Golder v Maranoa Regional Council
[2014] QPEC 68
•28 November 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Golder v Maranoa Regional Council & Ors [2014] QPEC 68
PARTIES:
TYSON GOLDER
(applicant)v
MARANOA REGIONAL COUNCIL
(first respondent)and
WE KANDO PTY LTD ACN 076 843 993
(second respondent)and
DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION
(third respondent)and
WESTREX SERVICES PTY LTD
(fourth respondent)FILE NO/S:
2012/14
DIVISION:
Planning & Environment Court
PROCEEDING:
Originating Application
ORIGINATING COURT:
Planning & Environment Court at Brisbane
DELIVERED ON:
28 November 2014
DELIVERED AT:
Maroochydore
HEARING DATE:
29th July and 8th August 2014
JUDGE:
Robertson DCJ
ORDER:
1. I declare that the First Respondent erred in law in deciding the development application on 13 November 2013 ( the approval) in deciding it on the basis that it should not refuse it on any grounds which were within the scope of the environmental authority granted by the Third Respondent.
2. I order that the approval be set aside.
3. The application is otherwise adjourned to a date to be fixed after the parties have considered these reasons.
4. Liberty to apply by the giving of 3 days notice.
CATCHWORDS:
PLANNING & ENVIRONMENT COURT – ORIGINATING APPLICATION – Where submitter Appellant/Applicant seeks declarations in an Originating Application filed in the context of extant submitter appeals by him and Fourth Respondent against a Council decision to approve a development approval for a waste water storage pond for receipt of treated and untreated effluent from CSG operations in region – DEHP was a concurrence where agency and had issued its response which included an environmental permit to conduct an Environmentally Relevant Activity which permit contained conditions.
PUBLIC NOTIFICATION – Where Applicant argued that public notification in relation only to the sign on the land was insufficient, in that it did not comply with the law – where sign in fact (on the best evidence) complied with the relevant Regulation.
FINALITY – Where both submitters contend that Condition 21 of the approval lacked finality in that it left to a later decision an important aspect of the development, which had the potential to alter significantly the nature of the development.
ADMINISTRATIVE LAW – Where submitters argue that Council’s decision was unlawful in that it had been lead into error by the report before it at the time it made its decision, by impermissibly abdicating its responsibility to decide the application in relation to environmental issues to the concurrence agency – where submitters objected to a large body of evidence put on by Council on the basis that it was clear that the only Council Officer report before Council at its general meeting was the report noted in the minutes.
DECLARATIONS – Whether orders sought lacked utility in that the court was now seised of all issues and obliged to assess the development application de novo in circumstances in which the approval had not taken effect pending the outcome of the appeals.
EXCUSAL – Whether any non-compliance can be excused pursuant to s 440 of the SPA.
Legislation
Environmental Protection Act 1994
Sustainable Planning Regulation 2009
Cases
Caloundra City Council v Pelican Links Pty Ltd & Anor [2005] QPELR 128
City of Unley v Claude Neon Ltd (1983) 32 SASR 329
Cox & Ors v Maroochy Shire Council & Ors [2006] QPELR 628
Dunlop v Woollahra Municipal Council (1975) 2 NSWLR 446
Leichardt Municipal Council v The Minister (1992) 77 LGRA 64
Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476
McBain v Clifton Shire Council [1996] 2 Qd. R. 493
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Mison and Ors v Randwick Municipal Council (1991) 23 NSWLR 734
Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd.R. 347
Pinjarra Hills Pty Ltd [1995] Q.P.L.R. 334
Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74
Scott & Ors v Wollongong City Council (1992) 75 LGRA 112
Telstra Corporation Ltd v Kendall (1994) 55 FCR 221
R v Brisbane City Council; ex-parte Read [1986] 2 Qd R 22
Wyatt v Albert Shire Council [1986] Q.P.L.R. 62
Westfield Management Pty Ltd v Brisbane City Council & Anor [2003] QPELR 520
COUNSEL:
Applicant – Mr Gore QC and Mr Haydon
First Respondent – Ms Kefford
Second Respondent – Mr Hughes QC and Mr Lyons
Third Respondent – Excused from attendance
Fourth Respondent – Mr Gibson QC and Mr Loos
SOLICITORS:
Applicant – Shine Lawyers
First Respondent – McInnes Wilson Lawyers
Second Respondent – Emanate Legal
Third Respondent – Excused from attendance
Fourth Respondent – Corrs Chambers Westgarth
On 3 June 2014 his Honour Judge Jones ordered that three issues raised by Mr Golder in Originating Application no. 2012 of 2014 be heard and determined as preliminary matters. The Originating Application was filed on 29 May 2014 in the context of Mr Golder’s submitter appeal no. 24 of 2014 and a submitter appeal by the fourth respondent Westrex Services Pty Ltd (“Westrex”) in its appeal no. 4921 of 2013.
The submitter appeals challenge the decision of Council made on 23 November 2013 to approve a development application made by We Kando on 24 April 2013 to grant:
(a) a development permit for a material change of use – High Impact Industry (wastewater storage pond); and
(b) a development permit for Environmentally Relevant Activity 56 – Regulated Waste Storage.
The development application was impact assessable and public notification was required.
