Queensland Construction Materials Pty Ltd v Redland City Council
[2009] QPEC 85
•29 September 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Queensland Construction Materials Pty Ltd v Redland City Council & Ors [2009] QPEC 085
PARTIES:
Queensland Construction Materials Pty Ltd
(ACN 002 202 548)Appellant
V
Redland City Council Respondent
and Don Baxter, Birkdale Progress Association First Co-Respondent
and Friends of Stradbroke Island Inc. Second Co-Respondent
and Stradbroke Island Management Organisation Inc. Third Co-Respondent
and Lucy Trippett Fourth Co-Respondent
and Elisabeth Gondwe Fifth Co-Respondent
and Wildlife Preservation Society of Queensland Bayside Branch (Qld) Inc. Sixth Co-Respondent
and Creina Moore Seventh Co-Respondent
and Josephine Wells Eighth Co-Respondent
and Geoffrey Moore Ninth Co-Respondent
and Kerrie Tapp Tenth Co-Respondent
and Dale Ruska Eleventh Co-Respondent
and Chief Executive, Environmental Protection Agency Twelfth Co-Respondent
and Chief Executive, Department of Main Roads
Thirteenth Co-Respondent
FILE NO/S:
BD 2627 of 2008
DIVISION:
Planning and Environment
PROCEEDING:
Application for determination of preliminary points of law
ORIGINATING COURT:
Planning and Environment Court of Queensland, at Brisbane
DELIVERED ON:
29 September 2009
DELIVERED AT:
Brisbane
HEARING DATE:
6 and 7 April 2009; further written submissions received from all parties up to and including 10 June 2009
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Declare that:
1 The question contained in the first preliminary point, concerning native title, is answered in terms that it was not necessary for the development application to contain or be supported by the written consents of native title holders or the registered native title claimants; and neither was it necessary for notice to be given to them;
2 The development application was not piecemeal; and
3 The development application satisfied and was sufficient for the requirements of s 3.2.1(3) and (5) of the Integrated Planning Act 1997.
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT REFUSAL – GROUNDS – NATIVE TITLE – where application for determination of preliminary point – where development permit sought to remove and transport sand tailings from a sand mine – where lands adjoining the mine and transport route are the subject of native title claims – whether the native title claimants are owners who need to give written consent to the development application under the Integrated Planning Act 1997 (Qld) – whether the Integrated Planning Act 1997 (Qld) offends the provisions of the Racial Discrimination Act 1975 (Cth) by virtue of its definition of ‘owner’
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – FORM AND CONTENTS OF APPLICATIONS – ‘PIECEMEAL’ APPLICATION FOR DEVELOPMENT – where application for determination of preliminary point – where co-respondents to the appeal contend the development application is piecemeal because it excluded the activity of creating sand stockpiles – where sand will be sourced from stockpiles currently under construction and deposited to a separate stockpile - where mining lease conditions require deposit of sand tailings in land area – whether current mining lease and environmental authority authorise sand stockpiling – whether creating sand stockpiles is an exempt development under the Integrated Planning Act 1997 (Qld)
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING LAW – CONSTRUCTION OF INTEGRATED PLANNING ACT 1997 – PROPER MEANING OF s 3.2.1(5) – where application for determination of preliminary point – where ‘State resources’ referred to in s 3.2.1(5) are prescribed by Schedule 10 of the Integrated Planning Act 1997 (Qld) – where the development is a material change of use of premises for extractive industry – whether s 3.2.1(5) requires that the applicant to a development application provide evidence of an allocation of or entitlement to a State resource
Environmental Protection Act 1994 (Qld)
Forestry Act 1959 (Qld) s 46, s 57(1), s 57(2)
Integrated Planning Act 1997 (Qld) s 1.3.8(b), s 3.2.1(3), s 3.2.1(5), s 3.2.1(7)(c), s3.2.1(8), s 3.2.1(9), s 3.2.1(10), s 3.4.4(1), s 3.4.4(5), Schedule 9. Schedule 10
Integrated Planning Regulation 1998(Qld) s 12(2), s 12(3), s 12(4)
Land Act 1994 (Qld) s 199A(1), s 199A(3), s 154
Mineral Resources Act 1989
Native Title Act 1993 (Cth) s 8, s 11(1), s 24AA(2), s 24AA(6), s 24OA, s24JA(1), s 24JB(1), s 24MD(6A), s 223(1), s226(2)(b), s 227, s 228, s 233, s 238
Racial Discrimination Act 1975 (Cth) s10(1)Cases Cited:
Brisbane City Council v Cunningham (2001) 115 LGERA 326
Bon Accord Pty Ltd v Brisbane City Council (2008) 163 LGERA 288
Commonwealth v Yarmirr (2001) 208 CLR 1
Fejo v Northern Territory (1998) 195 CLR 96
Lardil Peoples v Queensland (2001) 108 FCR 453
Mabo v Queensland (No 2) (1992) 175 CLR 1
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485
Queensland v Central Queensland Land Council Aboriginal Corporation (2002) 195 ALR 106
Stockland Developments Pty Ltd v Thuringowa City Council (2007) 157 LGERA 49
Western Australia v Ward (2002) 213 CLR 1
Wik Peoples v Queensland (1996) 187 CLR 1
Yanner v Eaton (1999) 201 CLR 351COUNSEL:
M Hinson SC for appellant
S Ure for respondent
T W Quinn and G Fynes-Clinton for first to eleventh co-respondentsSOLICITORS:
Robert Milne Legal for appellant
King and Company for respondent
Carew Lawyers for first to eleventh co-respondents
Queensland Construction Materials Pty Ltd (QCM) sought a development permit from Redland City Council to enable it to remove and transport sand tailings, produced from sand mining operations, near Dunwich on Stradbroke Island. Council refused the application in August 2008, and QCM appealed.
