State of Queensland v Ipswich City Council
[2002] QPEC 35
•30 May 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
State of Queensland v Ipswich City Council & Ors [2002] QPEC 035
PARTIES:
STATE OF QUEENSLAND
Applicantv
IPSWICH CITY COUNCIL
First Respondent
and
EBENEZER MINING COMPANY PTY LTD
ACN 010 778 711
Second Respondent
and
AUSTRALIAN MEAT HOLDINGS PTY LTD
ACN 011 062 338
Third Respondent
FILE NO/S:
4503 of 2001
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
30 May 2002
DELIVERED AT:
Brisbane
HEARING DATE:
20 May 2002
JUDGE:
Robin QC
ORDER:
Application allowed
CATCHWORDS:
Coal miner re-established at its mine composting activity previously conducted at an abattoir using its waste materials – whether this constituted “undefined development” (and therefore assessable development under the Ipswich Planning Scheme – Schedule 8 Pt 3 items 10 and 10B of the Integrated Planning Act 1997 exempted from assessable development any material change of use of premises authorized under the Mineral Resources Act and any mining activity to which an “environmental authority (mining activities)” under the Environmental Protection Act 1994 applies – sole use of composted material (after storage in windrows) was in rehabilitation of the mine area as required by applicable conditions, including a deemed environmental authority – even if activity could be characterized as, say, composting, it was within the IPA exemption
Mineral Resources act 1989 s. 235
Integrated Planning Act 1997 s. 3.1.2(2)
Schedule 8 part 3 Item 10, Item 10B
Environmental Protection Act 1994 ss. 147, 149, 585, 588, 589
Monier PGH Holdings Limited v Pine Rivers Shire Council, 5156 of 2000, 12 April 2002
CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270, at 272
Baulkham Hills Shire Council v O’Donnell (1990) 69 LGERA 404, at 409
Food Barn Pty Ltd v Solicitor General (1975) 32 LGRA 157
Penrith City Council v Waste Management Authority (1990) 71 LGRA 376, at 383ff
Glenpatrick Pty Ltd v MacLean Shire Council (1989) 72 LGRA 205
Council of the Shire of Pine Rivers v Intercontinental Shelf No. 108 Pty Ltd, 3739 of 1982
Warringah Shire Council v Raffles (1978) 38 LGRA 306 Lewiac Pty Ltd v Gold Coast City Council (1993) 81 LGERA 219, 225
Brisbane City Council v Bemcoe Pty Ltd (1998) 104 LGRA 1, 3 and
Arpedco Pty Ltd v Beaudesert Shire Council (1980) Qd R 88
Boral Resources (Qld) Pty Ltd v Cairns City Council (1997) 2 Qd R 31
Walker v Noosa Shire Council (1985) 1 Qd R 387, 393-94)COUNSEL:
Mr M. Hinson SC for the applicant
Mr D Gore QC for the first respondent
Mr Berding for the second respondent
Mr A. McLean-Williams for the third respondentSOLICITORS:
Crown Law for the applicant
Ipswich City Council for the first respondent
Allens Arthur Robinson for the third respondent
The purpose of this application is to obtain the court’s determination whether activities conducted by the second respondent on land in Ipswich require the obtaining of a development permit from the Council under the Integrated Planning Act 1997. The application has been characterized as a “friendly” one. It seeks:
“1.A declaration that rehabilitation of the land, the subject of Mining Lease No. 4712, pursuant to the Second Respondent’s Environmental Management Overview Strategy dated April 1996 by the use of paunches and other material obtained from the Third Respondent is exempt under item 10 or item 10B of Schedule 8 Part 3 of the Integrated Planning Act 1997;
2.A declaration that the carrying out of such rehabilitation by the Third Respondent is lawful development which may be carried out without a development approval granted by the First Respondent under the Integrated Planning Act 1997:”
The Council’s response to the applicant’s Points of Claim counterclaims for:
“(a)a declaration that pursuant to s.1.3.5 of the Integrated Planning Act 1997, the receipt, stockpiling, storing and/or treatment by the Second Respondent of manure, paunch and other materials obtained from the Third Respondent constitutes a material change of use of the premises the subject of mining leases 4712 and 50100 (the material change of use).
