Neilsens Quality Gravels P/L v Brisbane City Council

[2011] QPEC 101

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Neilsens Quality Gravels P/L v Brisbane City Council & Ors [2011] QPEC 101

PARTIES:

NEILSENS QUALITY GRAVELS PTY LTD
ACN 010 620 916
(Appellant)

V

BRISBANE CITY COUNCIL
(Respondent)

And

RICHARD TOWNLEY-O’NEILL
(First Co-Respondent by Election)

….

And

QLD ELECTRICITY TRANSMISSION CORP LTD
(Fifteenth Co-Respondent by Election)

…

And

CHIEF EXECUTIVE, DEPT OF TRANSPORT & MAIN ROADS
(Twenty-Third Co-Respondent by Election)

And

CHIEF EXECUTIVE, DEPT OF ENVIROMENT AND RESOURCE MANAGEMENT
(Twenty-Fourth Co-Respondent by Election)

And

FAY VOGELZANG
(Twenty-Fifth Co-Respondent by Election)

FILE NO/S:

3764/10

DIVISION:

Appellate

PROCEEDING:

Appeal against refusal of development application

ORIGINATING COURT:

Planning & Environment Court

DELIVERED ON:

3 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2011

JUDGE:

Robin QC DCJ

ORDER:

(made 25 July 2011) – Appellant relieved from consequences of non-compliance with s 3.2.1(5) of Integrated Planning Act 1997

CATCHWORDS:

Sustainable Planning Act 2009 s 820 – Integrated Planning Act 1997 s 3.2.1(5) – developer appeal against Council’s refusal of development application for extractive industry – application unsupported by evidence regarding allocation of or entitlement to any “State resource” – this omission consistent with advice from the relevant State department that no such evidence was necessary, that no State resource was involved – contrary view now taken of the implications of the low level bridge across the South Pine River always proposed – factors relevant to court’s discretion to grant relief from consequences of non-compliance considered – Council as assessment manager and all other parties (including concurrence agencies) supported granting of relief.

COUNSEL:

Gallagher QC and MF Johnston for the Appellant

Ms Mitchell for the Respondent

Ms Radicke for the Twenty-Third Co-Respondent by Election

Mr Pepper for the Twenty-Fourth Co-Respondent by Election

Mr O’Neill (first Co-Respondent by Election) for himself and other Co-Respondents by election

SOLICITORS:

Appellant:  Minter Ellison

Respondent:  Brisbane City Legal Practice

Fifteenth Co-Respondent by Election: Norton Rose Australia

Twenty-Third Co-Respondent by Election: Legal and Prosecution Services Branch, Department of Transport and Main Roads

Twenty-Fourth Co-Respondent by Election: Department of Environment and Resource Management

1. At a hearing on 25 July 2011 the court made an Order pursuant to s 820 of the Sustainable Planning Act 2009 (SPA) excusing non-compliance by the Appellant with s 3.2.1(5) of the Integrated Planning Act 1997 (IPA).  These are the court’s reasons for a decision which calls for explanation. 

1. The appeal is one by a developer against the Council’s refusal of a development application seeking approval of sand and gravel extraction operations on land in Brendale in Brisbane (Lot 11 on SP 122601) with extracted materials (also wastewater) to be taken by river crossing over the South Pine River to Lot 108 on SP 122599.  There is a long established screening plant on Lot 108 whose useful life will be extended if additional product can be processed there.  Lot 108 is in a different local government area; however, it has been determined that assessment should be by the Respondent, Brisbane City Council.  The Respondent refused the development application, occasioning this appeal.  The development permits sought in the application included ones for:

“(a)Operational work in a Coastal Management District for drainage over State Coastal Land;

(b)Operational work for the construction of waterway barrier works (i.e., the river crossing);

(c)Operational work for works in a watercourse that interferes with water (associated with the construction of the river crossing).”[1]

The proposed river crossing and drainage works give rise to what is called the State resource issue.  Water requiring removal from the proposed new quarry on Lot 11 is to be transported by piping attached to the proposed low level bridge (carrying transport vehicles for the extracted material) for treatment in existing facilities on Lot 108. 

[1] See the Appellant’s written submissions.

1. The development application was made on 9 September 2009 under IPA.  To be a “properly made application” under s 3.2.1(7),  the application had to comply with subsection (5) at least in respect of the river crossing (there being presently no issue

as to whether the proposal otherwise involves taking or interfering with a State resource); this, the Appellant now understands, required provision with the development application of evidence that the Chief Executive of the Department of Environment and Resource Management (DERM - the twenty-fourth co-respondent by election) was satisfied that the development in relevant respects “is consistent with an allocation of, or an entitlement to” the relevant State resource (sub section (5)(b)) or of a satisfaction that the development might “proceed in the absence of” such an allocation or entitlement (sub section (5)(c)). If explanation is needed, that is found in either Item 6 (interference with unallocated State land) or Item 15 (interference with water) in Schedule 10 of the Integrated Planning Regulation 1998, being the regulation prescribing State resources for purposes of s 3.2.1(5).

