Holcim (Australia) Pty Ltd v Bundaberg Regional Council (No 2 )
[2014] QPEC 29
•30 May 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Holcim (Australia) Pty Ltd v Bundaberg Regional Council (No 2) [2014] QPEC 29
PARTIES:
HOLCIM (AUSTRALIA) PTY LTD
(ACN 099 732 297)(applicant)
and
BUNDABERG REGIONAL COUNCIL
(respondent)
FILE NO/S:
625/14
DIVISION:
Planning & Environment Court of Queensland
PROCEEDING:
Hearing of an application
ORIGINATING COURT:
Planning & Environment Court of Queensland
DELIVERED ON:
30 May 2014
DELIVERED AT:
Brisbane
HEARING DATE:
20 May 2014
JUDGE:
RS Jones DCJ
ORDER:
1. The application is successful
2. Condition 1.2 of Town Planning Consent Permit TT-C 462 be changed to read:
“This permit shall be in force from the date of issue to 31 December 2016, provided that extraction of materials from the land to which the permit relates is authorised to continue only until 30 November 2014. From 1 December 2014 until 31 December 2016, the permitted use shall be limited to the stockpiling of extracted materials and the completion of rehabilitation of the land as required by condition 6 of this permit. From the date of issue all other permits or approvals over the site shall cease to have any force or effect.”
CATCHWORDS:
PLANNING LAW - APPLICATION – where without relief from the court applicants permission to carry out quarrying to cease – whether conditional extension of the time for which the quarry might operate is a permissible change for the purposes of s 367 of the Sustainable Planning Act 2009 – whether relief sought would result in substantially different development – whether relief sought would require referral to additional concurrence agencies or require impact assessment or cause development to which the approval relates to include any prohibited development – whether relief sought would, if granted, be likely to cause a person to make a properly made submission objecting to the proposed change.
Sustainable Planning Act 2009
Intergraded Planning Act 1999
Firefast Pty Ltd v Ipswich City Council & Ors (2006) QPEC 076
Cemex Australia Pty Ltd v Bundaberg Regional Council (2009) QPEC 20
Boughey v R (1986) 161 CLR 10
Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 27 ALR 367
Christian Outreach Centre v Toowoomba Regional Council (2012) QPELR 542
KT Corporation Pty Ltd v Logan City Council (2006) QPELR
Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council (2012) QPELR 394
Australian Communications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303
Broad v Brisbane City Council & Anor (1986) QDR 317
Prime Group Properties Limited v Caloundra City Council & Ors (1995) QPLR 147
COUNSEL:
No appearances
SOLICITORS:
Mr R Bowie, solicitor from Minter Ellison for the applicant
Mr M Connor, solicitor from Connor O’Meara for the respondent
This proceeding was concerned with an application pursuant to s 367 of the Sustainable Planning Act (2009) (SPA) to conditionally extend the operation period for a long standing quarry located east of Bundaberg. For the reasons set out below, the application was successful.
Background
The applicant is the registered proprietor of land upon which it operates a quarry. That includes, among other things, the extraction of material, the processing and stockpiling of the material and, thereafter the transporting of the processed material to various destinations.
At or about 30 June 1992 CSR Limited, the previous operators of the quarry, made an application to the then Council of the Shire of Woongarra (the statutory predecessor of the respondent) seeking a town planning consent for the operation of the quarry on the subject land. On or about 7 June 1993 the Council resolved to approve the application subject to conditions. CSR filed a notice of appeal in this court appealing against a number of those conditions. As a consequence of that appeal, on 17 December 1993, this court ordered that the appeal be allowed and that, relevantly here, the application be approved subject to condition 1.2 which restricted the operation term of the quarry to a 15 year period. On at or about 12 April 1994 a Town Planning Consent Permit for the land issued including condition 1.2. Accordingly, quarrying operations on the land were to cease from 13 April 2009. However, following further proceedings in this court, in April 2009 condition 1.2 was amended to permit quarrying activities on the land to continue until 12 April 2014.
The reason why the applicant now seeks a further extension of time was primarily because of a lower than expected rate of production caused by the economic downturn over the last four years. That economic downturn and the resulting drop in production were not anticipated at the time condition 1.2 was previously extended in April 2009. At that time the quarry was operating with a materially higher average rate of production.
