Gillion Pty Ltd v Scenic Rim Regional Council & Ors
[2013] QPEC 15
•3 May 2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Gillion Pty Ltd v Scenic Rim Regional Council and Ors [2013] QPEC 15
PARTIES:
GILLION PTY LTD
(appellant)and
SCENIC RIM REGIONAL COUNCIL
(respondent)and
PENNY AAGAARD AND ORS
(first Co-respondent by election to 83rd Co-respondent by election)and
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS
(84th Co-respondent by election)And
TAMBORINE MOUNTAIN PROGRESS ASSOCIATION INC
(85th Co-respondent by election)And
EAGLE HEIGHTS VILLAGE ASSOCIATION INC
(86th Co-respondent by election)FILE NO/S:
BD 4506 of 2011
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
3rd May 2013
DELIVERED AT:
Brisbane
HEARING DATE:
19th November 2012 – 24th November 2012; 21st December 2012; 29th January 2013 – 1st February 2013, 4th April 2013
JUDGE:
Robertson DCJ
ORDER:
Appeal Dismissed
CATCHWORDS:
PLANNING AND ENVIRONMENT: Merits appeal to regularise an existing use of commercial extraction of groundwater declared by this Court to be unlawful; where issues of impact on groundwater Aquifers, noise associated with use and traffic safety over haul route.
CONFLICT WITH PLANNING SCHEME: where Respondent alleges that use conflicts significantly with Planning Scheme from Strategic Provisions to Precinct Provisions, whether amenity (both tangible and intangible) provisions in Planning Scheme are in conflict with the use, where Co-respondents allege use conflicts with Commercial Extraction of Groundwater Code; where Respondent alleges that use is an Inconsistent Use in the Tamborine Mountain Zone Code and is therefore a locationally inconsistent use in significant conflict with the Planning Scheme as a whole, where appellant accepts that there is conflict but categorises it as technical or mechanical.
GROUNDS: whether sufficient grounds exist to approve notwithstanding conflict, whether absence of unacceptable impacts on “hard” amenity is a “ground”; where appellant argues that there is a strong planning need for groundwater from this site, where only witness called in support of this ground is principal of appellant company.
TRAFFIC ISSUES: where traffic safety issues in traffic evidence, where DTMR brought in as a Referral Agency by some of the Co-respondents, where DTMR and appellant reached agreement after all traffic evidence of conditions to be imposed if appeal allowed, where DTMR conditions require a change of the haul route from Tamborine Mountain Road to Tamborine/Oxenford Road which will take water tanker through “Gallery Walk”, a major tourist hub on the Mountain, where conditions will require appellant to upgrade important intersection at Curtis Falls another tourist hub on the Mountain.
AMENITY: whether impacts on intangible aspect of amenity leads to conflict with Planning Scheme, where hard impacts can be made acceptable by the imposition of condition.
PRIOR LAWFUL USE RIGHT: whether this Court in enforcement proceedings decided that appellant had pre-existing lawful use rights to extract groundwater from the site under the Superseded Planning Scheme; whether evidence is sufficient to determine the nature of the use in earlier times.
Legislation:
Integrated Planning Act1997 (Qld)
Planning and Environment Court Rules 2010 (Qld)
Sustainable Planning Act2009 (Qld)
Cases:
AAD Design Pty Ltd v Brisbane City Council [2012] 136 L.G.E.R.A 390.
Ackland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2008] Q.P.E.L.R 342.
Baptist Union of Queensland v Brisbane City Council & Anor [2003] QPELR 61.
Broad v Brisbane City Council and The Baptist Union of Queensland [1986] 2 Qd.R 317.
Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2012] QPEC 33.
Histpark Pty Ltd and anor v Council of the Shire of Maroochy [2002] Q.P.E.L.R. 135.
K Page Main Beach v Gold Coast City Council [2011] LGERA 180.
Leda Holdings Pty Ltd v Caboolture Shire Council and Ors [2006] QCA 271.
Lockyer Valley Regional Council v Westlink Pty Ltd & Ors (2011) 185 LGERA 63.
Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2012] QCA 370.
Luke & Ors v Maroochy Shire Council & Watpac Developments [2003] QPELR 447.
Scenic Rim Regional Council v Gillion Pty Ltd [2010] QPEC 115.
Stappen Pty Ltd v Brisbane City Council & Ors [2005] Q.P.E.L.R. 466.
Telstra Corp Ltd v Pine River Shire Council [2001] QPELR 350.
Weightman v Gold Coast City Council [2003] 2 Qd.R.441.
William McEwens Pty Ltd v Brisbane City Council [1981] 1 QPLR 33.
Woolworths Ltd v Maryborough City Council & Anor [2006] 1 Qd.R. 273.
COUNSEL:
Mr M Williamson and Mr J Lyons for the appellant
Ms P Djohan for the Respondent
Mr R Litster SC for the 84th Co-respondent (DTMR)
Mr R Laidely for the Co-respondents (22,28,29, 35, 63, 72, 73, 74, 85 & 86th)SOLICITORS:
HWL Ebsworth for the appellant
Corrs Chambers Westgarth for the Respondent
Hopgood Ganim for the 84th Co-respondent
McCarthy Durie Lawyers for Co-respondents (22,28,29, 35, 63, 72, 73, 74, 85 & 86th)
Mr S Guerin (self-represented)Mr S Wright (self-represented)
The appellant (Gillion) appeals against a decision of the respondent (the Council) dated the 25 October 2011 received by Gillion on the 28th of October 2011 whereby the Council refused Gillion’s application for a development permit for a material change of use for commercial groundwater extraction with respect to land located at 22-26 Power Parade, Mount Tamborine, in the State of Queensland and more particularly described as Lot 87 on RP168897 (the site).
Gillion’s development application was lodged with the Council on or about the 22 February 2011. It followed on from successful enforcement proceedings taken by the Council against it which was the subject of the judgment of this Court dated the 10 September 2010: Scenic Rim Regional Council v Gillion Pty Ltd [2010] QPEC 115.
The site is situated within the boundaries of the Council and within the former Beaudesert Shire Local Government area. The site is rectangular in shape with an area of approximately 8,070m2 and has a frontage to Power Parade of approximately 45 metres.
The site slopes to the south-west from the rear boundary towards the Power Parade frontage and is fully fenced and contains a detached dwelling at the rear, disused sheds and water tanks (understood to have been associated with a previous hydroponics operation), a sealed driveway including a tanker truck turnaround and two 20,000 litre stainless steel tanks associated with the commercial groundwater extraction use, and a storage shed within which the electric pump and associated infrastructure is located for groundwater extraction.
It is common ground that groundwater has been extracted from the site for sale since the early 90’s. The application therefore before the Court relates to a use (declared unlawful by this Court) which is continuing at the present time.
The proposed use
As described in the town planning joint experts report commencing at page 1105 of Exhibit 1C, the proposed development contemplates three separate and sequential components:
(a) The extraction of the water from the sub artesian source using a single bore;
(b) The storage of the water onsite within two 20,000 litre tanks; and
(c) The transportation of the water off-site.
The extracted water passes through a segmentation filter between the bore and the storage tanks (located within a storage shed). There is no other processing, treatment or bottling of water proposed to be undertaken onsite.
The quantity of loaded truck movements to transport the water offsite is proposed to be limited to a maximum quantity of 20 loaded movements per week (i.e. on average up to a maximum of four loaded movements per day), with a maximum weekly extraction of 564,000 litres. Similarly, the days, and the times of those days, within which the truck is proposed to operate onsite and in association with the proposed land use, are proposed to be restricted to 7.30 a.m. to 6.00 p.m. Monday to Friday.
The truck is typically onsite for a period of approximately 25 minutes, being the time it takes for the truck to enter the site, turn around, for the tanker trailer to be filled and for the truck to then exit the site. I note that the turnaround time on occasions witnessed by Mr Guerin (who with his wife is the 30th Co-respondent by Election) however, the 25 minute turnaround on average was accepted by all town planners and is recorded at paragraph 54 of the joint expert report.
With the exception of the driver of the truck, who also operates the pump to load the tanker trailer, there are no other permanent employees or regular visitors associated with the proposed land use onsite.
The electric pump which conveys the water from the storage sheds to the outlet point is contained within an existing domestic type shed on site. The pump occupies only a small portion of that shed with the balance of the area used for general storage of goods and materials. There are no other permanent buildings or structures associated with the Commercial Ground Water Extraction use onsite.
The combined total length of the current truck and tanker trailer is approximately 15.3m. It is a “cab forward” design and is equipped with GPS and monitoring devices to monitor driver behaviour.
Although more relevant to other issues, the water is transported to a factory and plant at Stapylton (in the Gold Coast Shire) where it is filtered and bottled and distributed for sale throughout Queensland and Australia. The factory is owned by Wetfix Pty Ltd which bottles and distributes the water. Wetfix Pty Ltd is a wholly owned subsidiary of Gillion.
The Planning Framework
The development proposal is to be assessed against the Beaudesert Shire Planning Scheme which took effect in 2007 (the Planning Scheme) at a time that the now repealed Integrated Planning Act 1997 was still in force (the IPA). At the time of the commencement of the Planning Scheme, section 2.1.23(1)(b) of the IPA imposed a statutory bar to prohibiting development on, or the use of, premises.
The reasons for refusal and disputed issues
In its decision notice, Council identified eight reasons for refusal. The disputed issues have been expanded by contributions by all parties, in particular, an amended consolidate list of issues in dispute dated 30 January 2012, filed on behalf of the Council and various other lists of further issues and disputes filed on behalf of Mr Laidley’s clients and other Co-respondents.
The disputed issues generally can be categorised as conflict with the Planning Scheme being an inconsistent land use across the Shire and specifically in the Tamborine Mountain Zone, conflict with many provisions from the Desired Environmental Outcomes (DEOs) to Overall and Specific Outcomes for the Tamborine Mountain Zone Code and with Specific Assessment Criteria for the Village Residential Precinct, and conflict with the Commercial Groundwater Extraction Code. It is common ground that the site lies within the Tamborine Mountain Zone in the Planning Scheme and within the Village Residential Precinct. A number of these conflicts bear directly upon a proper construction of the Planning Scheme, but many of the conflicts were said to arise as a result of the proposal producing unacceptable traffic impacts, unacceptable noise and vibration impacts, unacceptable impacts on the sustainability of the relevant aquifer or aquifers, and unacceptable impact on amenity of local residents and across the Mountain traversed by the haul route, including intangible amenity impacts.
