McBain v Clifton Shire Council

[1995] QCA 513

IN THE COURT OF APPEAL	[1995] QCA 513
SUPREME COURT OF QUEENSLAND	Appeal No. 131 of 1995
Brisbane
Before	Fitzgerald P. Davies J.A. Mackenzie J.

[McBain & ors. v. Clifton Shire Council & anor.]

BETWEEN:

IAN FERGUSON MCBAIN, PATRICIA CHARLOTTE MCBAIN,
BRIAN ROBERT RAMSAY, JOAN MARIE RAMSAY,
NICHOLAS PLAYFORD ADAMSON, RONELLE LEE ADAMSON,
LLOYD LINDENBERG, COLIN HANSEN, MICHAEL A. MEARA,
DIETER SEIFERT, CHRISTA SEIFERT, EDDY PETERS,

YACKA PASTORAL COMPANY PTY LTD (ACN 010 006 005)

(Appellants) Appellants

AND:

CLIFTON SHIRE COUNCIL

(Respondent) First Respondent

AND:

ETHEL MAY JOPPICH, THE ESTATE OF ERNEST WILLIAM
JOPPICH, AND GRAHAM JOPPICH AND ETHEL MAY JOPPICH
AS LEGAL PERSONAL REPRESENTATIVES OF THE ESTATE

OF ERNEST WILLIAM JOPPICH

(Respondents by Election) Second Respondents

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 17/11/1995

This is an appeal from an order made in the Planning and Environment Court on 22 June 1995 dismissing an application by the appellants for a declaration that a decision of the respondent Council

is void.

In accordance with sub-s. 4.12 of the Local Government (Planning and Environment) Act 1990, the

respondents (other than the Council) applied to the Council for its consent or approval to the use of their

property, including the erection of buildings and other structures, as a piggery. The proposal was

effectively delineated by an Environmental Impact Statement (see s. 8.2). Public notice of the proposal

was given, and the appellants objected (see s. 4.12). After consideration of the application and the

objections (s. 4.13), the Council approved the application subject to conditions (sub-ss. 4.13(5) and

(5A), especially sub-s. 4.13(5)(b)). The appellants appealed to the Planning and Environment Court,

and, in that proceeding, applied for a preliminary determination that the Council’s approval is void.

The appellants’ ground of appeal to this Court from the Planning and Environment Court’s dismissal of

their application is that the Council’s “purported approval lacked finality because, under condition 4(2),

the decision whether the piggery would be allowed to have a capacity greater than 20,000 pigs was

deferred for future determination” by the Council. That assertion was expanded in the appellants’

written submissions to include a contention that the decision referred to was delegated and deferred for

future determination by another body, a “Monitoring Committee”, which is referred to in the conditions

to the approval. Further, the primary claim that the Council’s decision is void was expanded to include

an alternative claim that the approval only validly approves a piggery of 20,000 pigs.

While the Council’s decision, as communicated to the other respondents, states only that it “approved

the application, subject to the attached conditions”, the heading to its letter refers to an “8,000 Sow

Equivalent Intensive Piggery Application”, the terminology used in the Environmental Impact Statement which supported the application. The conclusion to the Environmental Impact Statement expressed the

opinion that such a piggery - for present purposes more conveniently referred to as a piggery of 80,000

pigs - “can be sustainably operated on the subject property”, and that “the location, design and

operation of the proposed piggery will ensure that there will be no significant environmental impacts ...”.

However, it also stated that a “Draft Environmental Management Plan ... has been devised which

includes a recommended monitoring programme that will give early warning of any impact different to

those predicted”. The appellants’ essential objection to the validity of the approval is that conditions,

apparently related to that caveat, require further decisions, on information yet to be ascertained, before

the piggery can be increased beyond 20,000 pigs.

Under the Act, it is a Council which must decide whether or not to approve an application and, if it

approves the application, what, if any, conditions are to apply. Further, there is a statutory process to

be followed, including advertising the application and consideration of objections. Decisions which the

statute requires the Council to make cannot be delegated or deferred, at least if deferral would

circumvent or subvert the statutory scheme.