The subject land lies to the east of Bundaberg to the south of the costal town of Bargara and north of Elliot Heads. More relevantly, it is located close to two coastal residential areas being Inness Park and Coral Cove. Residential development exists immediately to the north fronting Poinciana Drive and to the west and southwest fronting Back Windermere Road and Spark Road. Other residential development exists to the southeast at Inness Park and more remotely at Coral Cove.
The land is identified as a key resource area (KRA) “Bargara KRA 86” for the purposes of the State Planning Policy, December 2013. Another quarry, owned and operated by Boral Resources Pty Ltd being “Inness Park KRA 87” lies in close proximity to the south of the subject land fronting Back Windermere Road to the east. The applicant is also in the process of seeking approval to commence quarrying activities on another area of land to the south of the subject land on the south western corner of Back Windermere Road and Barolin Homestead Road.[1] That application is the subject of a “call in notice” pursuant to s 425 of the SPA.[2] At the time of this proceeding no relevant decision had been made in respect of the call in notice and its progress was unknown. The owners and operators of the Inness Park quarry are also seeking relief under s 367 of the SPA to extend the operation of that quarry for a further five years.
[1]Refer generally to exhibit 2.
[2]Exhibit 1.
The State Planning Policy (SPP)[3] at page 46 notes the State’s interest in mining and extractive resources and, in respect of development applications concerning such resources relevantly states:
[3]Exhibit 3.
“The development application is to be assessed against the following requirements:
(1) The development ensures that:
(a)For development within a resources/processing area for a KRA – the undertaking of an existing or future extractive industry development is not significantly impeded; and
(b)Sensitive land uses are avoided within the separation area for a resource/processing area of a KRA; and
(c)For development within the transport route separation area of a KRA – the number of residents adversely affected by noise, dust and vibration generated by the haulage of extractive materials along the route does not increase;
(d)For development adjacent to the transport route – the safe and efficient use of the transport route by vehicles transporting extractive resources is not adversely affected.”
In respect of the subject land, exhibit 2 identifies the “resource/processing area, the separation area and the transport route centreline.” As one would expect, the separation area surrounds the resource processing area. The transport route centreline is materially limited to the Barolin Homestead Road to the south, Back Windermere Road to the west and Windermere Road to the Northwest.
In the Affidavit of Mr John Gaskell sworn 11 March 2014[4] in Appendix A at page 11 a number of activities associated with the quarry are identified. As I understand it, based on information provided by Mr Brian Douglas, Mr Gaskell has attempted to locate those various activities within the resource processing area and separation areas. Mr Gaskell is a town planner retained by the applicant and Mr Douglas is the central Queensland area manager for the applicant. As I understand this evidence, the western most extraction area will be contained wholly within the identified resource/processing area however, a significant part if not all of the eastern most extraction area lies within the identified separation area. Both extraction areas lie between two areas identified as being “key rehabilitation areas” the crushing plant and screener are located to the south east within the separation area and are situated between two large stockpiling areas. More will be said about the location of these activities below.
[4]Court document 9.
On 1 April 2014, Judge Rackemann made orders which effectively extended the operation of condition 1.2 until such time as this application was heard and finally determined by this court. The respondent, now the relevant local authority, supports the application.
The legislative framework
As stated, this application was brought pursuant to s 369 of the SPA. Section 369 of the SPA relevantly provides:
“Request to change development approval
(1)If a person wants to make a permissible change to a development approval, the person must by written notice ask the following entity (the responsible entity) stated for the change or approval to make the change –
(a) …
(b) If the approval was given by the court – the court:
…”
Section 367 deals with what is a permissible change for a development approval and relevantly provides:
“(1)A permissible change, for a development approval, is a change to the approval that would not, because of the change –
(a) Result in a substantially different development; or
(b)If the applications for the approval were remade including the change –
(i)Require referral to additional concurrence agencies; or
(ii)For an approval for assessable development that previously did not require impact assessment – require impact assessment; or
(c)For an approval for assessable development that previously required impact assessment – be likely, in the responsible entities opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed; or
(d)Cause development to which the approval relates to include any prohibited development…” (emphasis added)
Section 374 relevantly provides:
“Responsible entity to assess request
(1)To the extent relevant, the responsible entity must assess the request having regard to –
(a)The information the person making the request included with the request; and
(b)The matters the responsible entity would have regard to if the request were a development application; and
(c)If submissions were made about the original application – the submission; and
(d)Any notice about the request given under s 373 to the entity; and
(e)Any pre-request response notice about the request given to the entity.
(2)For subsection (1)(b), the responsible entity must have regard to the planning instruments, plans, codes, laws or policies applying when the original application was made, but may give the weight it considers appropriate to the planning instruments plans, codes, laws or policies applying when the request was made.”
