Seabridge Pty Ltd t/as Clutha Creek Sands v Council of the Shire of Beaudesert

[2000] QPEC 95

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Seabridge P/L & Anor v Beaudesert Shire Council & Anor [2000] QPEC 095
PARTIES:	SEABRIDGE PTY LTD (T/A AS CLUTHA CREEK SANDS) and HEILBRONN & PARTNERS PTY LTD Appellants v COUNCIL OF THE SHIRE OF BEAUDESERT Respondent and STATE OF QUEENSLAND Co-Respondent
FILE NO/S:	924 of 2000
DIVISION:	Planning and Environment
PROCEEDING:	Developer appeal
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	27 October 2000
DELIVERED AT:	Brisbane
HEARING DATE:	18, 19 and 20 October 2000
JUDGE:	Judge Robin QC
ORDER:	Appeal allowed, but subject to a condition that the activity of Extractive Industry and its operations approved by this permit shall operate until October 26, 2005 and after this date, the development shall cease and further development shall require the lodgment of a Development Application for a material change of use, sufficiently early to allow the Council a reasonable time to assess such application.
on the site – relevant factors included the asserted scarcity of the resource in S.E. Queensland and the likely efficacy in limiting noise and dust impacts on surrounding residents of new technology and operating methods
COUNSEL:	Mr Cronin for appellants Mr J Haydon for respondent Ms Went (18 October) and 27 October and Ms Pavey (20 and 27 October) for the co-respondent
SOLICITORS:	Primrose Couper Cronin Rudkin for the appellants Corrs Chambers Westgarth for the respondent Crown Law for the co-respondent

1. The second named appellant in the interests of the first named on 5 November 1998 made application to the Council for a Development Permit for a Material Change of Use and Operational Work for an Extractive Industry Operation of a kind which had received a former Council approval on 8 November 1989 “and which expired 27 April 1997.” With one exception, previous approvals, of which there had been a series, applied to Lot 1 on RP 28427 (49.336 hectares). The application sought to add to the land having the benefit of the approval an adjoining parcel, Lot 9 on RP 210117 (49.42 hectares).

2. The site is about 3.5 kilometres north of Tamborine Village, bordered by Waterford-Tamborine Road to the east and Clutha Creek Road to the south. Adjoining lots to the west of the site are zoned Rural and those to the north of the site (whose frontage is to Greensward Road) are zoned Rural Residential A development. Lot 1 continues to be used for extraction of the relevant product (sand), and was said in the application to have been “operating on an informal agreement with Council since 27 April 1997.”

3. Although sand production in the area originally focussed on alluvial sand, the resource now being exploited is sandstone, crushed on site. This used to occur by repeated crushing by rolling of the sandstone in situ. Now it occurs (and a superior product is produced) by “ripping” of the sandstone, which is then transported a short distance within the site to the hopper of a modern crushing plant using a process called Eco-wash. Two grades of sand are produced, one coarser than the other.

4. The application specified ERA No. 20 (sand extraction 100,000 tonnes or more per year) as the trigger bringing in the State Department of Environment as a concurrence agency. Accordingly, the State of Queensland, whose interest extends to road issues, is a co-respondent in the appeal. By the time of the hearing, all issues had been resolved among the parties with the exception of that of the duration of the development permit. The State of Queensland’s legal representative was excused at the beginning of the hearing, but returned to produce a document tendered as Exhibit 33 which sets out the agreed conditions.

5. As indicated, the court has been asked to consider only the issue of how long the development permit ought to be good for. Against a background of permits of limited duration, the application sought a minimum of ten years, but the Council offered only one year, which would expire about 26 October 2000. (The Council indicated no action would be taken to prevent operations continuing while the court determined the matter.) A permit restricted to a year would seem to have little to recommend it, but can be understood on the basis of hostility of numerous local residents to the operation and pressures placed upon the Council by them, and, also, the unlawfulness of the continuing operation after April 1997. It is unsurprising that the appellants approached the court. The Council’s response has been to indicate it would accept a five year permit as appropriate; the appellants seek from the court an unrestricted Permit.