Preliminary points were identified, and directed to be adjudicated before the appeal itself is heard[1]. The first concerns possible interests in the land to which QCM’s application relates by persons with rights or claims under the Commonwealth Native Title Act 1993 (NTA). The second, whether QCM was obliged to seek approval to stockpile sand on the land; and the third, whether there are procedural defects in QCM’s application involving non-compliance with sections 3.2.1(3) and (5) of the Integrated Planning Act 1997 (IPA).
[1]Orders of Brabazon QC, DCJ of 5 December 2008, Searles DCJ of 19 January 2009, Wilson SC, DCJ of 29 January 2009 and Robin QC, DCJ of 4 March 2009.
They are conveniently described as the Native Title points, the Piecemeal point, and the section 3.2.1 points. It is said that if any of them are decided against QCM its appeal to this court would be futile. The twelfth and thirteenth co-respondents were excused from participating in the hearing and determination of the preliminary points[2]. The first to eleventh co-respondents will be called ‘the co-respondents’.
[2] Order 29 January 2009, paragraph 4.
The land which is the subject of the application is contained in a number of separate lots[3] but the development application related in particular to two mining leases over unallocated State land (Lot 2 on USL 20675). The first is Mining Lease 1117, originally granted on 1 November 1973 for 13 years and renewed in 1988 for a term of 21 years from 1 November 1986. The second was Mining Lease 1121, also originally granted in 1973 and, later, renewed on 1 November 1987 for 21 years. Both are currently the subject of further applications for renewal.
[3]Identified in the affidavits of Paul Smith sworn 4 December 2008 and the affidavit of Anne Linley-Meijer.
The application sought a Development Permit for a Material Change of Use for Extractive Industry (removal and transportation of sand tailings from sand mining operations). The sand, which is entirely located within the boundaries of the two mining leases, was the property of the State and was sold to QCM by an agreement dated 31 October 2007.
The Native Title points
There is evidence that almost all of the lands adjoining QCM’s mine site and the transport route associated with the development application are the subject of native title claims. The preliminary question concerning native title addresses one of Council’s notified grounds for refusing the development application: ground 15 says: ‘there are concerns that a native title claim may overlap with the mining area. (The applicant) has not satisfied Council that the application does not lawfully interfere with native title rights and interests …’
IPA section 3.2.1(3) required that QCM’s development application contain or be supported by the written consent of the owner of the land. Schedule 10 of IPA says the ‘… owner, of land, means the person for the time being entitled to receive the rent for the land or would be entitled to receive the rent for it if it were let to a tenant at a rent’. Because the development application was what IPA calls impact assessable, section 3.4.4(1)(a) also required that notice be given to the owners of all land adjoining the land the subject of the application. Section 3.4.4(5) defines owner, for that purpose, in the same terms as the Schedule 10 definition.
Council and the co-respondents assert that the consent of the native title claimants was necessary pursuant to section 3.2.1, and that they should also have been notified pursuant to section 3.4.4(1)(c). The submissions rest on the proposition that, by virtue of certain provisions of the NTA, the persons about whom the assumption is made qualify as persons with rights like those of owners under IPA.
It is said, in the written reply submissions for the co-respondents,[4] that on the assumptions made for the purposes of this preliminary point, ‘… what is proposed to be done pursuant to the development permit will … be invalid against the native title holders and therefore something which would constitute a legal wrong done to those persons[5]’. Elsewhere, it is said that acceptance of QCM’s submissions would leave holders or claimants adversely affected, but with recourse only to general law remedies, ‘… in circumstances where the carrying out of activities pursuant to the development permit will constitute a legal wrong done to those parties, without their consent’[6].
[4]Submissions received 10 June 2009.
[5]Ibid, para 27.
[6]Ibid, para 35.
It is also said by the co-respondents that if the effect of IPA’s provisions about ownership (and the rights it attracts under IPA) is to deny the rights of an ‘owner’ to native title holders, the act is racially discriminatory and offends the provisions of the Commonwealth Racial Discrimination Act 1975. That is a question which must be separately considered, under this heading.
It is, of course, presently unknown what rights or interests might ultimately attach to the native title claim, or whether they will be defined in terms referable to the usual incidents of ownership of land – importantly, in the context of IPA, rights to receive rent. That uncertainty is at the core of QCM’s submission. The co-respondents’ contention is that on any view the native title holders must be assumed to have the necessary rights under IPA and QCM’s entire appeal should, then, be dismissed for procedural failure[7].
