Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council

[1994] QCA 559

IN THE COURT OF APPEAL	[1994] QCA 559
SUPREME COURT OF QUEENSLAND

Appeal No. 59 of 1994.

Brisbane

Before Pincus J.A.

McPherson J.A.

Ambrose J.

[Mt.Marrow Blue Metal Quarries v. Moreton Shire Council]

BETWEEN:

MT. MARROW BLUE METAL

QUARRIES PTY LTD

(Appellant) Appellant

AND:

COUNCIL OF THE SHIRE OF MORETON

(Respondent) First Respondent

AND:

JEFFREY MERVYN BREWER

(Respondent by Election) Second Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 21/12/1994

I have read the joint reasons of McPherson J.A. and Ambrose J. and, subject to the

following comments, agree with his Honour's reasons and the conclusions reached.

With respect to the easement, the provision of which was contemplated by condition 30 of

the Council approval, it was pointed out that under s. 89(c) of the Land Title Act 1994 an

easement may be registered in favour of a local authority "even though it is not attached to, or used

or enjoyed with, another lot...". That is, there need be no dominant tenement. It was not argued

that a prohibition on the erection of a certain type of building on land cannot be an easement. With

respect to new types of "negative easements" I refer to the views expressed in Bradbrook and Neave, "Easements and Restrictive Covenants" at pp. 23 and 24, and to the flexible approach

approved by the Chief Justice in Commonwealth v. Registrar of Titles (Victoria) (1918) 24 C.L.R.

348 at 353.

The only other point I propose to discuss is the contention that certain authorities lay down a

principle that precludes the imposition of conditions significantly altering the nature of a proposed

development. It appears to me that the application in question is caught by s. 4.15(1A) of the Local

Government (Planning & Environment) Act 1990 and that therefore only modifications of a

"minor nature" may be made to the application: see s. 4.15(2)(a). But the concept of a modification

of a minor nature is elaborately defined in s. 4.15(3), para.(f) of which is rather broad and appears

to be applicable to the present case. At the least, it must be said that insofar as condition 30

requires that there be no residential buildings erected on part of the land in question, a conclusion

that such a condition does not affect the amenity or likely future amenity of the locality would involve

no error of law. I should add that I am of opinion that in respect of matters within s. 4.15,

authorities such as Mison v. Randwick Municipal Council (1991) 23 N.S.W.L.R. 734 have no

relevance to the question whether an approval involves too great a change to the applicant's

proposal.

I agree with the orders proposed by McPherson J.A. and Ambrose J.

IN THE COURT OF APPEAL	16.8.94
SUPREME COURT OF QUEENSLAND

Appeal No. 59 of 1994

ON APPEAL FROM THE PLANNING
AND ENVIRONMENT COURT HELD

AT BRISBANE, QUEENSLAND	P & E Appeal No. 238 of 1993
Brisbane
Before	McPherson J.A. Pincus J.A. Ambrose J.

[Mt. Marrow Blue Metal Quarries P/L. v. Council Shire of

Morton]

BETWEEN

MT MARROW BLUE METAL QUARRIES PTY LTD

(Appellant) Appellant

AND

COUNCIL OF THE SHIRE OF MORETON

(Respondent) First Respondent

AND

JEFFREY MERVYN BREWER

(Respondent by Election)

Second Respondent

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & AMBROSE J.

Judgment delivered the 21st day of December 1994

This is an appeal by Mt. Marrow Blue Metal Quarries Pty Ltd against a decision of the Planning and Environment Court (Row D.C.J.) dismissing an appeal against a decision of the first respondent Council approving, subject to conditions, a combined application by the second respondent developer for the rezoning and subdivision of an area of land at Haigslea.

The rezoning was from Rural to Low Density Residential and was sought in respect of an area of 42.3 ha., which was designed to produce a total of 58 "acreage" allotments. In the end, however, the Council, while approving the rezoning and subdivision of part of the land, resolved that some 18 or 19 of the proposed lots would not be approved for subdivision; and that, of the remainder, some nine or 10 allotments would be subject to a building restriction intended to ensure that any residences erected on those lots would be confined to the eastern side of the allotment.

The building restriction was imposed in order to accommodate the appellant's objections to the proposed development. The appellant conducts quarrying operations at a site approximately 2 kms from the area of the proposed subdivision. Its principal concern is that future residents of the subdivision are likely to complain about noise and dust emanating from the quarry, and that in consequence it will be compelled to cease or to restrict its quarrying activities.

