Scenic Rim Regional Council v Gillion Pty Ltd

[2010] QPEC 115

PLANNING & ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Scenic Rim Regional Council v Gillion Pty Ltd [2010] QPEC 115
PARTIES:	SCENIC RIM REGIONAL COUNCIL (Applicant) -v- GILLION PTY LTD (Respondent)
FILE NO/S:	Application 2608 of 2009
DIVISION:	Planning & Environment Court
PROCEEDING:	Application
ORIGINATING
COURT:	Brisbane
DELIVERED ON:	10 September 2010
DELIVERED AT:	Townsville
HEARING DATE:	12 February 2010
JUDGE:	Durward SC DCJ
ORDERS:	1. Application granted.
2. Declaration that the respondent's use of the land for the purpose of Commercial Ground Water Extraction is:
(a) unlawful; and
(b) a development offence in that it constitutes assessable development for which no effective development permit has been issued and is not otherwise lawful.
3. Enforcement order pursuant to s.4.3.25 of the its servants or agents cease carrying out the assessable development on the land without first having obtained an effective development permit authorising the assessable development.
4. The operation of the enforcement order is suspended for a period of eight (8) weeks.
5. Liberty to apply in respect of the period in order 4.
CATCHWORDS:	PLANNING & ENVIRONMENT – LAND USE – commercial ground water extraction – pre-existing use under superseded planning scheme – whether lawful – whether protected use per Integrated Planning Act 1997.
PLANNING & ENVIRONMENT – LAND USE – whether scale and intensity of use has increased - whether Material Change of Use – whether assessable development.
PLANNING & ENVIRONMENT – ENFORCEMENT ORDER – requiring cessation of assessable development on land without effective development permit – whether user should have time to respond – whether order should be made.
PLANNING & ENVIRONMENT – DECLARATIONS – whether declaration under s.4.3.21 Integrated planning Act 1997 should be made that use of land for commercial ground water extraction unlawful and a development offence
LEGISLATION:	Sections 1.3.2, 1.3.5, 1.4.1, 1.4.2, 3.1.4, 4.1.3, 4.1.21, 4.3.1, 4.3.5, 4.3.25, 6.1.1 Integrated Planning Act 1997; Section 818
Sustainable Planning Act 2009; Environment Protection
(Noise) Policy 2008.
CASES:	Cornerstone Properties Pty Ltd v Caloundra City Council
[2005] QPELR 96; Norman v Gosford Shire Council (1975) 132 CLR 83; Ainsworth v Criminal Justice Commission
[1992] 175 CLR 564; Re Tooth & Co. Ltd (1978) 31 FLR 314; Russian Commercial and Industrial Bank v The British
Bank for Foreign Trade Ltd [1921] 2 AC 438; Warringah
Shire Council v Sedevcic (1987) 63 LGRA 361;Sutherland Shire Council v Leyendekkers [1970] 1 NSWR 356, 21
LGRA 410; Woolworths Ltd v Caboolture Shire Council &
The Warehouse Group (Australia) Pty Ltd [2004] QPEC 026; Queensland Cement Ltd v United Global Cement Pty Ltd
]1999] QPELR 167; CEC Group Pty Ltd v Cairns Waste
Management Group Pty Ltd & Anor [2002] QPLER 92; Maroochy Shire Council v Barns [2009] QPEC 031; Kelvin
Grove Residents’ Action Group Inc v Brisbane City Council & Ors [2001]QPELR 382; Livingstone Shire Council v
Hooper (2003) QPEC 63,. S Ure for the Applicant
COUNSEL:	J Hayden with Ms E Gass for the Respondent
SOLICITORS:	Corrs Chambers Westgarth for the Applicant Potts Lawyers for the Respondent
The Application

1. The applicant, Scenic Rim Regional Council seeks a declaration pursuant to s. 4.1.21 of the Integrated Planning Act 1997 (“IPA”) that the respondent's use of land described as Lot 87 on RP 168897 and situated at 22-26 Power Parade, Mount Tamborine ("the land") for the purpose of commercial ground water extraction is:

“1	(a)	unlawful; and
(b)	a development offence in that it constitutes assessable development for which no effective development permit has been issued and is not otherwise lawful.