[7]Co-respondents’ submissions dated 21 April 2009, court file doc 65, paragraph 45.
Because of the way the arguments about this preliminary point unfolded it is appropriate to recite the terms in which it was expressed in the order of this court of 29 January 2009[8]:
Whether, assuming persons were and are native title holders or registered native title claimants in relation to the land the subject of the development application referred to in paragraph 2 of the within notice of appeal, and/or land adjoining that land, it was necessary for the development application to contain or be supported by the written consent of the native title holders or the registered native title claimants with respect to the subject land and for notice to be given to the native title holders or registered native title claimants with respect to the adjoining land.
[8]Order Wilson SC, DCJ, paragraph 3.
The co-respondents assert that the ‘… native title referred to… is title comprising native title rights which are relevant in the appeal because, whatever their precise content, the activities proposed pursuant to the development permit would be inconsistent with those rights to some material extent’[9]; and, that unless the point is addressed on this assumption, the exercise is ‘inherently pointless’[10].
[9]Co-respondents’ submissions dated 21 April 2009, court file doc 65, paragraph 17.
[10]Ibid .
These submissions are misguided, I think. They impermissibly inflate the apparent meaning of the preliminary question which simply asks whether, if certain assumptions are made about circumstances as they stood at a time in the past when the development application was made, QCM should have done things required by IPA which, it concedes, it did not. Either the native title claimants/holders had rights during the IPA process which have been flouted, or they did not.
It is settled that the nature and content of native title interests is not universal and will vary with traditional laws and customs[11], and that the existence of traditional laws and customs and the manner in which they show a connection with land are matters of fact to be proved and determined in the ordinary way[12].
[11]Mabo v Queensland (No 2) (1992) 175 CLR 1 at 89; Wik Peoples v Queensland (1996) 187 CLR 1 at 126-7, and 169; Yanner v Eaton (1999) 201 CLR 351 at 382; and, Western Australia v Ward (2002) 213 CLR 1 at 64-5, and 91-3.
[12]See, eg, Commonwealth v Yarmirr (2001) 208 CLR 1 at 61-2.
QCM’s submission is that the precise nature and content of native title interests here presently remain unproved. That is not, of course, to say anything about the native title claim or whether the persons who have brought it are legitimate claimants[13] who will eventually be recognised as ‘native title holders’[14]. It is simply an acknowledgment, as I accept the relevant material facts here require, that the parameters of their rights and interests were unknown at the relevant stage in the IPA process, and remain so.
[13]NTA, s 253.
[14]NTA, ss 223, 224.
The co-respondents’ arguments fall, it seems to me, at this first hurdle. It is simply impossible to know whether the rights of the presumed holders of what the NTA calls, in s 223(1), native title rights and interests might, in this case, include the right to receive rent. In the absence of evidence that native title in this case includes that right, there was no requirement under IPA for QCM to address the holders (or claimants) as owners within the meaning of the term in that Act.
It is appropriate, nevertheless, to address the arguments advanced by the co-respondents in support of the proposition that, on the assumption contained in the preliminary question, the rights of native title holders have been traduced.
Firstly it is said that the granting of a development permit would be a ‘future act’ as that term is defined in s 233(1) of the NTA which is rendered invalid under that Act to the extent it affects native title, if the consent of native title holders has not been obtained.
Section 233(1) defines a ‘future act’ as an act having three characteristics: it takes place after 1 January 1994; is not a ‘past’ act; and, would (apart from the NTA) either validly affect native title, or affect native title if the act was not invalid by reason of the existence of native title. The grant of a development permit will not be a ‘past act’ (as defined by s 228) but it is an ‘act’ under s 226(2)(b).
Only some future acts have, however, the effect of extinguishing native title. Rights attached to native title are ordinarily subject to the non-extinguishment principle (s 24AA(6)), which is explained in s 238 to involve, only, the suspension of native title rights and interests which, despite the future act, continue to exist. If those rights are inconsistent with the future act, either wholly or partially, they have no effect on that future act but resume full force and effect after the future act ceases to operate or its effects are fully removed[15].
[15]Western Australia v Ward (supra) at 63.
The fact that an act is done in relation to land which is the subject of a registered native title determination application is not, however, in itself sufficient to establish that it is an act that affects native title[16]. A future act must be something which does or would, rather than might, affect native title. In the absence of proof that the grant of a development permit would affect native title within the meaning of s 227 of the NTA, it cannot be concluded that the grant of a development permit is a future act within the meaning of s 233.
[16]Lardil Peoples v Queensland (2001) 108 FCR 453 at 473, 474, 476 and 487.
In the alternative the co-respondents contend that the grant of the development permit, if it is a future act, would offend s 24OA of the NTA which provides that unless a provision of the NTA says otherwise, a future act is invalid to the extent that it affects native title. Elsewhere, s 24AA(2) explains that certain parts of the NTA (ss 24A – 24G) provide that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of Division 3 and invalid if it is not; s 24OA describes a future act as ‘invalid to the extent’ that it affects native title; and, s 11(1) provides that native title cannot be extinguished contrary to the NTA.
