Rauchle v. Gatton Shire Council

[2007] QPEC 62

[2007] QPEC 062

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

Brisbane No 965 of 2007

GUY PETER RAUCHLE	Appellant
and
GATTON SHIRE COUNCIL	Respondent

and

MOUNT SYLVIA DIATOMITE PTY LTD         First Co-Respondent

and

CHIEF EXECUTIVE OF THE DEPARTMENT
OF MAIN ROADS  Second Co-Respondent
  by Election
and

CHIEF EXECUTIVE OF THE DEPARTMENT OF
THE ENVIRONMENTAL PROTECTION AGENCY     Third Co-Respondent
  By Election

BRISBANE

..DATE 20/07/2007

ORDER

HIS HONOUR:  This is an application under section 4.1.47 of

the Integrated Planning Act to permit development to start

before an appeal is decided.  The appeal in this case is by an

adverse submitter against the council's approval of an

application for a material change of use for an extractive

industry and an environmentally relevant activity.

The site, the subject of the application, is a chalk mine.  In

order to mine the chalk there is a need to remove overburden

which, to date, has been kept in stockpiles on the subject site.  It has been determined that that material is  potentially useful, after crushing and screening, for road base and the proposal relates to the treatment and use of that material.

The approval of the application and the commencement of the

development would lead to an increase in the intensity of the

work on the site, which would be reflected in an increase in

truck movements from the site.  The remaining appellant,

Mr Rauchle, is concerned about the suitability of the haulage

route for those vehicles.  Indeed, his issues in the appeal

are limited to the traffic issues.  The appeal has been set

down to be heard next month.

The applicant for development approval seeks an order, pursuant to section 4.1.47, to permit the use to start insofar as it would involve the use of a mobile crushing and screening plant to crush and screen the material in the existing stockpiles and for that material to be removed for use off site.

It is proposed that any order permitting such operations to

start would be subject to conditions, including compliance

with a number of the conditions of the negotiated decision

notice against which the present appeal has been brought.

Section 4.1.47 provides as follows:

"(1) If an appeal (other than an appeal under section
     4.1.30) is started under Division 8, the development must
     not be started until the appeal is decided or withdrawn.

(2) Despite subsection (1), if the Court is satisfied the
     outcome of the appeal would not be affected if the
     development or part of the development started before the
     appeal is decided, the Court may allow the development or
     part of the development to start before the appeal is
     decided."

The Explanatory Notes to that section provide as follows:

"Clause 4.1.47 in part is derived from the current Act,
     but has been modified.  Once an appeal is lodged,
     development must not start until after the appeal is
     decided or withdrawn.

However, it is recognised that this could be
     unnecessarily restrictive in some cases, such as an
     appeal about a specific permit condition that does not
     involve submitters or other corespondents.  The Court may
     allow the development (or part of the development) to
     proceed before the appeal is decided but only if the
     Court considers the outcome of the appeal would not be
     affected.

The capacity to allow development or an aspect of
     development to proceed recognises that a development
     approval under IDAS may cover a range of development,
     some of which is not at issue in the appeal.  It also
     recognises that IDAS encourages the inclusion in
     development approvals of management conditions that may
     previously have been established through other statutory
     mechanisms such as licences.

For example, if an appeal about a proposed shopping
     centre development concerned aspects of operational works
     associated with access or parking, the Court may allow
     building work for the shopping centre to proceed if it
     does not affect the outcome of the appeal about the
     operational works.  Also, if an appeal concerned a
     condition about the ongoing management or use of a
     premises after development has been completed (such as
     hours of operation), the Court may decide that the
     development could proceed because the building of the
     structure itself is unrelated to the substantive issues
     in the appeal before the Court."

Consistently with those Explanatory Notes, the section has

generally been used to permit development to start where that

would result in the carrying out of an aspect of development

which is uncontroversial in the proceedings.  Examples of

that are given in the Explanatory Notes themselves but also

include, for example, where the carrying out of the physical

development itself is not controversial and the only

issue in dispute is what development contributions should be

paid.  There would, of course, be other examples.

The present case is in a different category.  While

Mr Rauchle's issues relate only to the external road system

and, in particular, the haulage route, it is not an appeal

which is limited simply to conditions.  While it is true that

additional works, external to the site, may overcome his

concerns, the Court is not in a position to order the local

authority or the Main Roads Department to carry out any

particular works with respect to the haulage route.  As it

happens, both the council and the Main Roads Department are

undertaking certain works and the traffic engineers engaged on

behalf of the respondent and corespondents are of the view

that the development would be appropriate, given those

upgrading works.  However, that is a matter which is in

controversy.

