Scenic Rim Regional Council v Gillion Pty Ltd

[2011] QPEC 143

[2011] QPEC 143

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2608 of 2009

SCENIC RIM REGIONAL COUNCIL	Applicant
and
GILLION PTY LTD	Respondent

BRISBANE

..DATE 09/11/2011

ORDER

CATCHWORDS

Suspension of court orders to preserve the value of an appeal should it succeed - the court having determined that an unlawful use of "water extraction" occurred on the respondent's site although the activity had been carried on at a more modest scale for a long time, the operation of enforcement orders was suspended to permit a development application to regularise the use to be made - Council having rejected that development application (against its planning officer's recommendation) opposed any further suspension - discretion of court exercised to suspend further, at least until first mention date of the appeal just commenced against the rejection - hardship factors
HIS HONOUR:  At issue this afternoon is whether the court ought to further suspend the operation of orders made by Judge Durward SC when he determined that the water extraction activity which the respondent company conducts on its 8,000 square metre site at Power Parade, Mount Tamborine is an unlawful use.

The suspension of his Honour's orders forbidding continuance of that use was initially one of eight weeks duration on the basis that, as happened, the company would make a development application seeking to regularise the use.  That is a common scenario in the court's experience.  There have been successive orders extending the suspension to accommodate the Council's processing of the impact assessable development application.

The Council, once by right and once with the cooperation of the company, took additional time to process the application which attracted hundreds of submissions, all but one adverse.  Its decision to refuse the application was made on the 25th of October this year and communicated by decision notice of the 1st of November. 

The decision of the Council ran contrary to the recommendation of its officer in a planning report which is before the court.  No more should be taken from that report than that the appeal which the company has instituted today against the Council's refusal has prospects of success.  The court may take the view that the correct conclusion is the one recommended by the Council's officer.  The court may take another view. 

The further suspension sought is not one proposed to run until determination of the appeal but one proposed to run only until the middle of next month to accommodate what's probably the earliest feasible first mention date for the appeal which may come to involve hundreds of co-respondents by election following notice of it being given to all of the submitters.

The situation will be kept under review.  The Council, which has acquiesced in the series of suspensions to date, strongly opposes any further suspension.  It relies on the established illegality of the use, there being no appeal against Judge Durward's decision.  It relies on its own decision in refusing the development application for an approval which would have regularised the use.  It relies on evidence of residents of the sites on either side of the company's land and the land across the road as establishing nuisance impacts of the company's operation, particularly by way of noise, but also by way of dust nuisances and the impacts on the fabric and use of what might be called the haul route for the extracted water.

On the basis of such evidence, the Council contends that the company has, in recent times, exceeded what's permitted by the noise management plan which Mr King prepared for its operations on Mount Tamborine.  Among other things, the plan sets noise levels and limits hours of operation to 7 a.m. to
6 p.m. Monday to Friday with a particular limit of four movements in or out of the truck and tank used to remove loads of some 28,000 litres at a time to four per day.  It's contended that on one particular recent Monday there were five trips, the first leaving the site early in the morning by a vehicle which had been loaded the previous Friday.

There was a fifth use of the road to the site by the vehicle when it returned at the end of the Monday to be loaded prior to departure the next morning.  This is perhaps a fairly technical breach if it amounts to one at all. 

I accept Mrs Gill's sworn assurances that, at no time, except in the extraordinary circumstances of floods at the beginning of the year, were there loads of water leaving the site exceeding four in number on any day.   The evidence suggests that a new driver who's been engaged by the company is less considerate of the amenity of neighbours than his predecessor was.  He and his family reside at the property where, contrary to earlier practice, the truck which the company uses is garaged.  That appears to accord with the general entitlements in the local Government area to keep one large vehicle at a residence.

I propose to grant the suspension but it will be on conditions more onerous than those that have prevailed to date out of consideration for the local residents.  As noted already, the suspension is going to be kept under review giving the company powerful incentive to see that things are run properly.