As the High Court explained in Fejo v Northern Territory (1998) 195 CLR 96, the NTA does not, then, prohibit the doing of future acts but says only that they must not adversely affect native title. At the least, a future act that is invalid because of the provisions of the NTA is not void; it is simply ineffective to affect native title rights and interests. The NTA is concerned with validity only to the extent of considering effects on native title.
The evidence presently available makes it impossible to say that a development permit, as a future act, would be invalid to the extent that it is unarguably caught and extinguished by the NTA. Nor can it be assumed that the future act here is not valid under the NTA and either lawfully effects native title or suspends (but does not extinguish) rights and interests under it.
Thirdly, the co-respondents advance the proposition that by virtue of subdivision M in the NTA none of the specific future act procedures in Division 3 of Part 2 of the Act apply or are able to be applied to validate the granting of a development permit over land subject to native title, in the absence of consent by the holders of that title.
But it is also arguable, in the circumstances arising here, that subdivision J may also apply. Section 24JB(1) provides that if that subdivision applies to a future act, the act is valid. Under s 24JA(1), subdivision J will apply if 5 conditions are satisfied. Those conditions are that an act took place before the future act, and on or before 23 December 1996; that the earlier act was valid; that it was done by, amongst others, the Crown in right of the State; that it contained or conferred a permission or authority under which land was to be used for a particular purpose; and, that it was done in good faith, so long as the act’s impact on native title is not greater than the impact of any act that could have been done under or in accordance with the permission or authority.
Here, QCM points to the grants and renewals of Mining Leases ML1117 and ML1121 which occurred before 23 December 1996, conferring permission or authority to use land for mining or specified minerals, which were affected by mining leases granted by the Crown and are currently in force.
Under s 231 of the NTA a past act consisting of the grant of a mining lease is a Category C past act. An act of that kind may be validated, in respect of the Commonwealth, by s 14 of the NTA with the effect that the non-extinguishment principle applies to the act. Moreover, under s 19, if a State law contains provisions to the same effect, that law may also provide that past acts attributable to the State are valid.
The Native Title Act (Qld) 1993 purports, in s 8, to validate past acts attributable to the State, and words and expressions used in the State Act have the same meaning as in the NTA (s 5). Under s 13(2) of the State act a Category C past act can have the non-extinguishment principle applied to it.
It is at least arguable that the grant of a development permit here would be an act done in good faith in the area covered by the permission or authority contained in the mining leases, and that the impact of the act of granting the development permit will be no greater than the impact of acts that could have been done under or in accordance with rights granted under those leases; and, that the granting of a right to extract sand annually is inconsistent with the rights of native title holders to access and use and protect their land[17].
[17]In Western Australia v Ward the High Court held that the grant of a mining lease extinguished any native title right to control access
Although the co-respondents do not acknowledge that the past grants and renewals have had the effect of suspending any native title rights or interests, QCM’s submission is that the sand in question, in the development permit now sought, is the waste product of approved mining operations which have been carried on for many years which, it says, it will be stored in a separate stockpile on the mining lease in an already cleared area, and then transported away to a loading facility.
These are questions of fact, not tested in the present hearing. An important question must be whether the grant of a development permit would be inconsistent, wholly or partly, with the existence, enjoyment of exercise of native title rights and that would involve an objective enquiry requiring that the rights be identified, and compared[18]. Again, here, there is no evidence of the nature and content of the native title rights and interests although there is evidence of the nature, extent and location of QCM’s ongoing operations and the activities for which approval is sought. The outcome of a collision of those rights remains, however, speculative.
[18]Western Australia v Ward (supra) at 89; Wik Peoples v Queensland (supra) at 126.
The co-respondents also point to provisions of Subdivision M which indicate that it can only be used to validate acts which could be done in relation to freehold land if native title holders are actually given the same rights as they would have if they held ordinary title. If reliance is to be placed on that Subdivision, the argument goes, those requirements must necessarily be met and, in that sense, are imported into the IPA process.
QCM contends that proposition is wrong and that all the NTA does is make valid, to the extent of its effect on native title, the future act. Its submission is that this part of the NTA goes no further than to provide that, if the grant of a development permit is made after the exercise of procedural rights (referred to in s 24MD(6A) of the NTA), the grant of the permit is valid in the sense that it validly affects native title rights and interests but does not extinguish them; and, native title is simply suspended to the extent of any inconsistency with the grant of the development permit. If, however, the procedural rights are not exercised the grant of a development permit will not validly affect native title, ie there will be no suspension of native title rights and interests.
That appears to be the limit of the statutory effects and aims of the NTA, which does not require State laws to be read as incorporating the procedural rights themselves, or compel compliance with them. All the NTA purports to do, rather, is to attach a consequence (a valid effect on native title) to a future act done in compliance with that provision and a different consequence, (no effect) to a future act not done in compliance with it.
The co-respondents mount a separate argument referrable to the Racial Discrimination Act 1975, contending that s 10(1) of that Act is engaged in circumstances where s 3.2.1 of IPA and the Schedule 10 definition of ‘owner’ have the affect of only requiring consent by a landowner who enjoys non-indigenous rights of ownership, and does not require consent from persons who enjoy what their submissions call ‘indigenous rights of ownership’.