2 An enforcement order pursuant to s. 4.3.25 of the Integrated Planning Act 1997 that the respondent by itself, its servants or agents cease carrying out the assessable development on the land without first having obtained an effective development permit authorising the assessable development.”

1. The applicant is the local government for the area in which the land is located and the respondent is the registered owner of the land. A company – Wet Fix Pty Ltd – associated with the respondent uses the land for commercial ground water extraction. The respondent uses a bore on the land to extract ground water to fill water tanks. The water is then pumped into water tank trucks and transported off the land, where it is processed and bottled for retail sale at a business premises owned and operated by Wet Fix Pty Ltd.

History

1. The land was previously zoned "rural" under the 1985 Beaudesert Shire Planning Scheme ("superseded Scheme") which has now been replaced by the 2007 Beaudesert Shire Planning Scheme ("current Scheme").

2. Under the superseded Scheme the applicant asserts that the commercial extraction of ground water was "assessable development" within the rural zone: the use of the land for commercial extraction of ground water did not fit any of the uses defined in that scheme and referred to in the Table of Zones for the Rural Zone, the latter providing that any purposes other than those referred to in columns III or V of the Table are purposes for which buildings or other structures may be erected or used, or which land may be used, only with the consent of Council.

3. The land is located in the Village Residential Precinct in the Tamborine Mountain Zone under the current Scheme and use of land in that precinct for commercial ground water extraction is impact assessable development. "Commercial ground water extraction" is defined in the current Scheme as "the extraction of ground water resources and the removal of that resource from property for the purpose of sale".

4. The applicant submitted that the respondent has never applied for or obtained a development approval to permit the commercial extraction of ground water from the land and the use is not otherwise lawful. Hence it says that an order should be made pursuant to s. 4.3.25 IPA requiring the respondent to cease carrying out assessable development on the land without first having obtained an effective development permit authorising the assessable development.

5. Numerous affidavits were tendered for the purpose of this hearing from persons who have concerns about the extraction of water on a number of bases and from others formerly or presently associated with the land or the business of Wet Fix Pty Ltd or its operating predecessors. In addition, I was provided with town planning expert reports and I had a report by and heard evidence from Mr King, who is an acoustic engineer and noise expert.

   Applicant's Legal Position

6. The applicant contends that:

“1. Pursuant to the Superseded Planning Scheme, which commenced on 12

February 1985, the subject land was allocated to the Rural zone.

2.          The commercial extraction of ground water for sale was an innominate use

pursuant to the Superseded Planning Scheme and required the consent of

Council.

3.          No consent permit issued for the use.

4.          The use of the land for commercial extraction of ground water for sale

commenced in approximately 1993/1994.

5.          Pursuant to the current Planning Scheme, which commenced on 31 March

2007, the subject land is allocated to the Village Residential Precinct in the

Tambourine Mountain Zone.

6.          The respondent's use of the subject land for the extraction of ground water

for sale constitutes "Commercial Ground Water Extraction" pursuant to the

current Planning Scheme.

7.          Commercial ground water extraction is an impact assessable development

in the Village Residential Precinct in the Tambourine Mountain Zone.

8.          Further, in the alternative, since the Respondent acquired the land in 2004,

there has been a material change in the intensity or scale of the use of the

subject land for the purpose of extraction of ground water for sale.

9.          No development permit has issued authorising the Respondent's use of the

subject land.

10.        Since 2007, there have been a significant number of complaints received by

the Applicant about the Respondent's use of the subject land, the extraction

of ground water for sale.

11.        The use is unlawful.”

1. The expression ‘Commercial Ground Water Extraction’ means the extraction of ground water resources and the removal of that resource from a property for the purpose of sale. The term includes the treatment and storage of extracted ground water resources: ‘Sch 1 Part 1 – Defined Uses’ (in the current planning Scheme). An ‘innominate use’ may be characterised as one that is neither approved, permitted or regulated.

   Respondent's Legal Position

2. The respondent contends that:

“A. Council of the Shire of Beaudesert Town Planning Scheme published in the

Government Gazette (superseded Planning Scheme) enforced from 9
February 1985 to 29 March 2007.