The statutory framework for assessment
The Planning Scheme was made under the repealed IPA and is taken to continue to have effect to be the Planning Scheme for the Shire area made under the Sustainable Planning Act 2009 (the SPA). As the development application was received by Council on the 22 February 2011, the appeal was commenced pursuant to s 461 of the SPA. The appeal is to be by way of hearing anew, and must be decided based on the laws and polices applying when the Development Application was made, although the Court may give weight to any newer laws and policies that the Court considers appropriate.
The appellant has the onus of establishing that the appeal should be allowed.
The Court must assess the proposal in accordance with s 314 of the SPA and decide the appeal in accordance with s 324 and apply the “decision rules” set out in s 326. Although the wording in s 326 of the SPA is different from the repealed equivalent provision in the IPA, in the context of this appeal the approach to be taken is in accordance with the so-called three stage test mandated by the Court of Appeal in Weightman v Gold Coast City Council [2003] 2 Qd.R.441. It is accepted that the decision of that Court in Woolworths Ltd v Maryborough City Council & Anor [2006] 1 Qd.R. 273 did not qualify or modify the Weightman decision apart from to say that the decision was not a “code for the determination of justification”. The Weightman approach is confirmed most recently in Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2012] QCA 370 which was considering a Scheme similarly structured to the Planning Scheme. In that case the Council attempted to construe the Weightman test so as to add another layer which was rejected by Holmes JA (with whom White JA and Atkinson J agreed.) In an earlier appeal concerning the same proposal (Lockyer Valley Regional Council v Westlink Pty Ltd & Ors (2011) 185 LGERA 63) the Court equated conflict in the Weightman sense with “at variance”.
In summary a decision to approve must not conflict with any relevant instrument which in this case is the Planning Scheme unless there are sufficient grounds to justify the decision despite the conflict. “Grounds” for the purposes of s 326 of the SPA are defined as:
1. matters of public interest; and
2. does not include the personal circumstances of an applicant, owner or interested party.
The term “public interest” is not defined in the SPA. It is common ground that the only form of regulation of the commercial extraction of groundwater on Tamborine is through the Planning Scheme.
Pre-existing lawful use issue
During his opening on behalf of Gillion on day 1, Mr Williamson made a submission concerning an existing lawful right use which he submitted arose as a result of the decision of his Honour Judge Durward SC in the enforcement proceedings. His submission was that in that judgment (Scenic Rim Regional Council v Gillion Pty Ltd [2010] QPC 115), his Honour had decided that the use came within the definition of “Minor Public Utility” in the 1985 Beaudesert Shire Council Planning Scheme (the Superseded Planning Scheme), and was a use for which Council permission was not required. Mr Williamson submitted that the merits appeal was therefore not in relation to a new use but a use that had materially increased in scale and intensity, thus constituting a material change of use requiring impact assessment. There can be no doubt that in his opening remarks Mr Williamson made this issue a very important plank in his client’s case. This part of his opening was met with alarm and consternation from the Council and the Co-respondents and an objection from Ms Djohan on behalf of Council. It was submitted that as this issue had not been notified as an issue in dispute and had not been included in either the development application or as a ground in the notice of appeal, the Council and the Co-respondents were significantly prejudiced by the position taken by Gillion in Mr Williamson’s opening. In her closing submission, Ms Djohan has expanded her objection into an estoppel argument. Conversely Gillion has now also relied on estoppel to prevent Council from going behind what it says was Judge Durward’s “finding” that Gillion did have an existing lawful use right at the commencement of the Planning Scheme.
In its final submission I think its fair to say that although Gillion still relies on the point (because s 314(3)(b) of the SPA requires the assessment manager to have regard to “any lawful use of a premises”), it has moved from the prominent position that it had in the opening. Gillion submits that the appeal should still succeed on its merits as if it was a new use but that the finding that it had an existing lawful use puts beyond doubt an approval i.e. that the appeal be allowed.
Ms Djohan notes that no additional evidence was placed before the Court on this issue in these proceedings however, no one disputes relevant factual findings about the nature of the use made by his Honour in his judgment. Some of the evidence before him in any event found its way into the merits appeal in Exhibit 14 which contains the affidavits of the Co-respondents including a number which were before his Honour in the enforcement proceeding. There is also some evidence relevant to this issue contained in Exhibit 32 and in particular the affidavit appearing at pages 14-16 of that Exhibit.
In the enforcement proceedings, based on Mr Stotschek’s (72nd Co-respondent) evidence, his Honour concluded that from the time Gillion acquired the site in 2004 until March 2007 when the Planning Scheme commenced, five to ten 20,000 litre truck loads of water were being extracted each week up to March 2007 when truck loads increased to up to 20 a week depending on the season. The Gillion production bore (the sole source of the water being extracted for the use) was not drilled until February 2007, and the new factory at Staplyton was completed soon after the commencement of the Planning Scheme. There is no dispute that between the above dates, water was transported off the mountain to a factory at Burleigh were it was bottled for sale. In reality it was a commercial operation similar to the present operation but on a smaller scale.
In various parts of his reasons, his Honour referred to the relevant parts of the Superseded Planning Scheme and the competing arguments. As I have noted, in the Planning Scheme the site is located in the Village Residential Precinct in the Tamborine Mountain Zone and use of land in that Zone for Commercial Ground Water Extraction is Impact Assessable Development. ‘Commercial Ground Water Extraction’ is defined in the Planning Scheme as “the extraction of groundwater resources and the removal of that resource from property for the purpose of sale”. In the Superseded Scheme the site was within the Rural Zone.
The competing arguments before his Honour Judge Durward SC were relatively straight forward. Commercial Ground Water Extraction was not a named use in either Columns III or IV of the Table of Zones for the Rural Zone in the Superseded Planning Scheme. Relevantly, paragraph 4 of Part 2 provided that no person shall:
“(1)Without the consent of the Council, … use any building… or use land in any Zone for a purpose set forth in Column IV of the Table of Zones herein opposite the name of that Zone …”
Column IV lists purposes “for which buildings or other structures may be used or for which land may be used only with the consent of the Council”. Included in Column III in the Table relating to the Rural Zone (as there was in relation to every other Zone in the Table of Zones), are the words:
“any purpose other than those referred to in Columns III or V”
Column V is not relevant as it dealt with prohibited purposes. Column III deals with what were called “as of right” uses now “self-assessable” in new planning parlance and includes “Minor Public Utilities”.
Council’s argument before Judge Durward, was that the use was an unnamed use coming within the catch all description in Column IV referred to above which therefore required Council’s consent. Gillion’s argument then as now, is that the use fitted within the definition of “Minor Public Utilities” and was therefore an as of right use which existed at the time of the commencement of the Planning Scheme.
In his judgment his Honour referred to various relevant definitions in the superseded Planning Scheme “Minor Public Utility” was defined as:
“Any premises used or intended for the supply of water, electricity or gas, or the provision of telephone, sewerage or drainage services where these activities do not involve either of the following:- …”
(the exceptions are not applicable in this case)
“Public Utility” is defined in the Superseded Planning Scheme as:
“Any undertaking for the supply of water, hydraulic power, electricity or gas or the provision of telephones, sewerage, drainage or transport carried out by a public organisation. The term does not include…a Minor Public Utility as defined herein.”
His Honour also referred to dictionary definitions to construe the definition of Minor Public Utility to which later reference will be made.
In the Discussion session commencing at page 13 of his Honour’s judgment he concludes with paragraph 52 upon which Gillion now relies:
“What may amount to “material” is a matter of fact that may be characterised by the Court in an exercise of discretion. Whilst I have found that the respondent's operation may properly be characterised under the superseded Planning Scheme as a "minor public utility", nevertheless the change in the scale and intensity of the use is significant and such as would constitute a Material Change of Use of the premises.”
Council and Mr Laidley’s argument is that paragraph 52 is equivocal. There is certainly some earlier observations made by his Honour that are not consistent with a conclusion that he definitively decided that there was a pre-existing lawful use right at the time of the commencement of the Planning Scheme.
At paragraph 40, his Honour referred to Gillion’s submission that a consistent thread in the dictionary definition of “public utility” taken up in the Superseded Planning Scheme definitions is the supply of “an essential public service”. In paragraph 41, his Honour observed:
“An example of such supply in respect of water is a supply of reticulated water to households. The bottling of water for retail sale is arguably not such a supply.”
This is not consistent with an unequivocal finding of the kind contended for by Gillion.
It is difficult to discern on the basis of his Honour’s reasons any real factual detail about the use prior to the purchase of the land and business by Gillion in 2004 except by reference to Mrs McIntyre’s evidence at [18]. There is also the reference to Mr Stotschek’s affidavits to which later reference will be made. Some of Mrs Grey’s (the immediate neighbour to the site to the north) affidavits in the enforcement proceedings form part of the evidence before me. She refers to Mrs McIntyre’s use of the site to extract groundwater. Paragraph 15 of her affidavit filed 5 February 2010 in the enforcement proceedings, does tend to suggest a use which has different qualities to the use of the site from 2004 to 2007 by Gillion. At paragraph 15, Mrs Grey deposed as follows:
“While Judy McIntyre owned the property at 22 Power Parade, the business was not a problem at all. Judy used to bring about three trucks a week into 22 Power Parade to remove water, they were small trucks, a lot smaller than the trucks used now, and were not a problem. Judy used to also deliver water to residents, and filled our water tank for free. It was just a little business that delivered water for residents’ domestic purposes. It delivered water for people on the mountain and she often helped people out by delivering water for free. Judy charged $40 per load of water or often delivered water free. Judy was on a pension and the business was just pocket money for her.”
That description is also somewhat inconsistent with the description or summary of the evidence of Mrs McIntyre at paragraph 18 of the judgment in the enforcement proceedings:
“[18]The previous owner of the property between 1989 and 2002, Mrs McIntyre, deposed that she started selling bulk spring water in about 1991 and from her recollection she removed three loads or eight to ten loads per day, the latter being in peak period, perhaps averaging five loads per day for five days per week.”