If the appellant is successful in establishing that the

haulage routine, even with the proposed upgradings, is

unsatisfactory for the use of the increased number of heavy

vehicles which would be associated with the proposed

development, then that would ordinarily lead to the appeal

being allowed and the development application being refused

rather than simply the imposition of further conditions.

The order sought at this stage, therefore, seeks the start of

development the acceptability of which is in dispute in the

current proceedings.  I was not referred to any case in which

such a situation has previously been considered.

Mr Haydon, for the applicant, contended that the Court's

jurisdiction to make an order under section 4.1.47(2) was

nevertheless enlivened.  The precondition to the discretion

being enlivened is the Court's satisfaction that, "the outcome

of the appeal would not be affected if the development or part

of the development is started before the appeal is decided."

Mr Haydon pointed out that the commencement of the use would

not necessarily affect the outcome of the appeal.  What is

proposed is the use of mobile equipment which could readily be

removed from the site if the appeal was successful and a

development approval not forthcoming and, of course, the

applicant could simply stop using the haul route in that

event.  It is not a case where development would result in

any permanent structures being erected.  I took the applicant

to be seeking the order to start the development on the basis

that it would undertake to stop that development in the event

that it was not successful in resisting the appeal.

Even if the precondition is taken to be satisfied, the Court

then has a general discretion as to whether to permit the

development to start before the appeal.  That discretion is reflected in the words, "the Court may allow" in subsection 2.  The fact that the development which the applicant wishes to start is controversial in the proceedings, creates some difficulties when it comes to the exercise of the

discretion.  The acceptability of the haulage route for use by

increased volumes of heavy vehicles is something which is very

much in issue in the proceedings and which has not been

determined.

It may be noted that, even on the approach of the traffic

engineers for the respondent and corespondent, there are a

number of issues with respect to the haulage route which are

the subject of some works or intended works by the road

authorities.  None of the traffic engineers has directly

considered the question of the suitability of the haulage

route for use by heavy vehicles in the interim period until

such time as the appeal is determined.

Further, the reports of the traffic engineers for the

respondent and corespondent, contain evidence which is not

unchallenged in the proceedings.  Mr Rauchle wishes, at trial,

to demonstrate that, notwithstanding those reports, the haulage route would be unsatisfactory, even with the planned upgradings or planned works.  As Mr Rauchle pointed out, the application seeks to allow development which, on his case, would cause the very impacts which he seeks to avoid in his appeal.

While Mr Haydon pointed out that the Main Roads Department did

not impose any conditions on the applicant at the time the

application was made, I do not consider that the Court is in a

position, at this stage, to be satisfied that the haulage

route would be an appropriate route to be used even in the

interim sense.

The council, too, has its concerns, notwithstanding its support of its decision to approve the development.  The approval is subject to conditions which require the upgrading of one of the roads - namely Chalk Mine Road - prior to the

commencement of the use.  By this application the applicant

seeks to start the use without those works having been done.

Chalk Mine Road is the road which is closest to the

development site.  It is an unsealed no through road with a

length of 1.7 kilometres and terminates at the chalk mine.  It

is described in the report of Mr Lee, the traffic engineer for

the respondent, as being roughly formed with multiple

crossings of an intermittent waterway.  Formation widths vary

between 7 metres and 4 metres with poor vertical and

horizontal alignments.  Maintenance efforts over the past 10

years have resulted in materials from the roadway being pushed

to the side of the road, forming banks on the verges of the

roadway.  These banks form channels which concentrate the

overland water flows along the roadway during periods of heavy

rain.

The council is opposed to the development being permitted to

start without that road being upgraded and there is no

material before me which would satisfy me that that road, in

its existing condition, is suitable for use by additional

heavy vehicles associated with the development, even on an

interim basis.

The applicant for development approval indicated a willingness

to submit to a condition about a limitation on the number of

trucks or additional trucks which would be associated with the

starting of the development.  However, again, I'm not in a

position, at this stage, to reach a conclusion as to the

volume of the trucks which might acceptably be able to use the

Chalk Mine Road and the other roads comprising the haul route

pending appeal.

The affidavit material in support of the application referred to the use which could be made of the material in carrying out the roadworks which are intended to upgrade the existing haul route.  It would obviously be of benefit to the community as a whole if those works were carried out.  The affidavit material by Mr McMaster, however, establishes that the provision of the proposed upgrades to the local government state controlled roads by the council is not contingent upon supply of road-based material from the first corespondent.

As a matter of discretion, therefore, I am not prepared to

permit the development to start in circumstances where the

appropriateness of the haul route for that very development on

an interim basis has not been established.

Accordingly, I dismiss the application. 

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