Nucrush Pty Ltd v Gold Coast City Council
[2024] QPEC 33
•9 August 2024
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Nucrush Pty Ltd v Gold Coast City Council & Ors [2024] QPEC 33
PARTIES:
NUCRUSH PTY LTD (ACN 010 119 981)
(Appellant)
v
GOLD COAST CITY COUNCIL
(Respondent)
AND
GWENDA FELMINGHAM
(First Co-Respondent by Election)
AND
ANTHONY MICHAEL POTTER
(Second Co-Respondent by Election)
AND
BARBARA MONTEATH
(Twelfth Co-Respondent by Election)
AND
JAQUIELINE BROADBRIDGE
(Twentieth Co-Respondent by Election)
AND
GLENDA BRAITHWAITE
(Twenty-First Co-Respondent by Election)
AND
HILARY J STUBBS
(Twenty-Fifth Co-Respondent by Election)
AND
CHIEF-EXCUTIVE, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING
(Twenty-Seventh Co-Respondent by Election)
FILE NO:
3086 of 2021
DIVISION:
Planning and Environment
PROCEEDING:
Application in pending proceeding
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
9 August 2024
DELIVERED AT:
Brisbane
HEARING DATES:
20 June 2024 and 5 August 2024
JUDGE:
Everson DCJ
ORDER:
Applications dismissed
CATCHWORDS:
PLANNING AND ENVIRONMENT - APPEAL – application in pending proceeding seeking particulars of Respondent’s reasons for refusal be struck out; application in pending proceeding seeking enlargement of issues in dispute
LEGISLATION:
Planning Act 2016 (Qld)
Planning and Environment Court Act 2016 (Qld)
Planning Regulation 2017 (Qld)
CASES:
Perivall v Rockhampton Regional Council [2019] QPELR 96
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686
Knight v FP Special Assets Ltd (1992) 174 CLR 178
The Village Retirement Group Pty Ltd v Brisbane City Council [2019] QPELR 980
COUNSEL: B D Job KC and M J Batty for the Appellant
R S Litster KC, K W Wylie and L I Walker for the RespondentK Buckley for the twenty-seventh Co-Respondent by election
SOLICITORS: Connor O’Meara for the Appellant
McCullough Robertson for the RespondentHopgoodGanim for the twenty-seventh Co-Respondent by election
Introduction
This is an appeal against the decision of the Respondent, the assessment manager, to refuse a development application for a quarry at Oxenford (“the proposed development”).
The Chief Executive of the Department of State Development, Infrastructure, Local Government, and Planning was a referral agency for the development application. On 11 June 2021 the Chief Executive gave a referral agency response relating to matters within its jurisdiction, including State-controlled roads. The referral agency response included conditions which were to be imposed on any development approval for the proposed development.
Numerous submissions were received in relation to the development application and approximately 200 of them raised concerns about traffic impacts, including traffic safety. A number of submitters elected to become Co-Respondents in the appeal and those that remain all wish to raise concerns about the impacts of an increase in heavy vehicle traffic associated with the proposed development.
On 5 August 2022 her Honour Judge Kefford made an order identifying the issues in dispute in the appeal. They were identified as including the Respondent’s Reasons for Refusal dated 28 March 2022 and the Respondent’s Response to the Appellant’s Request for Further and Better Particulars dated 21 July 2022. In the former document, paragraph 6 stated:
It has not been demonstrated that the operation of heavy haulage vehicles will not unacceptably impact on adjoining sensitive uses and road users and it has not been demonstrated that the proposed development complies with: (various assessment benchmarks).
Relevantly, in the Respondent’s Response to the Appellant’s Request for Further and Better Particulars, paragraph 17 stated:
In response to paragraph 17 of the Appellant’s Request, the Respondent provides the following particulars:
(a)the nature of the potentially unacceptable impacts on adjoining sensitive uses and road users that may arise from the operation of heavy haulage vehicles, which have not been demonstrated to be appropriate, comprise:
…
(iii)adverse operational and safety impacts on the site access intersection to Maudsland Road and surrounding transport networks; and
(iv)adverse traffic and pavement impacts associated with heavy vehicles generated by the development, including B-Double design vehicles, particularly having regard to the failure to undertake any assessment of traffic movements to/from Maudsland Road to the south-west of the site, and impacts on critical intersections that would be utilised by heavy vehicles associated with the proposed development.
Subsequently, by a letter dated 4 August 2022, the Respondent’s solicitors further particularised the contents of sub-paragraph (a)(iv) as above. This is also attached to the order referred to above.
It is uncontentious that the site access intersection to Maudsland Road and the relevant surrounding transport networks have subsequently been identified by the Respondent as being State-controlled roads. They are therefore within the jurisdiction of the Chief Executive which is the Twenty-Seventh Co-Respondent by Election in the appeal.
