Monier PGH Holdings Ltd v Pine Rivers Shire Council
[2002] QPEC 38
•12 April 2002
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Monier PGH Holdings Ltd v Pine Rivers Shire Council [2002] QPEC 038
PARTIES:
MONIER PGH HOLDINGS LIMITED
Appellant-v-
PINE RIVERS SHIRE COUNCIL
RespondentFILE NO/S:
5156 of 2000
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
12 April 2002
DELIVERED AT:
Brisbane
HEARING DATE:
15 November 2001
JUDGE:
Judge Alan Wilson SC
ORDER:
Appeal dismissed
CATCHWORDS:
PLANNING AND ENVIRONMENT – MINING TENEMENT – SUBDIVISION
Extent to which local authority has jurisdiction over land being used for mining purposes – whether statutory regime under Mining and Environment legislation precludes Local Authority from attaching conditions to subdivisional consent, or reduces its power to do so
Integrated Planning Act 1997
Local Government (Planning and Environment Act) 1990
Mineral Resources Act 1989
Environmental Protection Act 1994
Walker v Noosa Shire Council (1983)
2 Qd Reports 86, considered and applied.COUNSEL:
Mr J Haydon for the Appellant
Mr R Traves for the RespondentSOLICITORS:
Flower & Hart Solicitors for the Appellant
Shire Solicitor, Pine Rivers Shire Council for the Respondent
This case concerns the extent to which a local authority has jurisdiction over land which is being used for mining purposes and in particular whether, in light of the comprehensive statutory regime which now governs mining activities, including provisions touching rehabilitation of land after mining, councils can or need be concerned with the rehabilitation process.
The relevant parcel of land is in Brendale, in the Pine Rivers Shire. It contains 27.775ha and is at the corner of Kremzow and Old Northern Roads. As presently configured it is comprised of two lots: Lot 1 on RP 98319, containing 4.296ha, and Lot 1 on RP 810271, of 23.479ha . The appellant applied to reconfigure these lots, altering their shared boundary so the two new parts held 15.039ha, and 12.423ha. The parcel has been owned and used by the appellant for many years for the purposes of clay extraction and as a consequence now includes a large pit 8-24 metres deep which, being well below natural water course levels, consistently contains water. The western end of the pit, around the centre of the parcel, is currently being worked for clay extraction. The land is approximately rectangular in shape, lying on an east-west axis with its broad, southern base on Kremzow Road. The present dividing boundary is well to the western side, and delineates the smaller parcel of 4.296ha at the extreme west. The new boundary runs north-south close to the middle of the land, but still to the west of the deepest section of the pit[i]. As the appellant’s counsel said, the purpose behind re-alignment of the boundaries is to make the new eastern lot, which has been mined, a separate parcel so that its rehabilitation can proceed, whilst mining activity continues on the new western lot[ii].
The appellant’s application for a Development Permit to re-align the boundaries was submitted to Council on 9 June 2000. On 7 July 2000 Council sought further information about the appellant’s future intentions for the new, eastern block. The appellant replied on 27 July 2000 advising the purpose of the re-configuration was to rationalize the land it owned and create a clear boundary between that part of the site that can continue to be mined, and the exhausted component which was now surplus to its requirements, and might be disposed of in the future. Council sought yet more information concerning the proposals and arrangements for rehabilitation of that block, to which the appellant replied in writing on 23 October 2000[iii], referring to a document called an Environmental Management Overview Strategy (EMOS) originally prepared under the Mineral Resources Act 1989 (MRA), and asserting it was the “...primary statutory document detailing the proposed rehabilitation of the site and the requisite environmental performance monitoring”. By a further letter of 20 November 2000[iv], subsequent to a meeting between representatives of the parties on 16 November, the appellant sent the respondent a full copy of the EMOS, and said:
“Our client considers that there is sufficient control and conditions imposed pursuant to the EMOS to ensure appropriate rehabilitation of the site. It further considers that any future use of the land in total or in part, whether reconfigured or not, is sufficiently controlled through the provisions of the Transition Planning Scheme.”
