Hymix Australia Pty Ltd v Gold Coast City Council & State of Queensland

[2005] QPEC 52

[2005] QPEC 052

PLANNING & ENVIRONMENT COURT

JUDGE ROBIN QC

No 590 of 2004

HYMIX AUSTRALIA PTY LTD	Appellant
and
GOLD COAST CITY COUNCIL	Respondent
and
THE STATE OF QUEENSLAND	Co-Respondent
BRISBANE ..DATE 22/06/2005
ORDER

CATCHWORDS: Contest regarding order to be made in successful developer conditions appeal in light of reasons published to parties - whether agitator trucks carrying product from proposed batching plant to building sites should be permitted to use adjacent road subject to meeting noise standards

between 6 a.m. and 7 a.m. - Council contended the reasons
enshrined 7 a.m. - conduct of the appeal such that this issue
was not specifically considered - the Decision Notice in
respect of a competitor's batching plant next door offered the
possibility of use of the road if the Council were satisfied
about noise levels - it was held open to the court to (and
that it should) include a condition to similar effect.

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22062005 T6-7/JAT16 M/T CMS70/2005 (Robin DCJ )

HIS HONOUR: The Court is grateful to the parties for the	1
considerable amount of work they've done towards reaching agreement on appropriate changes to conditions for approval of the appellant's development application to give effect to the Court's reasons published on the 31st of March 2005: [2005]

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QPEC 20. Only one aspect remains contentious. It is the
appellant's desire to be able to use Old Coach Road for the
purpose of agitator trucks making deliveries of pre-mixed
product to building sites between the hours of 6 a.m. and

7 a.m. As the appeal was conducted the focus had been on

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larger, heavier (and assumedly noisier) vehicles bringing raw
materials to the appellant's proposed batching plant there.

There are a couple of reasons for the Court to look favourably on the appellant's request. One is that the hours of work on

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building sites are such that there is doubtless a demand for
the product at those early hours. The other consideration is
that the appellant's competitor, Boral, which has development
approval to operate a batching plant on a neighbouring site to

the south has, under a negotiated decision notice dated 19

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July 2004, which was put in evidence in the appeal (it is thought as Exhibit 14) has the possibility of operating generally, which carries with it the implication that the agitator trucks would be used between 6 a.m. and 7 a.m. provided that the council's chief executive officer is

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satisfied that the noise to be generated would not be
"intrusive noise", that being a defined term in the decision
notice; the inquiry to be made relates to the noise
environment in Kristin's Lane, which runs off Old Coach Road,
22062005 T6-7/JAT16 M/T CMS70/2005 (Robin DCJ ) 2 ORDER 60

but a favourable outcome would allow Boral to make use of the	1
road system generally.
In my opinion, from all points of view, any reality or appearance of one competitor being favoured over another by

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enjoying the ability to trade for an additional hour at a particularly strategic time should be avoided. One would expect the Council to take the same approach.

Although the appellant has submitted a proposed draft order to

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the Court which authorises use of the relevant part of Old

Coach Road in the hour leading up to 7 a.m.:

"provided the noise emissions ... do not exceed the sleep
disturbance criterion referred to in paragraph A4 of the

memorandum of the conclave of noise experts." -

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I would only have considered proceeding on that basis if there was added an express provision for review of the operation of any such arrangements. As Mr Ure says, no-one would wish to see repeated instances of particular infringements of the standard agreed to by the noise experts having to be followed

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up on an incident to incident basis.

Even so, that approach would have advantaged the appellant over Boral by giving it a prima facie entitlement to operate between 6 a.m. and 7 a.m. which, so far as Boral was

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concerned, would depend on the goodwill of the Council
subject, of course, to any other outcome it might achieve in
proceedings.
22062005 T6-7/JAT16 M/T CMS70/2005 (Robin DCJ ) 3 ORDER 60

The debate this morning has drawn attention to a couple of	1
features of the published reasons. Those referred to a "defined section of Old Coach Road" in paragraph [30]. What I had in mind was that the section of the road was yet to be defined. I was not referring to any section of it already

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defined. Be that as it may, the parties are agreed in appellant's site.

identifying, as the relevant section, that part of Old Coach

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The other aspect of the reasons which is relied on by the Council in opposing what the appellant seeks was the supposed identification of the period between 10 p.m. and 7 a.m. as special or sacrosanct. Mr Ure suggests that effectively the appellant asked the Court to sit on appeal from itself in

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entertaining an application relevant to the 6 a.m. to 7 a.m.
period.

The repeated reference to those times (which is inconsistent with other approaches to the same topic, for example, the

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definition of night-time in the Criminal Code as the period
between 9 p.m. and 6 a.m.) is not the result of any deliberate
attention by me to considerations relevant to 6 a.m. to 7 a.m.
but is attributable to the division of the day around 7 a.m.

in many parts of the evidence. Mr Cronin reminds me that his

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client had been interested in commencing operations from 5
a.m. Even so I adhere to what I have just observed. There
is no attraction in allowing use of Old Coach Road by agitator
trucks as early as 5 a.m.
22062005 T6-7/JAT16 M/T CMS70/2005 (Robin DCJ ) 4 ORDER 60

In my opinion, given that no orders have been made by the	1
Court, and that I detect no serious departure in principle from the effect of the published reasons, the appellant is entitled to have the matter reviewed, notwithstanding the
appearance that the reasons in places may suggest a 7 a.m.

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commencement, and no earlier. In the interests of fairness this is best done by placing the appellant in an equivalent position to that which Boral enjoys; Boral may or may not

persuade the Council that extended hours are appropriate.

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The Court's order will be in terms of the draft handed up by Mr Ure which has the advantage of correcting some aspects of the earlier-prepared draft that Mr Cronin handed up. That
will be initialled by me to record the terms of the Court's order. It contains two amendments. The first is to number

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the existing condition 9 in the conditions of approval package

as 9(a) and add a new (b) in the following terms:

"Notwithstanding the above the appellant, with prior written

approval of the Chief Executive Officer or his delegated

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officer, is permitted to traverse Old Coach Road by agitator
trucks for the purpose of delivering batched concrete between
6 a.m. and 7 a.m. on business days and Saturdays provided the
noise emissions from such trucks do not exceed the sleep

disturbance criterion referred to in paragraph A4 of the

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memorandum of the conclave noise experts dated 10 February
2005 (copy attached) to the satisfaction of the Chief
Executive Officer."
22062005 T6-7/JAT16 M/T CMS70/2005 (Robin DCJ ) 5 ORDER 60

I will prepare a document in those terms which I will also	1
initial to be entitled "Rider A", and that will be placed with the initialled draft order. The other change is to replace condition 13 in the initialled draft by condition 13 as proposed in the appellant's draft. A copy of that will be

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identified as "Rider B" and initialled by me, also placed with

the order.

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6 ORDER 60