Mr Ure suggests that there is nothing unusual in the hardship asserted by reference not only to the proprietor's interests but also those of its 20 or so employees and their families, should Judge Curward’s order come into effect.  I upheld Mr Ure's objection to particular pleas by reference to the special difficulties that some of the employees might have in finding other employment and a general contention that the employees all have mortgages and the like.

In my opinion, the court will infer in circumstances like the present where an enterprise has employees that all of them need their jobs and that it may be difficult for some of them to find new ones.  I think that if the value of the appeal, should it succeed, is to be preserved for the company, it is desirable, speaking generally, for it to be able to continue its operations.

One particular aspect explored by Mr Ure in cross-examination of Mrs Gill concerned its ability to acquire water from other suppliers on Mount Tamborine as it has done at times in the recent past.  Mrs Gill says, although the prices she agreed may be available such as 1.3 cents a litre might appear reasonable the economics of her business of supplying packaged water to outlets such as supermarket chains are such that recourse to alternative supplies would not be feasible.

The case is not quite as sympathetic for the developer as that in Di Domenico v. Hervey Bay City Council considered by Judge Skoien, see 2000 QPE 021. However, it is, in my view, more sympathetic than the situation of the developers in authorities Mr Ure relied on such as Woolworths Limited v. Caboolture Shire Council [2004] QPEC 026 and Queensland Cement Limited v. United Global Cement Pty Limited [1999] QPELR 167 where, quoting extracts from reason for judgment as set out in Mr Ure's helpful outline, "the respondents have begun to operate without appropriate planning approvals."

In the present matter, the evidence shows that extraction of water for commercial purposes from the site has been going on for some 20 years.  The operation was well established when the company purchased it in 2004.  It purchased the site, among other things, and also, apparently, the customer list.  The company has a factory where it packages bulk water at Stapylton whereas its vendor had a corresponding facility at Burleigh Heads.

The company has, on the evidence Judge Durward accepted, increased the intensity of operations on the site where it must be acknowledged that they represent inconsistent development, arguably, of an industrial scale in an area which is seen as one for residential and tourist-related uses.

The 2007 planning scheme changed things by adopting a use definition appropriate to cover what the company does and identifying it as inconsistent development in the area where it's located.  It's not for me to canvass issues determined by Judge Durward.  Suffice it to observe that the company's activities represent a continuation and, as noted, an expansion which Judge Durward thought was of legal significance of something that's been going on for quite a long time having its beginnings under a different planning regime.

Balancing the considerations as they stand today, I confirm that my view is that the utility of the appeal instituted today for the company ought to be preserved by a further suspension which doubtless would be welcome news for its employees and, perhaps, those it and its associated company supply with product.  There are conditions on the suspensions already ordered by the court which run out at 4 p.m. today which the company has submitted to and those will continue to apply.

The present matter is adjourned until the 15th of December 2012 when it can be got into harness with the appeal which is 4506 of 2011.  The operation of Judge Durward's orders is further suspended until the 16th of December 2011 or further order, conditions of that further suspension being that the respondent company comply with paragraphs A, B and C of paragraph 12 and with paragraph 13 of the affidavit of P A Gill filed the 7th of November 2011, document 67 on the court file and further:

(1)  Seal the turning circle on its land to prevent vehicle movements raising dust;
(2)  Limit any activities that involve the engine of the truck used to transport water from the site being in operation (whether the truck is moving or not) to times after 7.30 a.m. and before 6 p.m. on days when operations are permitted being Monday to Friday other than public holidays;
(3)  Ensure that there occurs no other annoying noise capable of being heard off the land such as playing of music by persons engaged in water extraction and removal activities on the land;
(4)  Ensure that equipment that malfunctions with the consequence of generating noise exceeding levels stipulated in the noise management plan not be operated until it has been repaired.

...

HIS HONOUR:  The respondent comply with paragraphs A, B and C of paragraph 12 and unless notified to the contrary by the applicant Council within seven days with paragraph 13.

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