Holcim (Australia) Pty Ltd v Bundaberg Regional Council (No 2 ) - [2014] QPEC 29

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Holcim (Australia) Pty Ltd v Bundaberg Regional Council (No 2 ) [2014] QPEC 29
Case: [2014] QPEC 29
Decision Date: 30 May 2014

CaseChat Overview and Summary

Holcim (Australia) Pty Ltd sought relief from the Queensland Civil and Administrative Tribunal (QCAT) in the form of a conditional extension of the time for which their quarry might operate. The respondents, Bundaberg Regional Council and others, opposed the application on the grounds that the proposed change would result in substantially different development, require additional concurrence from agencies, necessitate impact assessment, or include prohibited development. The case raised questions about the permissible changes under section 367 of the Sustainable Planning Act 2009 and the potential effects of granting the relief sought.

The primary legal issues the tribunal had to address were whether the conditional extension proposed by Holcim constituted a permissible change under section 367 of the Sustainable Planning Act 2009 and whether granting such relief would result in substantially different development. The tribunal also needed to determine whether the proposed change would require referral to additional concurrence agencies, necessitate impact assessment, or include prohibited development. Finally, the tribunal had to consider whether granting the relief sought would be likely to cause a person to make a properly made submission objecting to the proposed change.

In its decision, the tribunal found that the proposed change did not constitute substantially different development and did not require referral to additional concurrence agencies, impact assessment, or include prohibited development. The tribunal also found that granting the relief sought would not be likely to cause a person to make a properly made submission objecting to the proposed change. As a result, the tribunal granted the application and ordered that Condition 1.2 of Town Planning Consent Permit TT-C 462 be changed as set out in the orders.

The tribunal's decision provides guidance on the permissible changes under section 367 of the Sustainable Planning Act 2009 and the potential effects of granting such relief. The tribunal's findings on the likelihood of objections to the proposed change may also be relevant in future cases involving similar applications. The final orders of the tribunal provide relief to Holcim and allow them to continue operating their quarry until 30 November 2014, with limited use of the site until 31 December 2016.

Orders

Orders of the court

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.”

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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