The site the subject of the development application is at 1915 Carnarvon Road, Euthulla, which is within the local government area of the Council.
Both submitter appeals raise issues of conflict with the relevant planning scheme, which is the Bungil Shire Council Planning Scheme, an IPA scheme promulgated in 2006. The appeals also raise amenity and other issues including alienation of Good Quality Agricultural land (GQAL).
On 22 May 2013, the Department of Environment and Heritage Protection as a concurrence agency notified Council and We Kando that it had no requirements relating to the application and provided a permit under the Environmental Protection Act 1994 subject to conditions.
Before his Honour Judge Jones, Mr Gore QC, senior counsel for Mr Golder, described the development proposal in the following terms:
“The facility proposed … is, essentially, a very rudimentary sewerage treatment plant. The material is clear (sic) that it would be treated but, more relevantly, untreated effluent coming from mining camps, what the material calls both black water and grey water …”
The development is described more technically in the material in these terms:
“… the development will comprise construction of a single storage pond for treated and untreated effluent, sourced from Coal Seam Gas (CSG) operations within the region. General site and operational constraints provided by We Kando include:
· total storage capacity of around 50ML;
· 60% of effluent received at the site will be untreated effluent;
· 40% of the effluent received at the site will be treated effluent;
· nominal operational pond depth (for storage purposes) will be 1.0m; and
· minimum free bore depth (vertical height between maximum operational level and embankment crest) will be 0.5m.”
The Originating Application
The three issues referred for a preliminary determination are shortly described as the “public notification” issue, that Condition 21 of the approval lacks finality as it leaves for later decision an important aspect of the approval which could alter the nature of the use approved; and the “abdicating responsibility” point, which is essentially an argument that in making its decision to approve as part of its General Meeting on 13.11.13, Council was led into procedural error by the report of Specialist Compliance Officer Warren Oxnam, which was before Council at its meeting and upon which it based its decision, such that the decision was invalid. Council and We Kando submit that substantively none of the points raised have merit and that, in any event, as the approval has not taken effect and this Court is now required to consider the merits of the proposal de novo and act (as it were) anew as assessment manager, there is no utility in “sending it back to the Council to make a fresh decision”. Both Council and We Kando also submit that if an error has been made, the Court has wide power to deal with the matter pursuant to s 440 of the SPA.
As my reasons will expose, I think one of the referred issues has merit and will invalidate the Council’s decision notice. I will however deal with the other issues because Mr Golder’s application also seeks costs against Council and We Kando. Westrex did not join in the argument in relation to the public notification point.
The Public Notification Point
As I have noted, this issue was advanced only by Mr Golder.
The allegation is that public notification of the development application was defective in that:
“A.The Co-Respondent [We Kando] has failed to give sufficient and/or adequate public notification in that:
(a)the sign on the land was not on or within 1,500mm of the road frontage; and/or
(b)the sign on the land was not clearly or adequately visible from the road as it could not be seen or was not clearly observable to persons passing by on the Carnarvon Highway; …”
Section 297 of the SPA requires, inter alia, that public notice of a relevant application requires the applicant (or the assessment manager) to:
“(b) place a notice on the land in the way prescribed under a regulation; …”
This in turn invokes s 16(2)(a) and (c) of the Sustainable Planning Regulation 2009 (“the Regulation”), whereby a public notification sign must be placed on, or within, 1,500mm of the road frontage and positioned so that it is visible from the road.
As described by Mr Gore QC and Mr Haydon (for Mr Golder) in their written outline, the basic problem, based on the evidence gathered on behalf of Mr Golder, was that the public notice on the land was about 74 metres from the carriageway of the Carnarvon Road, and was obscured by tall grass. Mr Golder’s property also fronts the Carnarvon Road, about 4,500 metres away, so too does a property owned by Mr Clem Boughen. Both regularly travel along the road, and neither saw the notice until it was brought to their attention by a third party, and both in their affidavits deal with difficulties in seeing the sign. Mr Golder became aware of the public notice in time to exercise his rights as a submitter , but Mr Boughen did not.
In preparation for the hearing before me, We Kando has filed an affidavit by Mr Andrew Campbell whose firm has conducted a proper survey of the boundary which establishes that the fence on which the public notification sign was placed was on the surveyed boundary of the land.
Mr Golder accepts this evidence, and to the extent that Mr Ovenden’s opinion based on aerial photographs conflicts with Mr Campbell’s evidence, Mr Golder does not rely on Mr Ovenden’s opinions.
This Court has previously held with respect to similar requirements in planning legislation that:
(a) the sign must be placed on the land itself and not on the road;
(b) the reference to “road” is to a dedicated road and not to the constructed carriageway of the road;
(c) the word “visible” does not mean legible;
(d) there is no requirement upon a developer to place the sign on the most visible location from the point of view of users of the road; and
(e) the intent of the provision is sufficiently carried into effect by regarding the obligation as fulfilled if the notice is visible to a person on the road in a position in front of the sign (see citations footnoted to this paragraph, which is directly quoted from paragraph 13 of the written submission of Mr Hughes QC and Mr J G Lyons of counsel for We Kando).