What is now before this Court is an appeal from the decision in P. & E. Appeal no. 238 of 1993, which is one of three appeals taken to the Planning and Environment Court by parties to the present appeal. The other two were P. & E. Appeal no. 236 of 1993, which was an appeal by the developer in respect of some of the conditions imposed by the Council in approving the subdivision; and P. & E. Appeal no. 237 of 1993, which was another appeal by the developer against conditions imposed in approving the rezoning. Discussions between the Council and the developer resulted in agreement on the relevant conditions, with the result that at the hearing below the court was asked to consider only the appellant objector's appeal no. 238 of 1993. It is only the decision dismissing that appeal that is now before this Court.

So far as relevant here, an appeal to this Court is by s.7.4(3) of the Local Government (Planning and Environment Act) 1990, permitted only on the ground of error or mistake in law on the part of the Planning and Environment Court.

Although various grounds are set out in the appellant's notice of appeal to this Court, only two of them were relied on at the hearing before us. They are that his Honour was wrong in law: (1) in accepting that condition 30 imposed by the Council was valid; and (2) in concluding that the proposed development was not a "major urban development".

As to the first ground, the learned judge in dismissing the appellant objector's appeal varied condition 30 of the Council's approval, with effect as follows:

"Provision of an easement which prohibits the erection of any residential building on that part of Lots 55-66 (inclusive) and Lot 6 as shaded green on Plan Number A2.714/4 and such building restriction line be amended in a generally north easterly direction where necessary to ensure that residential building sites are not subjected to noise levels due to the operation of the quarry in excess of 40 dBA under 2.8 m/s (Max) downward conditions [to the satisfaction of the Shire Planner]".

In adopting this amended form of condition, which was put forward jointly by the Council and the developer, his Honour rejected the concluding words in square brackets "to the satisfaction of the Shire Planner", which thus do not form part of conditions of approval. In this Court, the appellant's complaint is that, even disregarding those final words, the condition in question was and is in law not one that was capable of being imposed. Condition 30, it is contended, is not final, for the reason that it leaves for future decision or determination a matter that is critical to both the rezoning approval and the subdivisional approval. It may be that, even if the finality point (as it may be called) is accepted, it would not necessarily follow that the rezoning approval would be vitiated. However that may be, the immediate question to be considered is whether condition 30 is, as the appellant contends, so lacking in finality as to invalidate not only the condition but both the rezoning and subdivisional approvals themselves.

As a general proposition it may be accepted that, in deciding to approve, whether with or without conditions, an application of the present kind, a local authority is bound to dispose of the application fully and finally, and that it may not defer its decision on an essential matter, or delegate its power to do so to some other person or body for determination. See Randwick Municipal Council v. Pacific- Seven Pty Ltd. (1989) 69 L.G.R.A. 13, where many of the relevant authorities are collected. In the context of condition 30, the complaint of want of finality is said to have two aspects. The first arises from the reference in condition 30 to an "easement". It is not questioned that this means an easement in favour of the Council that will be registrable under s.89 of the Land Titles Act 1994, which permits registration of an instrument of easement in favour of a local authority that is neither annexed to nor used or enjoyed with another lot. In the past, easements of that general kind have not infrequently been required as a condition of development approval particularly in relation to rights of drainage and the like. See, for example, Finlay v. Brisbane City Council (1979) 39 L.G.R.A. 249. The condition itself does not recite the terms of the proposed easement verbatim; but the intention is plain that it is to impose a simple prohibition against the erection of any residential building on the designated portion of the specified lots. Even if it were to go no further than that, it would achieve its purpose and would present no foreseeable difficulties of drafting.

On behalf of the appellant, Mr Gore Q.C. conceded that the precise form of the easement was, as he called it, only a small point. His major argument was that condition 30 left the building restriction line to future determination.

It is true that the precise location of that line was not fixed at the time the appeal was disposed of below. But, properly analysed, the case bears no resemblance to Leichhardt Municipal Council v. The Minister (1992) 77 L.G.R.A. 64, or to Mison v. Randwick Municipal Council (1991) 23 L.G.R.A. 734, on which reliance was placed by the appellant. In Leichhardt, the relevant condition purported to require that the applicant commission an expert report and recommendation on noise impact, which was to be submitted to the municipal town planner for approval, and that the building application incorporate such of the recommendations as were approved by that planner. In Mison, approval for a two-story dwelling house was given subject to a condition that the overall height of the dwelling house should be reduced to the satisfaction of the Council's chief planner. In both cases the approval was held to be invalid in that it did not finally resolve the application but left it, or an essential element of it, to be decided on a later occasion by another person.