By a letter of 28 November 2000[v] Council advised the application was refused, on these grounds:
“(a) The proposal will result in a form of development which is inappropriate in this locality;
(b)The proposal is not supported by sufficient information to satisfy Council that an approval would not cause an unacceptable impact on the environment;
(c)The proposal could be prejudicial to Council’s published longer term planning proposals for the area, and more particularly to the pending development of land to the north for residential purposes.”
The appellant’s Notice of Appeal relies on these grounds:
“(a) The reconfiguration is an appropriate form of development for the Land and the locality;
(b)The reconfiguration will not have an unacceptable impact on the environment;
(c)The reconfiguration is not prejudicial to the Respondent’s longer term planning proposals for the area; and
(d)The pending development for residential purposes of land to the north of the Land is not relevant for the purposes of the Application.”
Further correspondence between the parties about issues in dispute, and the respondent’s particulars of its reasons for refusal[vi] crystallised the Council’s concerns: that it simply did not know enough about the future use of the site to permit approval, or frame conditions which might be appropriately attached to approval. Those concerns and in particular Council’s interest in rehabilitation are, the appellant says, satisfactorily allayed by relevant mining and environment law and the EMOS, read in conjunction with planning legislation.
This argument involves considering the width and effect of the words “to the extent ... relevant” in s. 5.1(3) of the Local Government (Planning and Environment Act) 1990 (LGPEA) which provides, relevantly:
“5.1(3) In considering an application to subdivide land a local government is to assess each of the following matters to the extent they are relevant to the application –
(a)The proposed use of each of the proposed allotments;
...”
The appellant argued that the existence of a separate statutory regime (under mining an environment law) limited the relevance of the proposed use of each of the new lots, for the purposes of the Council’s deliberations, to an extent which meant the respondent was compelled, acting properly, to approve the application; or, in the alternative, that those things had, at least, a powerful limiting effect on the Council’s ability to attach conditions to any approval in light of the Integrated Planning Act 1997 (IPA), s. 3.5.30 which provides:
“3.5.30(1) A condition must –
(a)be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
(b) be reasonably required in respect of a development or use of premises
as a consequence of the development.”
At the hearing the appellant did offer conditions as part of the Development Approval which would run with the land (IPA, s. 3.5.28), and were, it said, sufficient for the respondent’s purposes:
“(a) Prior to the settlement of any contract to sell proposed Lot 22 the appellant shall ensure that the purchaser is bound to rehabilitate the land in accordance with the relevant provisions of the Mineral Resources Act 1989 and the Environmental Protection Act 1994.
(b)The applicant for an environmental authority under the Environmental Protection Act 1994 or an Environmental Management Overview Strategy (EMOS) with respect to proposed Lot 22 shall provide a copy of the documents submitted under the Environmental Act 1994 to the Pine Rivers Shire Council delivered or posted on the same day as the documents are delivered or posted under the Environmental Protection Act 1994 to the Environmental Protection Agency.”
Under IPA s. 3.1.4 a Development Permit is necessary for “assessable development” and, under s. 1.3.2 “Development” includes reconfiguring a lot. Under IPA Schedule 8 “assessable development” includes reconfiguring a lot under the Land Title Act. Hence, it was always necessary for the appellant to apply for a Development Permit.
The Pine Rivers Shire Council Planning Scheme is a “transitional” one under IPA s. 6.1.3, but continues to have effect (s.6.1.2). Matters relevant to the assessment of the application are set out in s. 6.1.29(3) and include, under (3)(h), the matters set out in LGPEA s.5.1(3). Under IPA s. 6.1.30(3)(c) the application had to be decided by the Council under LGPEA ss. 5.1.(6) and (6A), which present it with the options of approving the application, with or without conditions, or rejecting it; and, oblige it to refuse the application if it conflicts with any relevant Strategic Plan or Development Control Plan (and there are not sufficient planning grounds to justify approving the application, despite any conflict).
At times the appellant appeared to argue that IPA Schedule 8 Items 10 and 10B meant the reconfiguration was “exempt development”, and no Development Permit was necessary. Those items exempt from assessment by local authorities a material change of use of premises or operational work or mining activities authorised under the Mineral Resources Act 1989 (MRA), or activity to which an Environmental Authority (Mining Activities) under the Environmental Protection Act 1994 (EPA) applies. Plainly, there is no exemption here, as the definitions of the various terms “development” (IPA s. 1.3.2), “reconfiguring a lot”, “material change of use”, and “operational work” (s. 1.3.5) clearly show. Reconfiguration is obviously separate and distinct from a material change of use, or operational work.