The difficulty, again, for the co-respondents is that it has not been established that native title rights and interests include rights in respect of the relevant land – the right to receive rent – in the sense used in IPA. Those rights may be a characteristic of some, but not necessarily all, native title (and some, but not all, common law or statutory rights of title).
The rights asserted by the claimants/holders arise in a way referrable to the NTA. The High Court has said that while the NTA is to be read as subject to the RDA, the latter does not operate so as to alter the provisions of the NTA and the procedure it provides to protect native title[19].
[19]Queensland v Central Queensland Land Council Aboriginal Corporation (2002) 195 ALR 106 at 135 per Kiefel J.
The NTA is a Code relating to the recognition and protection of native title and, as the High Court has also said, the extinguishment or impairment of that title under the provisions of the NTA does not offend the RDA[20].
[20]Western Australia v Commonwealth (supra) at 483-4.
The co-respondents’ submissions hinge, necessarily, upon arguments that the native title rights and interests which might be found here must include a right referrable to the IPA definition of ‘owner’, and that that right is not suspended by, for example, the past acts which may have validly affected that title. Those contentions, again, remain unproved. Unless IPA is read as expressly providing that it affects native title (and, plainly, there is no basis for that construction) the relevant provisions in it do not offend the RDA. Either the native title rights include rights of the kind envisioned by IPA s 3.2.1 and the Schedule 10 definition, or they do not. The argument based upon the RDA necessarily fails.
In summary, the evidence here does not establish that, on the required assumptions, native title holders had attained rights of a kind commensurate with those attached to an ‘owner’ under IPA; and, it is not apparent that a conclusion to that effect necessarily involves offending the provisions of the NTA.
The answer, presently, to the first question must necessarily be, then, that it was not necessary for the development application to contain or be supported by the written consent of the assumed native title holders or registered native title claimants, and it was not necessary for notice to be given to them as adjoining owners.
The ‘piecemeal’ point
A piecemeal application involves, in an application for a material change of use, seeking approval relevant to something less than the entire use, or the entire land to be devoted to it. The principal case is Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, which described a piecemeal application as one which did not include all of the proposed use or all of the land proposed to be developed for that use. The Pioneer principle has been explained as mandating a requirement, of an application for a use for a particular purpose, that it be for the whole of the use and for the whole of the land devoted to it[21].
[21]Brisbane City Council v Cunningham (2001) 115 LGERA 326, at 329; Bon Accord Pty Ltd v Brisbane City Council (2008) 163 LGERA 288, at 297.
The co-respondents’ specific contention is that the development application was piecemeal because it excluded, from the scope of the approval, the activity of creating sand stockpiles for the purpose of providing sand for removal and transportation off the site.
As phrased in the their submissions the question turns upon the demarcation line between, on the one hand, authorised mining activities under the provisions of the Mineral Resources Act 1989 (MRA) and the environmental authority regime for mining activities under the Environmental Protection Act 1994 (EPA) and, on the other, development requiring approval under IPA.
That is an exercise which involves, the co-respondents say, going beyond the broad provisions of the MRA and the mining leases and examining the relevant plans of operations in order to be in a position to accurately identify the particular demarcation line between activity authorised outside IPA, and development caught by that Act.
Unfortunately some complexity again arises because the issue to be determined, as described in the co-respondents’ submissions, is different from that contained in the order leading to this proceeding, which stated the question as a proposition:
The application is not piecemeal by excluding from the scope of the approval sought the activity creating on the Land itself sand stockpiles for the very purpose of providing the sand the subject of the proposed removal and transportation referred to in the application.
The co-respondents’ submissions, however, state the issue in these terms: ‘Was planning approval required for creation of temporary sand stockpiles in OPT 3 & OPT 5 locations otherwise targeted for landform revegetation and rehabilitation under the plans of operation and other mining instruments?’ (‘OPT’ stands for ‘off-path tailings’.)
Their submissions then argued, at some length, that the plans of operation for the mining activities authorised under an Environmental Authority, and the mining leases, do not include the creation of a separate stockpile of sand for removal from the site. QCM does not dispute that but asserts that the subject of the development application is the extraction and removal off-site of sand from the deposits of tailings, involving storage in a separate stockpile and removal from that stockpile.
The development application was accompanied by a report prepared by SKM[22]. As it makes clear, sand will be sourced from stockpiles currently under construction and deposited to a separate stockpile from which it will be removed when required for sale. The report contained detailed information about the source of sand, the place from which it will be removed and where it will be stockpiled, and the processes through which that will occur.
[22]Affidavit of Ms Meijer, para 5(f) and Exhibit ALM2.
More specifically, the report shows that sand will be sourced from OPT stockpiles 3 and 5, currently under construction, and deposited to create a separate stockpile from which sand will be removed when required for sale. It will be located adjacent to OPT 5 and the mining company road. Sand will be removed, as part of the proposal, initially from OPT 2 and transferred to a separate stockpile created for the proposal. No sand will be sourced from OPT 3 and OPT 5 during the construction of those off-path tailings to ensure their efficient and safe construction. The proposed sand stockpile will be located in an already cleared area between OPT 5 and the mining company road.