6. It is convenient to set out the history of events prepared by Mr Venn, a town planning consultant who gave evidence for the Council, whose accuracy was confirmed by Mr Baker, the appellants’ town planner:

“1.4	History of Events
1.4.1	The following is a brief chronology of the events leading to this Appeal as they relate to the extractive industry carried out on the subject land.
• Clutha Creek Sands was established in 1983 when the Council issued (2) Town Planning Consent Permit ...for an extractive industry over what is now Lot 1 on RP 28427 (49.336 hectares) and Lot 9 on RP) 210117 (49.42 hectares) (“the subject land”). this permit allowed for the extraction of 100 cu m per day and continued for approximately 2 years. • In 1986 the Council granted its consent to an application over Lot 1 to increase the rate of extraction to 200 cu m per day. (Town Planning Consent Permit 491)
• A further application was made for extension to the extractive industry in 1989 that proposed an extraction rate of 100 cu m per day in relation to Lot 1 only. The Council approved the application subject to conditions and issued Town Planning Consent Permit 737 on 27 April 1990 for a period of 5 years.
• An application was made on 8 March 1995 for an extension to that Permit and this was approved for a two year period to 27 April 1997, subject to further conditions.
• Town Planning Consent Permit 737 expired on 27 April 1997.
• No further extension was sought nor granted and the extractive industry continued beyond the expiration of the Permit and the operation has continued to be conducted with no apparent legitimacy despite the claims by Proponents that there has been “an informal agreement with Council” (Gilbert & Sutherland P4, para 4).
• There has been a long history of complaints by nearby residents in relation to the Clutha Creek operation. The majority of complaints refer to non-compliance with the conditions of approval in relation to noise, dust and visual amenity. • The Council has issued the Appellant with:

- A Show Cause Notice, dated 30 June 1999; and

- Enforcement Notices, dated 3 August 1999 and 9
March 2000

These events, however, are not the subject of this Appeal and will
not be referred to again other than by brief reference to the
performance of the Appellant in relation to the Permit conditions.
h On or about 10 November 1998, Helibronn & Partners

Pty Ltd (on behalf of Seabridge Pty Ltd) lodged an application for Material Change of Use for “Extractive Industry (Sand Winning Operation)” over the subject land.

h Thirty three submissions were received by the Council

before the closing date for objections.

h A Decision Notice in favour of the Appellant was issued on 26 October 1999 and included conditions related to Council, Environmental Protection Agency and Department of Main Roads Department, requirements.

h The Appellant made a “Representation’ to the Council as the Assessment Manager in response to many of these conditions.

h The Council resolved to amend condition (x) (noise amelioration bund) and issued a Negotiated Decision Notice on 17 February 2000.

h The Appellant appealed against a number of the conditions in the Negotiated Decision and this was filed on 8 March 2000.

h Some of the conditions in dispute were imposed by the Environmental Protection Agency, as a concurrence agency, and by the Department of Main Roads.

h Both of these parties have elected to be heard as Co-

Respondents to the Appeal.”

1. The court was told that one of the submissions supported the development because of its generation of employment. Four local residents gave evidence in the Council’s case, consistent with what Mr Venn said regarding complaints. The court did not have details of complaints made orally to the Council, which does appear to have some records of them. There have been periods (of years) when complaints were few; they have been more voluminous at times when the operation has been conducted without a current permit. It seems to have been particularly distressing to local residents to have their expectations that extractive industry operations would cease on the effluxion of each current permit frustrated. The objectors are located primarily to the north of the site, with a sprinkling to the west and one on the southern side of Clutha Creek Road opposite Lot 9. Residential development in the area preceded the establishment of the subject extractive industry, and is expanding on the north (where subdivision of four hectare blocks into two hectare blocks has begun) and on the west, where new rural subdivisions are proposed, and more are likely.