As they submit, on road reserve including a highway that has a speed limit of 100km/h and a larger road reserve than the constructed carriageway, there will always be difficulty, if not impossibility, for parties trying to read the contents of a public notification sign. That is not the requirement of the Regulation. The sign on the land is one of three forms of public notification required. Here the evidence shows that the sign was visible, and the visibility of the sign is intended to put someone on notice as to the existence of the development application on the relevant land. As the Court of Appeal has stressed, a person seeking to consider making a legitimate submission will not obtain the precise details of the application from the sign on the land (or the advertisement in the newspaper), but can be expected to inspect the application proper, which is required to be kept available by the local government: Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476 at paragraphs [20] and [31].
The evidence of Mr Hooke (manager of We Kando) is unchallenged. He undertook public notification of the development application on behalf of the company. His evidence, supported by photographs, is that in fact the sign was visible from the road. As We Kando submits, despite the difficulties expressed by Mr Golder and Mr Boughen, Mr Golder nevertheless was able to exercise his rights to make a submission in time, as did eight others, suggesting that public notification did ensure that the development application was properly advertised.
For these reasons, I am satisfied that We Kando has complied with the requirement in relation to placing the public notification sign on, or within 1,500mm of the road frontage, and that on the best evidence, this sign was visible from the road.
The finality point
Both Mr Golder and Westrex argue that Condition 21 attached to the decision notice is invalid as it lacks finality. Condition 21 is under the heading “Environmental” and is one of three conditions under that heading in the conditions package. It is in the following terms:
“The developer is to submit an Environmental Management Plan to Council to be approved prior to commencement of use. This plan is to be in accordance with Schedule 9: ‘Environmental Management Plan Guidelines’ in Bungil Shire Council Planning Scheme 2006.”
The contention of both Mr Golder and Westrex as pleaded in the Originating Application is:
“Condition 21 is central to the approval, but it lacks finality, because it leaves for later preparation and approval the terms of the Environmental Management Plan, in circumstances where that plan will involve an important aspect of the development, and may alter the development as described in the development application in a material respect.”
The relevant principles were discussed by me in Caloundra City Council v Pelican Links Pty Ltd & Anor [2005] QPELR 128 in the following terms:
“[47] The starting point is the judgment of Wells J in Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329 at 332:
‘…For this purpose, it is essential to bear in mind that the granting of a consent is an act in law that is final in the disposition of the application; the consent must be either refused, or granted unconditionally, or granted subject to conditions. A condition which imparts to consent a quality in virtue of which it ceases to be final is not one, in my judgment, that falls within the structure of the Act. A condition so annexed ought to be directed, and directed only, to circumscribing, with reasonable particularity, the acts of land use to which the authority … has given its consent …’.
[48] This passage was quoted with approval by Clarke J.A. in Mison and Ors v Randwick Municipal Council (1991) 23 NSWLR 734 at 739. In that case, a development application to erect a building had been approved subject to a condition that the overall height of the dwelling house be ‘reduced to the satisfaction of Council’s chief town planner’. Clarke J.A. said (at 740):
‘That this aspect of the development was of critical importance was beyond question. The height, and positioning of the building on site were, arguable, the two most critical features of the development …’
and, (at 740):
‘Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final.’
[49] Priestly J.A. said of the test (at 737):
‘in my opinion, if the fulfilment of a condition imposed upon a consent will significantly alter the development in respect of which the application was made, there has been no consent to the application. Further however, if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the Council has not granted consent to the application made.’
[50] It is common ground that the tests enunciated in Mison represent the present state of the law in Queensland: Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd. R. 347 at 354 per McPherson J.A. and Ambrose J; and McBain v Clifton Shire Council [1996] 2 Qd. R. 493 at 496.
[51] It seems to me therefore that there are, as it were, two aspects to the ‘test’, and if the condition infringes either or both it is invalid. These can be stated relevantly to the facts here in the following way. Firstly, if a condition imposed (on an approval) by Council has the effect of significantly altering the development in respect of which the development application is made, then the proposed approval is no approval at all. Secondly, where a condition leaves for later decision an important aspect of the development, and the decision on that aspect could alter the proposed development in a fundamental way, then the approval with that condition cannot be regarded as final.”
In Cox & Ors v Maroochy Shire Council & Ors [2006] QPELR 628 Skoien SJDC said:
“[93] Questions of finality have been discussed in a number of cases. In McBain v Clifton Shire Council (1994) 2 Qd.R. 493 at 496 this appears:
‘Under the Act, it is a Council which must decide whether or not to approve an application and, if it approves the application, what, if any, conditions are to apply. Further, there is a statutory process to be followed, including advertising the application and consideration of objections. Decisions which the statute requires the Council to make cannot be delegated or deferred, at least if deferral would circumvent or subvert the statutory scheme.
On the other hand, conditions are specifically authorised by the Act and, obviously, many approvals routinely include conditions which operate prospectively; i.e., require to be performed or fulfilled following the grant of the approval. Further, prior satisfaction of a condition imposed by an approval will frequently be a prerequisite to the utilisation of the approval …’
[94] It should be noted that McBain involved an application which required public notification (under IPA that would be impact assessment), a matter which the Court regarded as relevant as the approval of the Council effectively excluded public notification of applications for future extensions of the development. It should also be noted that McBain recognised the validity of a condition for prospective reconsideration by the Council of some matters.
