Roma Town Council v Bungil Shire Council

[2005] QPEC 57

[2005] QPEC 057

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 4562 of 2004

ROMA TOWN COUNCIL

Appellant

and

BUNGIL SHIRE COUNCIL

and

INSTITUTIONAL INVESTMENTS PTY LTD

and

STATE OF QUEENSLAND

First Respondent

Second Respondent

Co-Respondent

BRISBANE

..DATE 20/07/2005

ORDER

CATCHWORDS:  Direction in adverse submitter appeal for determination of preliminary issue as to whether a development application required referral coordination - all respondents
opposed a new date for hearing (that originally fixed having passed) - new date should not be allocated - circumstances included possibility of development proposal being changed so that referral coordination (unnecessary in any event had a new application been made, given a change in the law) was not required, also that the developer might fail to obtain the necessary water allocation once a current moratorium on granting of licences expired.

HIS HONOUR:  The second respondent successfully made a development application to the first respondent Bungil Shire Council in respect of a proposal to establish a feedlot to be located very close to the boundary with the appellant Roma Town Council's local government area.  The Roma Council, as I think it is undoubtedly entitled to do, became an adverse submitter in the pursuit of the interests of its own residents and has instituted this appeal.

It succeeded in persuading Senior Judge Skoien that there ought to be determination of a preliminary issue concerning the implications of an effluent pond associated with the proposal.  On the basis of the design work to date, the area of that effluent pond will exceed, and exceed very considerably, a 5,000 square metre standard whereby the effluent pond will be treated as a lake or something similar.

Mr Fynes-Clinton tells me the area at present appears to be something like 16,000 square metres.  The consequence, the Court is given to understand,of the 5,000 square metre benchmark being exceeded is that referral coordination was required in respect of the development application.  One consequence of that is that public notification periods are extended.  Another consequence may be that warnings are given to those who might be interested from the point of view of making submissions that the implications of the proposed development may be more considerable than would otherwise be thought. 

The application attracted very many adverse submissions, some 120, if I recall correctly.  One of the oddities of the situation is that since the making of the development application the law has been changed so that if it were made anew referral coordination would not be required.  There is something Gilbertian or worse in a scenario in which an appeal might succeed on this basis and then be followed by a new application in which the same consideration would play no part at all.

Mr Fynes-Clinton, for the Roma Town Council, is correct in his assertion that a neat point is raised by his client which, if successful, would conclude these proceedings without an expensive merits determination.  It seems to me, however, that it would not dispose of the issue because a new development application would be inevitable.  I do not find it an attractive proposition that a developer should be forced unnecessarily to repeat a development application.

Judge Skoien, I understand, has shown an open-minded attitude in respect of whether there ought to be determination of the preliminary point in the face of suggestions from the developer that the proposal can be redesigned so that the effluent pond would not exceed the 5,000 square metre benchmark.  The redesign would be by way of changing the existing development application.  That may not be as easily achieved as Mr Winders suggests, in that if the proposed pond is deepened that introduces new problems from the point of view of the quality of the water impounded there attributable to increased depth.

It may or may not be useful to contemplate establishment of multiple effluent ponds.  Rightly, Mr Fynes-Clinton observes that given the degree of uncertainty regarding the proposal in this aspect there's a question whether or not the proposal is sufficiently defined to be dealt with.  Mr Fynes-Clinton argues that the possibility which Judge Skoien left open to the developer of redesigning the proposal has not been taken advantage of effectively. 

Although Mr Fynes-Clinton has powerful considerations to invoke, in the circumstances they're not compelling.  He faces the difficulty that the other parties in the appeal are all of one mind that there is little attraction or, indeed, utility in having the preliminary point determined.  The considerations are various.  One which Mr Livingstone-Ward for the Bungil Shire Council relies on in particular is that the proposed development may fail because the requisite water allocation may be unavailable.

A general review being conducted by the State of Queensland, represented by Miss Brien, regarding the appropriate management of waters in the Great Artesian Basin has been accompanied by a moratorium on the granting of water allocations, so that it may not be until about March of next year that it will be known whether or not the applicant developer will obtain the necessary allocation.  According to Mr Nicholls it is confident.  Mr Livingstone-Ward's right that if its confidence is misplaced that will effectively put an end to the proposal.

The aspects in which the State of Queensland is interested in this matter relate to the Department of Primary Industries and Fisheries and of course the water aspect shouldn't be forgotten.  Unlike the Roma Council, the Bungil Shire Council, which as the assessment manager would appear to have special standing, is not anxious to become committed to expenditure of trouble and costs in relation to the appeal unless it's necessary.  No doubt there are costs for parties in having an appeal still current, even though from the Court's point of view things may not be happening in it.

I would take Miss Brien's attitude to be similar to Mr Livingstone-Ward's, and as a commercial entity the developer is anxious not to expend its energies and resources on a hearing (which it seems plain would fall within the confines of the day) of the preliminary point. 

I am of the view that whether or not a preliminary point ought to be separately argued is a matter which can be kept under review and it is no embarrassment to the Court if its position should change.  I don't feel embarrassed or compromised by suggestions that I am being asked to review Judge Skoien's order to the point of setting it aside.  A date last month was set for determination of the preliminary point.  That date has now been lost. 
What Mr Fynes-Clinton really requires for his client is a new date.  I think in the circumstances it would be wrong to indulge him or his client in that.  I think the balance of convenience here clearly lies in leaving the situation as it is, in particular until the question of the water allocation is resolved.

...

HIS HONOUR:  So the matter will be mentioned again on the 14th of December 2005.

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