Mr and Mrs Stotschek are also long term owners of a property near the site. Unlike the Greys they are not permanent residents. They have owned a property at 32-42 Power Parade since 1990. Mr Stotschek has filed affidavits in these proceedings and in the enforcement proceedings and all are before me as part of his Exhibit 14. His reference at paragraph 15 in his affidavit filed 5 February 2010 in the enforcement proceedings to information he gave to Council in October 2008 in a letter, suggests that in 1996 the owner (presumably Mrs McIntyre), was extracting water to supply residents of Tamborine Mountain. He consistently attributes a serious diminution in water in his bore to extraction from bores on the site during earlier times which obviously is not related to extraction by the Gillion production bore. In his statutory declaration sworn 8 October 2008 he succinctly describes an obvious increase in intensity of use from 1996 to late 2001, one to two 5,000 litre loads each day, six days a week; a period in 2001 where very little water was extracted; and from late 2001 three to five 20,000 litres per week “to the Crystal Water Bottling Plant at Burleigh Heads”.
Mrs Morgan’s affidavit filed 5 February 2010 (part of Exhibit 14) indicates that she and her husband have lived at 51 Power Parade since 2001. All she says, relevant to this, is that when they first arrived “the business did not intrude on us because it was carried on, on a smaller scale. They used smaller water tankers”. Other reasonably long-term residents at Power Parade such as Mrs Atwater say nothing relevant to this issue.
As his Honour noted in his judgment, a material change in the intensity of scale of the use of premises constituted a change of use, or a “material change of use” to use the terminology of the Statute, with the commencement of the IPA on 30 March 1998. Prior to then an intensification of a lawful use was not a change of use. His Honour also noted that the IPA protected existing lawful use rights at its commencement. As he correctly observed, the commencement of the Planning Scheme does not affect that protection. That protection is maintained under the SPA.
On the basis of the uncontested findings of fact (relevant to this issue) in his Honour’s judgment and in the evidence before me, a number of factual conclusions can be drawn from the evidence about the nature of the use as at 30 March 1998:
1. Mrs McIntyre started selling bulk spring water in about 1991;
2. By 1996 this amounted to one to two 5,000 litre loads per day, six days per week to early 2001 (i.e. 30,000 litres to 120,000 litres per week);
3. In 2001 the owners (presumably Mrs McIntyre) informed Mr Stotschek that “they had lost a contract to supply Power Brewery”;
4. In 1996 the owner (presumably Mrs McIntyre) advised Mr Stotschek that “she had a license to supply Tamborine Mountain residents with water at 5,000 litres per load”;
5. In late 2001 Mrs McIntyre began supplying three to five 20,000 litre loads per week (i.e. 60,000 to 100,000 litres per week) to “the Crystal Water Bottling Plant at Burleigh Heads”.
In my opinion his Honour simply did not find that there was a pre-existing lawful use of “Minor Public Utility” as at 30 March 1998 or at the commencement of the Planning Scheme, because it was unnecessary for him to do so, given the unequivocal evidence of material increase and intensity in scale from 2004 onwards. This conclusion is confirmed from an analysis of the submissions made to his Honour contained in Exhibit 32 and Gillion’s final submission.
Paragraph 26 of Gillion’s final submission in the merits appeal carefully notes “the previous proceeding before Durward DCJ considered the application of the ‘best fit test’”. That may be accepted, but his Honour did not refer to it in his reasons despite it being a central plank in Gillion’s argument. Gillion refers to the judgment of Chesterman JA in AAD Design Pty Ltd v Brisbane City Council [2012] 136 L.G.E.R.A 390 at [48] in support of its argument that it is enough that his Honour “found that the use may be characterised as a ‘Minor Public Utility’”. As I have noted, his Honour’s reasons on this point are equivocal and the fact that he did not refer to the “best fit” argument is important.
What was before his Honour and not before me was an affidavit of Mrs McIntyre sworn 4 February 2010. It is referred to in some detail in Gillion’s submissions to his Honour in the enforcement proceedings. There was also an affidavit of a Mr Knight who contracted to transport water from the site. These affidavits (according to Gillion’s submission to his Honour) provide some relevant factual information as to the nature of the use as at 30 March 1998. What is before me is an affidavit of Mr Craig Dorozairo sworn 4 February 2010 in the enforcement proceeding. He was a previous lawyer for Gillion and exhibited to his formal affidavit various historical records which may give some factual understanding of the nature of the use as at the commencement of the IPA. These were apparently obtained by FOI or disclosure. These documents indicate that from 1991 Council officers were testing water from the site to ascertain if it was “suitable for drinking and other domestic purposes”. In analyst certificates issued by the then Council, the reason stated for analysis is “human consumption/domestic”. Certainly prior to the commencement of the IPA, Council regarded “the extraction of spring water for the removal from the site by tanker” in another site in the Rural Zone under the Superseded Planning Scheme as a “Minor Public Utility” (p 53 of Mr Dorozairo’s affidavit). Although entirely irrelevant to this issue, it is also clear that the Council regarded the use “prior to the adoption of current Planning Scheme” as a “Minor Public Utility” under the Superseded Planning Scheme which “did not require approval from Council on Rural Zone Land, and therefore no development conditions ever applied”. This is an extract from a reply from Council dated 26 August 2008 to a letter from Mr and Mrs Guerin (30th Co-respondent by Election) dated 12 August 2008.
In its final written submission, Council has submitted that Gillion is estopped from reliance upon any alleged pre-existing lawful use right essentially for two reasons. The first is the reason that I have already noted; it was not a ground of appeal nor was it referred to in the development application itself, nor was it ever notified as a disputed issue in the appeal. The second reason is that as Judge Durward SC has declared the use unlawful, from which order there was no appeal, Gillion’s attempt to rely on an existing use right offends the principle of finality embodied in concepts such as res judicata and issue estoppel. The latter submission fails I think for one simple reason. As I have indicated his Honour made no concluded finding about the pre-existing use rights. In any event it is clear that his declaration as to unlawfulness was predicated upon a factual finding that since commencement of the IPA (and particularly since 2004) the use had materially changed in scale and intensity, so as to constitute a Material Change of Use of the premises: s 1.3.15 of the IPA. This finding and the declarations are not undermined by the argument now advanced by Gillion. In oral submissions Ms Djohan made the point that the declarations properly read related to the whole of the use which was declared unlawful. I agree with that but it says nothing about any pre-existing lawful use right.
As to the first reason, it is true that this issue is not a ground of appeal and is not notified as a disputed issue. Mr Williamson raised it for the first time as an issue in the merits appeal in his opening. There is merit in Ms Djohan’s point about preparation for trial, particularly in relation to the town planning witnesses given the nature of the cross-examination which raised this issue with each of the town planners. Having said that, it was apparent to me that none of the town planners were surprised by the questions; in particular Mr Brown who gave evidence for Council, and it is difficult to see how Council or any other party is prejudiced by an argument first raised by Gillion in the enforcement proceeding. As Ms Djohan noted, no additional evidence has been called to support the argument. It follows that I do not accept Ms Djohan’s argument that Gillion is now estopped from relying upon any alleged pre-existing lawful use right. Because of my conclusions similarly Gillion’s estoppel argument directed at Council cannot succeed.
For the purposes of the merits appeal and bearing in mind the mandatory nature of the words in s 314(3)(b) of the SPA, it is necessary for me to consider Gillion’s point anew in the light of the evidence before be in the merits appeal. I agree with his Honour that the key words in the description of “Minor Public Utilities” is the concept of “Public Utility”. I agree with his Honour that such a use would involve “…the supply of an essential public or community service”.
The extraction of bulk water and the bottling of it offsite for sale to the public would not come within that description. However, doing the best I can I make the following findings a fact as at the nature of the use at the commencement of the IPA:
(a) Between 30,000 and 120,000 litres of water was being transported offsite by tanker for sale as bulk spring water;
(b) In around 1996, a previous owner was supplying bulk spring water to residents of the mountain;
(c) At some unspecified time between 1996 and 2001 that same owner was supplying bulk water to Power Brewery offsite.
His Honour’s observations in paragraph 52 of his judgment are also consistent with the position that I find myself in. On the basis of the scant evidence above, it may have been the case that in 1996 bulk spring water was being supplied to residents of Mount Tamborine, a factual description that may fit the description of “Minor Public Utility”. If however the use had become a supply of bulk water to a brewery for bottling, it would not fit the description of “Minor Public Utility” because it would no longer be the supply of an essential public or community service. If indeed his Honour was saying no more than the use may have come within that description but he was unable to so find on the evidence before him, then that accords with the position I find myself in, particularly having regard to the evidence placed before his Honour and not before me. The use may have been a “Minor Public Utility” but, on the evidence, I cannot say if or when that description applied to it.
At the end of Exhibit 14 is an affidavit of Mr Abraham sworn 23 July 2010. He was Mrs McIntyre’s partner from when she purchased the site to when she sold (he says in 2003) to the organisation which sold to Gillion. His evidence was used for the enforcement proceedings but no reference is made to it in his Honour’s judgment. His evidence may have assisted on this issue but it was never tested. It simply adds confusion to an already confused picture which was not clarified by cross-examination in these proceedings or in the enforcement proceedings. As I have noted, a use which involved extraction and transporting the water off site to a brewery or a commercial spring water plant for bottling would not comply with an essential component of a “Minor Public Utility”.
He suggests that the supply to the brewery commenced in 1993, but ceased when the brewery failed in 1994. In April 1997 he purchased a 10,000 litre water tanker, and in 1998 supplied water from the site and his own property to the Spring Water Man. He then supplied (in 1999) to Mountain Dew which belonged to the people who sold to Gillion. Both these entities sound like commercial bottled spring water suppliers but I cannot say on the evidence. He also made the observation that Mrs McIntyre was on a pension and did not want too much water being sold which might affect her pension. He still drives a water truck on the Mountain today. He may have been able to clarify some of this confusion but was not required for cross-examination. Probably, the only real certainty is that by the time Gillion acquired the site it was no longer being used as a “Minor Public Utility” and that up to the commencement of the Planning Scheme the use as a commercial enterprise to take water off site to be bottled outside the Shire intensified.
Even accepting Gillion’s argument based on the judgment of Chesterman JA in AAD Design, it would not assist in the circumstances because of the lack of evidence. As the facts of that case demonstrate, a use may comply with two descriptions or definitions in a Planning Scheme, but before one gets to the best fit, there has to be sufficient evidence available to enable the Court to determine what the use was in fact. In this case, as well as there being deficiency in the description of the use, there is also a deficiency in when the use could no longer be described as a supply of an essential public or community service.
It would follow that in my opinion, there is no pre-existing lawful use right.
Ground Water
The Commercial Groundwater Extraction Code in the Planning Scheme in Div 5 provides at 5.2.12 that the Overall Outcomes for Commercial Groundwater Extraction are that it “maintains the amenity of the surrounding areas and protects the underlying aquifer.”
