Thiess Services Pty Ltd v Mareeba Shire Council
[2008] QPEC 95
•25 June 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Thiess Services Pty Ltd and Another v Mareeba Shire Council, The Minister for Local Government, Planning, Sport and Recreation and Others [2008] QPEC 95
Originating Summons 269 of 2006
PARTIES:
THIESS SERVICES PTY LTD and FGF DEVELOPMENTS NO 1 PTY LTD
(Applicants)MAREEBA SHIRE COUNCIL
(First Respondent)
CEC GROUP PTY LTD
(Second Respondent)
CHIEF EXECUTIVER OF THE DEPARTMENT OF THE ENVIRONMENTAL PROTECTION AGENCY
(Third Respondent)
SITA-CEC ENVIRONMENTAL SOLUTIONS PTY LTD
(Fourth Respondent)Originating Summons 163 of 2007
THIESS SERVICES PTY LTD and FGF DEVELOPMENTS NO 1 PTY LTD
(Applicants)THE MINISTER FOR LOCAL GOVERNMENT, PLANNING, SPORT AND RECREATION
(First Respondent)
MAREEBA SHIRE COUNCIL
(Second Respondent)
CEC GROUP LIMITED
(Third Respondent)
SITA-CEC ENVIRONMENTAL SOLUTIONS PTY LTD
(Fourth Respondent)DIVISION:
PROCEEDING:
Originating Summons for Declarations and Other Relief
ORIGINATING COURT:
Planning and Environment Court, Cairns
DELIVERED ON:
25 June 2008
DELIVERED AT:
Cairns
HEARING DATE:
JUDGE:
White DCJ
ORDER:
CATCHWORDS:
COUNSEL:
Mr D R Gore QC with Mr J Haydon for the applicants
Mr P J Lyons QC with Mr W L Cochrane for the Mareeba Shire Council
Mr M Hinson SC with Ms J Brien for the Minister for Local Government, Planning, Sport and Recreation
Mr J Gallagher QC with Mr R Litster for CEC Group Limited
Mr G J Gibson SC for Sita-CEC Environmental Solutions Pty LtdSOLICITORS:
MacDonnells Law for the applicants
Marino Moller for the Mareeba Shire Council
Crown Law for the Minister for Local Government, Planning, Sport and Recreation
Clayton Utz for CEC Group Limited
Baker and McKenzie for Sita-CEC Environmental Solutions Pty Ltd
The applicants own and operate, as a joint venture, the Spring Mount Waste Management Facility located at Spring Mount Road via Mareeba. It is approximately 15 kms from Mareeba township. Mareeba is the principal township in the local government area of the Mareeba Shire Council (“the Council”). The Council is the operator of the Mareeba landfill waste disposal facility located at Vaughan Street, Mareeba on the outskirts of the town. The Council’s operation was being carried out pursuant to Licence No. 50100000171 issued pursuant to the provisions of the Environmental Protection Act 1994 and effective from 16 June 2000 (ex 6.1). Relevantly, that licence permitted the Council’s landfill facility to receive 10,000 tons of waste but no more than 20,000 tons of waste per annum.
Towards the end of 2006 the applicants became aware of an apparent intention on the part of the Council to substantially increase its landfill operations to receive waste at the rate of 75,000 tons or more but less than 100,000 tons a year. It is the fact that on 23 March 2006 the Council and a company named CEC Resource Recovery Pty Limited entered into an agreement called a “WASTE DISPOSAL AGREEMENT” (ex 6.2) which, broadly speaking, provided for the following:-
(a) CEC Resource Recovery Pty Limited would carry out earthworks construction of landfill cells which would ultimately permit the Council’s landfill facility at Mareeba to receive between 75,000 and 100,000 tons of waste per year.
(b) Ultimately the Council’s landfill facility would receive substantial quantities of waste from the Bedminster Waste Processing Facility in Cairns which was then being operated by CEC Resource Recovery Pty Limited so that the Council’s landfill facility would receive between 75,000 and 100,000 tons per annum.