(b)a declaration that pursuant to section 6.1.1 of the Integrated Planning Act 1997 and transitional planning scheme for the City of Ipswich the material change of use is assessable development requiring impact assessment.
(c) ...
and
“As against the Second Respondent –
(d)a declaration that pursuant to section 4.3.1(1) of the Integrated Planning Act 1997 the Second Respondent has committed and is continuing to commit a development offence by carrying out the material change of use without a development permit for that development;
(e)an Order pursuant to section 4.3.22(1) of the Integrated Planning Act 1997 restraining the Second Respondent from carrying out the material change of use until such time as a development permit is obtained for such use.”
The second respondent mines for coal on the two mining leases identified in an operation which goes back 15 years or longer. The Ebenezer resource is acknowledged in the Strategic Plan The method of mining involves removal of topsoil and overburden which are stored to be available for replacement in the mining void in accordance with rehabilitation conditions. The arrangements under which mining is permitted include an EMOS – Environmental Management Overview Strategy, committing the second respondent to progressively rehabilitate disturbed areas to a defined “land capability” by the time of lease surrender, recontouring them appropriately and revegetating them, revegetation to be considered adequate when ground cover exceeds 30 per cent when mapped at a scale of 1 in 5,000 for three years in a row. Paragraph 2.1.2.1 deals with topsoil recovery and provides that, “in the event that insufficient quality soil exists as defined ... for the rehabilitation plan, spoil or other material with suitable edaphic properties [i.e. soil-like properties] will be used.” A copy of the EMOS, dated 29 April 1996 is Exhibit 1.
Associated with the EMOS is a Plan of Operations (POOP) (Exhibit 2), which has been reviewed from time to time. In the end, Mr Hinson SC (for the applicant) was content to base his argument on the EMOS. Both documents have a statutory status and are recognized specifically, for example, in the definition of “planning document” in s.585(4) of the Environmental Protection Act 1994 whereby:
“’planning document’, for a mining tenement, means –
(a) .....
(b) .....
(c) .....
(d) if the mining tenement is a mining lease –(i) any EMOS for the leases; and
(ii) either –
(A)any plan of operations for the lease under the Mineral Resources Act, part 7; or
(B)if there is no plan of operations in force for the lease immediately before the commencement day – the most recent expired plan of operations for the lease under the Mineral Resources Act, part 7.”
By sub-s. (1), a “condition” of a mining tenement includes any committment, obligation, requirement or undertaking under, or stated in, the most recent version of a planning document.
Section 588 of the EPA (ie the Environmental Protection Act 1994) provides:
“(1) This section applies if, immediately before the commencement day –
(a) a person holds a mining tenement; and
(b)there is no environmental authority in force for any mining activity authorised under the mining tenement.
(2) On the commencement day, the person, is taken to hold a single environmental authority (mining activities) for all existing mining activities under the mining tenement that, immediately before the commencement day, were level 2 environmentally relevant activities.
(3) However, if the mining tenement was part of a mining project, the person is taken to hold a single environmental authority (mining activities) for all existing mining activities under the mining tenements that form the project.
(4) Chapter 5 applies to the authority, subject to division 4.
The commencement date was 1 January 2001. The second respondent, holding two mining tenements, as it does, appears to be entitled to the benefit of sub-s. (3), given the definition of “mining project” in s. 149:
“A “mining project” means all mining activities at, or carried out, or proposed to be carried out, under 1 or more mining tenements, in any combination, as a single integrated operation.”
The conditions of the environmental authority (mining activities) it is taken to hold are established by s. 589:
“(1) The conditions of an environmental authority (mining activities) under section 588 are –
(a)each condition of a relevant mining tenement that would reasonably be expected to be a condition of the authority; and
(b)any financial assurance condition imposed on the authority under section 598;
(c)another condition prescribed under a regulation.