Under 5.2.13 Table 5.2.13 Specific Outcomes and Prescribed Solutions for Commercial Groundwater Extraction includes SO1, which requires development that does not detrimentally impact upon the amenity of the surrounding area for which no solution is prescribed in S1.1, and SO3, development does not detrimentally impact upon the sustainability of the aquifer for which at S3.1 no solution is prescribed. Commercial Groundwater Extraction is defined in the Planning Scheme as:
“the extraction of groundwater resources and the removal of that resource from property for the purpose of sale.
The term includes the treatment and storage of extracted groundwater resources.”
In its reasons for refusal (as amended) Council did not suggest that the proposal did not comply with the Code except on the issue of amenity. Its refusal was based on other alleged inconsistencies with the Planning Scheme. The contradictors on this issue are Mr Laidley’s clients joined by Mr Wright and the Co-respondents he represents and Mr Guerin.
A preliminary issue relates to an objection raised by Mr Laidley at the outset of Gillion’s case in relation to water, in which he submitted that the use of two experts in relation to the water evidence was impermissible by virtue of r 35 of the Planning and Environment Rules. On this issue Mr Sutherland and Mr Anderson from the organisation known as Gilbert & Sutherland (G & S) provided reports and gave evidence on behalf of Gillion, and Mr Stephen Boyd gave evidence on behalf of Mr Laidley’s clients.
I agree with Mr Laidley that in his Court report and in his evidence, Mr Sutherland to some extent, proceeded into evidence concerning water quantity. Mr Sutherland was presented as an expert in water quality, and Mr Anderson an expert in water quantity. The evidence of both has been received and they have been extensively cross-examined. The objection can be met by me taking care to ensure that in relation to Mr Sutherland’s evidence, I consider only the water quality issue which essentially resolves down to an assessment of his evidence relating to hydrochemistry, and consider only Mr Anderson’s evidence in relation to hydrogeology and the sustainability of the aquifer. Necessarily, both areas of expertise overlap and interact. The water evidence occupied five days of the hearing.
At the first joint expert meeting on the 17 February 2012, it was agreed that the use involving extraction of up to 564,000 litres per week is sustainable on a regional basis by reference to the 2011 report prepared by G & S which accompanied the development application. The disputed issue in relation to water raised by Mr Laidley’s clients is that the proposal “detrimentally” impacts upon the sustainability of the aquifer from which the Gillion production bore draws.
This refers back to a proper construction of the relevant portions of the Commercial Groundwater Extraction Code in the Planning Scheme, in particular Overall Outcomes and Specific Outcomes referred to above.
The dispute between the experts can be distilled down to a number of points:
1.
Mr Boyd strongly asserts that there is a lack of data and information such that the impact on aquifer 3 (and other aquifers if connected to aquifer 3) could not be assessed to high degree of certainty. Mr Boyd ultimately accepted that he approached the impact assessment process in relation to water on the basis that before it was acceptable he had to be sure of his opinion. His position on this issue was summarised in diagrammatical form in Figure 1 at p 78 of Exhibit 19.
He maintains that all the steps set out therein should be undertaken prior to further consultation and prior to any approval. Mr Sutherland and Mr Anderson maintain that the data provided with the Development Application and the additional data provided as a result of additional work done after the first joint expert meeting on the 17th of February 2010, is more than sufficient to express an opinion to a high degree of probability that the proposal will not detrimentally impact upon the sustainability of aquifer 3.
2.
There is a dispute between Mr Sutherland and Mr Boyd as to the interpretation of the data concerning the “water signature”, i.e. the hydrochemistry of the water being drawn from the Gillion production bore. This difference of opinion feeds into differing opinions as to the impacts on surrounding bores.
3. There is a dispute between Mr Anderson and Mr Boyd as to the interpretation of the data concerning the hydrogeology of the site such that they have different opinions as to the effect on aquifer 3 of the extraction of up to 564,000 litres per week and the detrimental effect and impacts on residents using bore water in surrounding areas particularly the nursery Mr and Mrs Taylor (73rd – 74th Co-respondents by Election) and Mr Stotschek and to a lesser extent Mr Guerin. There is also an associated issue of the impacts of the proposal on the headwaters of Franklin Creek.
Mr Boyd presented as a passionate expert who has become strongly wedded to his assessment of the proposal to such an extent, I regret to say, that it has affected his objectivity. I refer to only two parts of his evidence that demonstrate my firm conclusion. In cross-examination by Mr Williamson, he took Mr Boyd to condition 24 of the Council Planning and Development Committee Report dated 18 October 2011 (which recommended approval subject to conditions) which states:
“Groundwater extraction temporary draw down study – as per the Queensland University of Technology Sustainable Peer Review dated April 2011, the applicant is to commission an investigation by a qualified person[s] into the possible temporary impacts [i.e. water level draw down] on neighbouring bores from prolonged abstraction at the Wetfix Springwater site and the need for a focussed and independent monitoring program utilising automatic water level loggers.
This report is to be completed and submitted to Council within 12 months of the application approval.
In the event that the findings of this report identify temporary impacts upon neighbouring bores that the applicant will be required to submit a management plan that outlines mitigating measures as to how these temporary draw down effects will be managed.”
He was asked by Mr Williamson if a condition in those terms would address his concerns. Not surprisingly having regard to Figure 1 in his evidence he said it would not, and that on the evidence before him the proposal was “not reasonably conditionable”. Mr Williamson asked him if he regarded G & S as qualified to undertake the monitoring program anticipated by the condition. His responses which appear at 4-70 – 4-71 of the transcript suggest to me a tendency to advocacy which was not the first or last time I sensed that during Mr Boyd’s evidence. His reluctance to assist in drafting the terms of an acceptable condition in the questions thereafter is also unusual. Contrary to Mr Boyd’s evidence, experts regularly assist Assessment Managers or Concurrence Agencies in the proper drafting of conditions. Mr Williams’ input into the conditions attached to the DTMR referral agency response in relation to traffic safety issues is an example in this very case.
The other moment occurred the following day towards the end of Mr Williamson’s cross-examination of Mr Boyd. The cross-examination concerned the introduction into evidence at this time of Exhibit 21, an extract from Gillion’s tanker log. Mr Boyd was very quick to point out potential credibility difficulties with the information in the log. He expressed his disappointment at not seeing it until it was shown to him by Mr Williamson. My real concern arises about some evidence from the witness following an objection by Mr Wright (the 83rd Co-respondent) recorded at 5-8 of the transcript. Mr Wright was concerned about the authenticity of the document. “It does not look kosher” is the way he expressed his objection. Mr Williamson assured the Court that Mrs Gill would give evidence that the log was authentic, and informed me that the original could be examined if required. Mr Boyd quite unresponsively then proceeded at 5-9 to tell me that in his experience the drivers’ initials on the log looked “markedly the same”, obviously suggesting some form of fabrication. I challenged him about why he was involving himself in an area that was clearly beyond his expertise, and he backed away, but the exchange again left me with the uncomfortable sense that he had allowed his objectivity to be subsumed by advocacy for his passionate view about the protection of the groundwater resource on Mount Tamborine.
That is not to say that I reject all his evidence, rather it causes me to approach his opinion evidence with care. Indeed as my following analysis of this part of the evidence will reveal Mr Boyd makes some valid points, but it is example of the great care that experts should bring to their task which is fundamentally to assist the Court in respect of issues relevant to the area of expertise.
Discussion
(a) The adequacy of the data
This is central to Mr Boyd’s opinion that on the present scientific evidence the proposal cannot be acceptably conditioned to mitigate groundwater impacts. At the first joint experts meeting Mr Boyd expressed similar concerns. At the first meeting there was before the experts an extensive amount of data and scientific evidence available to inform their respective opinions. The three experts agreed on the documents being relied upon as:
“Reference documents:
·
Gilbert & Sutherland 2011 groundwater sustainability review, 22-26 Power Parade, Mount Tamborine Queensland. Prepared by Gillion Pty Ltd (Wetfix Springwater), February 2011 (here and after referred to as the “G & S 2011 Report”).
·
Todd, A; 2011. Peer review: groundwater sustainability assessment report Gillion Pty Ltd (“Wetfix Springwater”) 22-26 Power Parade Mount Tamborine, SE Queensland. Prepared for Scenic Rim Regional Council, 20 April 2011 (here and after referred to as the “Peer Review 2011”).
·
Todd, A; 2011. Groundwater investigation, Tamborine Mountain, South East Queensland, Institute for Sustainable Resources, Queensland University of Technology technical report to South East Queensland Catchments Ltd, June 2011 (here and after referred to as the “QUT 2011 report”).
·Boyd Water Services Pty Ltd 2011, review of comments from local residents, attached as appendix A.”
The three experts also agreed to a number of issues that are relevant to the impact assessment of the proposal:
·In Queensland, groundwater bores are required to be registered with DERM if deeper than six metres from Natural Surface Level (NSL).
·DERM possesses a database of groundwater bores that have been “registered”.
·An unknown number of groundwater bores are present on Mount Tamborine but are not registered.
·The groundwater resource lies within predominantly unconfined aquifers that have varying degrees of connectivity which reflects the underlying geology.
·There is, and never has been, any Queensland Government regulation of groundwater use on Mount Tamborine.
·Groundwater is abstracted on a wholly opportunistic basis, reflecting individual bore characteristics and pump and/or storage capabilities.
·Many properties on Mount Tamborine have multiple bores at varying depths exhibiting wide-ranging groundwater yields.
·The drilling industry’s practice on Mount Tamborine of constructing multiple groundwater bores to varying depths within single properties reflects the inherent uncertainty and variability of the local groundwater supply.
·The community of groundwater users on Mount Tamborine is vulnerable to change in that there is no groundwater resource allocation. This means that any user relying on the groundwater resource does not have security of tenure to that resource. Groundwater use represents an undetermined property right in that regard.
·At a regional level, the G & S 2011 report provides an accurate representation of the resource available on the basis of the data available to G & S.
·The G & S 2011 report included all registered bore information available at that time as defined by the data given in the G & S 2011 report.
·Additional groundwater bores may have been registered in the vicinity of the subject site since the date of the G & S 2011 report.
·The newly registered bores may have been installed many years prior to their registration.
·
In a groundwater regime such as that present on Mount Tamborine, Government regulation is, if not impossible, extremely difficult for the following reasons:
·
The aquifer is unconfined and drains from the mountain, feeding watercourses and causing groundwater recharge in the process.
