Hymix Australia Pty Ltd v Brisbane City Council (No. 2) - [2015] QPEC 6

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Hymix Australia Pty Ltd v Brisbane City Council & Ors (No. 2) [2015] QPEC 6

PARTIES:

HYMIX AUSTRALIA PTY LTD
(appellant)

v

BRISBANE CITY COUNCIL
(respondent)

and

CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION
(co-respondent by election)

and

CENTRAL SEQ DISTRIBUTOR – RETAIL AUTHORITY (t/as Queensland Urban Utilities)
(co-respondent by election)

and

MAXJET PTY LTD
(co-respondent by election)

FILE NO:

4096 of 2012

DIVISION:

PLANNING AND ENVIRONMENT

PROCEEDING:

APPEAL

ORIGINATING COURT:

BRISBANE

DELIVERED ON:

27 February 2015

DELIVERED AT:

BRISBANE

HEARING DATE:

6 February 2015

JUDGE:

Judge Rackemann DCJ

ORDER:

Conditions 7 and 8 will be as proposed by the respondent.

CATCHWORDS:

PLANNING AND ENVIRONMENT – CONDITIONS TO BE IMPOSED ON APPROVAL GRANTED BY THE COURT – where conditions proposed by the council included conditions as to hours of operation and lighting – where those conditions, as proposed, accorded with the evidence – where applicant sought to qualify those conditions so that they not apply in the event that its development comes to be used for a future project which is exempt development and the subject of conditions imposed pursuant to the State Development and Public Works Organisation Act 1971.

COUNSEL:

B Cronin for the Applicant
T Trotter and J Lyons for the Respondent

SOLICITORS:

HopgoodGanim Lawyers for the Applicant
Brisbane City Legal Practice for the Respondent

This conditions dispute relates to a successful applicant appeal against the refusal of a development application to facilitate the recommencement of a concrete batching plant and pre-cast facility. That facility will be able to produce items suitable for use in the construction of large projects. On 27 June 2014 reasons were published[1] for allowing the appeal and approving the development application, save for the proposed use for external deliveries of concrete. The matter was then adjourned to enable the parties to consider appropriate conditions of approval.
[1] [2014] QPEC 35.

Only two conditions are now in contention. Those conditions, as proposed by the respondent, are as follows:

“7 Hours of operation development
Limit the hours of operation of the approved development to between 5.30 am and 6.00 pm Monday to Friday, 7.00 am to 6.00 pm Saturdays and 9.00 am to 6.00 pm Sundays.
·With the exception of the dispatch of manufacture of precast concrete items via road trucks between 6.00 pm and 10.00 pm.
·The loading of the items on the trucks shall occur within the normal hours of operation.

8 Lighting
Lighting of the site during the evening and the night is to be limited to security lighting. Lighting must be directed downwards, and be low glare to minimise overspill and comply with the requirements of ‘Australian standard AS4282: control of the obtrusive effects of outdoor lighting.’
Lighting required for the commencement of operations at 5.30 am (during some months of the year) will be limited to lighting at the concrete plant for work areas and truck manoeuvring areas and lighting within the precast concrete manufacturing building and associated car…

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.

Continue reading Hymix Australia Pty Ltd v Brisbane City Council (No. 2)

Details

AGLC: Hymix Australia Pty Ltd v Brisbane City Council (No. 2) [2015] QPEC 6
Case: [2015] QPEC 6
Decision Date: 27 February 2015

CaseChat Overview and Summary

The case of Hymix Australia Pty Ltd v Brisbane City Council (No. 2) involved a dispute over the conditions to be imposed on approval granted by the court for a development project. The Brisbane City Council proposed certain conditions related to hours of operation and lighting for the development, which were in line with the evidence presented. Hymix Australia sought to modify these conditions, arguing they should not apply if the development was used for a future project that qualified as exempt development under the State Development and Public Works Organisation Act 1971.

The primary legal issue before the court was whether Hymix Australia could impose qualifications on the conditions proposed by the council. Specifically, the court needed to determine if the proposed conditions could be amended to exclude their application in the event that the development was used for a future project exempt from planning approval under the relevant state legislation.

In its reasoning, the court found that the conditions proposed by the council were appropriate and aligned with the evidence. It rejected Hymix Australia's request to qualify the conditions, as doing so would undermine the council's authority to regulate the development's operation and lighting. The court held that such qualifications would interfere with the council's ability to ensure public safety and amenity, which is a legitimate concern under the planning legislation.

The final orders of the court were that conditions 7 and 8 would be as proposed by the respondent, the Brisbane City Council. This decision upheld the council's proposed conditions without modification, ensuring that the development would be subject to the specified operational and lighting requirements.

Orders

Orders of the court

Conditions 7 and 8 will be as proposed by the respondent.

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:	Hymix Australia Pty Ltd v Brisbane City Council & Ors (No. 2) [2015] QPEC 6
PARTIES:	HYMIX AUSTRALIA PTY LTD (appellant) v BRISBANE CITY COUNCIL (respondent) and CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION (co-respondent by election) and CENTRAL SEQ DISTRIBUTOR – RETAIL AUTHORITY (t/as Queensland Urban Utilities) (co-respondent by election) and MAXJET PTY LTD (co-respondent by election)
FILE NO:	4096 of 2012
DIVISION:	PLANNING AND ENVIRONMENT
PROCEEDING:	APPEAL
ORIGINATING COURT:	BRISBANE
DELIVERED ON:	27 February 2015
DELIVERED AT:	BRISBANE
HEARING DATE:	6 February 2015
JUDGE:	Judge Rackemann DCJ
ORDER:	Conditions 7 and 8 will be as proposed by the respondent.
CATCHWORDS:	PLANNING AND ENVIRONMENT – CONDITIONS TO BE IMPOSED ON APPROVAL GRANTED BY THE COURT – where conditions proposed by the council included conditions as to hours of operation and lighting – where those conditions, as proposed, accorded with the evidence – where applicant sought to qualify those conditions so that they not apply in the event that its development comes to be used for a future project which is exempt development and the subject of conditions imposed pursuant to the State Development and Public Works Organisation Act 1971.
COUNSEL:	B Cronin for the Applicant T Trotter and J Lyons for the Respondent
SOLICITORS:	HopgoodGanim Lawyers for the Applicant Brisbane City Legal Practice for the Respondent