(2) If, under subsection (1)(a), a condition of a relevant mining tenement becomes a condition of the authority, it ceases to have effect as a condition of the tenement.
(3) Subsection (2) applies despite the Mineral Resources Act.”
[5] One turns to s. 147 of the EPA, whereby “mining activity” means an activity referred to in sub-s. (2) that, under the Mineral Resources Act 1989, is authorized to take place on, inter alia, land to which a mining tenement relates. Sub-section (2) lists activities as follows:
“(a)prospecting, exploring or mining under the Mineral Resources Act or another Act relating to mining;
(b)processing a mineral won or extracted by an activity under paragraph (a):
(c)an activity that –
(i)is directly associated with, or facilitates or supports, an activity mentioned in paragraph (a) or (b); and
(ii)may cause environmental harm;
(d)rehabilitating or remediating environmental harm because of a mining activity under paragraphs (a) to (c);
(e)action taken to prevent environmental harm because of an activity mentioned in paragraphs (a) to (d);
(f)any other activity prescribed for this subsection under a regulation.”
The explanatory notes accompanying the Bill which enacted the provisions set out (see Queensland Acts 2000, p. 2325) includes the following:
“Policy Objectives of the Legislation
The policy objectives of the Bill are to:
(a)transfer the environmental regulation of the mining industry from the Department of Mines and Energy (DME) to the Queensland Environmental Protection Agency (EPA);
...
Reasons for the Bill
The Bill incorporates the legislative changes necessary to implement the government decision to transfer the environmental regulation of mining from DME to the EPA. The amendments primarily amend the Environmental Protection Act 1994 and the Mineral Resources Act 1989 and provides for environmental regulation of mining activities by the EPA under the Environmental Protection Act 1994. The Bill also includes minor consequential amendments to the Integrated Planning Act 1997 and the Nature Conservation Act 1992.
...
Achieving the Objective
The Bill implements the Government’s decisions for the environmental regulation of mining by providing for:
·an effective regulatory system with set timeframes and an integrated approval process;
·...
·new codes of environmental compliance to provide a simple streamlined system to regulate low risk mining projects and;
...
...NOTES ON PROVISIONS
PART 3 – AMENDMENT OF INTEGRATED PLANNING ACT 1997
Amendment of schedule 8 (Assessable, self-assessable and exempt development)
...
... mining activity, for which an environmental authority (mining activities) under the Environmental Protection Act 1994 applies, is made exempt development.”
The applicant’s case, which is supported by the second and third respondents, is that the second respondent’s activities are “mining activity” as defined, and come wholly within the regime of the EPA and the Mineral Resources Act 1989.
It remains to notice that section 235 of the Mineral Resources Act 1989 authorizes the holder of a mining lease, during the currency thereof, to “do all such things as are permitted or required under the lease or by this Act”. Section 319 is:
“Effect on planning provisions
319.(1) The Integrated Planning Act 1997 does not apply to the use of land if the use is authorised under this Act.(2) Upon the grant or renewal of a mining claim, mineral development licence or mining lease, the mining registrar for the district in which the claim, licence or lease is recorded shall notify the local government for the area in which the land is situated and the chief executive (planning) of particulars thereof.
(3) Upon receipt of a notification pursuant to subsection (2), a local government and the chief executive (planning) shall by notation in the approved form on planning scheme maps for the local government area or part of the area indicate that the use of land comprised in a mining claim, mineral development licence or mining lease for purposes in accordance with the claim, licence or lease is deemed by this Act to be a permitted use of the land and that interested persons may obtain particulars of the claim, licence or lease granted in the area by contacting the relevant mining registrar in respect of mining claims and mining leases and the chief executive in respect of mineral development licences.
(4) Despite the Integrated Planning Act 1997 the Governor in Council shall not be competent to amend a planning scheme in relation to land that is comprised in a mining lease or mineral development licence unless the views of the Minister have been obtained in writing and taken into account.
(5) For the purposes of a planning scheme under the Integrated Planning Act 1997 activities carried on under the authority of a prospecting permit or an exploration permit are not uses of land.”