·
Individual aquifers are variable in size, storage, capacity and yield.
·
Various aquitards and aquicludes exhibit variable hydraulic conductivity that impacts on the connectivity of the aquifers.
·There has been only limited measurement of groundwater abstraction.
·In the context of the unregulated abstraction from the aquifers in the vicinity of the subject site, higher pump capacity means groundwater can be accessed at greater depths and the rate of abstraction can be greater. These factors therefore add to groundwater reliability for bores with greater capacity.
·On the subject site, the groundwater production bore (the Gillion production bore) terminates at 116 m below NSL.
·There are a further four bores present on the subject site, one of which is used. The purpose of the use is domestic. None of these four bores is used for commercial abstraction.
·
The G & S 2011 report indicates groundwater bearing layers in the vicinity of the site are not contiguous, rather there are distinct and localised water supplies that are connected indirectly by the jointing, fracturing and weathering of intervening hard basalt. In terms of abstraction of groundwater on a regional basis, this characteristic indicates the following:
·
Impacts of abstraction would be limited to those users that are abstracting water from the same groundwater lens.
·
The extent of the probable drawdown caused by any one user will limited by the heterogeneous nature of the aquifer(s).
·
If one bore ceases to yield water due to large volumes of water abstraction, it is unlikely that this single bore or group of bores in the same groundwater sources would drain the wider water supplies of the Tamborine Plateau.
·
The indirect connections between the aquifers are more likely to have a significantly lower permeability than the aquifer and provide a buffering zone between the water-bearing layers.
·The area recharging the groundwater being abstracted may be limited to the diffuse recharge zones directly above the groundwater source and whatever localised recharge is afforded by creeks and drainage features that flow nearby.
·The Respondent’s Manager of Planning, in recommending approval of the Appellant’s Development Application, proposed the following condition (recommended Condition 31) in respect of “Maximum Annual Extraction”:
The approved use must not extract any more than a maximum of 564,000L per week of groundwater from the subject site per calendar year which will maintain and validate the recommendations of the respective approved professional reports, namely the traffic impact assessment report, the Gilbert & Sullivan groundwater sustainability report and the noise assessment report.
·The G & S 2011 report, the peer review and the QUT 2011 report each confirmed that abstraction of 564,000L per week of groundwater from the subject site is sustainable on a regional basis. Both the peer review and the QUT 2011 report recommend local area pumping tests and associated monitoring to allow assessment and control of potential drawdown effects on nearby bores.
·In the context of an unregulated aquifer with undefined rights to a groundwater resource, and assuming all landowners are willing to act in good faith, there is a potential opportunity to frame a water sharing agreement that may narrow and/or resolve the water use conflict. Such an agreement might take the following form:
Aims:
The water sharing plan would seek to:
·provide a framework within which undetermined property rights in terms of groundwater are recognised
·include mechanisms to provide fair, equitable and reliable access to groundwater, noting that the potential stakeholders in such an agreement do not currently enjoy such certainty
·manage local impacts or interference effects
·prevent, minimise, narrow or resolve groundwater disputes.
Investigations:
The water sharing plan would be based on appropriate studies and physical investigations to:
·identify the drainage basin
·register all bores within the drainage basin
·install flow meters on all bores in the drainage basin
·assess connectivity within the drainage basin
·define the different demand profiles within the drainage basin
·derive sharing/use triggers appropriate to the drainage basin
·define and test changes in management of resource within the drainage basin (sensitivity analysis).
Outcomes:
It is anticipated that the plan would:
·contribute to the maintenance and enhancement of the social amenity and economic viability of groundwater users
·consider and provide for environmental groundwater needs
·promote water use efficiency strategies
·describe dispute resolution procedures.
·The Respondents’ Manager of Planning, in recommending approval of the appellant’s development application, proposed the following condition (recommended Condition 24):
Groundwater extraction temporary drawdown study - as per the Queensland University of Technology Groundwater Sustainability Peer Review dated April 2011, the applicant is to commission an investigation by a qualified person/s into the possible temporary impacts (i.e. water level drawdown) on neighbouring bores from prolonged abstraction at the Wetfix Springwater site and the need for a focussed an independent monitoring program utilising automatic water level loggers. This report is to be completed and submitted to Council within 12 months of the application approval. In the even that the findings of this report identify temporary impacts upon neighbouring bores that the applicant will be required to submit a management plan that outlines mitigating measures as to how these temporary drawdown effects will be managed.
·This proposed condition resulting in an appropriate study and ongoing characterisation and ongoing monitoring, could, in our view, form a key input for the water sharing plan.
·On a regional basis, the proposed Wetfix abstraction would be sustainable based on the fact that Wetfix abstraction is a relatively small proportion of groundwater recharge (less that 1.2%).
After the first meeting on 17 February 2012, G & S undertook further data collection as a response to Mr Boyd’s concerns expressed at their first meeting. This essentially involved testing of registered groundwater bores within 436 metres of the Gillion production bore, augmented with information to be supplied by various Co-respondents in respect of their bores. The further testing and data gathered was trenchantly criticised by Mr Boyd at the second meeting of experts on 6 September 2012, and although I have some concerns about some aspects of the data, I think Mr Boyd’s criticisms are unjustified. Mr Anderson and qualified staff from G & S conducted the testing augmented by some limited data from other bores. Some of this data came very late in the testing period and was of little use.
It is common ground that there are a large number of unregistered bores on Mount Tamborine and that extraction of groundwater has in the past been unregulated. As the experts agreed at the first meeting, bores have only been required to be registered with DERM since 2002. The effect of this is that for bores drilled since then (which includes the Gillion production bore drilled in 2007) drilling practices have improved. Bore drilling in the past has led to inter-aquifer mixing and water loss because of poor quality control. The only regulatory framework at the present time is that contained in the Planning Scheme.
In accordance with the proposal emanating from the first joint experts’ meeting Mr Anderson undertook measurements designed to test groundwater levels at 11 bores including the Gillion production bore, the nursery shallow bore (Mr and Mrs Taylor, the 73rd and 74th Co-respondents), both Stotschek bores (72nd Co-respondent), the other Gillion bores and Mr Guerin’s bore (30th Co-respondent with his wife). Some bores (including the Gillion production bore) would not receive a data logger which records levels at six minute intervals throughout the test period. Mr Anderson said it was not unusual for scientists to have difficulties in getting data loggers down bores, whereas Mr Boyd was critical of G & S’s failure to place a data logger in the production bore. As a result, over the period that the data loggers were in place in other bores (SK1, SK2, nursery shallow, GW4, GW2), Mr Anderson undertook manual testing at two week intervals of the production bore GW3, the Guerin bore and GW1.
At the same time during the test period from 2 March 2012 to 20 July 2012 he compared the data obtained with the Gillion tanker logs to test (a) the groundwater levels of the relevant aquifer sources and (b) groundwater abstraction loads. For a 14 day period from 8 June 2012 no water was abstracted from the production bore to test the effect on groundwater levels. The bores tested are those represented in the Google Earth map at p 30 of Exhibit 17.
Mr Anderson also obtained details of registered bore levels from DERM including information from the drillers to establish the date on which the bore was sunk (if noted), the depth at which the drill first encountered water (the Standing Water Level or SWL), and the SWLs for the bores tested including the SWL as measured by G & S in 2011 and 2012. Mr Anderson’s conclusions as to the relevant depths and water-bearing zones is represented diagrammatically at pp 31 to 34 of Exhibit 17. His conclusions from the 2012 testing is represented diagrammatically in the same Exhibit at p 35.
From the data he concludes that the local aquifer feeding the production bore is not unacceptably impacted by the extraction of up to 546,000 litres per week.
The manual testing of groundwater levels in the Gillion production bore took place on 11 occasions commencing on 2 March 2012 and concluding on 20 July 2012. In a diagram prepared by Mr Anderson at p 35 of Exhibit 17 he includes the tanker loads extracted from 2 March 2012 to 8 June 2012 when abstraction ceased as part of Mr Anderson’s testing instruction. The tanker data comes from the Gillion tanker logs which have been criticised by the Co-respondents. There is no reason to doubt the accuracy of the logs but I am concerned that during the testing period from 2 March 2012 to 8 June 2012 only on nine occasions (out of a possible approximately 100 days) was the maximum number of tanker loads extracted. According to Mrs Gill the number of loads extracted daily is dictated by demand at the Wetfix factory which is to some extent regulated by the season. It is correct that the majority of the loads during this period were three but on some days (i.e. prior to abstraction being halted completely for a period), no water was abstracted. Unlike the Co-respondents I do not think there is anything sinister in this but I agree with Mr Boyd to this extent, that the manual logging of the production bore together with the limited number of maximum daily abstractions during the testing period does to some extent reduce the adequacy of this further testing done by Mr Anderson.
In Exhibit 19 p 83, Mr Boyd averages out the abstraction during the testing period and prior to the no pumping period as being 62 per cent of the average maximum of 564 kilolitres per week limit.
However in my opinion my reservation will be met by the condition proposed by G & S (to which Gillion agrees) at p 849 of Exhibit 1C. This was proposed by them in the second joint experts meeting. It will require ongoing monitoring of the Gillion production bore to ensure that groundwater mining (defined by Mr Anderson as abstraction exceeding natural recharge to the aquifer), does not occur. The conditions as proposed will have to be tightened to conform with Mr Anderson’s evidence in Court to the effect that the Gillion production bore will have to be removed by crane and reset to ensure that the data logger can be put in place. The terms of condition 10(b) at p 849 of Exhibit 1C are generally acceptable including the trigger level of 438 metres AHD proposed by Mr Anderson. (10(c) relates to water sharing agreements to which reference was made in the agreement section of the first joint expert reports. Mr and Mrs Taylor did not say anything about their intent not to enter into any water-sharing arrangement with Gillion in their trial affidavit in Exhibit 14. It was first raised in Mr Laidley’s closing submission. Mr Williamson asserts prejudice. In my opinion, for the reasons later exposed, a condition relating to water-sharing involving the Taylors is not needed to avoid conflict with the Code. This is because of the many other conditions to be imposed, designed to avoid water mining. The attitude of the Taylors is surprising as Mrs Taylor asserts that their nursery business, which they purchased some years ago, is in financial difficulties, because of lack of water from their bores.
It is also surprising given her own expert Mr Boyd’s agreement in the JER that water sharing agreements in this environment may “contribute to social amenity…(of) groundwater users.” Having said that, this Court cannot impose conditions that bind third parties. Enforcement would also be a complex issue.