The relevant Planning Scheme for Redland City Council defines extractive industry to include mining minerals (including sand) and their removal from the premises and, also, the treatment and storage of that sand. The development application identifies that the extractive industry use which it seeks involves the creation of a separate sand stockpile, and is informative about how and where it will be located. An affidavit from one of QCM’s witnesses, Mr Smith, establishes that the creation of stockpiles is already authorised by the mining leases and the Environmental Authority, and those activities are exempt development under IPA[23].
[23]IPA Schedule 9, Table 5, Items 1 and 2.
On its face the development application and the material which accompanied it is informative and complete about the use, and the land to which it will relate. The conditions of the mining leases themselves require the deposit of tailings within the lease area, some of which are used in rehabilitation (authorised by the mining leases and the relevant Environmental Authority). Those instruments do not, however, authorise the extraction or removal of sand, off-site, from the tailings deposits and that is what is sought by the current development application. Once that is appreciated, it cannot be said the development application was ‘piecemeal’.
The s 3.2.1 points
This part of the application focused upon a transport route which, the evidence showed, would traverse a number of surveyed allotments. The co-respondents’ case is that QCM failed to obtain the written consent of the owner of each of these parcels (as required by IPA s 3.2.1(3)); failed, in any event, to identify, or correctly identify, all of the various parcels affected by the development application; and, its development application was not properly accompanied by evidence necessary under s 3.2.1(5) of IPA, which reads:
(5)To the extent the development involves a State resource prescribed under a Regulation, the Regulation may require the application to be supported by one or more of the following prescribed under the Regulation for the development –
(a)evidence of an allocation of, or an entitlement to, the resource;
(b)evidence the Chief Executive of the Department administering the resource is satisfied the development is consistent with an allocation of, or an entitlement to, the resource;
(c)evidence the Chief Executive of the Department administering the resource is satisfied the development application may proceed in the absence of an allocation of, or an entitlement to, the resource.
QCM argues that it was not necessary for it to obtain the consent of the owners of the land, and that its application did satisfy the requirements of s 3.2.1(5).
In respect of the owners’ consents, s 3.2.1(3) provides:
(3) Subject to subsections (12) and (13), each application must contain, or be supported by, the written consent of the owner of the land to the making of the application if the application is for –
(a) a material change of use of premises…
QCM relies upon s 3.2.1(6), which says:
(6)Sub-section (3) does not apply for an application to the extent –
(a) sub-section (5) applies to the application; or
(b)another Act requires the application to be supported by one or more of the things mentioned in sub-section 5(a) to (c).
QCM’s submission is that the exclusion in sub-section (6)(a) applies. The co-respondents case is that it does not. The argument hinges upon the proper meaning of s 3.2.1(5).
The parties agree that for present purposes the ‘State resources’ referred to in s 3.2.1(5) are identified, firstly, by reference to a regulation found in s 12 of the Integrated Planning Regulation which provides that Schedule 10 of IPA prescribes State resources, and the evidence required to support an application that involves taking or interfering with a resource.
The relevant resources here are:
Item 2 – land subject to a lease under the Land Act 1994, other than to the extent quarry material is to be taken from the land under the Forestry Act 1959; or, a reserve under the Land Act (with the same exclusion);
Item 4 – land subject to a permit to occupy under the Land Act 1994 other than to the extent quarry material is to be taken from the land under the Forestry Act 1959;
Item 6 – unallocated State land under the Land Act 1994 other than to the extent quarry material is to be taken from the land under the Forestry Act 1959; and,
Item 17 – quarry material (sand) taken under the Forestry Act 1959.
Materially, in only one case (Item 14) does the Regulation require that a development application be accompanied by evidence of an allocation of or an entitlement to a resource in terms of s 3.2.1(5). That Item is not relevant here.
Contrary to the co-respondents’ submission, s 3.2.1(5) does not require that QCM itself to have an allocation of, or an entitlement to, a resource. The first phrase in the provision ‘… to the extent the development involves a State resource prescribed under a Regulation’ describes the area in which the provision operates, which is a development application (because the reference to ‘development’ is a reference to the development the subject of the application)[24]. Here, the development is a material change of use of premises for extractive industry. The other element of the provision is a statement that, within that area of operation, a Regulation ‘may’ require the application to be supported by one or more forms of evidence prescribed under the Regulation for the development.
[24]See IPA s 1.3.8(b).
As earlier observed, the reference to the Regulation which follows (the Integrated Planning Regulation, s 12 and its subsequent reversion to IPA Schedule 10) shows that in only one case, irrelevant here, (Item 14) is evidence actually required of an allocation of or an entitlement to a resource.
I accept QCM’s submission that the proper analysis of 3.2.1(5) and the Integrated Planning Regulation and questions about their application in any particular case require that four questions be asked:
Does the development involve a prescribed State resource?
If so, does the development involve taking or interfering with that resource?
If so, what evidence is required to support the application?
Is the application supported by that evidence?