2. One of the considerations inducing the Council to agree to extensions of the various permit arrangements allowing continued operations has no doubt been the regional significance throughout south-east Queensland of the resource. It is one of only a few south of Brisbane well located to serve construction needs in Brisbane and the Gold Coast and their environs. Prices to consumers are kept down by the competition the operation produces and by the reduction of transportation costs, which would be higher were more remote resources used.

3. Unfortunately, there has been no systematic or complete location and recording of such resources in south-east Queensland, although, of course, the major producing sites are known. Work is being done to remedy this deficiency in the interests of long term economic planning in south-east Queensland. Much more will be known about the situation in three to five years – which the Council presents as one good reason (another being the lapsing of transitional planning schemes pursuant to s.6.1.11.(1) of the Integrated Planning Act 1997) for keeping the appropriateness of continued operations on the site under review, consistently with their history, rather than a permit of unrestricted duration being granted.

4. It is clear that alternative sources of sand are available, although some are problematical, such as the large sand resources within Moreton Bay, pending the working out of solutions to the well known incompatibility of concrete (the major use of the resource) and salt.

5. The noise amelioration bund referred to in Mr Venn’s report is intended to provide minimisation of noise impacts on properties to the north, and, to an extent, properties to the north-west. All operations by way of ripping sandstone, hauling it by truck to the hopper and processing it in the plant by crushing and washing are to be conducted behind a five metre bund wall, the five metre height being measured from the level at which work is going on. This means that, in places, the bund wall may at times be as high as 15 metres, depending on the contours of the site. The wall itself will be removed and reconstructed as work progresses from the southern side of the site towards the north. Work to do with the bund wall itself creates important concerns. It is doubtful whether vegetation will be successful, and the significant size of the structure means that ten working days in each half year have been allowed for bund construction, during which the general constraints imposed by the conditions in respect of noise levels, etcetera will be inapplicable. One of the local residents, Mr Heard, was doubtful the bund could be constructed where the height was substantially in excess of five metres above immediately adjacent ground level.

6. On 19 October 2000, the second day of the hearing, in the afternoon, an inspection of the site took place. The plant was operating, likewise excavating equipment and a haul truck. On the evidence of the inspection, the noise levels were surprisingly low. They were lower still on the far side of the sand stockpiles surrounding the plant – which Is suggestive that the bund wall will effectively reduce noise impacts to the north, so long as work is done close behind it. (The wall, it seems, will not extend five metres higher than the plant machinery, but the conditions provide for acoustic panelling to be placed against it. There was little evidence of dust on the inspection. At the properties of the submitters who gave evidence (more precisely, outside their road frontages), it was not possible to hear plant and equipment on the site. The dominating sounds were of birds and leaves of the taller trees rustling in the breeze. The visual impact from outside of work done on the site, regarded by a number of residents as a “scar on the landscape”, was not intrusive, amounting to occasional glimpses through trees. However, I accept that the residents are acutely aware that the operation is there and the knowledge that the landscape will be further scarred makes them unhappy. Such matters are included in the concept of amenity of a locality as recognized by the Full Court in Broad v Brisbane City Council (1986) 2 Qd R 317, 318-20, 325-26. In contexts such as the present, it is not a case of “out of sight, out of mind.” In this case, amenity is experienced by the local residents against the background of a sad history of unwelcome impacts on amenity.

7. If future impacts on amenity were to be assessed on the basis of the inspection, and the inspection alone, the court would have little cause for concern. However, the court should accept that particular noises will be more intrusive at other times, such as first thing in the morning, and in other circumstances, such as when there is no wind. As noted already, the amenity impacts will certainly be of greater order during bund construction. The inspection did not really indicate what noise and dust conditions might be once haul distances from the ripping area to the plant become much longer. It is reasonable to assume the bund arrangement will be effective in respect of noise during ordinary extraction operations. The inspection did not inspire much confidence in the appellants’ restoration and revegetation program, which appears, so far, to be confined to a small area, where ground cover and trees are hardly thriving, and where erosion is evident. A permit of limited duration may have the beneficial effect of producing some effective restoration of mined areas which can be pointed to as relevant to the issue of whether any further permit should be granted in future. (Although the parties did not refer to it, the “precautionary principle” referred to in s. 1.2.3 of the IPA might be borne in mind in this regard.)