1.         Minor public utility defined as: "Any premises used or intended for use for the supply of water, electricity or gas, or the provision of telephone, sewerage or drainage services where these activities do not involve either of the following:-

(a) the construction of electricity power lines, transformers or

switching stations operating out or in excess of 60,000 volts;

or

(b) the construction of any building or other structure having a floor

area greater than 50m2 or a height greater than five metres;"

2.	"Public utility" defined as: "Any undertaking for the supply of water, hydraulic power, electricity or gas or the provision of telephone, sewerage, drainage or transport services carried out by public organisations. The term does not include radio or television transmitter or a minor public utility as defined herein."
3.	"Premises" defined as: "Any land, building or other structural part thereof".
4.	"Structure" defined as: "Any building, wall, fence or other structure or anything affixed to or projecting from any building, wall or fence or other structure. The term includes any part of a structure."
B.	Dictionary definition.
5.	‘Public utility’ is "an organisation performing an essential public service, as supplying gas, electricity or transport, and operated or regulated either by a company, the state or a local government": Macquarie Dictionary 2006, 4th Ed. P.980.
6.	"A service, as electricity, water, etc., essential to the community; a company providing such a service or supply, usually controlled by a nationalised or private monopoly and subject to public regulation": Shorter Oxford English Dictionary 2002, Vol 2. P.3492.”

Notice of Admission by the respondent

1. For the purposes of the application the respondent made a number of admissions of fact, as follows:

“1. The only records available from April 2007 to August 2008 are the

business records of Wet Fix Pty Ltd (Wet Fix) in the form of tanker logs
and summarised in the 2007 and 2008 columns of Table A.

2.          From September to December 2008, in addition to the Wet Fix tanker logs

are the logs kept by Mr Guerin and Mrs Allender. Where the logs differ,

the higher figure has been taken for that month and shown in the 2008

column of Table A.

3.          From January to November 2009, in addition to the Wet Fix tanker logs are

the logs kept by Mrs Allender. The logs kept by Mrs Allender for
February, March and April 2009 are higher because water was being
harvested in response to the call for water for Victoria in the aftermath of

the Black Saturday bushfires. For these months the numbers used in

Table A have been from the Wet Fix tanker logs even though some of these
loads related to the bush fire request. From Mrs Allender's list, the Ron’s
Water loads have been deducted from February, March and April 2009 as
they were extra trucks used to respond to the bushfire emergency. From

May to December 2009, the higher figure for the month has been used in

the 2009 column of Table A for the Wet Fix tanker logs or the logs kept by

Mrs Allender.”

The Evidence

A number of neighbours living in Power Parade, Mount Tambourine in the vicinity of the respondent's property provided affidavits of an historical or anecdotal nature detailing the concerns that they had about the water extraction operation on the respondent's property. The marker ‘A’ identifies the vehicle turning circle or driveway on the respondent’s property:

1. Many of the neighbours had concerns about the level of noise from the pumping operation, the movement of water trucks on the property and on Power Parade, the increase in traffic on the roads and the narrow width of Power Parade and damage to the road surface. Some referred to visual pollution. Most of the neighbours reported a change in the intensity and scale of the water extraction business over time, particularly with respect to the number of loads of water being transported from the respondent's property. Many were concerned with a reduction in the capacity of water bores on their own properties over time.

2. More specifically, Mrs Gray who lives next door to the respondent's property, stated that her water bore stopped pumping water about ten years ago. Mr Hovelroud stated that there had been a reduction in the capacity of the bore on his property.

3. Mr Stotschek lives a few properties removed from the respondent's property on Power Parade. His bore capacity decreased by 95% (from about 65,500 litres per day to 3,200 per day) between 1996 and early 2001 during which period he observed one to two 5,000 litre water trucks per day, six days per week until 1999 and then three 20,000 litre trucks per week to early 2001, leaving the respondent's property. The truck movements ceased for a few months and he stated that the volume of his bore returned to its original level but upon resumption of the truck movements in about mid 2001, there was another decrease in the capacity of his bore to the approximate 3,200 litre per day level and truck movements were about three to five 20,000 litre trucks per week. Since the respondents have owned the property and operated the water extraction business from it in about late 2004, Mr Stotschek has observed some five to ten 20,000 litre truck loads per week for about two and a half years and since about March 2007, eight to ten or fifteen to twenty truckloads per week depending on the season. His bore has remained static through that period at about 3,200 litres per day.