Of the land adjacent to this parcel, that to the south and east is included in the Extractive Industry Zone under the Council’s Transitional Strategic Plan. To the north a parcel of approximately 230ha, classified Future Urban, has recently been marketed for residential development and is said by the Council’s Town Planner, Mr Ross[vii]to be “ripe for development as Residential A land”. Land still further to the north-east has been developed for residential purposes and is contained in that zone. Further to the south-west the land is included in the Park Residential and Rural Residential Zones, while that to the east along Kremzow Road is included in General Industry or Service Industry. Objective 9(c)(ii) of the Strategic Plan says:
“The preferred final land use over the existing clay mining leases is either open space or for industry uses. In areas adjacent to and in close proximity to urban areas and park-residential areas an open space use would be preferred in favour of industrial uses.”
The Strategic Plan also incorporates the Central Pine Development Control Plan (DCP) No. 8 [viii] which aims to guide orderly development of this area:
“... through the identification of preferred dominant land use areas and the implementation of a series of objectives and intents for designated precincts which will be used to guide consideration of any town planning matter including rezoning, subdivision, consents and Column 3(B) approval applications.” (p.2)
This land lies within the Brendale Industrial Area for which the DCP identifies, at p. 13, two relevant objectives concerning clay extraction activities:
“(2) Brendale Industrial Area
(a) Objectives ...
(x)To facilitate the extraction of clay from known significant deposits in a safe and orderly manner having proper regard to existing and likely future uses of the surrounding areas both during and after extraction
(xi)To facilitate the rehabilitation and reuse of land previously used for clay extraction and/or is no longer required or suitable for clay extraction.
Further, at p. 13 Implementation Provisions for this Objective are stated in these terms:
“(2) ...
(b) Implementation
Subdivision or Development Applications in the Brendale Industrial Area may be favourably considered by the Council only if the proposal:
(i)complies with the relevant provisions of the Council’s Town Planning Scheme and its By-laws and policies;
Again, at p. 13 it is seen that this site falls within Industrial Precinct I-1, Extractive Industry of the DCP. The intent for this precinct states:
“(2) ...
(c) ...(i) ...
(a) It is intended that clay extraction be an interim land use to
allow the mining of valuable resources prior to establishment of end land uses for such land. Following resource mining it is intended that land to the west of Old Northern Road ... be utilised for sports and recreation, entertainment purposes and/or municipal purposes”.
At p. 14 of the DCP, the following appears:
“(2) ...
(c) ...
(i) ...(C) The Council recognises that clay mining operations in this
precinct are approved under current Mining Lease arrange- ments pursuant to the Mineral Resources Act and under approved conditions set out in the Lease Holders EMOS
(Environmental Management Overview Strategy) and Plan of OperationsCouncil will not oppose the development and use of this land for the purposes of resource extraction where:
·...
·adequate buffering measures or separation distances are provided and maintained between areas being mined and existing and likely future residential land;
·...
·rehabilitation standards and works appropriate to the desired long term use of the land are secured by agreement to be undertaken following the completion of extraction (my underlining)”
In summary the Central Pine DCP provides, as Mr Ross says[ix], detailed guidance for proposed development in the area by identifying precincts of preferred dominant land uses and implementation provisions “to guide consideration of any town planning matter”. In particular, only those development proposals shown to comply or accord with its provisions “may be favourably considered by the Council”. Further, the DCP makes provision for the continuation of existing clay extraction in the Kremzow Road area until resources are exhausted but categorises them as an interim use, and focuses on the end use when extraction has been completed. That end use must be compatible with adjoining land uses.
In further evidence, which was not contradicted, Mr Ross said[x]:
“(a)Preliminary discussions have been held with consultants to discuss the pending lodgment of a formal Development Application for the large parcel immediately to the north of this site, involving a residential development of up to 2,200 allotments;
(b)Additional information provided by the appellant here indicates it has had quite advanced discussions with another company which proposes using the subject land as a municipal waste landfill, recycling depot, or transfer station in one form or another.”
