Goodsell Earthmoving Pty Ltd v Coordinator-General

Case [2019] QSC 243

SUPREME COURT OF QUEENSLAND

CITATION:

Goodsell Earthmoving Pty Ltd v Coordinator-General [2019] QSC 243 

PARTIES:

GOODSELL EARTHMOVING PTY LTD
ACN 091 632 227

(applicant)

v
BARRY EDWARD BROE, as the COORDINATOR-GENERAL appointed under the State Development and Public Works Organisation Act 1971 (Qld)

(respondent)

FILE NO/S:

13710 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application for Judicial Review

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

30 September 2019

DELIVERED AT:

Toowoomba

HEARING DATE:

12 September 2019

JUDGE:

Applegarth J

ORDER:

1. The application for a statutory order of review filed 12 December 2018 is dismissed pursuant to s 48 of the Judicial Review Act 1991 (Qld).

2.   The applicant pay the respondent’s costs of and incidental to the proceeding on the standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – STAY OF PROCEEDINGS AND INTERLOCUTORY RELIEF – where the applicant seeks judicial review of a decision to impose two conditions on an approval for a material change of use – where the applicant operates a high impact industry in a low impact precinct in the Townsville State Development area and applied to the respondent for approval of its activities – where the respondent granted an approval for two years subject to conditions – where the applicant challenges only the condition limiting the approval to a two year period and a condition limiting vehicle movements to 80 heavy vehicle movements per day - where the respondent cross-applies for a stay or dismissal of the application on the grounds that such relief is inappropriate because the impugned conditions are integral and not severable from the approval as a whole – whether the proceeding should be stayed or dismissed

Acts Interpretation Act 1901 (Cth), s 15A
Acts Interpretation Act 1954 (Qld), s 9
Judicial Review Act 1991 (Qld), ss 5, 20(2), 23(g), 30(1), 48
State Development and Public Works Organisation Act 1971, s 84E(3)

Alberton Investments Pty Ltd v Pine Rivers Shire Council [1994] QPLR 60, cited
Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301; [2013] FCAFC 111, cited
Coco v The Queen (1994) 179 CLR 427, cited

Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VSC 106, cited
Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240, considered
Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72, considered
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [2013] HCA 18, cited
Morgan v Toowoomba Regional Council(No 2) (2011) QPELR 620; [2011] QPEC 61, cited
Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) (2008) 251 ALR 80; [2008] FCA 1521, cited
Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 554 QB 554, cited
Re Dingjan; Ex parte Wagner (1995) 183 CLR 323, cited
Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1,…

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AGLC
Goodsell Earthmoving Pty Ltd v Coordinator-General [2019] QSC 243
Case
[2019] QSC 243
Decision Date

CaseChat Overview and Summary

In Goodsell Earthmoving Pty Ltd v Coordinator-General, the applicant sought judicial review of a decision by the respondent to impose two conditions on an approval for a material change of use. The applicant operated a high impact industry in a low impact precinct in the Townsville State Development area and applied for approval of its activities. The respondent granted the approval for two years, subject to certain conditions, including a limit on the approval period and a limit on vehicle movements. The applicant challenged these conditions, while the respondent cross-applied for a stay or dismissal of the application on the grounds that such relief was inappropriate because the impugned conditions were integral and not severable from the approval as a whole.

The court had to decide whether the proceeding should be stayed or dismissed. The court found that the two challenged conditions were integral to the approval as a whole. It would be inappropriate to simply set them aside, leaving the applicant with an approval that was unlimited in its duration and had no limit on heavy vehicle movements. In the circumstances, the court concluded that the conditions were not severable from the approval as a whole. The court dismissed the application for a statutory order of review and ordered the applicant to pay the respondent’s costs of and incidental to the proceeding on the standard basis.

In reaching its decision, the court considered the evidence and submissions of both parties. The court found that the Coordinator-General had acted within his discretion in imposing the conditions and that there was evidence to justify the decision. The court also found that the two conditions were integral to the approval as a whole and that it would be inappropriate to set them aside without also setting aside the approval itself. The court dismissed the application for judicial review and ordered the applicant to pay the respondent’s costs.

Orders

Orders of the court

1. The application for a statutory order of review filed 12 December 2018 is dismissed pursuant to s 48 of the Judicial Review Act 1991 (Qld).