8. The conditions agreed provide for generous buffer areas all around the boundary. These pretty effectively screen the operation from visibility to the outside, although if, in the future, the “scar on the landscape” is more extensive, it may become appropriate to enhance the vegetation in the buffer area in order to obviate ever more numerous opportunities for distressing “glimpses”.

9. It would be a travesty for the court not to fall in with the change in the parameters of the appeal wrought by the Council’s offer of a period of five years from the date of the court’s order. The appellants have a reasonable expectation of emerging from the appeal no worse off than that. Their investment in new equipment and processes (which impressed the court on the inspection) is in excess of $1million and getting up towards $2 million in the last year and a half. Matters of private economics are irrelevant: Brown v Moreton Shire Council (1972) 26 LGRA 310, 313; in the present circumstances, in particular, the appellants can hardly expect to gain an advantage from capital improvements made in the course of undertaking extractive industry activities on the land unlawfully. However, the court should not ignore its favourable view of the technology, equipment and operating methods the appellants have been able to demonstrate in action.

10. The Council is in the somewhat difficult position of arguing that the impacts on local amenity of the operation are acceptable for five years, but not in the long term. The two town planners espoused opposed philosophies regarding the appropriateness of development permits of limited duration, which certainly are not the rule, although they are encountered from time to time. Where (as there must be here) there is some prospect of renewal, time limited permits introduce an unfortunate element of uncertainty, making it understandable that the appellants argue for an unrestricted permit, or at least one running until exhaustion of the sandstone resource – no suggestion was made as to how that stage might be achieved sooner, rather than later. Cases such as Esk Shire Council v Jackson & Ors (1062 of 2000, 18 August 2000), on the other hand, show that difficult situations may ensue where permits or approvals analogous to the present one are granted which “run with the land”, but do not contain conditions (which perfect foresight might have dictated) to limit the nature or scale of what can be done in the long term.

11. Mr Baker was able to meet any fears that a use may expand beyond recognition by pointing to the IPA regime under which intensification of a use requires a new development permit (of course, this may not continue to be the law for ever). While not conceding that their own (or any previous operator’s) use of the site warranted the criticisms advanced by Mr Venn , the appellants argued that, for the future, confidence ought to be placed in the strengthened enforcement provisions now found in the IPA and in the Environmental Protection Act 1994. The argument was that assurance can be felt that the authorities will resort to the enforcement remedies available, and that the first appellant faces severe penalties, such as being fined, or even closed down. Like the Council’s witnesses, I am disposed to be doubtful about the efficacy in practice of enforcement remedies, however promising they may look on paper. It is a strong thing to close down a useful activity which gives employment. Breaches of conditions which may cause a serious nuisance to nearby residents may be attributed to some hiccup or temporary factor.

12. To an extent, such considerations are beside the point. The court should not ordinarily assume that a developer will be in breach of conditions.

13. In the end, I have concluded that the appeal ought to be allowed, in relation to the duration of the permit, but only to the limited extent conceded by the Council. In so deciding, the court is not uncritically accepting the Council’s view – a shorter or longer period might reasonably be adopted; the time issue is “at large”.

14. I was referred to a pair of decisions of Judge Quirk in relation to time restrictions, which went in different ways. See Stuy v Beaudesert Shire Council (1985) QPLR 376, compare Filardi v Logan City Council (1998) QPLR 233. Judge Skoien imposed a “sunset clause” in the order (made by consent) in Reynolds v Redland Shire Council & Ors (Appeal 1274 of 1998, 6 August 1998).