In its application in pending proceeding filed 5 April 2024, the Appellant seeks to strike out the “disputed particulars” identified above on two bases. Firstly, that they fall outside the jurisdiction of the Court in this appeal as they relate to State-controlled roads and therefore the referral agency jurisdiction of the Chief Executive. Secondly, because there is no relevant nexus between the disputed particulars and the relevant reasons for refusal quoted above.
In its application in pending proceeding the Respondent seeks an order that the issues in dispute in the appeal be enlarged to include the disputed particulars as “relevant matters” pursuant to s 45(5)(b) of the Planning Act 2016 (Qld) (“PA”) or “further, or in the alternative” an order to this effect in the event the Appellant is unsuccessful in demonstrating a lack of the nexus referred to above.
The jurisdictional issue
Pursuant to the Planning and Environment Court Act2016 (Qld) (“PECA”) an appeal to this Court is by way of hearing anew.[1]
[1]Planning and Environment Court Act 2016 (Qld) s 43.
Where the proposed development is impact assessable, as is the case here, that assessment must be carried out against the relevant assessment benchmarks in the Respondent’s planning scheme and having regard to matters prescribed by regulation. It may also be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[2] These provisions apply for the Court’s decision on the appeal as if the court were the assessment manager.[3]
[2]Planning Act 2016 (Qld) s 45(5).
[3]Planning and Environment Court Act 2016 (Qld) s 46(2).
In Chapter 3, Part 3, Division 1 of the PA the role of a referral agency in assessing and deciding development applications is set out. A referral agency for a development application is the person prescribed by regulation as such.[4] A referral agency’s assessment is similarly prescribed by regulation pursuant to s 55 of the PA. After assessing the development application, the referral agency must decide to tell the assessment manager that it has no requirements, or to approve the proposed development in certain terms including subject to stated development conditions, or direct the assessment manager to refuse it.[5] The assessment manager must comply with the referral agency’s response.[6]
[4]Planning Regulation 2017 (Qld) s 54(2).
[5]Planning Act 2016 (Qld) s 56(1).
[6]Ibid s 62.
In the PA matters that may be appealed to the Court and the parties to the various appeals are listed in s 229 and Schedule 1. Relevantly, Table 1 in the Schedule states that for a development application, an appeal may be made against “the refusal of all or part of the development application”. There is no express right of appeal in respect of the referral agency response in the context of the refusal of all or part of the development application. Eligible submitters and advice agencies do have such a right of appeal in this regard in the event of a development approval pursuant to Table 2, but no specifically stated right of appeal is conferred on anyone in respect of the contents of a referral agency response where a development application is refused by the assessment manager.[7]
[7]Pursuant to Schedule 2 an advice agency is defined as a referral agency that only has power to give advice and a concurrence agency is defined as a referral agency that is not an advice agency.
The Appellant argues that the decision of the assessment manager which is the subject of the appeal is separate and distinct to that of the decision giving rise to the referral agency response and that the PA does not provide a right of appeal against such a decision. It is therefore outside the jurisdiction of the Court in the appeal. The Appellant urges the Court to adopt a particularly literal and prescriptive interpretation of the jurisdiction conferred upon the Court in s 229 and Table 1 of the PA.
The Appellant also alleges that the referral agency’s response is a anterior decision from which there is no right of appeal, applying Perivall Pty Ltd v Rockhampton Regional Council.[8] This misapprehends the nature of the anterior decision which was under consideration in that case as opposed to the scenario before me. As the response of the Chief Executive only required certain conditions to be attached to a development approval and the assessment manager refused the development application, the referral agency response was of no effect. It could only be given effect by a decision of the assessment manager to approve the proposed development. Perivall is therefore not relevant to the determination of the question before me.
[8][2019] QPELR 96 at 110 [57].
In addressing applicable principles of statutory construction in a planning context in Zappala Family Co Pty Ltd v Brisbane City Council,[9] Morrison JA cited a number of authorities which emphasised the need to construe the relevant statutory provision consistently with the purpose of all the provisions of the statute, not in isolation and to give effect to harmonious goals. To these principles I add the observations of Gaudron J in Knight v FPSpecial Assets Ltd[10] that:
It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant.
[9][2014] QPELR 686 at 698-699.
[10](1992) 174 CLR 178 at 205.