[95] Such conditions are routinely applied and are lawful as long as they do not block the rights of submitters (McBain) or relate to an important matter, the future decision on which could alter the development in a fundamental way (McBain; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council (1996) 1 Qd.R. 347).”
The Environmental Management Plan Guidelines are located in Schedule 9 of the Bungil Shire Planning Scheme 2006. Relevantly the Schedule provides that:
(a) “An Environmental Management Plan shall be submitted with an application that conserves and protects areas identified by and/or considered by Council to be subjected to, or potentially subject to landslip, erosion, erosive flooding, salinity or any other form of land degradation, or for areas where building work may impact on the environment and amenity of the neighbourhood”;
(b) Council may refuse an application if an Environmental Management Plan has not been completed to Council’s satisfaction; and
(c) The Environmental Management Plan shall contain specific information, and other matters at the discretion of Council.
The only time the Planning Scheme assessment provisions call up Schedule 9 is in a footnote to Performance Criterion PC48 of the Rural Zone Code which provides that “surrounding area is protected from adverse environmental impacts.”
The footnote attached to Performance Criterion PC48 of the Rural Zone Code relevantly provides:
“One way to demonstrate compliance with this PC is to prepare an Environmental Management Plan in accordance with Schedule 9: ‘Environmental Management Plan Guidelines’.”
While Schedule 9 of the Planning Scheme contemplates the provision of an Environmental Management Plan as part of a development application and that Council may refuse an application if an Environmental Management Plan is not completed to its satisfaction, Schedule 9 does not mandate the provision of such a plan, nor does it require Council to refuse a development application in the absence of an Environmental Management Plan.
Mr Golder’s and Westrex’s argument is that condition 21 offends the finality principle in both respects. Mr Gibson QC and Mr Loos in their written submission submit:
“30.The Council’s conditions do not otherwise provide for the environmental aspect of the environment to be controlled. The importance of the Environmental Management Plan with respect to the management, conduct and operation of a wastewater storage pond is obvious. Yet condition 21 leaves the fundamental matter of environmental management for later determination.
31.The requirement of an Environmental Management Plan is similar in nature to the requirement for a noise impact report in Leichardt Municipal Council v The Minister (1992) 77 LGRA 64 and to the condition requiring advice from a monetary review committee in respect of proposed expansion of pig numbers in McBain v Clifton Shire Council [1996] 2 Qd R 493. The contents of the Environmental Management Plan have the potential to materially affect the nature and extent of the use proposed by the development application as well as the day-to-day operation of the use.”
In assessing the challenge to Condition 21, it is appropriate to consider Condition 21 as part of the overall package of conditions. In this regard Condition 3 is an important condition. Condition 3 is in the following terms:
“3.All works and operations are to be carried out in accordance with the approved plans and specifications listed in the following table. Where approved plans are in conflict with the Assessment Manager’s Conditions, the Assessment Manager’s Conditions shall take precedence.
Plan/Document number Plan/Document name Date 001 Rev A Existing Conditions Showing Development Layout 04/2013 002 Rev A Storage Pond Layout and Setout 04/2013 003 Rev B Sections and Details 04/2013 11238802R01a Geotechnical Assessment 05/2013 11238802 (02a) Groundwater Monitoring Plan 05/2013 11238802 (S01-a) Technical Specification for Constructions Works 05/2013 ”
I agree with Council and We Kando that when construed as a whole the nature and extent of the development said to be approved is clear and certain. The Plans referenced in Condition 3 require compliance and are not framed in the manner of many such conditions i.e. “to be generally in accordance with;” and clearly a number impact on environmental issues. Its parameters are apparent by reference to conditions such as Condition 3 to require all works and operations to be carried out in accordance with listed approved plans and specifications.
The approved plans and specifications include key details defining the extent of the use approved including details of the size, location and profile of the storage pond and operational constraints such as total storage capacity of the pond and the extent of treated and untreated effluent to be received. Both Council and We Kando in their submissions rely on a large number of affidavits from Council Officers and external consultants which were provided subsequent to the decision of his Honour Judge Jones to refer the preliminary points to me. Both Mr Golder and Westrex object to this evidence on the grounds of relevancy. I make it clear that in reaching a conclusion that Condition 21 does not offend the finality principle I do not take into account the evidence of the Council Officers referred to in paragraph 35 of We Kando’s submission.
In my view, the condition in its effect, and when construed in light of all the conditions, does not have the potential to significantly alter the nature of the development, nor does it leave for later decision an important aspect of the development. The condition is similar to the impugned condition in Scott & Ors v Wollongong City Council (1992) 75 LGRA 112. In those circumstances there is no need for me to consider the argument that condition 21 can be severed from the development approval or to consider whether non-compliance can be excused pursuant to s 440 of the SPA.
The abdicating responsibility point
The minutes of the General Meeting of the Council on 13 November 2013 are in evidence before me. They reveal that We Kando’s development application was considered as Item 13.5 in a meeting which commenced at 9.00am and concluded at 4.47pm. It is not suggested that anything other than the report of Mr Oxnam was before the Council when it came to consider the development application.