1. Barro Group Pty Ltd v Redland Shire Council [2010] 2 Qld Reports 206 establishes that this court had, under s 4.1.5A of the IPA, no power to excuse non compliance with s 3.2.1(5) so as to permit a defective development application to proceed to assessment. The excusatory power of the court is now found in s 440 of the SPA and for what can conveniently be called transitional circumstances where the development application was made under IPA under s 820, which the explanatory notes describe as intended to give this court the same broad excusatory power in relation to transitional issues as s 440, the explanatory notes for which section emphasise that it is available more widely than its predecessor:

·     The troublesome original reference to a “requirement” not complied with is replaced by a more general reference to a “provision”;

·     The old reference to “the opportunity for a person to exercise…rights” (which must not be substantially restricted) is gone;

·     The provision is now available even where a development application was not a properly made one (or had lapsed);

·     Relief is now available in proceedings commenced to seek it or in the context of other proceedings.

1. The width of s 820 has been acknowledged in decisions of the court such as Gascoyne v Whitsunday Regional Council [2010] QPEC 150; Tremellen & Tremellen v Southern Downs Regional Council [2010] QPEC 94; [2011] QPELR 56; Vidler v Fraser Coast Regional Council [2011] QPEC 19. In Northeast Business Park Pty Ltd v Moreton Bay Regional Council [2010] QPEC 112; [2011] QPELR 126, relevant parties agreed that s 820 was available in circumstances indistinguishable from the present ones (except that, there, dozens of State resources were potentially involved and identification of them was extraordinarily complex). The developer there was permitted to proceed on the basis of providing evidence as to allocation of or entitlement to relevant State resources at a later time than the IPA required.

1. There was occasion to review most of the other decisions referred to above in Vidler, also the decision (unfortunately not readily available) in Herberton Land Corporation Pty Ltd v Tablelands Regional Council (Appeal 3100 of 2009, 20 July 2010 (judgment delivered in Townsville then)), the reasons in which were reproduced at some length in para [26].  The case is interesting in that it was a proposal involving the construction of a new road crossing over Wondecla Creek that generated the State resource issue.  It did so in a way that did not trouble the court, because no approval was sought at that stage for the bridge, although it was clear enough that such an approval would be sought in due course.  His Honour thought (para [26] of his reasons) it would “need some stretching of the definition if it was to include a development for which approval was not being sought.  I think the ‘development’ the subject of the application did not ‘involve’ a State resource.  I decline to find that the application was not ‘properly made’ on the basis the proposal at some stage may involve a State resource.”  Northeast Business Park was argued and decided in ignorance of that decision, a contrary conclusion (adhered to in Vidler) being reached where the approval sought was not a development permit authorising actual development, but a preliminary approval. 

1. In Vidler, I noted the comment made in Gascoyne at [58]:

“In exercising a discretion under s 820 of SPA the court must act judicially. I bear in mind the scheme of IPA is not to allow applications to progress where there is no owner’s consent. It would therefore take a special set of circumstances to warrant the exercise of the discretion to excuse such non-compliance”.

In my view, there is a relevant analogy between the consent of a private owner and the provision of evidence from the appropriate quarter to indicate that a development application crucially dependant on allocation of or entitlement to a State resource is not at risk of being defeated by unavailability of the resource. 

1. It would not be possible to list exhaustively the factors bearing on exercise of a discretion found to exist under s 820. A telling one will always be the attitude of the State entity where that is known. In Mahaside Pty Ltd v Sunshine Coast Regional Council [2010] QPEC 70 (one of the decisions emphasising the width of s 820) where the concern was a proposed new access road, the court was told (see [37]) that the required evidence under IPA and the Regulation would not be provided if asked for now and that DERM would not have been prepared to provide it when the development application was made on 11 October 2004 (para [38]). As Judge Robertson said in the next paragraph, the reality was that Mahaside was never going to be able to comply with s 3.2.1(5). In Vidler (see [38]), the telling factor against exercising the discretion favourably over and above what was described as “DERM’s inscrutability” (which may have held out more hope than the developer in Mahaside could point to) was the court’s view “that the Council and now the court should not be required to further process the development application, as we have any idea whether the State resource issue would defeat it and make [assessment] a costly, pointless exercise.  There is not the glimmer of hope there was in Northeast Business Park.”