The Integrated Planning Act 1997 (the IPA) provides in s. 3.1.2(2) that Schedule 8 may identify exempt development that a planning scheme can not make assessable or self-assessable development. Part 3 of the Schedule contains a list of such exempt development which includes:
“10. A material change of use of premises, or operational work, for an activity authorised under –
(a) the Mineral Resources Act 1989
...
10B. A mining activity to which an environmental authority (mining activities) under the Environmental Protection Act 1994 applies.”
It is not every material change of use or activity related to a mining tenement that is excluded from regulation under the IPA. See Monier PGH Holdings Limited v Pine Rivers Shire Council, 5156 of 2000, 12 April 2002, a decision of Judge Alan Wilson SC, which acknowledged the local government’s jurisdiction to exercise ordinary IPA functions in relation to an application to reconfigure land used for mining purposes (sub-division for sale being intended) and to attach conditions to any approval. See, in particular paragraphs 8 and 12 of his Honour’s reasons.
The Council asserts that the relevant activities being and proposed to be carried out at its mine site by the second respondent are assessable development by reason of the following provision in Part 2 of the Ipswich Planning Scheme:
“UNDEFINED TERMS OR DEVELOPMENT
2.Where any term defined herein is also defined in the Act or in a Local Law, such term shall, for the purposes of this Planning Scheme, have the meaning defined herein.
3.Where any term used in this Planning Scheme is not defined herein, but is defined in the Act or in a Local Law the term shall for the purpose of this Planning Scheme and unless the context otherwise indicates or requires have the meaning assigned to it by the Act or Local Law.
4.Any question as to whether or not a development or a proposed development falls within a definition, including whether or not a use is ancillary, shall be determined by the Council.
5.Any development which is not otherwise specifically defined in this Part shall for the purposes of this Planning Scheme be considered to comprise assessable development to follow the impact assessment process within the zone or precinct in which such development exists or is proposed to be undertaken, unless otherwise determined by Council.
In making a determination that such development is to follow an assessment process other than impact assessment, Council shall have regard to:
·whether the proposed development is consistent with the intent of the applicable zone or precinct; and
·the assessment process to be followed for other similar types of development within the applicable zone or precinct.”
The IPA has the following definition in Schedule 10:
“ ‘assessable development’
(a) development specified in schedule 8, part 1; or
(b)for a planning scheme area – development that is not specified in schedule 8, part 1 but is declared under the planning scheme for the area to be assessable development.”
The activity in question has been described in various ways, and can conveniently be thought of as “composting” certain by-product (or “waste”, a term to which Mr Hinson took exception) generated by the third respondent’s activities at its abattoir and food processing works operated at Dinmore. Undigested grass remains in the paunch of slaughtered cattle and is removed during processing on account of the high level of nutrients contained, in order to prevent its entering the waste water system; so-called “saveall and dissolved air flotation (DAF) sludges” are generated by units making up the primary phase of the wastewater treatment system, whose role is to remove organic and inorganic material from the wastewater, likewise sand and similar particulate matter, oils and grease, which would compromise the operation and performance of the wastewater treatment system, if not removed; wastewater requires additional processing to remove excess suspended solids through a belt filter press, which produces “belt press sludge” - predominantly organic and nutrient-rich materials which the third respondent seeks to remove, in order to comply with water quality conditions of its environmental authority. Such materials were “composted at Dinmore” (see Mr Brereton’s affidavit) by the third respondent, but complaints from nearby residents of noxious or offensive odours, beyond the boundaries of its Dinmore site, led to the Environmental Protection Agency issuing an Environmental Protection Order under the EPA. A review occurred, and an appeal to this court, which was settled on the basis of the third respondent’s licence being amended to prohibit composting on its site. From September 2001, the third respondent has been sending its solid organic waste to the second respondent, using an independent trucking contractor, which is paid by the third respondent. There are four to six truckloads per day, each with a loadweight of about 25 tonnes. The makeup varies, but, typically, might be 60 tonnes per day of paunch grass, 50 tonnes of beltpress sludge, 20 tonnes of dissolved air flotation sludge, mostly fatty tissues from washdown areas, 20 tonnes of saveall sludges (being sand and paunch materials not collected elsewhere) and five tonnes of truck wash sludge, for the most part sand and animal excrement.