The testing conducted by G & S staff under the supervision of Mr Anderson after the first joint expert meeting as depicted and analysed in the graph on p 35 of the Exhibit 17 leads me to the conclusion on the probabilities that the proposed maximum rate of extraction is in a local sense sustainable. The raft of conditions designed to monitor groundwater levels in aquifer 3 will ensure that groundwater mining can be avoided. It is not without significance that although the water levels of the aquifer impacted by the Gillion production bore have dropped since 22 February ’07 (when it was first drilled) nevertheless the levels appear to be capable of recovery to an acceptable level notwithstanding continuous commercial abstraction since that time.
One of the real difficulties in the approach taken by Mr Boyd is that he tends towards the view that before the proposed use can proceed, at the very least one has to be sure that the local aquifer has not been unacceptably impacted. My impression is that he will never be satisfied, and the unreasonable prerequisites to even start consultation set out in Figure 1 at p 78 of Exhibit 19 is demonstrative of this conclusion. On the other hand Mr Sutherland and Mr Anderson make the point that the use being considered here is an actual use (albeit unlawful) and what is being measured is the hydrochemistry and hydrogeology data associated with an actual use and not modelling on the basis of a proposed use.
Issue 2 - the hydrochemistry
My general views about the expert opinion evidence set out above feed into my analysis of the evidence on this issue. There is no dispute about the mechanism by which groundwater aquifers develop and how they acquire their “water signature” which is the chemical composition of the dominant water type in a particular aquifer. Mr Sutherland undertook analysis of water samples taken from all bores the subject of the post-joint experts meeting monitoring undertaken by G & S, and concluded, from the hydrochemistry perspective, that the dominant water types reveal Mr Guerin’s bores and the bores on Mr Stotschek’s property are drawing from a different aquifer to that of the Gillion production bore. Mr Sutherland’s opinions are based on PIPER and DUROV plots prepared by him which show that the water signature of the water in the Gillion production bore is similar to that in the nursery shallow bore and dissimilar to that in the Guerin and Stotschek bores. In the G & S 2011 report which was attached to the development application PIPER diagrams are described. They are said to “plot the major ions of a water sample as percentages of milli-equivalents in a graphical form to show similarities and differences between water samples/locations through a visual clustering of data points”.
Mr Boyd agreed that there were differences but without undertaking any analysis himself was critical of Mr Sutherland for not quantifying the extent of the difference with respect to inter-aquifer mixing and poor bore construction of the Gillion construction bore. Mr Sutherland’s PIPER analysis referred to in the second experts report is reproduced in Exhibit 18 and Mr Boyd’s response is Exhibit 20. For reasons I will later expose I prefer Mr Anderson’s evidence to Mr Boyd as to the aquifer source of the number 1 bore on Mr Stotschek’s property. Mr Sutherland thought that the nursery deep bore was “possibly” drawing from the same aquifer as the nursery shallow and the Gillion production bore but his reservations were based on Exhibit 18 i.e. that the nursery shallow and Gillion production bores sit together in all three diagrams on the PIPER diagram plot and the nursery deep and Gillion production bores sit together (or close) on only two. Mr Boyd also argued that insufficient hydrochemical sampling had been done but I readily prefer Mr Sutherland’s evidence to the contrary. Mr Boyd was closely cross-examined by Mr Williamson in relation to Exhibit 20, his response to Exhibit 18. He agreed that the nursery shallow and the Gillion production bore appeared to come from aquifer 3. Aquifer 3 is a lower aquifer to aquifers 4 and 5. Although he agreed that chemically Mr Stotschek’s number 1 bore appeared to have a different water signature to that of the Gillion production bore, nevertheless he still maintained (based on the other evidence including Mr Anderson’s monitoring) that they drew from the same aquifer.
In the G & S 2011 report the geology of Mount Tamborine and the site is described as:
“The basalt plateau that forms the top of Tamborine Mountain grades westward from the application site. Green (1964) and Wilmont (1981) indicate that the basalts associated with the site fall into two distinct layers:
·a single flow of up to 25 metres thick overlying
·a group of four or five flows (one highly vesicular) with a varying combined thickness.
The basalts then grade to steep basaltic slope to colluvial deposits on basalt debris and then to the steep sandstones of the Bundamba group (Wogarr sub-group).
On the eastern side the basalts grade to the steep slopes of the Nerang Fernvale group.”
Mr Boyd was cross-examined about a passage at p 20 of the G & S 2011 report:
“The bore log data and water level data suggests that rather than having contiguous layers of water-bearing material that stretch extensively through the basalt cap there are distinct and localised water supplies that are connected indirectly by the jointing, fracturing and weathering of intervening hard basalts.”
He agreed with the sentence but again proffered his complaint of insufficient data because of a failure to test unregulated bores. The difficulty with that proposition is self-evident. Given that it is agreed that there are hundreds of unregistered bores on Mount Tamborine the task would be impossible. The same observation applies to his criticism that there should be data about unregistered bore construction, which all experts agree can (if poor) contribute to inter-aquifer mixing. Mr Anderson explained that as part of the registration process introduced in 2002 it was hoped by insisting that registered bores not intercept multiple aquifers inter-aquifer mixing could be mitigated.
Mr Boyd’s criticism of the hydrochemistry opinions of Mr Sutherland is unconvincing. I prefer Mr Sutherland’s evidence.
Issue 3 – Hydrology and Franklin Creek
No expert can ever be certain about the exact nature of the geology in a locality and the degree of fissuring and natural (and unnatural caused by badly constructed bores) interconnectivity between various groundwater aquifers. Mr Anderson’s conclusion based on the QUT report and his own firm’s work which at the DA stage was peer reviewed at the behest of Council, led him firmly to the conclusion that the Gillion production bore and the nursery shallow bore are drawing from aquifer 3. In the 2011 report, G & S undertake an analysis of the “age” of the water in aquifer 3. Age refers to the time taken for water to percolate through the above geology to the water table. It is generally agreed that at the locality there are probably three aquifers namely aquifers 3, 4 and 5. Aquifer 5 is lithologically and geologically above aquifer 4 which in turn sits above aquifer 3.
I accept Mr Sutherland’s evidence that on the basis of the hydrochemistry the Gillion production bore and the nursery shallow bore are probably drawing from the same source. Mr Anderson’s testing (in conjunction with a previous QUT and G & S peer review data) in 2012 demonstrated in Exhibit 17 that probably the bores are drawing from aquifer 3 which is separated (generally and certainly not uniformly) from the above aquifers by 33 metres of dry basalt which forms an aquitard or barrier. His analysis also demonstrates that proximity will not necessarily provide a clue as to the source of groundwater being extracted by a particular bore. For example he referred to GW3, one of the unused bores on the Gillion site which is only 12 metres away from the production bore and yet is clearly connected to a different aquifer. His analysis satisfies me on the balance of probabilities that the abstraction from the production bore will not unacceptably impact on the SK1 (Stotschek) number 1 bore or the Guerin bore because they are drawing from different aquifers with little or no connection. GW3, which was initially the bore used for Wetfix, does draw from the same aquifer as SK1 but I accept Mr Anderson’s evidence that since the production bore has been in use it appears that the groundwater level of SK1 has in fact risen. In Mr Stotscheks’ affidavits in Exhibit 14, he seems to assert that the negative impact on his bores occurred at an earlier time when the Gillion production bore was not in use.
Mr Anderson opines that aquifer 3 is not impacted by rainfall events in the sense of there being an immediate impact and the data seems to bear this out. He disagrees with Mr Boyd that aquifer 5 drains into aquifer 4 which in turn drains into aquifer 3. Mr Boyd could not adequately explain in cross-examination by Mr Williamson why, if this was correct, the data did not show elevated levels in aquifer 3 at the time of high rainfall. He agreed that the large basalt aquitard between aquifer 4 and aquifer 3 would in general terms act as an aquitard but, essentially because of the insufficiency of data he did not share Mr Anderson’s opinion about the relationship geologically between the relevant aquifers. He agreed that diagrammatically p 35 of Exhibit 17 accurately reflected the data that had been gathered and, if accepted by the Court, would not assist his opinion that aquifer 4 drains into aquifer 3. Even his own analysis of Mr Anderson’s data produced at pp 82 to 83 of Exhibit 19 tends to show that aquifer 3 was responding to the abstraction from the Gillion production bore during the 2011 test period. Aquifer 4 was not. It also shows that the aquifer was recovering during the period albeit that was when, as he accurately notes, only 60 per cent of the maximum limit applied for was being extracted, and the period of no pumping. This analysis tends to support Mr Anderson rather than undermine his opinion.
In relation to the impact on the headwaters of Franklin Creek, Mr Anderson gave evidence, that in diagrammatical form, the headwaters of the creek are located approximately at a point indicated by the vertical line on the far left of p 34 of Exhibit 17. I did not understand Mr Boyd to dispute this. Mr Anderson’s point is that if you accept that drawing as accurately representing the relative position of the Gillion production bore to the headwaters of the creek on the ground, it is separated approximately 90 metres from the headwaters and that the aquifer, in the vicinity of the bore, does not contribute to the headwaters and the use does not impact on those headwaters. Mr Boyd said this only presented some of the picture and essentially reverted to his complaint that there was insufficient evidence to say if the Gillion production bore impacted unacceptably on the headwaters of the creek.
He said that in his opinion, Franklin Creek derived 70 per cent of his water from groundwater seepage and run off. Given my conclusions as to source of the water being drawn off by the Gillion production bore i.e. aquifer 3, then I conclude that it is highly unlikely that water being extracted from the Gillion production bore is impacting on the recharge to the headwaters of Franklin Creek. I prefer Mr Anderson’s evidence on this issue.
Mr Laidley has raised in his submission a necessity for the decision maker to have regard to the application of the precautionary principle. This is a reference to s 5(1)(a) of the SPA which is not materially different from its predecessor in the last version of the IPA s 1.2.3(1)(a) except for some inclusions which are not relevant. The meaning of “the precautionary principle” in s 5(2) of the SPA is again not materially different from the meaning ascribed in s 1.2.3(2) of the IPA. My analysis of the water evidence is to determine what impacts if any the proposed use will have on the local aquifer. Implicit in my criticisms of Mr Boyd’s approach is that he appeared on many issues to be calling for close to scientific certainty which is not possible. Given the changes in the statutory meaning of the “precautionary principle” since the commencement of the IPA, which one could say has “watered down” the force of the principle, there is little utility in making reference to the cases at common law to which I referred in Histpark Pty Ltd and anor v Council of the Shire of Maroochy [2002] Q.P.E.L.R. 135 at 140-141. It is also of significance in my view that Council, the responsible authority for administering the Planning Scheme, has not asserted any conflict with the Commercial Extraction or Groundwater Code in the Planning Scheme, apart from amenity.