The nature of the development Council might permit to the north is likely to hinge to a large degree, Mr Ross says, on the future uses of the new, eastern most lot. If the pit was to be wholly or partly filled with organic or putrescible material, a buffer distance of 500 metres from residential areas would be necessary, but this could decline to only 50 metres with other, less offensive fill[xi]. Other planning issues relevant to Council include, he says, the final land form and its height, slope, landscaping, visual impact and end use; traffic and access issues; and, an anticipated time frame which would affect decisions about preferred end land use. Mr Ross concluded the application should not be approved because the proposal could prejudice the Council’s published longer term planning proposals for the area, and, in particular, the pending development of land to the north for residential purposes; it was impossible to determine, on the information provided, whether the proposal would result in the form of development appropriate for the locality; there was insufficient information about the extent to which the land would be rehabilitated or used, or to ensure the implementation of sound town planning principles, and measures to mitigate adverse impacts; and, neither did that information demonstrate the proposal would not have an unacceptable impact on the existing or future, natural or built environment in the locality.
The appellant says that the respondent may take absolute comfort about the use of each of the proposed allotments from the MRA, and the EPA which, it was said, regulate mining activity, including rehabilitation, “from cradle to grave”. In his first written submission, counsel for the appellant argued that future landfill use of the proposed allotments was not relevant, in the circumstances of this application for re-alignment of boundaries, for four reasons[xii] : the terms of IPA Schedule 8 Part III, Items 10 and 10B; the provisions of the MRA and the EPA; and, the fact that the re-alignment of the boundary does not change the intensity of the use of the land. Later[xiii] the submissions concede Items 10 and 10B do not make the reconfiguration “exempt development” but, it is said, they “limit the relevance” of s. 5.1(3).
It is not in issue that the land had been the subject of a mining lease since 1984. An EMOS had been prepared, pursuant to the MRA, in March 1993 and revised in December 1996. Following amendments to those Acts in 2000[xiv] the mining lease will, in future, continue in the form of the EMOS[xv], and an Environmental Authority will issue under the EPA[xvi]. Both the mining leases and the environmental authorities are personal to the company to whom they are issued. The present EMOS (Exhibit 2) is a comprehensive document containing a number of “committments”, of which there is a precis in the Executive Summary and which reflect an intention, on the appellant’s part, to rehabilitate the land in an acceptable manner, after mining is completed, for purposes including, e.g., a recreation reserve.
The appellant argues these commitments are, in fact, “conditions” of its mining lease, and purports to show that by a path through the relevant statutes. Pre-EPA, it held a mining tenement under the MRA and, therefore, presently holds a single Environmental Authority (Mining Activities) under EPA, ss. 588(1) and (2). By EPA s. 589(1)(a), the conditions of that Environmental Authority are described as “conditions” of the mining lease, which includes the EMOS. Then, it is said, EPA s. 585(1) defines “conditions” of the mining lease (called a Mining Tenement); and, s. 585(4) defines “planning documents” in sub-paragraph (d)(i) to include conditions of that kind. Section 585 says a “condition” of a mining tenement:
“… means any of the following –
(a)a condition of the mining tenement determined, imposed or prescribed under the Mineral Resources Act;
(b) a condition of, or stated in, the mining tenement;
(c)a commitment, obligation, requirement or undertaking under, or stated in, the most recent version of a planning document for the mining tenement.”
An EMOS is, as EPA s. 202 shows, a document designed to propose environmental protection committments which will aid an administering authority in drafting the environmental authority. Section 202 provides:
“The purpose of an EMOS is to propose environmental protection committments to help the administering authority prepare the draft environmental authority for the applicant.”
Under EPA s. 203, the EMOS must contain environmental protection committ-ments which:
“203
(2) ...