The second respondent is able to use this material to enrich and supplement topsoil used in rehabilitation of mined areas. The material is “edaphic” for the purposes of the EMOS. It contains a good deal of moisture on reception at the mine site, which seeps out. The evidence shows that an application of the material on a carpark area made available by the second respondent as an adjunct to the Ipswich Raceway has had excellent results from the point of view of promoting growth of grass. This “experiment” occurred because, at one time, internal roads were too wet to allow transport to the area where the material is stored, so that “composting” may take place. The material is composted in this way, perhaps for up to a year or more, before being applied, along with topsoil, in rehabilitation. It is pushed into “windrows” to facilitate this process and to manage the stockpile in a way thought effective, and then left alone. Dr Pittaway, a soils and environmental science expert, was critical of the process, from the point of view of achieving optimal composting, for the lack of procedures to maintain moisture levels and aeration. The Council, which called her to give evidence, did not seek any findings based on her criticisms, and, as matters turned out, the other parties had no fair opportunity to contest what she said – the second respondent may yet find it advantageous to follow her advice.
Mr Brereton’s affidavit indicates that the third respondent has had considerable difficulty in finding some economical means for disposing of its wastes. There is no basis for thinking that the second respondent’s participation is anything other than a genuine rehabilitation measure. In contrast with the Dinmore situation, in the nine months or so over which the second respondent has been receiving this waste or by-product, there have been no complaints.
The Council’s planner, Ms Edwards, in the course of cross-examination revealed the Council’s approach:
“...what are the things on site that you say warrant being characterised as an undefined use under the planning scheme?-- Well, firstly we look at what the activity taking place is and then we try to categorise it under the definitions which are in part 2 of our planning scheme, and if they can’t fall into one of those definitions there we define them as undefined.
What are the activities?-- The activities that I believe are undefined in this particular instance are the transporting to the site of various materials that have been described to his Honour, the storage of those materials on site, the forming of them into windrows, the leaving of them there for the twelve month period as I understand it and then the eventual ripping in of those materials.
Now the first of those activities takes place on roads?-- That’s correct.
And ordinarily your planning scheme doesn’t regulate activities on roads; is that so?-- Correct, at this stage.
The second activity, the storage on site? -- Mmm.
What’s constituted by that? Is that just the dumping of it on site and leaving it there until it’s used?-- From my observation, that would be correct, yes.
I take it the third activity, the forming of the windrows is really part and parcel of the storage. It’s the manner of storage. It’s just not dumped where the truck drivers dump it, it’s bulldozed together, it’s -----?-- It’s dumped in clearly defined loads that come off the back of a tiptruck and then they’re later formed into windrows.
And then the leaving it for twelve months, again is that part and parcel of the storage activity which is the second activity that you described?-- It’s part and parcel of the storage and the composting activities, yes.
All right. And by the composting activities, you mean whilst it is sitting there on the ground, the occurrence of biological processes which alter the nature of the material in some way?-- That’s certainly as I understand it. Correct.
And that’s a process that occurs by reason of natural factors, the nature of the material?-- Yes.
And it’s simply being there exposed to the elements?-- Exposed to the elements and it generates its own heat, et cetera.
And then the last activity was it’s used in ripping; is that what you said? Did I hear that correctly?-- Yes. I mentioned that as part of the process that occurs on site, yes.
Ripping in what sense? I’m not sure I understand what you’re talking about when you’re talking about ripping?-- Well, it doesn’t really go to the definition of undefined use. What it goes to is how the materials are eventually applied to the soil.”
Mr Gore QC, for the Council, based his argument upon the statement of Hope JA in CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270, at 272 that he could:
“...see no reason why, in a particular case an activity cannot have such a double character. I do not think that the activities of man upon land are always required to, or always do, fit exclusively into one only of the various categories which planners devise. I do not think that the proposed activities are required so to fit in the present case, and on the assumption I have made that they would constitute a work for the purpose of agriculture, I think that they would fit into more than one category. The other of those categories is the use of the land for the purpose of extractive industry, and hence the Council cannot give its consent to the appellant’s application.