As identified above the relevant “responsible entity” for this proceeding is this court.
On or about 11 December 2009, Statutory Guideline 06/09 was published and was intended to offer guidance in determining whether a change involved a substantially different development. That document relevantly provided:
“A change may result in a substantially different development if the proposed change:
·Involves a new use with different or additional impacts;
·Results in the application applying to a new parcel of land;
·Dramatically changes the built form in terms of scale, bulk and appearance;
·Changes the ability of the proposal to operate as intended. For example, reducing the size of a retail complex…
·Removes a component that is integral to the operation of the development;
·Significantly impacts on traffic flow and the transport network, such as increasing traffic to the site;
·Introduces new impacts or increases the severity of known impacts;
·Removes an incentive or offset component that would have balanced a negative impact of the development;
·Impacts on infrastructure provision, location or demand.”
Consideration
In this case the “development approval” for the purposes of s 367 is a Town Planning Consent Permit granted under the then Local Government (Planning & Environment) Act which, under the subsequent Intergraded Planning Act 1999 (IPA) had effect as a continuing, as if it were “development permit” for the purposes IPA and the subsequently the SPA. In the event that this application were successful it would not create a new approval but result in a change to a condition of the original approval.
The evidence is that the change to condition 1.2 would not result in a substantially different development or involve any prohibited development. In Firefast Pty Ltd v Ipswich City Council & Ors[5] Robin QC DCJ considered that where a time period was all that was under consideration, no assessable development resulted. Later in Cemex Australia Pty Ltd v Bundaberg Regional Council[6] his Honour relevantly said:
“The course of authority including Coominya Sand and Gravel, appears to demonstrate an acceptance that assessable development does not arise from a change by way of increasing the number of years which a development approval remains current.”
I respectfully agree.
[5](2006) QPEC 076.
[6](2009) QPEC 20.
As to s 367 (1)(b)(i), at the time the original permit was issued there were no entities described as “concurrence agencies”. Those agencies were a creation under IPA. Having regard to the nature of the change involved here I am satisfied that no issue involving additional concurrence agencies arises.
Accordingly the only live issue in this application, in my view, is whether the change would be likely to cause a person to make a properly made submission objecting to the proposed change. The first matter to be dealt with in this regard is determining what the legislature intended when it chose to use the word “likely” in s 367(1)(c). In the Oxford English Dictionary, Second Edition, Volume XII among other things, likely is defined to mean “2. Probably, in all probability”. And, the word “probably” is defined to mean, among other things “1. In a way that proves itself to ones reason for acceptance or belief plausibility; in a way that seems likely to prove true; with likelihood (though not with certainty). Now rare.” The word “probable” is defined to mean, among other things “3a. Having an appearance of truth; that may in view of present evidence be reasonably expected to happen or prove true; likely… d. Likely to be (something specified).” In the third edition of the Macquarie Dictionary likely is defined “1. Probably or apparently going or destined (to do, be, etc)… 2. Seeming like truth, fact, or certainty or reasonably to be believed or expected probable… 5. Probably…”. Probable is defined “1. Likely to occur or prove true… 2. Having more evidence for than against…” And “Probably” is defined “… in a probable manner; with probability; in all likelihood.”
It seems to me that in certain circumstances the words, “probably” and “likely” would be able to be used interchangeably however, this is not necessarily so in every case. As was observed by Gibbs CJ in Boughey v R[7] “it is trite to say that the meaning of a word will be influenced by the context in which it appears.”
[7](1986) 161 CLR 10 at p14: see also at pp 20 per Mason, Wilson and Deane JJ and at p42 per Brennan J.