On the other hand, conditions are specifically authorised by the Act and, obviously, many approvals

routinely include conditions which operate prospectively; i.e., require to be performed or fulfilled

following the grant of the approval. Further, prior satisfaction of a condition imposed by an approval

will frequently be a prerequisite to the utilisation of the approval; i.e., in a matter such as this, to any use

of the land as a piggery or construction for that purpose or, where, as here, the approved use or

development is to proceed in stages, before successive expansions occur.
The appellants did not contend that a Council must always decide for itself either whether a condition

has been satisfied or what remains to be done in order satisfy the condition, or that a Council is

precluded from ever appointing an employee or other suitable person to make that decision; and there

was no suggestion from the appellants that there were objections to, or inadequacies in, the composition

of the Monitoring Committee which is referred to in the conditions to the subject approval if it was

permissible to delegate or defer the future decisions required by those conditions. However, the

appellants submitted that that was impermissible. According to the appellants, future decisions related

to the expansion of the piggery in stages to increase the number to more than 20,000 pigs which are

required by the conditions are decisions required to be made by the Council, and either had to be finally

made by it as part of its decision in connexion with the application on which the subject approval was

granted or have to be made on subsequent separate applications for approval followed by advertising

and the consideration of objections.

Obviously, decisions directly required by the Act to be made by a Council in accordance with the

statutory process cannot be delegated or deferred for

decision outside that process. However, all parties

accepted that there is a wider “principle of finality”

established by such cases as Mison v. Randwick

Municipal Council (1991) 23 N.S.W.L.R. 734, Scott

v. Wollongong City Council (1992) 75 L.G.R.A. 112,

and Mount Marrow Blue Metal Quarries Pty Ltd v. Moreton Shire Council (1994) 85 L.G.E.R.A. 408,

411.[1]

[1]             See also Randwick Municipal Council v. Pacific-Seven Pty Ltd (1989) 69 L.G.R.A. 13, 15-15; Cambridge Credit Corporation Ltd v. Parkes Developments Pty Ltd (1974) 2 N.S.W.L.R. 590, esp. at 595F, 601-602; Jungar Holings Pty Ltd v. Eurobodalla Shire Council (1990) 70 L.G.R.A. 79, 89;Malcolm v. Newcastle City Council (1991) 73 L.G.R.A. 356, 362-365; Leichhardt Municipal Council v. Minister (1992) 77 L.G.R.A. 64, 74-76

Before considering this further, it is desirable to notice the most material of the conditions to the

Council’s approval, which included the following:

“GENERAL

1) All use and development shall be carried out generally in accordance with the Environmental Impact Statement (EIS), dated December 1994, ... as modified by the following conditions.

STATUTORY CONTROLS

2) The requirements of relevant statutory authorities having statutory

responsibilities in respect to the proposed development shall be complied with at all
times.

PIGGERY CAPACITY

3) This consent permits a maximum resident pig population of 8000 sows and their progeny with the total pig population not to exceed 80000 at any one time on the basis of pig numbers may exceed this limit by a maximum of 5 per cent to accommodate variations in breeding programs. In this consent, the term pig refers to an individual pig regardless of age or sex.

DEVELOPMENT STAGING
4)
(I) Stocking of the piggery shall only be undertaken in staged increments beginning
with a maximum of 20000 pigs (2000 sows and their progeny) and increasing in
increments of 20000 pigs up to the maximum number of pigs allowed.

(2) The first and each subsequent incremental increase shall only be undertaken upon the written approval of the Local Authority who in turn will act upon advice from the Monitoring Review Committee, that the current and proposed stock numbers represent an environmentally sustainable operation in accordance with an approved Environmental Management Plan prepared in accordance with the conditions of this consent.

ENVIRONMENTAL MANAGEMENT STAFF

...

MONITORING COMMITTEE
6)
(I) Prior to the commencement of any use or development on the site, the applicant
shall facilitate the establishment of a Monitoring Committee. The Monitoring
Committee shall be the central focus for issues concerning the sustainable operation of
the piggery and will have the role of reporting to the Local Authority on a six monthly
basis on the compliance of the operation with required standards, the identification of
adverse effects and the actions taken to rectify these and as a forum for concerns to be

discussed.