The PA, PECA and the Planning Regulation2017 (“PR”) all work together in conferring the jurisdiction of the Court. The purpose of the PA is widely drawn and the stated purpose of the Act includes “providing opportunities for the community to be involved in making decisions”.[11] Consistently, s 31 of the PR lists a wide variety of matters to which regard must be had in carrying out impact assessment. These include the common material.[12] This term is in turn defined extremely broadly in Schedule 24 and includes any properly made submissions about the development application. As noted above in carrying out an impact assessment, the assessment manager has a broad discretion pursuant to s 45 of the PA. When, pursuant to s 46 of the PECA, the Court exercises jurisdiction pursuant to s 45 of the PA, s 46(5) states:
The P&E Court is not prevented from considering and making a decision about a ground of appeal (based on a referral agency response under the Planning Act) merely because that Act required the assessment manager to refuse the development application or approve it subject to conditions.
Further, the unconstrained nature of a right of appeal to the Court, being a hearing anew, was comprehensively explained by Judge Williamson KC in The Village Retirement Group Pty Ltd v Brisbane City Council.[13]
[11]Planning Act 2016 (Qld) s 5(2)(b).
[12]Planning Regulation 2017 (Qld) s 31(1)(g).
[13][2019] QPELR 980 at 986-987.
It is therefore clear, when construing relevant legislative provisions together and to give effect to harmonious goals, that it is not intended that legitimate concerns from a traffic safety perspective are to be excluded from consideration in the appeal, merely because they came within the jurisdiction of the referral agency, in the context of the Respondent’s decision to refuse the development application. That the Court in hearing and determining the appeal is not in any way constrained by the jurisdiction conferred on the referral agency is made clear by s 46(5) of the PECA and by the fact that Table 1 specifies the Chief Executive is to be a party to the appeal. If the legislature had sought to exclude matters the subject of the referral agency response, clear words of limitation would be necessary in s 229 or Schedule 1. No such words appear. Such a construction is also at odds with the wide ranging nature of an appeal to the Court. Accordingly, the subject matter of the referral agency response is justiciable in the appeal.
The nexus issue
The second basis upon which the Appellant seeks to strike out the disputed particulars is that there is no relevant nexus between them and the reasons for refusal which they are said to particularise. Mr Litster KC who appears on behalf of the Respondent emphasised the disjunctive nature of paragraph 6 of the Respondent’s Reasons for Refusal, stressing that the issue contains three distinct propositions. Firstly, that it has not been demonstrated that the operation of heavy haulage vehicles will not unacceptably impact on adjoining sensitive uses. Secondly, that it has not been demonstrated that the operation of heavy haulage vehicles will not unacceptably impact on road users. Thirdly, that it has not been demonstrated that the proposed development complies with certain identified assessment benchmarks in the Respondent’s planning scheme. He emphasises that it is the second proposition which is relevant to the application of the Appellant. It is then submitted that paragraph 17 of the Respondent’s Response to the Appellant’s Request for Further and Better Particulars appropriately particularises this issue in subparagraphs (a)(iii) and (iv). I note that the latter subparagraph is further particularised in the subsequent correspondence dated 4 August 2022.
When analysed in this disjunctive way I am satisfied that there is in fact a nexus between the relevant part of the disputed issue and the disputed particulars.
I therefore dismiss the Appellant’s application in pending proceeding.
The utility of the Respondent’s application
Turning to the Respondent’s application in pending proceeding, it merely seeks to enlarge the issues to include the disputed particulars in the event the Appellant’s application is successful or further, or in the alternative, in any event.
The failure of the Appellant to have the disputed particulars struck out means that, effectively the Respondent seeks to have the identical particularised issue in dispute added as an additional issue in the appeal. There is no utility in such an outcome. The interlocutory processes of the Court are usually used to limit the issues in dispute, not expand them. Duplication of issues in dispute is manifestly pointless and liable to frustrate the process of hearing and determining the real issues in dispute. I therefore dismiss the Respondent’s application in pending proceeding as well.
Finally, I note that the material before me discloses that the assessment benchmarks nominated in respect of the relevant issue in dispute all relate to amenity. While amenity is indeed a broad concept, I note that it is asserted that the Respondent does not seek to rely upon assessment benchmarks that make specific mention of matters such as “the function, capacity, safety and operation of the road network”, in advancing its arguments about “adverse operational and safety impacts on the site access intersection…and surrounding transport networks”.[14] Moreover, the submitter Co‑Respondents by Election have not sought to do so either. The asserted consequence is that as the identified disputed issues currently sit, none of these more appropriate assessment benchmarks can be agitated at the hearing of the appeal. None of the relevant experts are permitted to refer to them. I raised this issue directly with Mr Litster and he conceded that this was the case and that it was very unlikely that an application would be made to expand the issues in dispute to permit this to happen.[15] Given the responsibilities of the Respondent in the appeal, this appears an unsatisfactory position to take.
[14] Affidavit of Michael John Connor filed 26 April 2024, para 14.
[15] T2 1–37; 1–39.
Conclusion
The application in pending proceeding brought by the Appellant is dismissed. The application in pending proceeding brought by the Respondent is dismissed.
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