and processing of extractive resources. Extractive resources are then defined as “natural deposits of sand, gravel, quarry rock, clay and soil extracted from the earth’s crust …”. An extractive resource does not, however, include resources which are minerals for the purposes of the Mineral Resources Act 1989. [9]
[8]Part of Exhibit 4.
[9]State Planning Policy 2/07, “Protection of Extractive Resources”, p 9.
The terminology used to define extractive industry in State Planning Policy 2/07 tends to support Gillion’s cause. However, it is necessary to bear in mind that it and the SPA and the SPR are concerned about materially different matters. The policy is concerned about the preservation of extractive resources as defined therein, while the SPA and the SPR are concerned with, relevant to this case, the impact of development on state‑controlled roads.
In this regard, it is of some significance that those responsible for the drafting of the SPR included in the term “extractive industry”, mineral processing, refinery and smelter. Those activities would be unlikely to be caught under the meaning of an extractive industry for the purposes of the policy. Further, while rock mined in block or slab form for building monuments is excluded under the policy, it would probably fall within the meaning of extractive industry for the purposes of Schedule 11 of the SPR.
On balance, I do not consider that the definitions given to extractive industry and extractive resources in State Planning Policy 2/07 (or in the other documents of Exhibit 4) are of any real assistance in determining the meaning of the words “extractive industry” where used in Schedule 11 of the SPR.
It is my understanding that the proposed use would involve only relatively minor disturbance of the land and does not involve the removal of any of the earth’s crust. That stands in contrast to many of the activities contemplated under the definition of extractive industry under the planning scheme. However, it is uncontroversial that it involves the extraction of something (water) from beneath the surface of the land. This is no doubt something that the drafters of the scheme recognised when they introduced the specific use “commercial ground water extraction” into the scheme. There is also no doubt that the proposed use is of a commercial nature and can be properly categorised as an industry, involving as it does significant business activity and systematic work and labour.[10] The question remains, however, despite the meaning of “extractive” and “industry” being individually met, is the proposed use an “extractive industry” for the purposes of the SPR?
[10]The Macquarie Dictionary, 3rd Ed; The Australian Concise Oxford Dictionary, 3rd Ed.
In Project Blue Sky Inc v Australian Broadcasting Authority[11] the High Court relevantly said:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
…
[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning …” (footnotes omitted)
[11](1998) 194 CLR 355, paras [69] and [78].
When read in context with the other relevant provisions of the SPA and the SPR and the words are given their ordinary meaning, an extractive industry for the purposes of Schedule 11 is one concerned with the extensive extraction of a natural resource.[12] Groundwater is a natural resource. The words should not be read down or given a more narrow meaning because that term is used in a local authority’s planning scheme to describe a more specific or different use. To do so would impermissibly make the dominant or “leading” provisions of the legislation subordinate to the provisions of the planning scheme.[13]
[12]The Australian Concise Oxford Dictionary, 3rd Ed.
[13]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, para [70], citing with approval Lord Herschell LC in Institute of Patent Agents v Lockwood [1894] AC 347 at 360.
While I was not taken to any specific material on this point, it is tolerably clear from the relevant legislation that Parliament intended that in appropriate circumstances the Department of Transport and Main Roads would become involved in the planning process when proposed uses of land might materially impact on state-controlled roads.
That department is, among other things, charged with the responsibility for the management and operation of state-controlled roads. It would be, in the absence of words making the intention sufficiently clear, an illogical situation to have the involvement of departments responsible for the management of state assets, determined by how local authorities decided to classify particular uses in their planning scheme.
In my opinion, the policy, purpose and real intentions of the legislature[14] are best met by the construction of Schedule 11 of the SPA contended for by the applicants/co‑respondents.
[14]Section 14A Acts Interpretation Act 1954; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) CLR 297 at 304-305 per Gibbs CJ.
Accordingly, in my respectful opinion, the Department of Transport and Main Roads was wrong to conclude that, in respect of the subject development application, it was not a referral agency under the SPA.
A consequence of my conclusions is that there has been a failure to comply with the requirement that the development application be referred to the Chief Executive, Department of Main Roads and Transport.
Given the correspondence referred to above, it might well be the case that it will have little interest in the proposal but that is no answer.
However, this court has, pursuant to s 440 of the SPA, a wide discretion to excuse non‑compliance where appropriate.[15] Indeed, it is agreed among the parties that, in the event that I did conclude that the development application should have been referred to the department, Gillion’s non‑compliance should be excused. I agree.
[15]Maryborough Investments Pty Ltd v Fraser Coast Regional Council (2010) QPEC 113.
That the applicants’ agreed that the non-compliance to date should be excused does not render this proceeding moot. It is contended on behalf of the applicants, rightly in my opinion, that the department’s response was based on an erroneous view of the limits of its jurisdiction and that the subject development application should now be referred to the department for its proper consideration.
Orders
For the reasons given, the application is allowed and the Orders of the court are:
1.The proposed development is an extractive industry for the purposes of Schedule 11 of the Sustainable Planning Regulation 2009.
2.The subject development application was required to be referred to the Chief Executive, Department of Transport and Main Roads.
3.The current failure to refer the development application to that department is excused.
4.I will hear from the parties (if necessary) as to any further consequential orders.
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