(2) The Committee shall comprise a representative each from the following:
Management of the piggery operation
Department of Primary Industries
Department of Environment and Heritage
The Local Authority
Two representatives of people who reside near the Strathpine Piggery who
may be affected by its operation. The representatives shall be selected by the
Local Authority

(3) The chairperson of this committee shall be the representative of the Local Authority. The Committee may co-opt representatives from other relevant bodies, authorities, or persons where necessary. The Committee shall at all times be answerable to the Local Authority.

(4) The proprietor shall provide meeting venues acceptable to the chairperson and

shall provide secretarial and typing services for the committee.
(5) The Monitoring Committee shall meet at least twice per year at six monthly
intervals or at such other additional times as may be directed by the chairperson. The
proprietor of the piggery shall be responsible for administering the committee, including
arrangements for notification and conduct of committee meetings, the preparation of
agendas, and the keeping of minutes of the Committee meetings.

(7) All administrative costs association with the operation of the Committee shall be borne by the proprietor.

MONITORING CONTRIBUTION

...

ENVIRONMENTAL MANAGEMENT PLAN
8)
(I) Prior to the commencement of any use of development on the site an
Environmental Management Plan (EMP) shall be prepared in accordance with the
requirements of this consent and the Department of Environment and Heritage and
lodged with the Local Authority for approval. No pigs will be permitted on the site until
such time the EMP has been approved by the Local Authority.
(2) The EMP shall establish existing environmental conditions of the site and the
surrounding area including analysis of air, soil and water and shall also detail the
methods by which the proposed management and monitoring of the piggery operations
will ensure that no adverse affect on the environment will be incurred. The monitoring
will be undertaken to provide ongoing data on the environmental affects of the piggery
operation. The EMP is to be reviewed every twelve months or such other times as
agreed by the Monitoring Committee.
(3) Analysis of compliance with the approved EMP shall be undertaken on behalf
of the proprietor by relevantly qualified and experienced personnel every twelve months
and shall be presented in a report format for review by the Local Authority.
(4) Without limiting the content of the EMP, the EMP shall detail strategies which
address current and potential land management issues which will ensure sustainable use
of the land.
The issues to be addressed will include but not be limited, to the management and
monitoring of the following:
Soil (soil structure, permeability, salinity, aeration, compaction, acidity, drainage,
nutrient toxicity);
Irrigation including scheduling system;
Site drainage (surface and subsoil);
Flooding (including ponds and waste storage sites);
Catchment management
Recharge area;
Cropping;
Conservation farming;
Erosion and sediment control;
Landscaping and tree planting;
Bushfire control;
Internal property access;
Surface and subsoil water;
Sludge disposal;
Carcass disposal;
Effluent and waste water;
Odour;
Noise;
Holding pond discharges;
Pest control;
Staging of construction;
Disease control.

(5) The Environmental Management Plan shall also incorporate the following

standards.

(a)         Waste water

...
B)	Sludge
...
C)	Carcass Disposal
...
D)	Pest control
...
E)	Water Supply
...
f)	Treatment and Storage Ponds
...
G)	Soils
...
H)	Landscaping
...
I)	Weather
...
J)	Odour
...
K)	Odour Complaints Register
...
L)	Noise
...
M)	Variations to EMP

(a) The Environmental Management Plan, once approved by the Local Authority, shall be complied with at all times. Variations to the Environmental Management Plan shall only be approved by the Monitoring Committee which shall advise the Council writing of such variation.

ANNUAL ENVIRONMENTAL REPORT
9
(I) The proprietor shall prepare an Annual Environmental Report (AER) for each
year of operation. A copy of the AER shall be provided to the Monitoring Committee
and the Local Authority by the proprietor at the end of the first year of operation and
every year thereafter.

(ii) The Annual Environmental Report, in which the information shall be certified by relevant professionals, shall provide the following information. The report shall be written such that ordinary members of the public can understand the meaning of what they are reading:

(a)         The results of the monitoring program detailed in the Environmental

Management Plan.
(b) Comparison of the monitoring results which predicted impacts detailed in the Environmental Impact Statement, the EMP, and accepted environmental performance standards;

(c)         an interpretation of the results;

(d)        Highlight any environmental standard not met and provide an explanation as to

why not.