2. The applicant pay the respondent’s costs of and incidental to the proceeding on the standard basis.

Background

Background to the litigation

The cross-application raises this issue: are the two challenged conditions integral to the approval as a whole, so that it would be inappropriate simply to set them aside, leaving Goodsell with an approval which was unlimited in its duration and had no limit on heavy vehicle movements?Background The Goodsell family has operated a crushing, screening and stockpiling business on land at Racecourse Road in the Townsville suburb of Cluden since December 1993. The business receives concrete, soil, bitumen and asphalt from demolition and excavation contractors. It processes the material and sells the recycled product to building, landscaping and construction industries. The TSDA was established in October 2003 and the first Development Scheme was approved in 2005. A Development Strategy was approved by the Coordinator-General in early 2013 and a further TSDA Development Scheme was promulgated on 5 July 2013. A person must not carry out SDA assessable development in a State Development Area without an approval granted by the Coordinator-General. Goodsell undertook its activities without approval. In December 2012 it applied to “regularise” the existing use on the site. On 8 August 2013 the Coordinator-General granted an approval with conditions for general industry (materials storage and processing) on Goodsell’s land. The conditions included:·a limit on material throughput which was to not exceed 20,000 tonnes per annum;·restricted hours of operation; and·a restriction on vehicle movements to 40 heavy motor vehicle journeys to and from the site per day (i.e. a total of up to 80 heavy motor vehicle movements per day). Goodsell says that the limit of 20,000 tonnes per annum was an error. This is contested. Goodsell exceeded this figure by several times. On 16 October 2013 Goodsell sought amendments to the conditions, seeking approval for a limit of 20,000 tonnes per month instead of 20,000 tonnes per annum. This request was rejected by the Coordinator-General. In June 2016 the Coordinator-General issued a show cause notice, and then in September 2016 an Enforcement Notice. Goodsell applied to the Planning and Environment Court to appeal against the notice, but on 22 November 2018 discontinued that proceeding. Goodsell applied to the Coordinator-General on 9 June 2016 for a material change of use for high impact industry. Its application stated that it sought the approval to permit “an increase in the intensity of existing screening and processing operations on the site from 20,000 tonnes per annum to 320,000 tonnes per annum ‘processed’ on the site.” This application was the subject of a lengthy process of consultation with, among others, State and local government authorities and a public notification process. Twelve of the public submissions were supportive and 30 objected to the application. The Coordinator-General appointed a consultant to undertake an independent planning and technical review of the 2016 application. For a number of reasons, including the avoidance of adverse impact on surrounding uses and to implement what was described as a “coherent policy that applies to the locality around that part of the Cluden residential area which TSDA surrounds”, the independent reviewer recommended that the application be refused.

Evidence

Evidence Before The Court

I am not persuaded that the two conditions which are challenged failed to comply with s 84E(3). No evidence or other material to justify the making of the decision There was material to justify the making of the decision. It included the independent reviewer’s report, the terms of the existing approval and the material advanced by Goodsell in support of the application. The material which justified the making of the decision to approve the application on conditions, including Conditions 4.1 and 6.2, is apparent from the Coordinator-General’s reasons. The condition concerning heavy vehicle movements was supported by the impact which such an existing limit had and the undesirability of increasing those impacts by increasing the limit. The adoption of a condition which granted approval for two years involved an evaluation of the adverse impact of the proposed use and competing matters, including the community need that the proposed development would serve. The imposition of Condition 4.1 was intended to ensure that adverse impacts could be managed in the short term while providing what was thought to be a suitable amount of time for Goodsell to have the opportunity “if it so desires” to transition to a more suitable location at which its operations would not adversely affect residential development. The decision to include such a condition was one within the discretionary exercise of power in balancing competing considerations. As significant as its consequences may be for Goodsell, its employees and the industries which its well-established business serves, the evaluative decision to impose a two year time period cannot said to be one which was made without any evidence or other material to justify it.Conclusion For these reasons, had I not granted the Coordinator-General’s cross-application to dismiss the proceeding under s 48, I would have been disinclined to find that the grounds for judicial review argued by Goodwell were established. Subject to any submissions on costs, costs should follow the event. I order:1.The application for a statutory order of review filed 12 December 2018 is dismissed pursuant to s 48 of the Judicial Review Act 1991 (Qld).2.The applicant pay the respondent’s costs of and incidental to the proceeding on the standard basis.