1. Here, while one could not go so far as to say that DERM’s attitude was supportive of the development application (which, as a concurrence agency, it could have directed the Council to refuse, rather than, as it did, indicate conditions to be attached to any approval emanating from the Council as assessment manager should the development application succeed), Mr Pepper, representing it, supported relief being granted as sought under s 820, as did the other State entity electing to be a co-respondent, the Department of Transport and Main Roads.

1. DERM’s support is understandable enough.  Mr Window’s affidavit filed 23 June 2011 exhibits a copy of a communication from DERM’s Natural Resource Officer, Water Services, of 24 August 2009 sent to the Appellant’s consultants in connection with exploration of the need for a resource entitlement or “resource consent” in respect of the proposed river crossing.  The officer’s response, forthcoming before the development application was made and doubtless taken into account in preparing it, concluded that there was no resource entitlement required from DERM in respect of the possibilities considered, identifying only issues pertinent to an environmental authority or development permit for carrying out of an environmentally relevant activity as then pertinent.  DERM’s recent formal advice contained in a letter of 23 May 2011 is that it “will not object in the event you make an application to court seeking to be excused from the requirement to provide evidence that the Chief Executive is satisfied –

(a)        The development is consistent for an allocation of, or an entitlement to, the resource; or

(b)        The development application may proceed in the absence of an allocation of, or an entitlement to, the resource.”

1. Here, in a marked contrast to the situation in Vidler, the Council supports the application for relief under s 820. It does not seek to be spared the task of assessing a development application, on the basis that the exercise could be rendered pointless by State resource difficulties. Indeed, the Council already has done their assessment manager’s job, having considered the merits of the application on the basis that no State resource issue existed. Of the submitters, the first co-respondent by election, Mr O’Neill, appeared, representing also the second, fourth, eighth, ninth, tenth, nineteenth and twentieth co-respondents by election. Also present or represented by a spouse were the third, sixth, seventh, eleventh, twelfth and thirteenth co-respondents by election. None wished to say anything in response to the Appellant’s application considered on 25 July 2011.

1. The court accepts the Appellant’s identification of five factors supporting the making of the order sought.  The first is DERM’s support and their confirmation that they assert no harm from any loss of opportunity to “veto the development”: see Stockland Property Management Pty Ltd v Cairns City Council [2009] 171 LGERA 1, para 41. Secondly, the Appellant is shown to have taken reasonable steps to identify what was needed by way of evidence as to any State resource entitlement, innocent misunderstandings all round resulting in failure to apprehend that something might have been required. There was certainly no deliberate attempt to exclude any entity entitled to exercise a voice. Thirdly, “no rights or entitlements of members of the public have been limited or adversely affected by a reason of any non-compliance with s 3.2.1(5) of IPA.”

1. There was a 30 business day public notification period, rather than the standard one, of 15 business days. Many submissions were attracted bearing on the merits of the development application. The application documents available for public inspection clearly identified what was proposed, in particular in relation to the river crossing. In my opinion, no ordinary person would have misunderstood what was proposed. There are no hidden considerations or implications whose importance might not have been appreciated. While s 820 may dispense with the earlier acknowledgment the legislation gave to opportunities the public might have had to exercise entitlements in relation to development applications, my view is that that consideration may still bear on the way in which such discretion as the court has ought to be exercised. I think that the approach taken in pre section 820 days, under which a developer may suffer embarrassment in a context like the present if the exclusion of one or more public entities results in a diminution of the information available to members of the public who may consider making submissions, is still relevant. See Jahnke v Cassowary Coast Regional Council(No 1) [2009] QPEC 036; [2009] QPELR 645 and (No 2) [2009] QPEC 39; [2009] QPELR 674. It is fanciful to think that there might be members of the public who would make a submission against a development proposal solely on the ground of a State resource being involved and a lack of evidence as required by the relevant section. As the Appellant’s outline observes, there is no statutory requirement to advertise an intention for a proposal to involve a State resource.

1. Fourthly (among the five factors), the Appellant says, the issues of present relevance are procedural only and a successful outcome for the developer does not stand in the way of a full examination of the merits of its proposal generally, and in relation to the river crossing and drainage in particular, when the appeal proper comes before the court for hearing.  Fifthly, a favourable exercise of the discretion avoids the significant waste of “public and private” resources that would follow from the Appellant having to go back to the application stage.  The situation is obvious enough in respect of private resources.  So far as public resources are concerned, the Council would have to assess the development application for a second time, and it may be on the basis of additional or different submissions raising new or different issues.  If forced to begin again, the Appellant may elect to change the proposal, perhaps significantly.  No one has suggested there is anything to be gained from that.