4. Mrs Allender, who is an adjoining neighbour to the respondent's property, kept diary entries over various periods. In summary she reported the following:

• Diary entries for ten weeks September - November 2008 showed an average of nearly 16 truckloads per week

• Diary entries for six weeks late August 2009 to early October 2009 showed an average of nearly 20 truckloads per week

• Diary entries for December 2009 (12 days), January 2010 (22 days) and February 2010 (8 days) showed an average of about 2.3 truckloads per day.

1. The respondent filed a number of affidavits from divers persons including truck drivers and other persons associated with the business over time, who gave an historical account of the water extraction operations.

2. A previous owner of the property between 1989 and 2002, Ms McIntyre, deposed that she started selling bulk spring water in about 1991 and from her recollection she removed three loads or eight to ten loads per day, the latter being in peak period, perhaps averaging five loads per day for five days per week.

3. Mrs Gill, a director of the respondent company, deposed to the business operations. The respondent company has owned the property since September 2004 and Wet Fix Pty Ltd, of which she is a director, owns the business operation. Water is taken from the property by truck to a bottling plant. It is used for the commercial production of bottled water for human consumption. The business also holds or delivers water for emergency supplies and donates water for various charitable causes. She says that the water is consistently of a high quality and there has not been any diminished flow of water from the bore on the respondent's property. In 2008 a new concrete driveway and turnaround and electric gates were installed on the property. She said the first indication of the applicant taking a view about the ‘planning description’ of the business operation commenced in about February 2009.

   Town Planners

[20] In the superseded Scheme:
"Minor public utility" is defined as:

"any premises used or intended for use for the supply of water, electricity or gas,

or the provision of telephone, sewerage or drainage services where these activities

do not involve either of the following:-

(a) the construction of electricity power lines, transformers or switching

stations operating out or in excess of 60,000 volts; or

(b) the construction of any building or other structure having a floor area

greater than 50m2 or a height greater than 5m."

"Public utility" is defined to mean:

"any undertaking for the supply of water, hydraulic power, electricity or gas or the
provision of telephone, sewerage, drainage or transport services carried out by
public organisations. The term does not include radio or television transmitter or
a minor public utility as defined herein."

1. In the superseded Scheme, under ‘Part II - Zoning Division 1’, Clause 4 provides as follows:

   "Subject to the provisions of Parts III and IV of this town planning scheme,
   no person shall:-

   (i)         without the consent of the Council, erect or use any building or

   other structure or use land in any zone for a purpose set forth in
   Column IV of the Table of Zones herein opposite the name of that

   zone; or

   (ii)        erect or use any building or other structure or use land in any zone

   for a purpose set forth in Column V of the Table of Zones herein

   opposite the name of that zone."

2. I have read reports from town planners, Mr Ovenden and Mr Hall and a joint report prepared by them on 2 February 2010.

[23] Mr Hall inspected the property in April 2009 and made the following observations: He said that a very small part of the shed is used for water extraction use. "There are a number of tanks and sheds on the site that are unrelated to the

water extraction use. The component parts of the water extraction use are:

(a) a bore which supplies water by a pipe outside a shed to two

stainless steel tanks at its western end; and

(b) pipes from the stainless steel tanks to a pump inside the shed and

thence from the pump by pipe to an outlet point for filling tankers."

1. In the Rural zone, there are listed in Column IV purposes for which buildings or other structures may be erected or used or for which land may be used only with the consent of the Council. The taking of water for sale or, as it might be referred to - water harvesting - is not a use listed for that zone.

2. Mr Ovenden in his report expressed opinions about matters that are properly for the Court to determine. However, in the joint report the two town planners they agreed about the accuracy of a site plan prepared by surveyor, Mr Harden and made observations on site. They concluded that the areas associated with the ground water extraction activity would occupy less than 50m2 and have structures of less than 5m height, subject to Mr Ovenden's view that there is a further method of water harvesting that appeared to him to form part of the use: that is, three large non- stainless steel tanks used by the Tambourine Mountain Rural Fire Brigade as a static water point and also for training. The inclusion of those tanks to the rest of the operation would in his view appear to exceed 50m2. This calculation is relevant to the planning provisions of the superseded scheme: see supra at [20].