The subject condition is not open to the same criticism. The precise location on the ground, or on a plan of the land, of the building restriction line is, it may be acknowledged, left to be fixed in the future; but that is so only in the sense that its position has not yet been measured in situ or designated by metes and bounds. The objective criteria necessary to arrive at such a designation are nevertheless now fully identified in condition 30. The appellant accepts that the limits of the specified noise levels are scientifically ascertainable, and that the building restriction line must correspond to them. The case is therefore not one in which the decision of an essential matter is deferred to a future occasion, or delegated to another person. On the contrary, it is one in which clear objective standards are used "which are capable of producing a result about which every man must agree if he knows the facts and figures and has made his calculations correctly" : King Gee Clothing Pty Ltd v. The Commonwealth (1945) 71 C.L.R. 184, 198, per Dixon C.J.

Another but subsidiary aspect of the appellant's case on this point concerns the construction of what is conveniently referred to as the earth mound. The reasons of the learned judge in the court below contain only two references to it. In one of them his Honour said that the provision of an earth mound "would not only assist in the reduction of impact caused by noise and/or dust but would also provide a barrier to prevent a direct line of sight from the proposed development to the quarry". The reference is taken from a suggestion by Mr Brown, an acoustics expert whose evidence was accepted by his Honour, that the erection of a 2 metre high earth mound or barrier fence for a length of some 600 metres along the western edge of the north-south ridge of the subject land would serve to diminish the impact of noise and dust travelling from the quarry in the direction of the proposed development.

The suggestion that a mound or other barrier be constructed was not incorporated in condition 30 and it does not form part of any other term of the approval or order made by the court. As such, it is at most an element in his Honour's reasoning, against which the appellant has no right of appeal and the Court has no power to give relief. The most that can be said is that the reasoning might be capable of being used to show that an irrelevant factor was taken into account in arriving at the decision to dismiss the appeal. In fact, however, it was plainly relevant to determination of the appeal for the judge to know that there was a relatively simple method of diminishing the impact of quarry noise and dust along the western boundary of the proposed allotments which would be closest to the quarry operations. The point of Mr Brown's suggestion is that, if some measure like that is adopted, the building restriction line can be located at a point closer to the western boundary than would otherwise be so. With such a mound or barrier, the specified permissible noise levels of 40 dBA will be attainable further west on the allotments, thus reducing the area over which the building restriction may need to extend. Without it, substantial portions of some of the most westerly allotments in the subdivision will be subject to the prohibition in the easement and so not available for construction of residential buildings.

The matter of the earth mound is not, as the appellant was inclined to suggest in argument, yet another factor tending to increase the lack of finality that is alleged to infect the development proposal. The location of the building restriction line will not be rendered any less ascertainable than if no mound or barrier is constructed at all. The precise designation on the ground of the limits of the easement envisaged by condition 30 may perhaps be postponed until the subdivisional earthworks and roads are also completed and the necessary measurements can be taken over the final product; but in that resect the subject development will not differ from others in which roads, drainage, and other works must be carried out and, if appropriate, instruments of easement executed in registrable form, before the Council becomes obliged to seal and deliver the final plan of subdivision for registration.

A further argument advanced in support of the first ground of appeal is that the effect of the Council decision was to approve a development that was in fact different from that for which approval was originally sought in the developer's application. The appropriate test was, in reliance on Mison v. Randwick Municipal Council (1991) 23 N.S.W.L.R. 734, 737, said to be whether the imposition of a condition had the effect of "significantly altering" the development in respect of which the original application had been made, in which event it was said that the purported consent to it would be no consent at all.

Power to decide an application to amend a town planning scheme by altering a zoning is vested in a local authority by s.4.4(5) of the Act of 1990. In the case of an application to subdivide land the relevant provision is s.5.1(16). In each instance, it is a power to approve or to refuse the application, or to approve it subject to conditions. Admittedly, there must be some limit on the power to approve subject to conditions, otherwise many of the detailed regulatory provisions of the Act and the protection they afford could be readily set at nought. In the case of the particular forms of application identified in s.4.15(1) of the Act, a specific power is conferred of approving an application to modify an existing application for approval. Stated in the most general terms, the power so conferred is limited to modifications that are "of a minor nature" : see ss.4.15(2)(a) and 4.15(3).