This application involves taking quarry material (Item 17, sand) under the Forestry Act 1959. The evidence establishes that the sand has been sold by the State[25] pursuant to an agreement dated 31 October 2007. The application also involves interfering with other State resources – land subject to a lease or reserve under the Land Act 1994 (Item 2); land subject to a permit to occupy or a license under the Land Act (Item 4); and, unallocated State land under the Land Act (Item 6).
[25]Under s 46 of the Forestry Act 1959.
QCM’s case is that it provided satisfactory evidence about these matters in its development application because the form lodged with Council contained, firstly, the signature of Mr Walker who was the General Manager, Forest Products, and a Mr Rogers, who was the Principal Land Officer with the Department of Environment and Resource Management. The co-respondents contend, however, that Mr Walker’s evidence is insufficient in relation to the resource described in Item 17; and, that Mr Roger’s evidence is not directed to the land resources described in Items 2, 4 and 6 (or, is insufficient evidence in relation to those resources).
The parties’ submissions focused strongly upon parts of the form comprising the development application and whether an apparent error in it, (in a part of the form called Q 22), involving a cross in an incorrect place meant the form failed to meet the requirements of IPA. Materially, Council accepted the application and should be deemed to have given it the relevant consideration within the meaning of IPA s 3.2.1(9). As in Stockland Developments Pty Ltd v Thuringowa City Council (2007) 157 LGERA 49, it is reasonable to infer that Council accepted the application, despite the mistake, and deemed it to be properly made under s 3.2.1(9) because it is improbable the error could have been overlooked.[26]
[26]In these circumstances IPA s 3.2.1(10) does not apply.
Otherwise, as previously observed, s 3.2.1(5) and the Integrated Planning Regulation required that the application be supported by evidence of a specified kind. In the relevant form (IDAS Form 1, Part A, Q 23) five items of mandatory information must be provided to establish consistency with an allocation or an entitlement. The particular evidence required here for Item 17 was evidence of the Chief Executive’s satisfaction that the development was consistent with an allocation of, or entitlement to the resource. Mr Walker had delegated authority to consider and decide that matter, and to furnish evidence in respect of it. Q 23 was completed in his writing, apparently correctly, and satisfies Item 17 and the IPA requirements.
The incorrect completion of Q 22 did nothing more than suggest the application was accompanied by evidence which was not, however, actually required or necessary. Moreover, there is convincing evidence that Mr Walker’s completion of Q 23 was proper: he signed the sale agreement on 31 October 2007 and the IDAS form on the same day. Accepting the propriety of a development which involves taking sand (the subject of the sale agreement) is entirely consistent with an acknowledgment of an entitlement to take that resource.
It is then said, in respect of Mr Rogers’ evidence, that it was not properly directed towards certification for an entitlement with respect to State resources (other than sand); or, was insufficient. Again, the submissions were extensively directed to the IDAS forms and the evidence of Ms Meijer, who lodged them. A close analysis of her evidence and the IDAS forms suggest, the co-respondents’ submit, that the two forms which were lodged show that Mr Walker was addressing the allocation or entitlement to sand, and Mr Rogers, the question of satisfaction that the development was consistent with that allocation, or entitlement – and not, as is now said, an entitlement to land.
QCM’s submissions analyse the sequence of the events of the obtaining of evidence from Mr Rogers and Mr Walker (by persons other than Ms Meijer), and establish, convincingly, that in the course of that exercise Mr Rogers (consistently with his functions as Principal Land Officer) responded to enquiries about and focused his responses upon the various parcels of land[27].
[27]Appellants’ submissions, paras 1-7-131.
That analysis is persuasive that Mr Rogers was, in truth, concerned with the land the subject of the development application and his evidence and the IDAS form relates to that resource and the parcels which here, relevantly, comprise it.
The co-respondents then contend that Mr Rogers’ evidence is insufficient as a foundation for the operation of s 3.2.1(5) in relation to parcels beyond the source of the sand. A very close analysis is undertaken of each discrete allotment in an attempt to establish that QCM did not, in truth, have an allocation of or an entitlement to those individual parcels of land, as a land resource.
It is said, in particular, that the IDAS form was not properly accompanied by evidence (as required by Q 22); was incorrectly completed (in respect of Q 23(i)); proceeded on an erroneous basis in respect of the allocation or entitlement of parcels of land away from the sand source (when there was, it is said, no proper basis for the alleged evidence); and that by completing the IDAS form in the way he did Mr Rogers proceeded on an incorrect basis – namely, that because QCM held a mining lease that itself was an ‘allocation to the land’ attracting allocations and entitlements in respect of the other parcels.
Again, however, I think the co-respondents’ submissions proceed on a mistaken, or unduly restrictive, analysis of the IDAS form. This was the case which did not involve a requirement for a general authority[28] to an entitlement, nor the production of evidence of an allocation or entitlement[29]. Hence, only Q 22(ii) of the IDAS form is relevant and the evidence it required was set out in Q 23. That part of the form contains the expression ‘resource entitlement/authority details’ which was completed by inserting the words, ‘Department of Natural Resources and Water’.
[28]Integrated Planning Regulation ss 12(2), (3) and (4).
[29]Which is only required in respect of Item 14.