1. I do not consider that the inclusion of the water storage tanks in the ground water extraction activity, referred to by Mr Ovenden, means that the operation is not within the definition of "minor public utility." To include the water storage tank in the calculation is somewhat artificial and strains the language of the definition. The water storage tanks have a purpose other than that of the commercial activity of the business, namely a community service purpose. It seems to me that the commercial activity is within the definition.

   Noise

2. Mr King, an acoustic engineer, provided a report and gave evidence in the hearing. He inspected the site in April 2009. His conclusions were as follows:

"(a)	The existing ambient noise environment at residences near the
subject site on Power Parade are influenced by ambient noise
events including traffic (including trucks) on Main Western Road
and existing traffic, including trucks (not associated with the
subject site) on Power Parade.
(b)	The noise levels experienced at residences in Power Parade associated with the operation of the prime mover and water tanker relate to the movement from Main Western Road to Power Parade, entering the site off Power Parade, travelling slowly onsite up the slope to the turnaround area, negotiating the turn around and driving slowly down the slope to park external to the shed nearest Power Parade. Filling of the tanker is conducted by connecting a water hose from the fitting of the shed, to the tanker and then operation of an electric motor driven pump within the shed which pumps water into the tanker. The filling operation is very quiet. When filled, the pump was switched off, the hose disconnected, the truck was started and driven off the site travelling at slow speed along Power Parade to Main Western Road.
(c)	My inspection and the noise measurements undertaken indicate that due to the short duration of the noise events involving movement of the truck (the primary noise source) and the relative frequency of occurrence the resultant acoustic amenity impact would not exceed reasonable noise limits at adjacent residential areas.
(d)	The management of the truck movement and filling operations could be managed in a formal way by implementation of a noise management plan which documents set noise control measures to further reduce perceived noise amenity impacts at adjacent residences."

1. Mr King had taken noise measurements which he reported in his affidavit. These reflect the content of the Table in ‘Sch 1 – Acoustic quality objectives’ in the Environmental Protection (Noise) Policy 2008. They relate to the movement of the truck and the filling process from arrival to departure of the truck. In cross- examination he confirmed that the measurements were taken after 9.30 am on 30 April 2009. The noise level measured in decibels was 67 dB at a central location and 69 dB closer to the driveway. He agreed that ambient noise levels were lower earlier in the day. He measured the noise level at the facade of the neighbours (Mrs Allender) house at 67 dB and at 58 to 60 dB at a nearby neighbour's house (Mr Guerin) as the truck drove along Power Parade.

2. Mr King drew a distinction between the noise levels over say a one hour period of time as against short peak levels. He considered that so far as noise levels were concerned, it depended on that individual's perception of noise and the time occupied by the noise. He said that a person would suffer sleep disturbance with a noise level of 55 dB outside a premises or 50 dB inside a premises. He agreed that the ambient noise level early in the morning was as low as 35 to 40 dB. He agreed that "night time" in this area which was in essence of the nature of a "village", would be between the hours of 10 pm and 7 am. Daytime in his view was 7 am to 6 pm. He agreed that the standard noise levels would have been exceeded in some instances. Whilst the noise of the truck "turning" on the driveway of the property was audible, it was within limits.

3. So far as immediate neighbours were concerned, he recommended measures that could ameliorate the noise issue, such as noise barriers and the implementation of a noise management plan. He did not think that the tanker noise was significant and said that the traffic flow on Main Western Road was relatively consistent.

4. The respondent submitted that the concerns of residents about various aspects of the respondent's operations are of no relevance to interpreting the superseded Planning Scheme; that noise concerns had been addressed by a number of measures, including the installation in 2008 of the concrete driveway, turning circle and electric gates; testing of acoustic noise levels does not demonstrate any unreasonable noise or a level of noise that is unexceptional, at short peaks during daytime hours and not otherwise.