It is well established that a decision maker falls into procedural error, and errs in law, by failing to take into account a relevant consideration that it is bound to take into account in making the decision, and by taking into account a consideration that is not relevant to the making of the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 39. It is fundamental that the decision must be made by the decision maker upon whom authority is conferred by the relevant statute. In consequence, it is an error of law for a decision maker to act at the dictational behest of another or to give “… no real independent attention to the discretion which is conferred upon him or her, so that the exercise of discretion is really the exercise of that discretion by some other person.”: Telstra Corporation Ltd v Kendall (1994) 55 FCR 221 at 231.
The development application was impact assessable. Schedule 3 of the SPA defines “impact assessment” as meaning “the assessment under s 314 of - :
“(a) the environmental effects of the proposed development;” and
“(b) the ways of dealing with the effects.”
The Council was the assessment manager for the development application. As such, it was the entity that was obliged to decide the development application. Sections 3, 4 and 5 of the SPA identify that the purpose of the SPA “is to seek to achieve ecological sustainability” and identifies how that purpose is to be advanced by reference to the short and long term environmental effects of the development and associated matters.
Clearly then, “the environmental effects of proposed development” and “the ways of dealing with [those] effects” are considerations that the assessment manager was bound to take into account in deciding an impact assessable development application under the SPA. Further, as the assessment manager for the development application, Council was the sole repository of authority to decide that application, but was obliged to consider the (Department’s) response.
As noted above, Mr Oxnam provided a report to assist the Councillors in deciding We Kando’s development application. The report is 11 pages in length, and contains attachments in which he has set out what he says are the relevant parts of the Planning Scheme against which he has provided comments and assessment responses. The report commences with an executive summary and his recommendation, and sets out the 54 Conditions to be attached to the decision if Council accepts his recommendation. The report at page 9 then sets out a number of details which form the basis of the arguments now advanced by Mr Golder and Westrex. Relevantly, the report to Council is in these terms:
“ Risk Assessment (Legal, Financial, Political etc.):
Because the environmental management of wastewater storage facilities is controlled by an environmental authority which is approved by the Department of Environment and Heritage Protection, the Council should not refuse a development application on any grounds which are within the scope of the environmental authority. If Council were to refuse a development application on grounds associated with the environmental management of wastewater storage facilities approved by that Department it would need to defend its refusal against both the applicant and the Department in the event of an appeal.
The other types of impacts (mainly transport, surrounding land uses, future use of site) appear reasonable and can be addressed by appropriate development conditions.Policy Implications:
The proposed method of wastewater disposal is not a preferred method of disposal for wastewater in the Maranoa Regional Council area. It is a very low cost method with minimal treatment of the waste. It effectually relies on long-term evaporation of the wastewater to leave behind an accumulating layer of sludge which eventually needs to be removed and taken to a landfill site.
Other wastewater treatment systems approved for the Maranoa Regional Council area are based on the wastewater being processed to remove the suspended material and make the water fit for other purposes. When there are un-authorised contaminants in the wastewater stream, the other wastewater treatment systems are often adversely affected and this provides an inbuilt incentive (or requirement) to ensure the wastewater does not contain un-authorised contaminants.
…
The wastewater treatment process is controlled by an environmental authority issued by the Department of Environment and Heritage Protection. The Queensland Government has recently written to Queensland local governments, including Maranoa Regional Council, advising against duplication of development controls in development approvals. This is consistent with the approach already taken by the Council where a development includes an Environmentally Relevant Activity. It means that Councillors should not be setting conditions for the management of the treatment process if these are provided by a government agency.
However, this means that the management (and enforcement) of conditions contained in an environmental authority primarily rests with the Department of Environment and Heritage Protection and is dependent upon the willingness of that agency to take action now and into the future.
Further, it should be accepted that the defence of the environmental authority and its condition should be left to the agency that imposed them. This will be relevant in any appeal.
Council must still deal with impact such as traffic, impacts on other land uses and the use of the site after the wastewater treatment activity has ceased.”
…
Those views expressed by the Council Officer do not accord with the statutory assessment regime that the Council was obliged to follow. In fact they openly take account of policy matters outside the scope of the statutory decision rules.
This is an important issue because paragraph 19 of Council’s outline filed on 24 July 2014 states:
“19.Were the Court to focus only on (the statements of Mr Oxnam in the officer report) … it might be persuaded to make the declaration sought by the submitters however, the materials the court ought to consider are much more extensive.”
This observation by Ms Kefford is a reference to a large body of affidavit material filed by Council since his Honour’s referral of the three preliminary points to me. It is common ground that the only Council Officer’s report that was before Council at its General Meeting on 13 November 2013 is the report of Mr Oxnam which is dated 4 November 2013 and which contains the impugned statements set out above. The affidavits now relied upon by Council and We Kando include affidavits of Danielle Pearn, Manager of the “Planning and Building Development team” at Council; Ruth Golden, a Development Engineer in “the Planning and Building Development Support department” at Council (she swears that she was at the General Meeting on 13 November 2013 when “the Councillors discussed and voted” (on the application); but she does not suggest that she participated or was asked to give any advice about any issue in Mr Oxnam’s report); Jessica Reiser, a Planning Officer with the Council who provided co-ordination of the assessment process prior to the General Meeting; Warren Oxnam; Luigi Scarpato, Town Planner retained by Ms Reiser on 11.9.2013 to review the “Council Officer report” which appears to be a reference to material prepared by Ms Golden; and Mr Robert Heywood, Director of Development, Facilities and Environment at Council.