Further, the Council on 13 October 2006 made a development application to the Department of the Environmental Protection Agency for approval and the grant of a licence to receive between 75,000 and 100,000 tons of waste per annum at the Mareeba landfill facility (ex 6.3). At some time prior to 17 October 2006 earthworks construction of landfill cells was carried out on the site of the Council’s landfill facility.
The applicants were obviously concerned that the Council and CEC Resource Recovery Pty Limited had commenced to carry out the proposed expansion of the Council’s Mareeba landfill facility without obtaining all necessary approvals as required by the provisions of the Integrated Planning Act 1997 as amended. As a result the applicants commenced proceedings by Originating Summons 269/06 for various declaratory and injunctive relief.
In that proceeding the second respondent CEC Group Limited (“CEC”) was joined in the belief that the company CEC Resource Recovery Pty Limited was a wholly owned subsidiary of it. The third respondent, the Chief Executive of the Department of the Environmental Protection Agency (“EPA”) was joined for obvious reasons but has no interest in the outcome of the proceedings one way or the other and was excused from taking part in the hearing. However by a decision notice dated 21 March 2007, the EPA approved the Council’s development application to expand the capacity of the Council’s Mareeba landfill facility subject to conditions (see exs 6.35 and 6.36).
On 7 November 2006 the Council proposed to the Minister that Temporary Local Planning Instrument 01/06 be made (exs 6.11 and 6.12). Essentially the Temporary Local Planning Instrument proposed (amongst other things) that the expansion of the operations at the Council’s Mareeba landfill facility become “exempt development”. On 14 November 2006 the Minister advised the Council that it may adopt the TLPI (ex 6.17). On 21 November 2006 by resolution the Council adopted the TLPI (ex 6.20). By designating the expansion of the Council’s Mareeba landfill facility as exempt development the TLPI permitted the Council to carry on the expanded operation of the Mareeba landfill facility without undertaking the usual assessment process required under IPA, at least for the year that the TLPI was to be in force. That period of time would permit the Council to make appropriate amendments to its Planning Scheme so as to enable the expansion of the Mareeba landfill facility to be carried out on a permanent basis.
In reaction to this process the applicants commenced proceedings by way of Originating Summons No. 163/07. The Minister and the Council were named as respondents. CEC was joined as a respondent for the same reason it was joined in Originating Summons 269 of 2006. This summons was for declaratory and other relief essentially attacking the lawfulness of the process whereby the TLPI was adopted.
Shortly before the hearing of these proceedings it became apparent that CEC Resource Recovery Pty Limited was not a wholly owned subsidiary of CEC. In fact CEC held 50% of the issued shares. (ex 7) in the latter corporation. It also appears that on 5 December 2006 CEC Resource Recovery Pty Limited changed its name to Sita-CEC Environmental Solutions Pty Ltd (“Sita”). On 19 November 2007 I ordered that Sita be joined as a respondent in both of these applications. However, the applicants declined to discontinue the proceedings against CEC and that company therefore remains a party to both originating summonses.
Acknowledging that events have somewhat overtaken the original relief sought the applicants, at the conclusion of the hearing, limited the relief sought as follows:-
Application 269 of 2006
1. A declaration that the first respondent has started assessable development (being a material change of use of a waste management facility by way of a material change in the intensity and scale of the facility “the development”) on land described as Lot 517 on CP 851523, Parish of Tinaroo, County of Nares, without a development permit for the development.
2. An order that as soon as reasonably practicable the first respondent made a development application for the development.
3. An order that pending the determination of the development application, this application be adjourned to a date to be fixed with liberty to any party to apply on three clear business days written notice to the others.
Application 163 of 2007
1. A declaration that to the extent that Temporary Local Planning Instrument 01/06, as adopted by the second respondent on 21 November 2006 related to Lot 517 on CP 851523 the instrument did not apply to making a material change of use of the waste management facility (by way of a material change in the intensity or scale of the facility).
2. A declaration that to the extent that Planning Scheme Amendment No. 1 of 2007, as adopted by the second respondent on 20 November 2007, relates to Lot 517 on CP 851523, the amendment does not apply to making a material change of use of the waste management facility (by way of a material change in the intensity or scale of the facility).