So far as relevant here, the scope of s.4.15(1) is limited to an application for staged rezoning pursuant to s.4.6 of the Act, or where a consent application has been made pursuant to s.4.12 of the Act. It is not apparent that the present combined application fulfils either description.

Outside the confines of s.4.15, planning courts in Queensland have previously not acted on a rule like that adopted in Mison of asking whether or not the imposition of a condition has the effect of "significantly altering" the development in respect of which an application was made. If that test were applied here, it might, depending on the meaning to be ascribed to "significantly", perhaps be difficult for the developer to escape its control. Instead, however, the criterion used in Queensland has so far been whether the alteration in the development comprised in the original application is of such substance, consequence or significance as to call for re-advertisement of the application. See J.R. Constructions Pty Ltd. v. Brisbane City Council (No. 2) (1975) 31 L.G.R.A. 261, 265 (Bythe D.C.J.); Matus v. Cairns City Council (1981) 3 Q.P.L.R. 106, 108 (Row D.C.J.); Harderan v. Logan City Council [1987] Q.P.L.R. 233, 238 (Skoien D.C.J.)

We were not on this appeal referred to these decisions or addressed on the justification, if any, for the apparently differing tests used by courts in Queensland and in New South Wales when resolving questions like this. In the end, we do not consider it necessary here to choose between them. The point under consideration was, so far as we can gather, never taken in the Court below. It is not adverted to in the notice of appeal to the Planning and Environment Court in P. & E. Appeal no. 238 of 1993. Not surprisingly in view of that, his Honour in his reasons for dismissing the appeal did not address it. Equally, it is not one taken in the notice of appeal to this Court; nor is it among the contentions contained in the appellant's written outline. It seems, in the end, to have been presented to us primarily as a further reason for saying that the approval given by the Council in this instance was not to be considered as final.

Although it appears to us to involve a distinct question, the circumstances in which it has been raised here mean that this appeal is not an appropriate occasion on which to reach a definitive conclusion on the matter. It is enough to say that, judged by the test that has so far been applied in the town planning jurisdiction of this State, neither the reduction in the number of subdivided allotments applied for, nor the infliction on some of them of the building restriction envisaged in condition 30, can be regarded as calling for re-advertisement of the application, or the lodging and advertisement of an amended version of it. The differences between the approval sought and granted cannot be viewed as operating to the disadvantage of the appellant objector; nor can it fairly be supposed that, had they been advertised, anyone else would have been prompted to come forward and object to the proposed development.

The second ground of appeal concerns the relationship between the proposed development and the Council's draft Strategic Plan, which had been formulated and publicly exhibited before the appeals were heard in the court below, following on the commissioning of a study known as the Rosewood-Walloon Planning Study. In arriving at the conclusion that the proposed rezoning was not incompatible with the inclusion of the subject land as part of the Urban Development Area designation on the draft Plan, his Honour in his reasons said:

"The proposed subdivision is not a major urban development having regard to the number of proposed lots to be created. The total area does not indicate a major urban development."

It is with this statement that the appellant takes particular issue, contending as it does that it discloses an error of law, which it is claimed led his Honour into error in the course of assessing the impact of the proposed development.

The particular objection urged against the passage quoted is that it adopts too narrow a view of what is contemplated as "major urban development" in the context in which that phrase is used in the draft Plan. Paragraph 2 of the portion of the Plan entitled "Implementation Criteria" provides that "major urban development will only take place in the priority Urban Development Areas nominated in the Strategic Plan after the specified development planning process ... for that area has been gazetted". The subject land is located in one of the priority areas. The Plan itself indicates that the specified development planning process comprises, or will comprise, a Planning Study, Development Control Plan, and Town Plan Amendment or Review.

As has been mentioned, the Planning Study has been carried out, but a Development Control Plan has not yet been adopted.

It was argued that where his Honour went wrong in law was in viewing the subject development as not constituting a "major urban development" simply because of the number of proposed lots to be created and the total area involved.

Pressed for his own definition of the critical phrase, Mr Gore Q.C. said it meant "an urban development which has major implications for the planning strategies set out in the Draft Plan". Asked what those implications were, his response was that the proposed development would "entrench" an aspect of the long term strategy which the strategy itself, as disclosed in the draft Plan, contemplated would not be the subject of any decision until after the development control plan had been adopted.