Decision

Reasons for decision

This proceeding does not seek to engage s 30(1)(a) in a judicial review of the decision to approve with conditions by seeking an order that only part of the decision, namely Conditions 4.1 and 6.2, be set aside. Instead, it seeks judicial review of the conditions and an order that the decision to impose them be set aside. In doing so it encounters the cross-application that it would be inappropriate to grant such relief because the conditions that Goodsell seeks to impugn are not severable from the approval as a whole.Conclusion on the threshold issue I have found each of the two challenged conditions to be integral to the approval as a whole. In the circumstances, I consider that it would be inappropriate to simply set them aside, leaving Goodsell with an approval which was unlimited in its duration and unlimited in heavy vehicle movements. In addition, and for similar reasons, I have concluded that the conditions are not severable from the approval as a whole.Goodsell’s final argument in response to the cross-application Goodsell’s final argument in response to the Coordinator-General’s application to stay or dismiss the application pursuant to s 48 of the JRA is that even if the impugned conditions are not severable, if they are held to be ultra vires, the whole approval must fail, thereby resuscitating the approval granted on 8 August 2013. The short answer to this submission is that Goodsell does not challenge the approval decision, even as an alternative to its challenge to the decision to impose conditions. It does not seek, as an alternative to an order that the conditions be set aside, an order that the approval be set aside, thereby resuscitating the 8 August 2013 approval. Neither party contends that an appropriate outcome of the proceeding, in the event that Conditions 4.1 and 6.2 were found to be beyond power or otherwise liable to be set aside, would be for the 12 October 2018 approval simply to be set aside. Goodsell does not seek an order that the 12 October 2018 approval be set aside, let alone that such an order be made without a consequential order requiring the Coordinator-General to determine the 2016 application according to law. In the absence of an application for such an alternative form of relief, I am disposed to exercise my discretion to dismiss the application for a statutory order of review pursuant to s 48 of the JRA. The Coordinator-General has established that the two impugned conditions are integral to the whole approval and that, to use the language of the cross-application, they are not “severable from the approval as a whole”. In the circumstances, it would be inappropriate to set aside those conditions, leaving the 12 October 2018 approval to operate without those conditions, being an approval which would be unlimited in its duration and have no limit on heavy vehicle movements for that indefinite period. For similar reasons it is inappropriate to grant the declaratory orders sought in paragraph 2 of the claim for relief. The first declaratory order sought is a declaration that the Coordinator-General “failed to exercise the power and to perform the duty reposed in him under s 84E(3) of the State Development and Public Works Organisation Act 1971” to impose a condition of the kind stated in that provision. Such a declaration is inappropriate in circumstances in which Goodsell does not seek any order consequential upon such a declaration to cure the alleged failure to exercise the power and to perform the duty, for example, by imposing new conditions in place of Conditions 4.1 and 6.2. It also would be inappropriate to make a declaration to the effect that Conditions 4.1 and 6.2 do not comply with s 84E(3). Whilst the Court has power to make only a declaratory order, in this case it would be inappropriate to simply make a declaratory order to the effect that Conditions 4.1 and 6.2 are beyond power or unauthorised in circumstances in which Goodsell does not seek consequential orders which are said to flow from such a declaration. Goodsell does not seek consequential orders that the approval of its application on those and other conditions be set aside or declared to be of no effect.

Ratio Decidendi

Legal Principle Established

It may be said that the Coordinator-General had little or no information about the amount of time which would be required for Goodsell to move its business operation and the costs of doing so. However, any deficiency in that regard was largely a function of Goodsell’s failure or refusal to disclose information about these matters to the Coordinator-General when it was given opportunities to do so. Instead, it insisted upon the Coordinator-General providing this kind of information to it. I accept the Coordinator-General’s submission that his obligation to afford natural justice did not extend to generating evidence to support the view that he had formed about the appropriateness of a two year limit. The Coordinator-General informed Goodsell of the decision he proposed to make and explained the reason for a time-limited approval, rather than an outright refusal of the application, as had been recommended. Goodsell was given the substance of the information relied upon by the Coordinator-General and an opportunity to present evidence and make proper submissions in response. I am not persuaded that the Coordinator-General did not accord procedural fairness to the applicant. The ground of review under s 20(2)(a) of the JRA is not made out. To the extent Goodsell relies upon an alleged breach of the rules of natural justice as a ground of review under s 20(2)(b), (c) and (d), those grounds are not made out.Irrelevant considerations Goodsell advances in paragraph 4 of its application and paragraphs 107 to 121 of its submissions the contention that the Coordinator-General took into account a number of irrelevant considerations in the exercise of a power. The first contention is that the Coordinator-General considered that a two year approval was appropriate because it gave Goodsell the opportunity to investigate options to develop elsewhere (if that is what it desired) and manage a relocation over that time. This is said to be an irrelevant consideration when relocation was not desired by Goodsell. In my view, this argument is misplaced. The Coordinator-General did not find that relocation was desired by Goodsell. It was apparent from Goodsell’s submissions that it did not wish to relocate and that it regarded a time limit on the approval as a threat to a family business which had operated on the land for 26 years, providing employment and an essential service to North Queensland. Against that background, rather than refuse the application, the Coordinator-General granted it for a limited duration so as to allow for a continuation of the business and time to allow Goodsell the opportunity to investigate alternative sites “if desired”. This was not an irrelevant consideration in deciding to not refuse the application, but to approve it for a limited duration.High impact industry in a low impact industry precinct Goodsell complains that the Coordinator-General took into account that approval of the application would entrench an inconsistent use when the application was for an existing approved use and environmental conditions for long-term approval adequately ensured consistency with the Development Scheme. It contends that the Coordinator-General treated the application as one requiring an exemption from the Development Scheme when this was not the case and, instead, the development was an approved development, subject to conditions.