5. The effect of noise varies according to the perception of the listener. It is an impact that is very personal to the listener.

6. Overall, I accept that the noise issue was one that is variable according to location, proximity, time, frequency and the source that generates the noise. It is not reasonable for a person sharing any neighbourhood to be free from the noise generated by the activities of others in the neighbourhood or to have and maintain such an expectation. Noise is very much a matter of degree. The respondent proposes a Noise Management Plan. I do not know if that has been partly implemented by the changes already made to the operation of the business or if it is something different that is contemplated.

7. Be that as it may, I do not consider noise alone to be a compelling factor. However, it is a relevant factor when considered with the intensification of the use, a matter that I will now deal with.

   The Use

8. It is common ground that there is no development permit with respect to the current use. The respondents view is that a development permit is not necessary because the use commenced under the superseded planning scheme (Beaudesert Shire Council) as a permitted (as of right) use. The permitted use has continued until early 2009 when the newly constituted Regional Council took a different view of the matter and sought the enforcement order the subject of this application.

9. The applicant contended that the threshold question for determination is the categorisation of the use pursuant to the superseded planning scheme. The applicant’s position is that the use is the commercial extraction of ground water for sale and that it was an innominate use pursuant to the superseded planning scheme and required the consent of Council. No consent permit was issued for the use.

10. The respondent disputed that the use was an innominate use: Livingstone Shire Council v Hooper [2003] QPEC 63 per Robin QC at [15] and [16].

11. Under the current planning scheme (which commenced 31 March 2007) the land is allocated to the Village Residential Precinct in the Tambourine Mountain zone. The use of the land for the extraction of ground water for sale constitutes "commercial ground water extraction" pursuant to the current planning scheme which is an impact assessable development in that precinct.

12. The appellant contended that this use was not properly categorised as a minor public utility under the superseded planning scheme and therefore was not a lawful use which would be protected pursuant to the IPA. If the use did require the consent of Council pursuant to the superseded legislation, it now constitutes "assessable development" pursuant to s. 6.1.1 of IPA. Hence, there having been no development permits issued authorising the use, the continuing use has been unlawful since the commencement of the current Planning Scheme.

13. The respondent referred to dictionary definitions of "public utility": supra, paragraph [10] at B 5 & 6. It submitted that a consistent thread in the definitions (dictionary and the planning scheme) was the supply of an essential public or community service.

14. An example of such supply in respect of water is a supply of reticulated water to households. The bottling of water for retail sale is arguably not such a supply.

    Scale and Intensity of the Use

15. The applicant submitted that there had been a significant change in the scale or intensity of the use such that even if the use was properly characterised as a minor public utility and was lawful at the time the current Planning Scheme came into effect, there had been a significant change in the scale or intensity of the use following, that such as would constitute a Material Change of Use of the premises: s.1.3.5 IPA. In those circumstances it was submitted that a Development Permit would be required: ss. 3.1.4(1) and 1.3.2(e) IPA.

16. The applicant submitted further that the carrying out of assessable development without a permit constituted an offence pursuant to s. 4.3.1 IPA.

17. Finally, the applicant submitted that there was nothing that would inhibit the Court from declining the relief sought in this case.

18. The respondent submitted that the concerns of the residents about the alleged intensity of the use was not relevant in the superseded planning Scheme but nevertheless had been addressed by changes to operations and other refinements on- site, made by the respondent. The noise issues had also been addressed and the evidence, it was submitted, demonstrated that any noise levels of concern were at short peaks and at non-critical times from an aesthetic point of view, did not exceed reasonable noise limits and were amenable by a formal noise management plan that could be implemented to further reduced perceived noise amenity impacts upon neighbouring properties.

    Discussion

19. Prior to the commencement IPA an intensification of a use was not a change of use: Norman v Gosford Shire Council (1975) 132 CLR 83; However, since 30 March 1998, the definition of "Material Change of Use" applies under IPA and includes a new element, namely "a material change in the intensity or scale of the use of premises": s. 1.3.5 IPA.