In Boughey the High Court was concerned with a criminal matter and in particular whether or not an action on the part of the appellant was “likely to cause death”. It is difficult to imagine a case more distinguishable from that which I am dealing with. Gibbs CJ took the view that where used “likely” meant “probable” and not “possible”. Brennan J (as he then was), clearly concerned with criminal liability issues considered that where used the word “likely” should be understood to mean “probable not possible”.[8] The plurality (Mason, Wilson and Deane JJ relevantly said, again concerned with issues of criminal liability:[9]
“It is true that the meaning of the words ‘probable’ and ‘likely’ is liable to vary according to the context in which they are used:… In the context of the content of the element necessary to constitute common law murder, the gravity of the charge requires that the content of the requirement that an accused knew of the probability or likelihood that his acts would cause death be not discounted. Even in that context, however, it will ordinarily suffice to convey what is involved in the requirement if the direction to the jury is framed in the words of the joint judgment in Crabbe, namely, that the accused knew that death or grievous bodily harm was the probable or likely consequence of his act and if reference is made that a distinction which was there stressed, namely, the distinction between what is probable or likely on the one hand and what is only possible on the other. …”
There the plurality was addressing a submission made on behalf of the applicant to the effect that first, where the word “likely” was used in the relevant act it was a synonym of “probably”. Second, that so understood, the word “likely” meant “more likely than not” in the sense of more than a 50% chance.[10] Their Honours’ reached the conclusion that where used in the relevant legislation, there was strong support “in the code itself” for the conclusion that the word “likely” was not used with that meaning intended. Their Honours concluded by stating to the effect that the ordinary meaning of the word “likely” was to “convey the notion of a substantial – a real and not remote chance regardless of whether it is more or less than 50%...”.[11]
[8]At p 42.
[9]At p 20.
[10]See at pp 18-19.
[11]See at p 21.
In Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees’ Union[12] Deane J said:
“The word ‘likely’ can in some context, mean ‘probably’, in the sense in which that word is commonly used by lawyers in laymen, that is to say, more likely than not or more than a 50% chance… It can also, in an appropriate context, refer to a real or not remote chance or possibility regardless of whether it is less or more than 50%. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to ‘prone’, ‘with a propensity’ or ‘liable’.”
[12](1979) 27 ALR 367 at 380.
In Australian Telecommunications Commission v Kreig Enterprises Pty Ltd[13] Bray CJ was concerned with an action in negligence brought by the Commission against Kreig Enterprises. As a consequence it was necessary to construe a section of the Post and Telegraph Act 1901-1973 (Cth) which relevantly provided: “In circumstances in which the person or a servant of the person has reasonable cause to believe that the doing of the work is likely to interfere with or damage property under the control of the Post Master General…”. After considering a number of authorities Bray CJ said:[14]
“I do not, however, regard these difficult semantic questions about the proper meaning of familiar adjectives in the various formulations of common law doctrine as decisive of the point in issue, or even very relevant. The common law depends on concepts, not on words. It is not bound to the particular phraseology adopted by a particular court. It can be refined on or expounded in more or less detail according to the circumstances of the particular case. Here we are concerned with the word ‘likely’ in a statute. As I have said, the ordinary and natural meaning of the word is synonymous with the ordinary and natural meaning of the word ‘probable’ and both words mean, to adopt the expression of Lord Hodgson in the passage previously quoted, that there is an odds on chance of the thing happening. That is the way in which statutes containing the words have usually been construed… particularly is this so when the statute is a penal statute… or, I think, where, as here, an additional liability in tort beyond the common law liability is being imposed.” (Emphasis added).
[13](1976) 14 SASR 303.
[14]At p 312.
Obviously Bray CJ decided the matter without the benefit of the consideration of the High Court in Boughey nor that of Deane J in Tillmanns Butcheries. Also, in this case I am not concerned with construing a statute which imposes a penalty and/or any liability in tort or otherwise (although Mason, Wilson and Deane JJ were in Boughey). Section 367(1)(c) is concerned with the question of whether or not the proposed extension of time would be likely to cause a person to make a properly made submission objecting to that extension. Notwithstanding these matters the observations of Bray CJ are, broadly speaking, consistent with the dictionary definitions of the words “likely” and “probable/probably” referred to above.[15]
[15]Also per Gildes CJ and Brennan J in Boughey.
In this court the word has been construed differently. In Christian Outreach Centre v Toowoomba Regional Council[16] Judge Searles concluded that for the purposes of s 367(1)(c) of SPA it meant a “substantial chance, a real, not remote chance, regardless of whether it is more or less than 50%.”[17] It would appear in reaching that conclusion his Honour was not referred to the earlier decision of Rackemann DCJ in Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council[18] where it was said:
“It is not always easy to rule out the possibility that any change might provoke an objection. That is particularly so because it is rare for the Court to have material from particular perspective submitters. In those circumstances, the Court is called upon to assess the relevant likelihood on the balance of probabilities and on the assumption that those who might otherwise have had the opportunity of making a submission objecting to the change would make their decision as to whether or not on a reasonable basis.” (Emphasis added)
[16](2012) QPELR 542 at paras 29 and 30.
[17]See also KT Corporation Pty Ltd v Logan City Council (2006) QPELR.