(e) Suggest any proposed changes in the management of the site which will influence environmental performance;

(f)          Suggest any proposed changes to the monitoring program for the following

year. 

(iii) In addition the Annual Environmental Report shall describe the operations of the piggery with regard to the following:

(a)         Water quality monitoring in effluent storage ponds and tailwater dams;

(b)        Climatic monitoring results;

(c)         On site number of sows and total pigs;

(d)        Production and employment levels;

(e)         Noise monitoring and measures to ameliorate noise impacts;

(f)          Frequency of flushing of pig sheds;

(g)         Biological condition, amount, destinations and use of off-site disposal of sludge;

(h)         Destinations for crops grown from effluent irrigation;

(I) Efficiency of operations of all components of the installed waste water treatment and management systems;

(j)         Amounts and sources of water used on the site;

(k)        Results of odour monitoring and received odour complaints;

(l) Incidents of malfunction or breakdown in any part of the environmental

management systems including the duration of the incident, abnormal discharges, and
the resultant impacts on the environment;

(m)        Site landscaping efforts and growth performance;

(n)         Groundwater monitoring program;

(o)        Results of on-site and off-site surface and ground water quality monitoring;

(p)        Results of water recycling within the property;

(q)        Sludge generation;

[r]         Requirements of Statutory licensing authorities;

(s)         Stage of agriforest growth;

(iv) Matters of commercial confidentiality may be deleted from the report submitted

to the Local Authority for public access. Matters for deletion shall be agreed to by the
Monitoring Committee.

INDEPENDENT ENVIRONMENTAL AUDIT
10)
(I) One (1) year after the introduction of pigs to the site the proprietor shall bear
the cost of an independent comprehensive environmental audit for the whole site up to
a maximum cost of $20000.00 (adjusted annually to CPI). Such cost shall be paid to
the Local Authority upon commissioning of an audit report for same. The
environmental audit is to be carried out by a duly qualified person or team to be
approved and appointed by the Local Authority. Further independent audits are to be
conduct every two years.

(ii) The independent environmental audit shall be undertaken to the requirements of and guidelines of the Local Authority to cover all aspects of monitoring and environmental performance, both operational and organisational, and compliance with reporting requirements and all conditions of this consent. The report is to be made available to the Local Authority and Monitoring Review Committee.

(iii) The proprietor shall comply with all reasonable requirements of the Monitoring

Review Committee and the Local Authority in respect of any measures arising from or
recommended by the independent environmental audit.
...

ENVIRONMENTAL PROTECTION ACT
21)
(I) It is expected that the Environmental Protection Act will come into force in
March 1995. Where the Department of Environmental and Heritage licensing
provisions pursuant to the Act conflict or otherwise repeat any condition contained
herein, the Local Authority may temporarily waive certain requirements such that the
licensing provision shall take precedence where such waiver shall not effect the intent

of the conditions.

COMPLIANCE
22)

(I) All use and development shall be undertaken to the satisfaction of the Local

Authority.
(ii) All plans and specification shall be certified by appropriate professional persons prior to lodgement of same to the Local Authority.
(iii) All works shall be subject to a final inspection by the Local Authority. Prior

to such inspection, the Local Authority will require certification that the works have
been undertaken in accordance with the approved plans.

(iv) In the event it becomes apparent that the ongoing environmental sustainability

of the piggery is not possible, immediate remedial action shall be undertaken in
accordance with written notice from the Local Authority.”

Other conditions which have been omitted include 7) “Monitoring Contribution”, 11) “Amalgamation”,

12) “Construction”, 13) “Floodline”, 14) Vehicle parking”, 15) “Vehicle cleaning”, 16) “Roadworks”,

17) “Lighting”, 18) “Biogas flaring”, 19) “Animal welfare”, and 20) “Setback”.

The appellants based their argument primarily on condition 4)(2), and its language introduces potential

complications; e.g., its reference to the Council’s “approval” on the “advice” of the “Monitoring Review

Committee” (sic) might be taken to indicate a need for further approvals under sub-s. 4.13(5)(b) of the

Act. However, in context, what is meant by condition 4)(2) is not that further statutory approvals must

be obtained but that, at each stage in the expansion from 20,000 to 80,000 pigs, the Council, acting on

the advice of the Monitoring Committee, must be satisfied that the “current” piggery, and what is

“proposed”, are “environmentally sustainable”.