An alternative approach to the problem is that the character, extent and other features of an activity may lead to a conclusion of fact that what will be done should not be regarded as the carrying out of a work for some ultimate purpose, but as the use of the land for a purpose the nature of which is to be ascertained by reference to the acts involved in the carrying on of other particular activity. On this view the removal from agricultural land of soil and other material within the definition of “extractive material” may in some cases be regarded as an activity which is subsumed in the agricultural use of the land. An obvious example is the excavation of soil in order to construct the type of dam which is commonly found on agricultural properties. On the other hand the character, extent and other feature of activities which involve the removal of extractive materials from agricultural land may be such that, as a matter of fact, and no matter what is to result or to be done when the activities cease, it is proper to regard them as constituting a use of the land in themselves, not subsumed in any other use of the land, and thus a use for the purposes of extractive industry.”
In Baulkham Hills Shire Council v O’Donnell (1990) 69 LGERA 404, at 409, Meagher JA said that, notwithstanding the principles laid down in Food Barn Pty Ltd v Solicitor General (1975) 32 LGRA 157:
“It does not follow that a use which can said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is a question of fact and degree in all the circumstances of the case whether such a result ensues or not ... when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is ‘ancillary to’ or related to, or interdependent with, another use.”
These statements were further considered by the New South Wales Court of Appeal in Penrith City Council v Waste Management Authority (1990) 71 LGRA 376, at 383ff under the heading “The task of characterisation”. The court said at 384:
“The very fact that questions of degree are inescapably involved in cases such as the present also provides a reason for exercising great care in the use of other cases, said to be analogous, where a task of characterising different facts has fallen for judicial consideration and analysis.”
Those New South Wales cases typically involved the alleged conduct of an extractive industry, which a “developer” asserted was ancillary to some other use attracting a less rigorous regulatory regime, as did Glenpatrick Pty Ltd v MacLean Shire Council (1989) 72 LGRA 205, which was decided earlier than and was considered in Penrith v Waste Management. The determination that an extractive industry is involved is unsurprising where materials excavated are sold for use off site, a situation reflected in Council of the Shire of Pine Rivers v Intercontinental Shelf No. 108 Pty Ltd, 3739 of 1982, Thomas J, 20 December 1983. There is no suggestion here of any likelihood of the materials undergoing composting being sold, or used off the mine site. Glenpatrick is the strongest case for the Council, because materials excavated to create or enhance lakes were to be used on site to fill low-lying island areas in a proposed moveable home park. It may be accepted that Mr Gore is correct in his submission that if the composting activity were to occur in any other location, prior to transportation to the mine site of it in a condition ready for immediate application in rehabilitation, there would be “undefined development” calling for regulation by the Council.
The Council’s claim is that, while the treated waste material may ultimately be used in rehabilitation of the mine, the waste disposal and treatment is an independent use. As its concise written submissions point out:
“11. In the present matter:
(a) the waste disposal and treatment use in question –
· was ancillary to a different use (abattoir) on another site (at Dinmore)
· existed on the Dinmore site without any connection with the Ebenezer site
· has simply been relocated to the Ebenezer site
(b)the volume of waste material is large (it is delivered at the rate of 150 tonnes per day) and it rests in stockpiles for a long period (about 12 months) before it is connected with any activity associated with the mine;
(c)the stockpiles are large in size (when inspected on 8 April 2002 they were approximately 200m north to south and 75m east to west);
(d)the waste material has the potential to cause environmental harm.”