[18](2012) QPELR 394 at 395.
It might be open to suggest that in Scanlon Rackemann DCJ was not deciding how “likely” should be construed, but was merely observing to the effect that the court had to be satisfied on the balance of probabilities that a submission was likely, whatever that may mean. However, it seems likely to me (in the sense of being more likely than not) that his Honour was expressing a view as to what meaning ought to be attributed to that word in the context of s 367 of the SPA.
In any event, it is not necessary in this case regardless of whether “likely” means probable (i.e. greater than 50%) or something less, the application should succeed.
The need for the extension of time is not as a consequence of any untoward conduct on the part of the applicant. That said though it seems tolerably clear to me that the rate of excavation to date has been dictated by the applicant’s own commercial interests. It is clearly the case that quantities of material considered by the State to be a “key resource” remain to be won. That of course is nowhere the end of the matter. While there is no direct evidence about this, I do not consider it would be unreasonable to infer that, while the States economic interests might affect how some potential submitters might act, it would be unlikely to influence many. Other significant factors in this case include that all extractive and processing activities must cease by 30 November of this year. Also, during that period no blasting is to be carried out. As to processing, it is to be conducted at a location well removed from existing and future residential development and in an area which is, to a material extent, screened by large areas of stockpiling. From 30 November 2014, the only significant activities that can be carried out on the subject land would be those involved with the transporting of material from the existing stockpiles and the ongoing rehabilitation of the site. That the stockpiles be removed and the site rehabilitated are to the public’s benefit, notwithstanding the fact that the relief sought would also create an economic advantage in favour of the applicant. To put it bluntly, the sooner quarrying on the subject land is brought to an end and the land rehabilitated, the better it will be for the surrounding residents.
During the course of submissions I was referred to the number of objections raised not only in respect of the subject quarry but also concerning the Inness Park quarry and the proposed Greenfield site south of the subject. It is clear that a number of local residents harbour genuine concerns about ongoing quarrying operations in their local area, even if some of those objections are misinformed about which quarry is responsible for what source of nuisance. And, indeed whether some of the nuisances complained of were in fact the consequence of quarrying attributes. In any event, the potential concerns of residents have to be seen in the context of what is proposed here. That is, the extraction and processing of quarriable material for only a further six months and thereafter the, relatively speaking, more passive activities of transporting the stockpiled material and site rehabilitation. Also in this context, it is relevant that the evidence of the town planner, acoustic engineer and emissions and dust expert retained by the applicant strongly suggested that, particularly having regard to the location of the areas yet to be quarried and the relevant processing plant and equipment, would result in only minor negative impacts on amenity. It is of course recognised that the concept of amenity is a wide and flexible one not necessarily determinable by reference to the evidence of experts alone. In Broad v Brisbane City Council & Anor de Jersey J (as he then was) relevantly said:[19]
“There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the residents’ subjective perception of his locality. Knowing the use to which a particular site is or may be put may effect one’s perception of amenity.”
[19](1986) QDR 317 at 326.
However, in assessing impacts on amenity it is necessary to apply, as Skoien SJ DC said in Prime Group Properties Limited v Caloundra City Council & Ors[20]: “The standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notions not affected by some special sensitivity or eccentricity.” On balance I consider that once appraised of the relevant facts and circumstances it is not likely that the proposed change would cause a person to make a properly made negative submission for the purposes of s 367(1)(c) of the SPA, regardless of whether the test be on the balance of probabilities or something less.
[20](1995) QPLR 147 at 150-151.
Before finally disposing of this proceeding, while not at all a decisive matter, it is none the less of some relevance in my view that, in the event that this application were to fail, the applicant would almost inevitably be granted a further development application by the respondent even if limited to only the removal of existing stockpiled material and site rehabilitation. Any rational and properly informed potential submitter would have to take that circumstance into account when deciding whether or not to make a negative submission.
For the reasons given, the application should succeed and, accordingly the orders of the court are:
The application is successful
Condition 1.2 of Town Planning Consent Permit TT-C 462 be changed to read:
“This permit shall be in force from the date of issue to 31 December 2016, provided that extraction of materials from the land to which the permit relates is authorised to continue only until 30 November 2014. From 1 December 2014 until 31 December 2016, the permitted use shall be limited to the stockpiling of extracted materials and the completion of rehabilitation of the land as required by condition 6 of this permit. From the date of issue all other permits or approvals over the site shall cease to have any force or effect.”