20. Existing uses have been protected under town planning legislation. The existing lawful use as at 20 March 1998 is protected and is taken to be a lawful use under ss. 1.4.1 and 1.4.2 IPA. The new planning scheme in 2007 does not affect that protection. Hence the respondent submits that the description of the water extraction business as a "minor public utility" continues and that the rights accruing to the respondent cannot retrospectively be taken away.

21. The history of the use of the property is referred to in the affidavit material. The first bore was put down in 1991 when Ms McIntyre was the property owner and the extraction of water has continued through the successive ownerships until the present. There were until 2007 four bores on the property: one was the main water source, one supplied the house, one was a back up bore (no longer in use) and the other was not used at all. In February 2007 a new bore was drilled and the previous main water source is now the back up water source. There has been only one bore used at any one time to take water for the commercial purpose. The water is pumped into stainless steel tanks and the tanker fills from the tanks.

22. My assessment of the affidavit evidence is that the quantity of water taken from the bore for the commercial purpose increased over time and now seems to be at a consistent although variable level, depending on demand, as the more recent calculations indicate.

23. The increase in scale or intensity of the water extraction is undeniable on the evidence. It has had the effect also of increasing the number of truck movements over time. The evidence of the neighbours, even taking account the variable effects of individual perception of noise, is that the number of truck movements has increased, the quantity of water being taken has an impact on the underground water resource such that when the extraction is at its peak, there is a corresponding reduction in water flows in bores on adjoining properties. To that extent there has been as a consequence of what I consider to be a change in the scale or intensity of the subject use an impact on the amenity of local residents in a number of respects and I find accordingly.

24. The land is an undeclared ground water area and the water, of course, is taken from underground aquifers or storages. Water is a highly regulated asset and subject to other legislation: Water Act 2000 and Environmental Planning Act 1994, for examples, quite independently of the planning requirements and the law relating to existing uses. Hence restrictions on the use of water could be imposed by that other legislation. If the regulation of water as an asset by other legislation is in issue, it is not one in respect of which this Court can make a declaration: Cornerstone Properties Pty Ltd v Caloundra City Council [2005] QPELR 96.

25. What may amount to “material” is a matter of fact that may be characterised by the Court in an exercise of discretion. Whilst I have found that the respondent's operation may properly be characterised under the superseded planning scheme as a "minor public utility", nevertheless the change in the scale and intensity of the use is significant and such as would constitute a Material Change of Use of the premises.

    Should there be an exercise of discretion?

26. The Court may make declarations: s. 4.1.21 IPA (as applied in this case pursuant to the transitional provisions in s 818 Sustainable Planning Act 2009). The test with respect to judicial discretion in cases of declarations has been discussed in numerous cases:

27. In Ainsworth v Criminal Justice Commission [1992] 175 CLR 564 their Honours listed factors often used in the Court's discretion to grant or withhold declaratory relief:

    "Declaratory relief must be directed to the determination of legal controversies and not to answer abstract or hypothetical questions; persons seeking relief must have a ”real interest”; relief will not be granted if the question is purely hypothetical or if relief is “in relation to circumstances that [have] not occurred and might never happen”; or if “the Court's declaration will produce no foreseeable consequences for the parties”.

28. In Re Tooth & Co Ltd (1978) 31 FLR 314 (at 331) Brennan J stated that there must be a real controversy to be determined before a declaration can be made.

29. In Russian Commercial and Industrial Bank v The British Bank for Foreign Trade Ltd [1921] 2 AC 438 the Court at 448 wrote that:

    "The question must be a real and not a theoretical question, the person
    raising it must have a real interest to raise it; he must be able to secure a
    proper contradictor, that is to say, someone presently existing who has a
    true interest to oppose the declaration sought."

30. In Warringah Shire Council v Sedevcic (1987) 63 LGRA 361, Kirby J (at 365) referred to a number of guidelines applicable to the exercise of the Court's discretion in cases of declarations in the Planning and Environment environment, including:

"1.	The discretion is no less wide than that enjoyed by the Courts.
2.	The discretion is not fettered. It is not limited to particular classes
of case or special cases.
3.	The exercise of the discretion must relate to the enforcement of a
public duty and not a private right. There is a balancing required
between public interest in equal compliance with the law and the
degree of irremediability occasioned by a breach in the expense or
inconvenience which would follow the law's enforcement.
4.	The Court should endeavour not to produce an unjust result in a
particular case.
5.	There is a legislative purpose in upholding, in planning cases the
integrated and co-ordinated nature of planning law to avoid
damage to the environment and to avoid giving private advantage
to particular individuals.
6.	The local government is the recognised proper guardian of public
rights in respect to planning matters."