It is evident that to accept the approach contended for by Mr Gore would be to invest the draft Plan with an invariable or unalterable quality that it will not even enjoy if and when it has finally been processed and gazetted as a legally binding town plan or amendment of it. It would mean that the Council would in the meantime be bound to reject any application for development within the area of the draft Strategic Plan on the basis either that it was inconsistent with that draft, or (as in this case) consistent with it and hence would prematurely "entrench" that aspect of the Plan. In either event the Council would be forced to a position where, pending final adoption of the draft Plan as law, it would be bound to refuse all applications for development approval in respect of land within the area. For a local authority so to act would inevitably involve it, sooner or later, in an unlawful abnegation of its statutory powers, functions and discretion as the local planning authority for which it would be made accountable in the courts.

It would, in our opinion, be a serious mistake to foster such an attitude among local authorities. In any event, it is not correct to say that, in considering this aspect of the matter, the judge in the court below adverted only to the factors of area and number of allotments involved in the proposed development. On the contrary, he canvassed extensively in his reasons for judgment a variety of different considerations, including the predicted lifetime of the quarrying activities at that site; projected population growth in the area; the effect of recently completed rail facilities; the fact that the subject land was in an "End" zone, in which closer residential settlement was not likely to occur in the future; the impact of the rezoning on the Balance of Zones; the presence of existing rural residential development at a short distance from the subject land; the current demand for further residential "acreage" lots; and the general compatibility of the proposed rezoning of the land with the urban development area designation on the draft Plan. The rezoning, he concluded, was in general conformity with the proposed gradation of residential densities perceived by the Council as radiating from the centre core residential area based on the township of Walloon.

All of these are town planning considerations plainly relevant to the discretion that fell to be exercised in determining the appeal from the Council's decision to approve the developer's combined application. None can be identified as disclosing any such mistake or error on the part of the court in dismissing the appellant objector's appeal so as would serve to attract the limited power of intervention given to this Court in the case of appeals of this character.

In these circumstances the appeal must be dismissed.

We were asked to reserve the question whether the appellant should be responsible for the costs of both sets of respondents who appeared on the appeal, and to permit written submissions to be made on that matter. To enable that to be done, the costs will be reserved.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 59 of 1994

ON APPEAL FROM THE PLANNING
AND ENVIRONMENT COURT HELD

AT BRISBANE, QUEENSLAND	P & E Appeal No. 238 of 1993
Brisbane

[Mt. Marrow Blue Metal Quarries P/L. v. Council Shire of

Morton]

BETWEEN

MT MARROW BLUE METAL QUARRIES PTY LTD

(Appellant) Appellant

AND

COUNCIL OF THE SHIRE OF MORETON

(Respondent) First Respondent

AND

JEFFREY MERVYN BREWER

(Respondent by Election)

Second Respondent

McPherson J.A.
Pincus J.A.

Ambrose J.

Judgment delivered 21/12/94

Joint reasons for judgment of McPherson J.A and Ambrose J.
Separate concurring reasons of Pincus J.A.

APPEAL DISMISSED. COSTS ARE RESERVED UNTIL WRITTEN SUBMISSIONS ARE MADE AS TO WHETHER THE APPELLANT SHOULD BE RESPONSIBLE FOR THE COSTS OF BOTH RESPONDENTS TO THE APPEAL.

CATCHWORDS LOCAL GOVERNMENT - PLANNING & ENVIRONMENT - 58 "acreage" allotments rezoned Rural to Low Density Residential - Building restrictions in respect of some allotments - Appellants operate quarry 2 km from proposed subdivision - Fear future complaints about dust and noise - Whether condition imposing "building restriction line" wrong in law for want of finality - Presence of objective criteria - Whether possible construction of earth mound a relevant factor - Whether imposed conditions led Council to approve development different from original application -Section 4.15 Local Government (Planning & Environment) Act 1990 discussed - Whether development a "major urban development - Relevant considerations discussed.

Counsel:	D. Gore Q.C. for the Appellant
J. Gallagher Q.C., with him M. Hinson, for the First Respondent
R. Chesterman Q.C., with him J. Haydon, for the Second Respondent
Solicitors:	Clayton Utz for the Appellant
Minter Ellison Morris Fletcher for the First Respondent
F.K. Brown & Brown for the Second Respondent

Hearing Date: 12 August 1994