Traffic
As a result of an agreement between the DTMR and Gillion reached on the eighth day of the adjourned hearing and after all three traffic engineers had given evidence, the areas in dispute on this issue have substantially narrowed.
Mr Stuart Holland gave evidence on behalf of Gillion, Mr Colin Beard on behalf of Council and Mr Stephen Williams on behalf of the Department.
At present, the haul route is from the site onto Power Parade into Main Western Road, Geissman Drive, and down Tamborine Mountain Road to Beaudesert-Beenleigh Road and Stanmore Road. The central issue raised in the traffic engineering evidence focussed on safety. Mr Beard, in his inimical style, was inclined to stray into amenity, acknowledging that this topic was beyond his expertise. The focus was on that part of the haul route from Power Parade eventually down Tamborine Mountain Road. That part of the roadway system from Main Western Road is part of the State-controlled road system.
The DTMR and Council and Gillion took the view at the DA stage that the Department was not a referral agency for the purposes of assessment. The 22nd, 55th, 63rd and 72nd Co-respondents supported by Mr Wright (on behalf of a large number of Co-respondents) disagreed, and successfully applied to the Court to bring the Department in as a referral agency: Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2012] QPEC 33. The Department was joined as a result of that decision in the proceedings as the 84th Co-respondent by Election and retained Mr Williams.
By the time he was retained the first joint experts meeting had been held between Mr Beard and Mr Holland. The present haul route was the focus of their discussions.
By the time of the second meeting on 30 August 2012 Mr Williams had given advice to the Department which had given its referral agency response on 27 July 2012. The DTMR response was to approve subject to seven conditions which are helpfully summarised at p 1 of the second joint expert report:
“1.The haul route is to be via Power Parade / Main Western Road / Geissman Road / Eagle Heights Road / Tamborine-Oxenford Road. It is noted that the development currently uses a haul route via Power Parade / Main Western Road / Geissman Road / Tamborine Mountain Road. That is, the approval condition establishes a route that restricts a development from using Tamborine Mountain Road (existing) as its preferred route for the haulage of extracted water, and requires the use of Tamborine-Oxenford Road via Eagle Heights Road and Long Road (known as “Gallery Walk”). It is noted that both roads are State-controlled (except Power Parade).
2.Haulage vehicles associated with the development are not permitted to use the haul route on weekends or public holidays.
In Figure 1.2 C. “Commercial Ground Water Extraction” is said to be a defined use within the “Extractive Resource” category, and “Industrial” use class. All the planners (perhaps with the exception of Mr Forsyth) seemed to regard these “nesting” provisions as not being particularly relevant in assessing impacts of the use against the other relevant provisions of the Planning Scheme, particularly the “Precinct” specific provisions. It is obvious from the limited number of Use Classes set out at s. 1.2(1), that the only Category or Class that could apply is “Industrial”. “Industry” is defined as a use in the Dictionary but “industry or industrial activity” is not otherwise defined. The absence of permanent employees on site, and the very nature of the use itself does not justify the description of “industrial activity” for the purposes of assessing impacts.
Mr Ellen is also a real estate agent who lives in Alpine Terrace. He concentrates on damage to the road surface of Power Parade and safety. My inspection of the street did not justify his observation to the effect that Power Parade had changed “from being one of the best streets on the Mountain to looking shabby”.
In my view, the evidence of Mrs Gray, Mrs Allender and Mr Guerin is most relevant to intangible impact on amenity and impact on character. All complain of breaches of the NMP which is concerning. However, since then, Gillion has taken steps and accepted conditions which will, in my opinion, alleviate their concerns about noise. I fully understand that they will probably never accept that – Mrs Gray talks of noise impacts “despite what any expert might try and say otherwise”. In relation to water, Mrs Gray says that the bore on her property dried up in 2000 i.e. well before the Gillion production bore was sunk. She concedes that the new tanker does not emit diesel fume smells to the extent of the older truck. Their concerns about truck movements outside the designated hours and days seem to relate more to the circumstances leading up to the enforcement orders.
Mr Guerin’s evidence is the most comprehensive of all the Co-respondents. This is probably because his is one of the residences most significantly impacted by the use, and he has used his town planning (and probably police) skills in a long term effort to bring Council in and to oppose the use continuing. His evidence, perhaps understandably, does tend to exaggerate some of the problems e.g. he describes the noise of the truck as a “constant nuisance”. In many respects, the Planning Scheme, despite all its verbiage about enhancing amenity and protecting character, is not particularly helpful to people like Mr Guerin, who find that despite the semi-rural nature of his street (it was in the Rural Zone in the Superseded Planning Scheme), at the Village Residential Precinct level only a “moderate to high” level of amenity is anticipated.
Having regard to the reasonable expectations of residents, I do find that there is unacceptable impact on amenity and character to the residents of Power Parade such as Mr Guerin, Mrs Gray and Ms Allender who are most directly affected by the truck movements in particular. It is unacceptable impact on amenity in the intangible sense but real impact on character. Having regard to my other findings, I would categorise this conflict with the Planning Scheme as minor if considered in isolation. Other nearby residents such as Ms Morgan (at 51 Power Parade) refer to noise issues emanating from tanker movements as early as 5:30 am, and as late as 10:00 pm. Her affidavit related to the enforcement proceedings and is of little weight now.
Mr Laidley refers specifically to Mr Craig’s evidence. He lives in Alpine Terrace, about 500 metres from the site. His bores were sunk in 2007, around the same time as the Gillion production bore. At first blush, and if one has regard only to the summary in Mr Laidley’s final submission, this evidence does suggest some impact directly on Mr Craig’s groundwater supply. It is not clear to me that his bores are registered. They should be given the date. His bores were not tested by Mr Anderson. However, Mr Craig notes that his bore does operate effectively for short periods after heavy rain. This suggests to me that it is probably connected to the higher Aquifer 5 and not Aquifer 3.
Some of the other Co-respondent’s affidavits from the enforcement proceedings are part of Exhibit 14. Some are very general e.g. Mr Attwater who lives at 2 Power Parade. I assume this is on the haul route, but unfortunately the Smart Map said to be exhibited to his affidavit showing his residence has been omitted.
Categorisation of Conflict
Gillion argues that the real conflict in this case comes down to the conflict arising from the inconsistent use point. It describes it as mechanical or technical. It submits, in effect, that a proper reading of the Planning Scheme suggests that Council has not properly considered this particular use in the formulation of its Planning Scheme. It points to the absence of any planning studies, such as the QUT study on groundwater to which earlier reference is made, as indicating a lack of policy objective in preparing the Planning Scheme in its present form relating to this particular use.
I cannot accept that argument. Commercial Groundwater Extraction was not a use defined in the Superseded Planning Scheme. In this Planning Scheme however, not only is it a defined use, a Commercial Groundwater Extraction Code is provided and the use is specifically provided for in the Assessment Table for a Material Change of Use in the Tamborine Mountain Zone. It follows that its exclusion from the Consistent Table of Uses in the Tamborine Mountain Zone and indeed in all other Zones in the Shire was as a result of a deliberate policy decision.
Council may have had this particular use in mind. There is no evidence of that. However when it is read as a whole, and in a practical and sensible way, it is clear from its Planning Scheme that Council did not want a use such as this anywhere in the Shire but, in anticipation that such a use may be applied for, it set a high bar in by making the use an inconsistent use in all Zones and relevantly, in the Tamborine Mountain Zone.
Its designation therefore as an inconsistent use in the Tamborine Mountain Zone is significant in this case. I agree with Ms Djohan that to concentrate too much on assessing the proposal against the Overall Outcomes for the Zone and the Specific Intent for the Precinct, to determine the degree of conflict would be an error, as (a) it would offend the principles applicable to the construing of Planning Schemes and (b) would, contrary to the proper construction of s 1.1.12 of the Planning Scheme together with SO1 in Table 3.7.11, have the unintended tendency of converting “Inconsistent Development” into “Consistent Development” subject to Impact Assessment. Gillion refers to a lack of “higher order” provisions in support of its argument that Council did not properly provide for this use in its Scheme. I have rejected that argument. If it is saying rather that in drafting its Planning Scheme, Council could have been clearer in relation to its attitude to this use, the same observation could apply to the circumstances of almost every merits appeal. In particular, Gillion refers to 2.2.11 (4) and makes the point that this is the only direct provision dealing with groundwater on Mount Tamborine in the Strategic Framework section of the Planning Scheme, and it does not refer to the use and inferentially does not exclude the use in the Tamborine Mountain Zone. This can be accepted as the whole of the Planning Scheme reveals. It is not a consistent use in any Zone but it is only in the Tamborine Mountain Zone that a level of assessment is provided specifically for the use whereas in other Zones it would come within the “catchall” “Other Defined Uses” and still be Impact Assessable.
Grounds
a) Need
Need was identified as a ground in paragraph 14(f)(i) of the Notice of Appeal. Gillion relies on the evidence of its principal Mrs Pamela Gill in support of this ground. No evidence was called from a needs expert and Mr Laidley objects to large parts of Mrs Gill’s trial affidavit on various grounds. He is not joined in that objection by Ms Djohan.
The objection to large parts of Mrs Gill’s trail affidavit was made on the afternoon of the last day of evidence, and given the fact that the hearing had far exceeded its estimated time of eight days, and the need to conclude the evidence I determined to deal with the objections in my judgment. A marked copy of Mrs Gill’s trial affidavit, Exhibit 8, was handed up by Mr Laidley together with a series of three letters commencing with his instructing solicitors letter dated 5 November 2012, setting out the objections and requesting further disclosure. Council’s solicitors joined the request for further disclosure by letter dated 9 November 2012. This lead to a letter from Gillion’s solicitors dated 12 November 2012 in which it proposed further disclosure on the basis of Fielder Gillespie undertakings. I assume because Ms Djohan did not join Mr Laidley in objecting, that her client was satisfied that the further disclosure was appropriate. I have reviewed that letter and am satisfied that the representative documents therein disclosed (or indicated that they would be disclosed) was sufficient to overcome the objection.