At the conclusion of submissions I ordered that both applications be dismissed. Following are my reasons.
The Planning Scheme for the Mareeba Shire was prepared pursuant to the provisions of IPA and took effect from 10 January 2005. The land upon which the Mareeba landfill facility is located is contained within the Rural Zone. In the Part 7 – Schedules Dictionary to the Scheme the following appears:-
Waste management facility means the use of premises to dispose of, store, sort or treat waste by any method and which may include a station used for the temporary storage of waste for transfer to another site for final disposal, permanent storage, reprocessing, recycling, use or reuse.
The Council’s Mareeba landfill facility is therefore a waste management facility. In the Rural Zone a waste management facility requires impact assessment. However, the Council was already operating a waste management facility. What is under consideration here is “a material change in the intensity or scale of the use of the premises” (see s 1.3.5 IPA, definition of “material change of use”). Therefore the Council was required to obtain a development permit consequent upon impact assessment of an application for a material change of use. That would have required the Council to make an application to itself which would need to have been publicly notified and submissions received. It has never done so.
At the heart of the applicant’s case is the allegation that the Council committed a development offence by commencing a material change of use without the required development permit. That is, it commenced an increase in the intensity or scale of the waste disposal use without obtaining the required development permit and at least before the Temporary Local Planning Instrument took effect by its gazettal on 1 December 2006. Whether or not it did so is purely a question of fact which I will now consider. Obviously it is for the applicants to prove that the Council increased the intensity and scale of its Mareeba landfill operation. In this case I ordered that pleadings be delivered. Those pleadings, together with relevant affidavits, are conveniently set out in ex 5. The applicant’s pleading in proceeding 269/06 is ex 5.30. Firstly, it is not alleged, and nor is there any evidence whatsoever to demonstrate, that the Council ever received waste at the Mareeba landfill facility at a pro rata or any other sort of rate which would have led to, or could have led to, a total tonnage of waste received in any yearly period, which would have exceeded 20,000 tons.
The applicant’s pleading is instructive in the following sections:-
Tender Documents
14.During 2005/2006 correspondence passed between the first respondent and the third respondent in relation to the operation of the Mareeba landfill and alleged non-compliances with Environmental Authority No. 5010000171 which authorises the carrying out of ERA 75(a)(iv) Waste Disposal (general or limited regulated wastes) – 10,000 tons or more but less than 20,000 tons a year at the landfill.
15.That correspondence included references to preparation of design drawings and advertising of contracts to perform works at the landfill.
16.On 3 December 2005 by public notice published in the Weekend Post the first respondent invited tenders for the construction of two landfill cells and the installation of additional drainage works at the Mareeba landfill site. The tender number is TMSC 2005-59.
17.The work described in the tender as shown on plans 0507201, 0507202 and 0507203 is to create a landfill area.
18.The plans contained in the tender documents – plan 0507201, 0507202 and 0507203 show details of the works to be carried out, namely construction of two replacement waste containment cells and drainage works.
19.The second respondent submitted a tender for the works.
20.On 20 December 2005 the first respondent resolved “that council accept the offer” in principle subject to further information being provided as required by Council including …
21.The tender was awarded to the second respondent.
…
40.The construction of the works proposed under the tender documents constitutes a material change of use of premises, specifically –
(a) A material change in the intensity or scale of the use of the premises, and
(b) (i) A material change in the intensity or scale of an environmentally relevant activity on the premises, or
(ii) to the extent the construction of the works will increase the design capacity of the landfill so that it is designed to receive waste at the rate of 20,000 tons or more a year an increase in the threshold of an environmentally relevant activity on the premises.
Therefore it is the construction of the two landfill cells and drainage works referred to above which the applicants allege constituted the commencement of the increase in the intensity and scale of the use of the landfill facility.
Documents contained in exs 5.6-5.14 inclusive show that well before the Council started to consider any expansion of the annual tonnage of waste received beyond 20,000 tons it was under pressure from the EPA to correct a variety of deficiencies in the manner in which it was operating the Mareeba landfill facility. There is not the slightest suggestion in any of the exchange of correspondence that the Council was even contemplating accepting a quantity of waste in excess of 20,000 tons at that time.