Relevantly the thrust of this evidence put on by Council is neatly summarised in para 45 of the written outline of Mr Hughes QC and Mr Lyons:
“45.The development application was the subject of a thorough and rigorous assessment by the Council including:
(a)the development application, or relevant parts of it, were sent to a number of specialist offices by the Council and an external consultant;
(b)the Council Officer who undertook the engineering assessment of the development application did carry out “a independent assessment of the environmental management facility” and in particular:
(i) considered the relevant development application material;
(ii)considered the Planning Scheme;
(iii)was aware of an existing facility similar to the proposed development operated by We Kando and had previously considered compliance issues related to that development;
(iv)conducted a site inspection;
(v)conducted a site inspection of We Kando’s site at Chinchilla to familiarise herself with the type of development being assessed and gain a better understanding of the type of operation to be conducted if approval was granted;
(vi)properly considered all of the relevant environmental topics;
(vii)in considering these topics did not regard the work conducted by the Concurrence Agency as determinative to her assessment and considered the topics in terms of potential off-site impact and the potential for impact on the community;
(viii)had discussions with officers from the Western Downs Regional Council regarding their experience with a similar facility constructed by We Kando in Chinchilla;
(ix)requested further information by way of information request;
(x)sought further information from the geo-technical engineer assisting We Kando;
(xi)sought further information from We Kando that was required to assess the development application;
(xii)conducted internal discussions with other Council officers regarding environmental matters related to waste disposal;
(xiii)considered the submissions received during public notification and prepared a document dealing with the issues raised in the submissions and a response to those issues;
(xiv)considered a preliminary opinion of an external consultant;
(xv)had various discussions with Council officers regarding the imposition of a bond;
(xvi)attended a workshop with other Council officers and Councillors regarding the development application;
(xvii)attended a subsequent site inspection with two Councillors and had meetings with a Councillor and other officers of the Council;
(xviii)in forming her view about whether for engineering reasons the development application ought to be approved or refused, did not consider herself bound by the decision of the Concurrence Agency to issue an Environmental Authority and did a more global assessment that took into account the potential off-site impacts of the proposed development and potential for impact on the community;
(c)similar considerations of relevant issues were undertaken by other Council officers involved with the assessment of the development application;
(d)the Council officer from the specialist compliance section who was involved in assessing the development application;
(i)considered the relevant development application material;
(ii)reviewed the Environmental Protection Regulation Code and Planning Scheme criteria to ensure that the Concurrence Agency had not missed anything in drafting their Environmental Authority in considering the environmental issues;
(iii)formed the opinion that the Council did, through its officers, independently assess all aspects of the development application and in doing so could not find any significant conflict with the Planning Scheme;
(iv)discussed with other Council Officers the prospect of wildlife coming into contact with the contaminated material;
(v)was clearly inclined to refuse the development application but could find no proper basis to do so… (this is a reference to the Council Officer who provided the report upon which Council ’s resolution to approve on 13 November 2013 was based, namely Warren Bruce Oxnam).”
(e) a workshop with respect to the development application with Councillors and Council Officers to inform the Councillors about the nature of the application and the issues the Council Officers had considered in their assessment
(f) site inspections which were undertaken by councillors prior to considering whether to approve or refuse the development application; and
(g) a split vote made by the councillors on the development application (8 in favour in one against) demonstrating a level of independent consideration by the individual councillors themselves.”
The preliminary question therefore for me is whether this additional material, the effect of which is fairly summarised in We Kando’s submission as set out above, is relevant in considering Mr Golder’s and Westrex’s argument in relation to the abdicating responsibility point. Mr Golder and Westrex object to it on the ground of relevance.
In support of the admissibility of this evidence put on by Council Ms Kefford relies upon the decision of Brabazon QC DCJ in Westfield Management Pty Ltd v Brisbane City Council & Anor [2003] QPELR 520 at 532-3:
“[59]What material should the court look at, when an attack is made on the decision itself? Should the court look just at the actual decision (Exhibit 10) or should it look at the things which it took into account – such as the town planner’s report?
[60]The correct approach can be found in the decision of the New South Wales Supreme Court in Dunlop v Woollahra Municipal Council (1975) 2 NSWLR 446 at 484-5:
‘Both parties agreed that, in scrutinising the Council’s actions, I should have regard, not only to the terms of the resolutions passed by Council, but to the past history of consideration of the land in question, and of the reports to Council by its officers and committees which were before the Council when it made its decisions…
… Most of the material is in the form of reports of Council Officers, which, in the absence of any indication to the contrary, may reasonably be inferred to have been the basis of Council resolutions, and, therefore, supply a basis for attributing to the Council the intentions, purposes, motives, beliefs and state of mind revealed therein.’”