15. While the local Planning Scheme makes the use applied for a permissible one in the locality (exactly similar uses conducted by the Council would be permitted in even more localities) and while the Planning Scheme provisions recognize the importance of protecting (and facilitating exploitation of) important resources such as those established here, the Planning Scheme must also be taken to favour expansion of residential development in the area, and at increasing densities. Whatever the planning documents may say, in practical terms, the uses tend to be incompatible in close proximity. It should not be overlooked that residential development here preceded the extractive industry use, which has, throughout its life, been based on time-limited uses. I do not think the court should overlook completely the problematical record of compliance with planning and similar restrictions to do with this operation since its beginning. The time is not opportune for the court to authorise an unrestricted permit running with the land. The scope of the operations is being increased, and the mode of operation is to be varied. It is appropriate that this be done on a “trial” basis, but one giving the appellants reasonable security of tenure.

1. I have given much thought to the undesirability of “sterilizing” the resource, something the court should not lightly do in respect of any valuable and useful resource, of a kind which is by definition finite (and may even be relatively scarce) in south-east Queensland. At my urging, Mr Kennedy gave supplementary evidence as to the first appellant’s capacity to increase its production consistently with the conditions it faces. I was concerned, in particular, with limits to a single “ripper” and a single “haul truck” operating within the site at any time. The operation has the highest level licence available under the EPA, which imposes no relevant ceiling on production. Mr Kennedy confirmed that the conditions I have mentioned posed no problem and that plant capacity could be increased by 50 per cent or so, without difficulty. As I understood him, finding markets would be the main problem from the point of view of increasing production. There is no certainty regarding the extent of the resource available to the first appellant; the tonnages Mr Kershaw has given are very much estimates based on intermittent drilling, which gives only an approximate idea of what sandstone is there to be excavated. The estimates may well have to be revised downwards to take account of the generous buffer areas around the perimeter, which cannot be touched, and the adjacent “buffer” areas where full excavation will not be permitted. The appellants suggest the resource will last 20 or (perhaps) 30 years, but in circumstances where the court cannot be confident about it. I think this gives a further reason for avoiding granting a permit which would run forever. For reasons appearing above, I think a five year period is about right. This will in fact give the appellants six years on top of the two and a half years of “unofficial” operation after expiry of the last permit. It will fit in with the Council’s reviews of its planning documents, and of State authorities’ completion of an inventory of sand resources in the region.

2. I think the residents are entitled to expect some justification for the court’s falling in with the Council’s allowance of more time. From the court’s point of view this owes much to the usefulness of the resource and the favourable impression obtained on the inspection of the new technology and operating techniques recently brought in. These continue to improve. In recent months, for example, the plant has been quietened by the introduction of new rubberised surfaces, presumably replacing metal. The court does not reject or discount the residents’ complaints of unacceptable impacts from operations on the site, but feels forced to the view that their impressions are a conflation of reactions to nuisances they have been subjected to over the years. The residents will carry memories of 6 am startups, which will no longer be permitted under the conditions.

3. A couple of residents who gave evidence reported approaches to them to join a committee of local people to monitor and comment on the operations on the site – and their reaction was that they did not care to become unpaid employees of the Council. They, and others who share their concerns may have little option, if this court’s expectations that impacts from the operation can be confined within acceptable levels are not realised. After three years or so, it may be that the appellants are making a further application which will require impact assessment and produce an opportunity to make submissions as to what happens thereafter. If impacts are unacceptable in their view, it will be of assistance to the residents to be able to give chapter and verse in support of submissions.

4. The court’s order will be one allowing the appeal and providing that a Development Permit be granted for an Extractive Industry (Sand Extraction) subject to the conditions set out in Exhibit 33, in which condition (xix) will be:

   “The activity of Extractive Industry and its operations approved by this permit shall operate until October 26, 2005 and after this date, the development shall cease and further development shall require the lodgment of a Development Application for a material change of use.”