The evidence which was required was evidence of satisfaction that the development would be consistent with an allocation of, or entitlement to, the relevant resource – here, land; and, that land was identified earlier in the IDAS form. (Again, it is appropriate to observe that, for the relevant Items, evidence was not required of an allocation of entitlement under s 3.2.1(5)(b), or Schedule 10).
In that respect – the various parcels other than the source of the sand itself (Lot 2 on USL 20675) – s 57(1) of the Forestry Act materially provides that a permit or license issued under that Act confers rights to enter upon the land in relation to which it is granted ‘ … and upon any other Crown land or land comprised in a Crown holding in, into, over, upon and out of which it is necessary to pass for the purpose of exercising or enjoying the aforesaid rights of entry upon the land in relation to which the permit or license is granted.’ Under s 57(2) the right to pass includes rights of ingress, egress and regress in, into, over, upon and out of those lands as may be necessary in the circumstances. There is evidence that QCM has a sales permit, in respect of Lot 2, referable to s 57.
Schedule 3 of the Forestry Act defines ‘Crown holding’ in a way which includes land held as a term lease, a perpetual lease, or under a license or permit issued under the Land Act 1994; and, ‘Crown land’ is defined to mean all land in Queensland (with specified exceptions including land granted in fee simple, reserved or dedicated to public purposes, and land subject to any lease or license lawfully granted by the Crown). The definition will, here, include unallocated State land;[30] and, the definition of ‘Crown holding’ properly refers to the other lands the subject of the application.
[30]Lot 2 on USL 20675, and Lot 82 on USL 20272.
Hence s 57 gave QCM, as the sole holder of a sales permit, rights to enter and to pass across the land the subject of the application for the purpose of exercising and enjoying rights of entry upon Lot 2.
The actual question confronting Mr Rogers was whether or not he was satisfied the development was consistent with an allocation or entitlement to the various parcels. The evidence establishes he was aware of the land constituting the relevant State resources, and the nature of the proposed development, and the location of the haul route, and his expression of satisfaction of consistency (reflected in his completion of Q 23) cannot be said to have been wrong.
Once these things are appreciated the co-respondents’ lengthy, individual analysis of the nature of the title for each discrete parcel affected by the haul route becomes immaterial, save in one respect: their assertion that various lots were not included in the development application, but should have been[31].
[31]Lots 1 and 2 on SP 117361; Lots 18 – 22 on SP 112298; and, Lots 15 – 17 on SP 106438.
On closer analysis, however, that alleged shortcoming in the development application is seen to lack any sinister element and to be the product of misdescription or oversight. One instance (Lot 1 on SP 117361) appears to involve a plain misdescription, overlooking the subdivision of the Lot into two separate parcels. On its face, this involves a non-compliance with IPA s 3.2.1(7)(c) which has been overtaken by Council’s acceptance of the application under s 3.2.1(8)[32].
[32]Bon Accord Pty Ltd v Brisbane City Council (2008) 163 LGERA 288 at 295.
Parcels properly described as Lots 18 – 22 on SP 112298 and Lots 15 – 17 on SP 106438 are called ‘road Lots’ and are, the evidence shows, part of an existing haul route. Lots 18 – 22 are, however, within Lot 21 on USL 20674, which was included in the application; and Lots 15 – 17 are within Lot 2 on USL 20675, which was also included.
Finally, the co-respondents assert that particular parcels[33] could never be used for purposes other than those for which they were leased, licensed, or permitted to be occupied, and could not be used for the purpose of the material change of use sought in the development application. It was said that s 199A(1) of the Land Act 1994 raised, effectively, a prohibition on uses for QCM’s purposes and, hence, QCM’s evidence was incapable of establishing satisfaction with the requirements of s 3.2.1(5).
[33]Lot 1 on SP 156237, Lot 15 on D 90421, Lot 116 on SL 7337, and Lot 117 on SL 7338.
Under s 199A(3), however, the prohibition is to be read subject to s 154 which allows approval of additional purposes and Mr Rogers, of course, produced evidence consistent with an allocation or entitlement to the resource – ie, the land itself. QCM’s submissions record, in any event, that there are extant applications for the purpose of amending relevant tenure documents under the Land Act and I accept that it would be precipitate in those circumstances to hold the s 199A provides an absolute bar.
It follows that it was not necessary for the owners’ consent to be given under s 3.2.1(3) because s 3.2.1(6) applies; and, the evidence is sufficient to satisfy the requirements of s 3.2.1(5). Mr Walker’s evidence, incorporated in the IDAS form he signed, was sufficient for the purposes of s 3.2.1(5)(b) (and in particular Schedule 10, Item 17) and Mr Rogers’ similar evidence was sufficient for the same purposes (Schedule 10, Items 2, 4 and 6).
Conclusion
The first question concerning native title is answered in the negative. The second question, concerning the allegation that the development application was ‘piecemeal’ is also answered in the negative in the sense that the evidence establishes the application did not suffer from that deficiency; and, the third question is answered by saying that the application satisfied the requirements of s 3.2.1(5) of IPA, and it was not necessary for owners’ consent to be given under s 3.2.1(3).
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