On the view which favours the respondents, the Council’s conditional approval indicates that the

Council has decided that a piggery of 80,000 pigs is an “environmentally sustainable operation” (and

otherwise appropriate), but has also concluded that such a piggery, and each stage in its development,

requires to be planned, monitored, managed and controlled; the conditions are directed only to the

identification and enforcement of activities which are required to satisfy the Council that both the

“current and proposed” piggery operation will maintain the necessary environmental standard.

At the other extreme, the view most obviously favourable to the appellants is that the Council has not

decided that a piggery of more than 20,000 pigs is “environmentally sustainable”; what are described

as “conditions” are really provisions which limit the approval to a 20,000 pig piggery and prescribe procedures in connexion with its possible expansion to 80,000 pigs which do not accord with the

statutory scheme. Support for this view was sought in the language of the conditions and the

circumstance that the final Environmental Management Plan had not been considered and approved by

the Council when its approval to the use of the other respondents’ property as a piggery was given.

The intermediate argument for the appellants is that, even if the Council has decided that an 80,000 pig

piggery is an “environmentally sustainable operation”, the eventual size of the piggery depends on

decisions which have been deferred; it remains for the Monitoring Committee (or the Council on the

Monitoring Committee’s advice) to be satisfied that the piggery, as “current and proposed” when each

expansion is proposed, is an environmentally sustainable operation. The appellants pointed out that

these decisions as to environmental sustainability will not be based on “clear objective standards” which

must produce “a result about which every man must agree if he knows the facts and figures and has

made his calculations correctly”,[2] but will involve subjective opinions and perhaps the exercise of

[2]          Mount Marrow Blue Metal Quarries at p. 411, citing King Gee Clothing Co Pty ltd v.

discretion. Further, the importance of the necessary decisions was emphasised, particularly by

reference to the circumstance that each such decision will determine whether a proposed expansion can

proceed and on what basis. It was submitted that the permissible size of the piggery (above 20,000

pigs) is dependent on decisions with respect to environmental sustainability which have been deferred

to the future.

In our opinion, that is correct. There is no certainty that the Council (or the Monitoring Committee) will

be satisfied of the “environmental sustainability” of the “current and proposed” operation of the piggery when each stage of its expansion from 20,000 to 80,000 pigs is proposed; rather, as the Environmental

Impact Statement which supported the other respondents’ application to the Council recognised by

reference to the Draft Environmental Management Plan, impacts from the piggery might be “different

to those predicted”. Future decisions which are required by the conditions to the approval concerning

whether the “current and proposed” operation of the piggery is then “environmentally sustainable” will

therefore alter the development of the piggery in a “fundamental respect”;3 each decision will, in turn,

decide the permissible size of the piggery. In our opinion, the postponement of such decisions from the

issue of the conditional approval until unspecified future dates clearly offends the finality principle.

The reasoning process which leads to this conclusion, like the appellants’ argument, starts from the

premise that the approval extends to a piggery of 20,000 pigs without the need for further decisions

which have been impermissibly postponed, and that the future decisions which are impermissibly

required by the conditions to the approval are related to the expansion of the piggery to more than that

number of pigs. Further, neither in contending that the approval is wholly invalid nor in any other context

did the appellants demonstrate that the modification of the conditions to the approval to eliminate

impermissible decisions related to the future expansion of the piggery to more than 20,000 pigs would

Commonwealth (1945) 71 C.L.R. 184, 198

3              e.g., see Mison and Scott

materially affect the conditions relating to a piggery of that size. Nor was it suggested that the Planning

and Environment Court lacked jurisdiction or power to perform such an exercise. The appellants’

argument as to why the approval was wholly invalid and not an approval of a piggery of 20,000 pigs

depended on no more than the self-evident proposition that such a piggery is substantially different from

a piggery of 80,000 pigs. Hence, it was submitted:

“The Council will need to make a fresh decision which is final as to the number of pigs which it considers to be currently environmentally sustainable on the currently available information.”