1. In Sutherland Shire Council v Leyendekkers [1970] 1 NSWR 356, 21 LGRA 410 ( at 419) Street J rejected the restrictive approach to the discretionary power to make a declaration: “Used with a proper sense of responsibility, the [declaratory] jurisdiction has made a significant contribution to the quick, inexpensive and authoritative resolution of disputes appropriate to be made the subject of declaratory relief”.

2. The applicant submitted that the breach was not merely a technical breach but had significant adverse amenity impacts on neighbouring residents in the locality. The need to uphold planning law and the risk of hardship to innocent parties has been the subject of judicial comment in cases of involving applications for declarations:

3. In Woolworths Ltd v Caboolture Shire Council and the Warehouse Group (Australia) Pty Ltd (Woolworths) [2004] QPEC 026 at [10] and [18] his Honour Judge Wilson SC referred to the need to uphold planning law and to the risk of hardship to innocent parties; and the need to evaluate the risk of harm to the public interest against the broad obligation to obey the law, rather than just in respect of affected individuals or groups. His Honour referred to the need to evaluate the issue of harm to the public interest against the broad obligation to obey the law rather than just in respect of affected individuals or groups.

4. However, much depends of course on the circumstances of the particular case: Queensland Cement Ltd v United Global Cement Pty Ltd [1999] QPELR 167 and Warringah Shire Council (supra) per Kirby J at 339.

5. The respondent referred to Di Domenico v Hervey Bay City Council [2000] QP ELR 297, a case said to reflect the respondent's dilemma. The appellant had an enforcement notice issued against him in respect of a use of a shop in a caravan park. There was no development approval. The court held that the ongoing use of the shop was not an existing lawful non-conforming use. However, the circumstances were said to be so exceptional - the use had existed for more than 20 years: the appellant was a bona fide purchaser of the business and premises (twice removed from the original owner); the use was essential to the operation of the caravan park; it fulfilled a community need; and the local authority had been dilatory in dealing with the issue - that the court exercised its discretion in the appellant's favour.

6. I do not consider the respondent's position to be similar to that in Di Domenico. There is a quantum leap between the operation of a shop premises in a caravan park and the ground water extraction operation of the respondent. The park operation depended on the shop operation and there was a demonstrable community need being fulfilled. That is not the case here. The scale and intensity of the use in this case has increased whilst the activity has been owned and operated by the respondent.

   Conclusion

7. In the circumstances so described the use is unlawful and constitutes a development offence pursuant to the current planning scheme. A development permit is required for the use to continue.

8. There is a proper legislative purpose in upholding the current planning scheme; the respondent benefits from the operation to the significant detriment of neighbours; the potential depletion of the water table whether temporary or intermittent or not, is an environmental concern. The applicant has a public duty to protect broader community rights and interests and that duty exceeds any rights or interests of individuals or groups, including the respondent; the operation is amenable to application for approval, conditional or otherwise; and a grant of the relief sought is not such as would impose unjust or intolerable cost or inconvenience upon the respondent.

9. I will grant the relief sought by the applicant but suspend the operation of any enforcement order for a period of eight (8) weeks to enable the respondent to make an appropriate application to seek to regularise the use. I would also give liberty to apply in respect of that period.

   Orders

   1. Application granted.

2. Declaration that the respondent's use of the land for the purpose of Commercial Ground Water Extraction is:

(a) unlawful; and

(b) a development offence in that it constitutes assessable development for which no effective development permit has been issued and is not otherwise lawful.

3. Enforcement order pursuant to s.4.3.25 of the Integrated Planning Act 1997 that the respondent by itself, its servants or agents cease carrying out the assessable development on the land without first having obtained an effective development permit authorising the assessable development.

4.  The operation of the enforcement order is suspended for a period of eight (8) weeks.

5. Liberty to apply in respect of the period in Order 4.