(b)State the environmental protection objectives and the standards and measurable indicators, including, for example objectives for progressive and final rehabilitation and management of contaminated land.” (My underlining)
The clear tenor of ss. 202 and 203, with their reference to “committments” and “objectives” is that they will propose performance standards for both mining activities, and rehabilitation of mined land which can be measured and, if necessary, audited (under EPA, Part 11), and meeting them may be relevant to the transfer, or surrender of the right to mine the land (EPA ss. 259, 268). As a condition of surrender, the authority administering the EPA is entitled to receive a “final rehabilitation report” (s. 273(1)(c)(i)) which must, among other things, include enough information to allow that authority to decide whether the terms of the Environmental Authority (Mining Activities) have been complied with, and the land on which the mining activity had been carried out “has been satisfactorily rehabilitated”: s. 274(c).
It seems to me that reference to a “condition” in s.585 and elsewhere in the EPA involves a use of the word which is different to the ordinary, dictionary meaning: e.g., something demanded or required as a prerequisite to the granting or performance of something else[xvii]. Rather, as the parts of the statute set out above show it is used more in the sense of a goal, or aspiration, to guide those administering the Act. It is not suggestive of the clarity lawyers normally require in, e.g., conditions in contracts, against which performance or non-performance can be readily measured. These “commitments” and “objectives” are not, it seems to me, akin to conditions which a local authority might impose under a development approval pursuant to the IPA. When the EPA refers to “conditions” what is involved is, in fact, a reference to the EMOS itself, and the commitments and objectives it contains. Under the IPA, however, conditions attached to a development approval are subject to an enforcement regime: s.4.3.3.
It also remains the case, as the appellant concedes,[xviii] that a new and separate Environmental Authority would be required before land filling could be undertaken. It was also conceded that before any of the post-mining activities, e.g. a recreation reserve, could be established on the land the appellant would need to apply to the Council – the point, the appellant says, when and only when the respondent has a vivid and relevant interest in the use of the land.[xix]
The EMOS does not identify the nature of the waste to be used for landfill; or, with particularity, the management measures to be employed; or, the final landforms; or, whether or not the proposition that the fill will be constituted by municipal waste is contingent upon the location of a Transfer Station on the site[xx]. The waste might include putrescible waste – but, the appellant says, when it becomes necessary to decide, the necessary Environmental Authority will be sought.
While other statutory regimes may be relevant, the role of each statutory authority is governed by relevant Acts and neither is, in terms of those Acts, restricted in its consideration of the issues by the involvement of the other. The IPA shows the respondent has a clear obligation to assess the appellant’s application for reconfiguration: Schedule 8 Part III. The proper approach is for each authority to discharge its statutory function and not to curtail it in deference to some possible, future decision of another, nor to attempt to pre-empt the decision of another authority which might be made in the future. As the Full Court said in Walker v Noosa Shire Council[xxi] :
“With increasing government controls it is commonplace for an applicant to require multiple consents from different authorities or from the same authority in different capacities. With the exceptions I have already mentioned (illegality or obvious futility) it may be said that in general it is desirable that such applications be considered on their merits one at a time, and without undue speculation on the fate of other necessary applications”.
That decision was, relevantly, approved by the Court of Appeal in Arksmead Pty
Ltd v Gold Coast City Council[xxii] .
A council administering a Planning Scheme, under legislation which establishes its obligation to consider the future use of parcels within that Scheme is entitled to require satisfaction in that respect when a Development Permit of this kind is sought. The fact that there are, presently, no Council approvals in respect of this site and that, but for this application, the appellant might carry on with its present use of the land without involvement of the Council is beside the point. The IPA provides that development approval is necessary for reconfiguration and the argument that because before, the application Council has not and would not have cause to be further involved does not affect its obligation to consider the application in accordance with the Act. In this case the Council is entitled to know how landfill and rehabilitation will be affected and managed.
It was also argued for the appellant that, under IPA s. 3.5.30, Council could only impose relevant, and not unreasonable conditions and because the development here is merely a reconfiguration and not a “use application” the respondent is prohibited from imposing conditions touching use. The absence of a basis for conditions means, then, that none can be imposed and, of course, the application cannot be refused. In effect, the appellant was inviting the Court to test the width of the words “to the extent ... relevant” in LGPEA s. 5.1(3) against the power to impose conditions under IPA s. 3.5.30.