The conclusion is said to follow that the waste disposal and treatment use in question is neither “for an activity authorised under the Mineral Resources Act” for the purposes of Item 10 nor “a mining activity” for the purposes of Item 10B. Mr Hinson pointed to various authorities exemplifying a more indulgent approach to identifying uses as ancillary or incidental, rather than independent, such as Warringah Shire Council v Raffles (1978) 38 LGRA 306, Lewiac Pty Ltd v Gold Coast City Council (1993) 81 LGERA 219, 225, Brisbane City Council v Bemcoe Pty Ltd (1998) 104 LGRA 1, 3 and Arpedco Pty Ltd v Beaudesert Shire Council (1980) Qd R 88.These cannot determine the outcome any more than Mr Gore’s authorities.
No party submitted that Boral Resources (Qld) Pty Ltd v Cairns City Council (1997) 2 Qd R 31, which focussed on the further step of determining whether one use is “necessarily associated with” another. The decisions identified by counsel focus on the “purpose” of a use, development or “activity” (cf the discussion in Walker v Noosa Shire Council (1985) 1 Qd R 387, 393-94). Accepting that an activity may have both an immediate and an ultimate purpose, and may require to be characterised by reference to one rather than the other in particular contexts, here I find it difficult to justify making the distinction. Although the second respondent’s activity relieves the third respondent’s site from having to accommodate it (or any third site), that activity has no implications, so far as the evidence goes, outside the mine site. Ms Edwards confirmed that the Council’s planning arrangements do not seek to regulate activity on roads. In the circumstances, the activity, in my view, is to be characterised as a mining activity, specifically a rehabilitation one. That it may be characterized also as a private composting activity does not. in the particular circumstances, make it useful to so characterize it.
I find inescapable the conclusions that the activity in question is both authorised under the Mineral Resources Act 1989 and a mining activity to which an environmental authority (mining activities) under the EPA applies. As to the former, I think that, rehabilitation being permitted and required under the second respondent’s leases, the reception and “composting” under defensible storage conditions of materials for use in rehabilitation, albeit for as long as a year or more, is part and parcel of rehabilitation as contemplated in s. 3 of the mining lease documentation contained in Exhibit 3, the EMOS and otherwise. As to the latter, the EMOS and perhaps as well the POOP conditions (which I find entirely adequate in their terms to cover the whole activity in question) are mining activity, made such by s. 147(1) and (2)(b) of the EPA. Other sections such as 585(1) and (2), and s. 589, in my view, clearly make the deemed environmental authority (mining activities) “apply” to the total rehabilitation exercise as described in the evidence. In my view, once the court determines, as it has, that the activity (and, for Item 10, any related “material change of use of premises, (etc)”) is involved, there is no occasion to enquire whether any characterisation in terms of an independent use, activity or purpose which might come within the IPA may be argued for. Items 10 and 10B take the matter outside the IPA regime; I do not think it is competent for the Planning Scheme to override their effect.
This seems to me the only conclusion open, even without recourse to arguments that appear to me available that, just as the IPA had the purpose of “co-ordinating and integrating” (s.1.2.1(a)) and ensuring that decision-making processes are “co-ordinated and efficient” (s.1.2.3(1)(a)(i)), broadly similar considerations are applicable in respect of the mining industry, which is regulated by the Mineral Resources Act 1989 and, increasingly, by the EPA. One would not expect that activities fairly characterisable as mining activities, within the broad definitions applicable, would call for regulation under an additional statutory regime, namely the IPA, although, as Judge Wilson’s decision shows, there will be clear cases of activity engaged in or proposed by entities which happen to be engaged in “mining” which cannot themselves be brought within that description. For the foregoing reasons, the declarations sought by the applicant should be made, and probably with the addition of reference to ML 50100.
Mr Berding, who was also a witness, was present to represent the second respondent’s interests, whose protection he left to the applicant. Mr McLean-Williams, representing the third respondent, adopted Mr Hinson’s submissions; Mr Brereton’s affidavits, which he read, show the clear economic interest of the third respondent in the application’s succeeding. There was mention in passing of potentially interesting issues as to whether the discretion to grant or withhold declaratory relief might be affected by the third respondent’s interests (which might point in favour of granting the applicant relief if relevant) or (if the outcome had tended the other way) by the Council’s seeking a determination that the second respondent was committing an offence. In the end, there is no occasion to go into such issues.
The application succeeds.
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