In Westfield Management, the applicant had applied for declarations that a Council approval of a Code assessable development application should be set aside. Council had relied upon a Town Planner’s report recommending approval. The applicant was a commercial competitor of the developer and was not exercising submitter appeal rights because the application was Code assessable. It was held that the Town Planner had taken irrelevant considerations into account, and had asked the wrong questions for a Code assessable application. The issue was whether the Court could have regard to the Town Planner’s report as a link in the chain which resulted in the Council’s decision to approve. The Dunlop decision, a judgment of Wootten J, focused on a different question, namely whether the Council in that case had acted unfairly in passing resolutions which adversely affected the use rights of the applicant, and is clearly distinguishable, in that there was no dispute as to what his Honour could look at in deciding on what basis the Council’s decision was made. However, the principle averted to is trite and is to be applied in the particular circumstances of a case.
I agree with Mr Gore that this is an even clearer case than Westfield’s. The only report before Council was Mr Oxnam’s report of 4 November 2013. There is no evidence that Council relied on anything else. As I have noted Ms Golden was at the meeting but she does not suggest she said anything, and that the Minutes do no record her presence let alone any contribution.
In her Outline, Ms Kefford also quotes [62] of Judge Brabazon’s judgment in Westfield:
“[62] A decision of the Full Court of Queensland illustrates the proposition, that it is necessary to look at all the known facts which influence the final decision, rather than just look at the formal processes which led to that decision. In R v Brisbane City Council; ex-parte Read [1986] 2 Qd R 22, Council had entered into an improper agreement with a developer who was seeking the re-zoning of land. It was found as a fact that the final decision of Council was wrongly influenced by the existence of the agreement.”
Read was concerned within an entirely different scenario. In the course of an appeal by objectors to a forerunner of this Court, the Local Government Court, against a decision to approve a re-zoning to permit the expansion of an existing quarry, documents were discovered which indicated that Council’s decision was a fait accompli before the application to re-zone was made, and the objectors then sought relief before the Full Court of the Supreme Court of Queensland in its original jurisdiction by way of prerogative writs, so the comments of Judge Brabazon must be seen in that light. On the issue of relevance, it is very clear here that other reports, or indeed subjective views of Council Officers, were not before Council other than the report of Mr Oxnam, and logically this is the basis on which Council made its decision. The references in many of the affidavits of Council Officers to Councillors (for example) speaking with Officers about the proposal, or undertaking site inspections, or attending a workshop; in the absence of other direct evidence of what Councillors did consider at the meeting, apart from Mr Oxnam’s report; is of little weight in determining what Council did take into account (apart from Mr Oxnam’s report) in reaching its decision.
Perhaps appreciating the difficulties faced by Council in maintaining the validity of its 13 November decision, based only on Mr Oxnam’s report, We Kando has sought to rely upon some principles set out in Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74 in support of its submission that any material in the possession of Council will generally be treated as being in possession of Councillors at the time the decision is made. The case was factually similar in some respects to the Westfield case. Council had approved a shopping centre development on land partially zoned under relevant planning controls which did not allow for retail uses that would compete with the local retail centre. The developer proposed that there would be a Woolworths erected on the site. Schroder applied unsuccessfully to the Land and Environment Court for a declaration that the consent was invalid, and appealed to the New South Wales Court of Appeal which unanimously dismissed the appeal.
Relevantly, Council had received advice from a consultant which in turn recorded legal advice from a barrister, Mr Webster, which was to the effect that the proposal was not inconsistent with the relevant planning control objectives. The argument advanced was that because this advice was received shortly before Council made its decision, it should be inferred that Council did not consider the issue i.e. that it had omitted to take into account a relevant consideration.
In that case there had been a full hearing before the Chief Judge of the Land and Environment Court where evidence was called. It is not apparent from the judgment of the Full Court that there was any objection to evidence about the history of the land and Council Officers and Committee decisions and reports being before the Primary Judge. The reference by Ipp AJA (with whom the Chief Justice and Sheller JA agreed) at [67] to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (supra) at 31 per Gibbs J (as he then was) is unhelpful in the circumstances of this case. Peko-Wallsend was again a case in which the decision maker (the Minister) had failed to take into account a relevant consideration because it was omitted in the material placed before him. Gibbs J conventionally applied authority that in such a case the material in the possession of the Department would be deemed to be in the possession of the Minister. The qualification in Ipp AJA’s reference to Peko-Wallsend that “material in possession of the Council will, generally, be treated as being in the possession of the Councillors…” (my emphasis), is apposite here.
In this case, the clear unequivocal evidence is that only Mr Oxnam’s report was before Council, and the inescapable conclusion is that it formed the basis of the decision. It follows that in considering the arguments of Westrex and Mr Golder on this point the Court should have regard to the whole of the report, including the impugned words, and disregard the other evidence put on by Council except to the extent that it is reflected in Mr Oxnam’s report.
Ms Kefford argues in the alternative, that when viewed as a whole, the report of Mr Oxnam does involve an assessment of the environmental effects of the proposed development or an assessment of the ways of dealing with the effects as required for impact assessment under Schedule 3 of the SPA. As she correctly submits the report or at least the attachment to the report refers to some provisions in the Planning Scheme which are relevant to environmental matters, but it cannot be seriously argued that given the prominent position of the incorrect advice of Mr Oxnam quoted above, it could not have materially affected the Council’s decision to approve the development application.