The argument is unpersuasive for a number of reasons. It cannot sensibly be made without identifying the condition which, it is said, could not be imposed and, by that process, becomes meaningless. There is no authority for the proposition that the extent to which the proposed use is relevant to consideration of an application for reconfiguration is dependent upon the breadth of the powers to impose conditions; and, that power (to impose “relevant” conditions) has been construed very widely: Lloyd v Robinson[xxiii], Procter v Brisbane City Council[xxiv].
Secondly, the conditions the Council may impose will be “relevant” if they fall “... within the proper limits of a local government’s function under the Act, as imposed to maintain proper standards in local development or in some other legitimate sense”[xxv] and, having regard to the planning issues raised by Mr Ross and the terms of s. 5.1(3) it cannot be said Council’s interest, and conditions it might impose, would necessarily fall outside those limits.
Nor can it be said, I think, that the conditions offered by the appellant meet the respondent’s purposes. They offer the respondent nothing more than the opportunity to continue to stand by, but with the comfort that any transferee will offer the same commitments; and, to be kept informed. Again, that falls far short of ensuring the Council knows how landfill will be affected and managed and, relevantly, the future use, so it can impose conditions which satisfy its statutory obligations about those matters. In addition, I do not think it can be said the Council can begin to contemplate, or formulate appropriate conditions to attach to a development approval unless and until it has more information about the manner in which landfill and rehabilitation will be undertaken, so its decision to refuse the application, rather than approve it and make an under-informed attempt to formulate conditions, was the correct one.
The appellant also referred to MRA s. 319(1), which says the IPA does not apply to the use of land if the use is authorised under the MRA. Subdivision of land is not, however, a “use of land”, as Byth DCJ held under the former Local Government Act in Cassey v Hervey Bay Town Council[xxvi] and Brabazon DCJ reaffirmed, in respect of the IPA, in Ryan v Maroochy Shire Council[xxvii] - IPA s.1.3.5, defining “reconfiguring a lot” does not relate to the use of land, or premises. Hence, s.319 does not bar the application of the IPA here. In any event, as Brabazon DCJ explained in Ryan[xxviii]:
“The first statutory consideration is ‘the proposed use of each of the proposed allotments’. That consideration shows a direct link between subdivision and planning controls, which are concerned with the potential use to which the land can be put. If there were earlier doubts about the relevance of the actual use of the land, in a subdivision application, then they have been removed by that provision.”
For these reasons, the application is refused.
[i] See the Appeal Book, Exhibit 1, p. 10, showing the existing boundary as a dotted line toward the
left (west) and the proposed boundary as a bold line near the centre of the plan.
[ii] T 3, ll. 51-53; and, see letter Urban Strategies to respondent, 27 July 2000, Exhibit 1 p. 12
[iii] Letter Urban Strategies to respondent, Appeal Book, Exhibit 1, p. 14
[iv] Letter Urban Strategies to respondent, Appeal Book, Exhibit 1, p. 21
[v] Exhibit 1, p. 22
[vi] Exhibit 1, p. 31
[vii] Exhibit 4, p. 6
[viii] LGPEA s. 2.1(d)
[ix] Exhibit 4, para. 11.1.2.5
[x] Exhibit 4, p. 10
[xi] Exhibit 4, para. 11.2.8
[xii] Para. 12
[xiii] At para. 17
[xiv] Environmental Protection and Other Legislation Amendment Act 2000 (No. 64 of 2000)
[xv] MRA s. 7.33(1)(c)
[xvi] EPA, Chapter 5
[xvii] The new shorter Oxford English Dictionary
[xviii] T 9, ll 46-47
[xix] T 9-10, ll 56-60, 1-5
[xx] EMOS ss 3.1.4, 3.2.3
[xxi] (1983) 2 Qd R 86 at 90
[xxii] (2001) 1 Qd R 347 at 359
[xxiii] (1962) 107 CLR 142 at 154
[xxiv] (1993) 81 LGERA 398
[xxv] Procter v Brisbane City Council (1983) 81 LGERA 398 at 404 (CA)
[xxvi] (1979) 39 LGRA 68 at 72
[xxvii] (1989) QPELR 184 at 185
[xxviii] at 185-186
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