Mrs Gill was never presented as an expert on water quality and any opinions she expresses which qualifies as an opinion are not admissible. That does not mean she cannot give evidence gathered over eight years of operation of a business in which she has been intimately involved as CEO. She is also not presented as a “needs analysis” expert, although Gillion relies solely on her evidence and the customer list FG1 tendered through her, in support of its argument that there is a town planning and community need for the proposal which (with other grounds) is sufficient to overcome any conflict with the Planning Scheme.
Having regard to the contents of the letter from Gillion’s solicitors I am satisfied that the documents disclosed were sufficient to enable the Co-respondents to appropriately and fairly test Mrs Gill’s evidence. Indeed Mr Laidley actually tendered one of these disclosed documents during his cross-examination of Mrs Gill.
In Baptist Union of Queensland v Brisbane City Council & Anor [2003] QPELR 61 at 71 [55] to [56] his Honour Judge Brabazon QC said of need:
“‘Need’ can mean rather different things. In the abstract, it might refer to anything which might be provided for the benefit of the community. Usually, if there is a demand for something, then there will be a need for it, even if some members of the community may disapprove of that need. So, there is a need for hospitals, shops, housing, hotels and bottle shops. … There may be an issue about whether or not there is an actual need for land to be used to provide a particular benefit to the community.”
In that decision his Honour referred to a statement from the judgment of Carter DCJ (as his Honour then was) in William McEwens Pty Ltd v Brisbane City Council [1981] 1 QPLR 33 at 35. In context, the statement is as follows:
“..the basic assumption must be that there is in existence at the time of the application a latent unsatisfied demand on the part of the persons affected by the planning scheme which is not met at all, or being adequately met by the scheme in its present form”.
“It should not, in my opinion, be thought that a rezoning can be justified by merely contriving a need which is, essentially, nothing more than an exercise in entrepreneurial skill, the effect of which is to give the applicant some commercial advantage. Nor will land be rezoned in favour of (an applicant) who seeks to create the need by the use of his land in the manner he desires.”
The question of whether a need is shown to exist is to be decided from the perspective of a community and not that of the appellant, commercial competitor or even objectors. A community consists of more than just particular members of it. The concept of community need has moved on some what since Carter DCJ made the above statement.
Having noted that, the evidence of Mrs Gill and the customer list does not bespeak of any significant benefit to the community of Mount Tamborine or indeed the community covered by the Planning Scheme. This observation is not fatal to the establishment of town planning need. In this context, I should also note that, despite it being a ground asserted the Notice of Appeal, Gillion has called no evidence to suggest that any member of the Mount Tamborine community, or indeed any member of the community encompassed by the Shire, is employed at the Wetfix operation at Staplyton. It can be accepted that the relatively small number of customers identified in the customer list from Mount Tamborine who purchased water from Wetfix is relevant to this issue. Having said that, the evidence of Mrs Gill suggests the water bottled at her company’s factory at Stapleton is sold by way of commercial contract to a number of retailers and distributors. It is not suggested that any of these retailers and distributors form part of the Mount Tamborine community. Mr Williamson also referred to water as essential to life. It is, but there is no evidence of drinking water shortages on the Mountain, and water once came from taps. Because this water is bottled, that does not give it any special quality when assessing a town planning need for it.
Before setting out her evidence and considering it, I refer to the cross-examination of Mrs Gill by Mr Laidley on the afternoon of the last day of the hearing, suggesting that she had been duplicitous in her dealings with the Council over increased loads required for emergency purposes in the wake of the Queensland floods. He suggested by reference to affidavits filed in the enforcement proceedings, that Mrs Gill had underestimated the amount of that water sold by Wetfix commercially, and overestimated the amount used for philanthropic purposes. Despite this, he does not rely upon it in his final submissions as affecting her credit. It is an unseemly example of a barrister seeking to wound but not to strike for apparently no forensic purpose. It smacks of the same completely unfair attack on Mrs Gill and the integrity of her companies encapsulated in Mr Wright’s final submission. I appreciate and understand the passion generated by this development application and the appeal amongst members of the community of Mount Tamborine. This does not justify a totally baseless attack on Mrs Gill’s credit and integrity and that of her companies. The approach taken by Mr Wright, and to a lesser extent by Mr Laidley, contrasts with the approach taken throughout the appeal by Mr Guerin. Given the long history of complaints he has made to Council about the use, most of which fell on deaf ears, until finally Council commenced the enforcement proceedings in 2009, he has more reason than most to feel angry and embittered. Despite this, he conducted himself throughout with decorum and in an attempt to address dispassionately the many controversial issues in the appeal. Unjustified vituperative attacks on Mrs Gill’s integrity seriously undermines the credibility of the Co-respondents. It provides ammunition to those who would have submitters excluded from the appeal process and/or subject to adverse cost orders.
In her evidence I found Mrs Gill to be honest and convincing. I accept the submission made by Ms Djohan that the absence of any needs analysis evidence does undermine the weight that the Court should ascribe to her evidence on this issue. I agree with her that in relying upon her evidence it tends more towards reliance upon the abstract understanding of need demonstrated in some of the authorities referred to above.
Mrs Gill says that once the water is bottled in the factory at Staplyton, it is sold to a number of retailers and distributors with whom Wetfix has contracts at a fixed price. The company also has 1,000 home and office customers which are supplied with bottled water. I accept from the evidence of Mr Sutherland that the groundwater extracted from the Gillion production bore is water of an extremely high quality. He describes it as coming from a “sweet spot” which is a layman’s way of describing water with great purity. Clearly from Mrs Gill’s evidence the purity of the water is an essential factor in the success of the business.
The business, which included the site, was purchased in August 2004 and then included a prime mover, a tanker and three small delivery trucks. In May 2007 Wetfix built two factories on a block of land at Staplyton, and in that year built a new warehouse to store finished product and raw materials with appropriate access and ingress for customers and suppliers. It has invested many millions of dollars in the enterprise.
Wetfix now employs 23 people. When Gillion purchased the business in 2004 it employed only 3 people. As I have noted, there is no evidence to suggest that any of these 23 people are residents of Mount Tamborine.
Paragraphs 26 to 30 of her trial affidavit indicates that Wetfix donates generously to many charities, local fundraising events and volunteer organisations including the Tamborine Mountain Rural Fire Brigade. As Mrs Gill notes, the company also provided bottled water in times of disaster for example, during the 2009 bushfires in Victoria, Cyclone Yasi in 2011 and the Brisbane floods in the same year.
Her evidence based on her extensive knowledge and understanding of the bottled water business throughout Australia is that there are approximately 57 bottled water producers in Australia, with the dominant producers being Coca Cola Amatil and Asahi Holdings (Australia). She notes that the bottled water market in Australia has been consistently growing by an estimated 5% per annum.
In her evidence before me, she referred to the collapse of a bottled water producer in Cooroy in 2011. Wetfix have taken over approximately 1,000 customers as a result of the collapse of that business. She described horrific working conditions and she described a business that was at absolute capacity.
It can be accepted that there is a demand for bottled water. Mrs Gill’s evidence demonstrates a demand for groundwater by Wetfix Pty Ltd which in turn equates to a demand for bottled water of a high quality within the community generally.
One of the difficulties for Gillion in relation to this ground is that to a significant extent Mrs Gill’s evidence tends to be more relevant to the private interests of both Gillion and Wetfix Pty Ltd and this is not a ground under the SPA.
In accepting Mrs Gill’s evidence of continuous demand over the years for bottled water from the plant at Staplyton operated by Wetfix as some evidence of need, I am also conscious of the caveats imposed on this Court, whereby no advantage can be given to the applicant as a consequence of an unauthorised use, particularly as discussed in paragraph [31] of Jerrard JA’s judgment in Leda Holdings referred to above.
I cannot accept Gillion’s submission that Mrs Gill’s evidence demonstrates a strong and sustained demand for the groundwater beneath the subject land. Because I have rejected Gillion’s argument that the Planning Scheme makes no proper provision for Commercial Extraction of Groundwater, the point made at [276] of its final written submission has very little weight. Mrs Gill did give evidence about the inability of suppliers other than Gillion to meet any shortfall if the proposal is refused. While I accept that evidence, in the absence of any needs analysis evidence, and direct evidence therefore about the ability of other suppliers of bottled water to meet any unsatisfied demand as a result of the use ceasing, it is of little weight. Although on the basis of Mrs Gill’s evidence and the customer list, I accept that there is some evidence of town planning and community need for the proposal, I don’t accept that the need is significant even accepting that there is a need for bottled water in the community generally as demonstrated by the increasing demand.
b)Intersection upgrade
It is in the public interest that the intersection at Geissman Road and Eagle Heights Road be upgraded. There is no doubt, that on the basis of the traffic engineer’s evidence, the intersection needs upgrading now irrespective of Gillion’s proposal. The upgrade will facilitate safer and more convenient turning movements of trucks and large vehicles travelling to this intersection on a regular basis. Mr Laidley makes reference to the tourist facilities at Curtis Falls and the difficulties associated with reverse parking along that section of the road network in connection with this intersection which he describes correctly as “chaos corner”. Mr Litster’s response to that is a complete response. As he noted, all of these parking facilities are within the road reserve of a State controlled road, and the DTMR has overall control of that section of the road network which would include any associated issues of safety which it can address if such issues arise.
c)Absence of unacceptable amenity impacts
The absence of unacceptable amenity impacts has been controversial as a factor to be taken into account in exercising the sufficient grounds “discretion”. This is because it has been argued that a negative cannot be converted into a positive for the purpose of this exercise. However, in Lockyer Valley Regional Council v WestlinkPty Ltd & Ors [2012] QCA 370 at paragraph 25 Holmes JA (with whom White JA and Atkinson J agreed) noted that:
“It must be a matter of public interest, for example, that the project under consideration will not destroy local amenity.”
Whether this amounts to an acceptance by the Court of Appeal that the absence of unacceptable amenity impacts can amount to a matter of public interest is moot. For present purposes however I am prepared to regard it as a ground but not a ground that attracts much weight. Gillion has done much to overcome impacts of the use and has accepted conditions that will largely overcome hard impacts.
The grounds are not sufficient in my opinion to overcome what is a significant conflict with the Planning Scheme. I can indicate that if I had accepted Gillion’s argument that the conflict with the Planning Scheme amounted to a technical or mechanical conflict, I would have been persuaded that the grounds, despite my reservations, were sufficient to overcome the conflict and allow the appeal.
The appeal is dismissed.
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