According to the appellants’ written outline of argument:

“This applies the tests for severance discussed in Kent City Council v. Kingsway Investments (Kent) Ltd [1971] A.C. 72 and since applied by Australian Courts: see, e.g., Parramatta City Council v. Kriticos (1971) 1 N.S.W.L.R. 140, 144-145; Spurling v. Development Underwriting (Vic.) Pty Ltd (1973) V.R. 1, 4-5; Randwick Municipal Council v. Pacific-Seven Pty Ltd (1989) 69 L.G.R.A. 13, 16-20.”

The respondents, on the other hand, argued that, if the approval was not a valid approval of a piggery

of 80,000 pigs, it was a valid approval of a piggery of 20,000 pigs, apparently accepting that such an

approval involved the implicit refusal of a larger piggery at this point (seemingly on the basis that the

information needed to prove environmental sustainability of a piggery of more than 20,000 pigs is not

yet available).

A major flaw in the appellants’ argument on this aspect of the matter, in our opinion, is that it departs

from the basic premise on which the primary argument has succeeded; namely, that on its proper

construction the approval is an approval of a piggery of 20,000 pigs with impermissible provisions for

future decisions to increase the size. The severance of those provisions, eliminating the possibility of future increases under their operation, does not offend any constraint on severability which we have

been able to identify in the authorities to which the Court was referred.

It follows that the appeal should be allowed, and a declaration made that the approval is invalid insofar

as it provides for the expansion of the piggery to more than 20,000 pigs (2,000 sows and their progeny)

at any one time on the basis that pig numbers may exceed this limit by a maximum of 5 per cent to

accommodate variations in breeding programs. The matter should be returned to the Planning and

Environment Court to dispose of the appeal to that Court in accordance with the judgment of this Court.

The respondents must pay the appellants’ taxed costs of the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 131 of 1995
Brisbane
[McBain & ors. v. Clifton Shire Council & ors.]
BETWEEN:

IAN FERGUSON MCBAIN, PATRICIA CHARLOTTE MCBAIN,
BRIAN ROBERT RAMSAY, JOAN MARIE RAMSAY,
NICHOLAS PLAYFORD ADAMSON, RONELLE LEE ADAMSON,
LLOYD LINDENBERG, COLIN HANSEN, MICHAEL A. MEARA,
DIETER SEIFERT, CHRISTA SEIFERT, EDDY PETERS,

YACKA PASTORAL COMPANY PTY LTD (ACN 010 006 005)

(Appellants) Appellants

AND:

CLIFTON SHIRE COUNCIL

(Respondent) First Respondent

AND:

ETHEL MAY JOPPICH, THE ESTATE OF ERNEST WILLIAM
JOPPICH, AND GRAHAM JOPPICH AND ETHEL MAY JOPPICH
AS LEGAL PERSONAL REPRESENTATIVES OF THE ESTATE

OF ERNEST WILLIAM JOPPICH

(Respondents by Election) Second Respondents

FITZGERALD P.
DAVIES J.A.

MACKENZIE J.

Judgment delivered 17/11/1995

REASONS FOR JUDGMENT - THE COURT
Declared that the approval is invalid insofar as it provides for the expansion of the piggery
to more than 20,000 pigs (2,000 sows and their progeny) at any one time on the basis that pig
numbers may exceed this limit by a maximum of 5 per cent to accommodate variations in
breeding programs. .../
Matter is returned to the Planning and Environment Court to dispose of the appeal to that
Court in accordance with the judgment of this Court.
Respondents to pay the appellants’ taxed costs of the appeal.

CATCHWORDS:	PLANNING AND ENVIRONMENT LAW - Council approval to use property as a piggery was given subject to conditions - whether Council approval was void - whether Council approval lacked finality due to the conditions imposed by it - whether approval only validly approves a piggery of 20,000 pigs
Counsel:	D. Gore Q.C. for the Appellants J.D. Muir Q.C. for the Second Respondents
Solicitors:	Deacons Graham & James for the Appellants M. Connor for the First Respondent Feez Ruthning for the Second Respondents
Date(s) of Hearing:	16 October 1995