The result is that Council impermissibly abrogated its duty to properly assess the application by abrogating its duty to the concurrence agency and therefore the decision was invalid. Wyatt v Albert Shire Council [1986] Q.P.L.R. 62, 65; and Pinjarra Hills Pty Ltd [1995] Q.P.L.R. 334, 341-342, are examples where this Court and its predecessor held that where the jurisdiction of public bodies such as a Council and a State Government Department overlap, one cannot simply rely upon the exercise of the other’s exercise of discretion. The point made by Mr Hughes QC and Mr Lyons relating to s.314 (3) (c) of the SPA is not made out. Council was deflected from properly exercising its own discretion “having regard to” the Department’s response by the incorrect advice before it in Mr Oxnam’s report. Although it still involves the drawing of an inference, it is the only inference that can be drawn from the fact that the report was the only document before Council at it’s meeting when the decision to approve was made.
Unlike the barrister’s advice to the Council in Schroder’s case, where he had made it “crystal clear” that despite his advice, the decision was for the Council itself, there is no such qualification in the incorrect propositions contained in Mr Oxnam’s report. Apart from Condition 21 which is reproduced in the report as part of the conditions package ultimately adopted by Council, there is no reference to the footnote to PC48 in the Rural Zone Code; and his Assessment Responses to what he regarded as relevant Performance Criteria in the Code which were also covered by the Concurrence Agency Permit (air, noise, water quality, separation of incompatible land uses), could be construed as being in line with the impugned advice in the earlier part of the report, but, as this was not argued, it plays no part in my conclusions.
Discretionary considerations
This leads to consideration of the alternative arguments made by We Kando and the Council to the effect that given that the approval has not taken effect, and this Court now acts in the place of the assessment manager, and is obliged to consider the merits of the application de novo, there is no utility in granting the relief sought by the applicants.
It is also necessary for me to consider whether the error of law made by the Council can be excused under s 440. In my view s 440 does not extend to such a fundamental error and indeed the explanatory notes to the second reading of the SPA Bill tendered by Mr Gibson QC which included s 440 confirm in my mind that it would be inappropriate to excuse under that provision what is in effect an unlawful decision by the local authority as assessment manager.
In my view there are two aspects of the utility argument that come into play. I have deliberately quoted above from the submission of Mr Hughes QC and Mr Lyons in which they set out the effect of the material put on by Council in relation mainly to the abdication of responsibility point but also marginally relevant to the finality point. It does show that prima facie Council Officers and external consultants did undertake a very extensive assessment of the development application and although the argument made by Westrex and Mr Golder, as I have found, has legal utility, the practical utility of setting aside Council’s decision is a more difficult question. One of the effects of setting aside Council’s decision is to place We Kando in a position where it is faced with a deemed refusal. In those circumstances, We Kando (which carries the onus whether it is the appellant against a refusal or whether it is responding to a submitter appeal) can then appeal to this court against the deemed refusal. It would also follow that both submitter appeals would be allowed on this limited basis.
As far as I can tell from the files neither of the submitter appeals have proceeded to a point where the matters are ready for trial, but certainly all parties have undertaken preparation, and some expert reports have been obtained. I am not convinced that the observations of Thomas J (as he then was) in Read referred to in Mr Golder’s outline at [25] are apposite here because of the quite different results that can follow here from a declaration of invalidity. As his Honour noted in the passage immediately before that quoted by Mr Gore QC and Mr Hayden, the issue there was to do with “fair play and the avoidance of “mischievous practices”” which is not the case here. It is however a matter of considerable public interest that decision makers such as Councils act on correct advice so that decisions made can be seen to be lawfully based. It is doubtful here that the submitters will have Council “as...an ally in the litigation” but that involves speculation.
The exercise of the power to grant declaratory relief is discretionary and the matters set out above impact on the exercise of discretion. Given that the error made by Council is so fundamental, I have determined to grant the relief sought in paragraphs C and D of Mr Golder’s Originating Application.
As I have noted, one of the legal consequences of making the order sought in D of the application is to give the developer the opportunity to lodge an appeal against a deemed refusal. Before proceeding to order that the submitter appeals be allowed on the limited basis referred to above, and before considering costs, I will adjourn the application to a date to be fixed to enable all parties including We Kando to consider the reasons and to consider its position. As it correctly submits, it is an innocent party in the sense that it had no part in the legal error made by Council. If I have the jurisdiction, and if We Kando does appeal, I would be strongly inclined in those proceedings to order that the steps taken by it in these appeals be steps taken in that appeal. It would be pointless it seems to me for We Kando to be faced with having again to satisfy the Court about public notification. If Mr Golder and Westrex choose to join any such appeal I would be inclined to make similar orders for their benefit. I have a 2 week civil sittings commencing in Maroochydore on the 19th January and, subject to the availability of dates in that time, there may be a day that suits all parties in that period which can be set aside administratively to deal with the outstanding issues. I am prepared to come to Brisbane to suit the parties. I will allow liberty to apply, and written submissions, if that is what the parties agree.
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