The Waste Disposal Agreement (ex 6.2) throws further light upon the Council’s position. In my view that agreement clearly indicates a desire or intention on the part of the Council and Sita to expand the annual intake of waste well beyond the 20,000 ton maximum provided for under the EPA licence current at that time. However, the entry into that agreement can in no way be construed as the commencement of the increase in the intensity of the use. Rather, the contents of that agreement make it perfectly clear that no increase in the maximum tonnage of waste received was contemplated until the appropriate approval was in place.
I have no doubt that “development” and “material change of use” can include the process which leads to the actual use. (Fox v BCC (2003) 127 LGERA 390). Further, if the subject land was not previously being used as a waste disposal facility I would have no difficulty coming to the conclusion that the earthworks carried out pursuant to the tender documents would constitute development or making a material change of use. However, that was not the case here. The Council’s waste disposal facility at Mareeba was already in operation. The very nature of a landfill waste disposal facility makes it inevitable that from time to time a “cell” (which, put bluntly, is a hole in the ground) will fill with waste making it necessary to carry out earthworks so as to provide a new hole in the ground within which to dispose of waste. It would be unrealistic to expect the operator of a landfill facility to only carry out minimal earthwork as required on a frequent recurring basis. Any operator of a landfill facility could carry out earthworks to provide at any one time enough space to receive a number of years waste or even many years waste, or even to fully develop the site all at once so as to have the capacity to receive waste throughout the whole useful life of the landfill facility. There is nothing in the 2000 licence to limit the unused future capacity of the Mareeba landfill facility in any way. What was limited was the maximum tonnage of waste which the facility could receive and dispose of on site in any one year. I have no doubt that the Council intended to use the two cells constructed pursuant to the tender to dispose of up to 100,000 tons of waste per annum if it obtained approval to do so. But in my view, the carrying out of the earthworks pursuant to the tender cannot logically be characterised as “a material change in the intensity or scale of the use”.
In my view the factual question of whether or not someone has commenced or started “a material change in the intensity or scale of the use” is to be answered by an examination of what has actually been done on the subject land. It is not to be answered by an examination of the intent of the occupier. Obviously what has been done on the subject land must be looked at in light of surrounding objective circumstances. For example, the case of the world’s tallest building was alluded to during submissions. If the developer of the world’s tallest building excavated land for the purposes of the construction of footings and foundations of the building the factual question of whether or not development had commenced would not simply be answered by looking at the hole in the ground. It would be answered by looking also at the plans and specifications pursuant to which the hole in the ground was excavated. But an intent to construct the world’s tallest building manifested by the preparation of plans and specifications and the letting of construction contracts does not, and cannot, constitute development until something is done on the land towards achieving that development.
In this case, to the extent that it might be relevant, the earthworks carried out arose primarily out of two factors which had nothing to do with the intention to increase the tonnage of waste received at the facility if such was approved. In my view the works carried out were primarily required because the existing earthworks had almost reached their full capacity for the storage of waste and, in particular, to meet the concerns and criticisms levelled at the Council by the EPA about the way it was managing the facility under the existing licence. For that factual reason I am satisfied that the Council did not start assessable development as alleged by the applicants without the required development permit prior to the coming into force of the Temporary Local Planning Instrument 01/06 on 1 December 2006. In case it is relevant, I am also satisfied that the Council did not start assessable development before the EPA licence was granted on 21 March 2007.
That finding of fact is sufficient to explain my reasons for dismissing Originating Summons 269/06.
Originating Summons 269/06 was filed on 6 October 2006. It was obviously served promptly because the Council and the EPA filed Entries of Appearance on 11 October 2006. CEC filed its Entry of Appearance on 18 October 2006. However, as early as 23 January 2006 the solicitors for the applicants wrote to the Council threatening legal action (ex 10.TNK7.3). Unsurprisingly the Council sought legal advice.
It seems tolerably clear that up until this time the Council believed that the operation of the landfill facility under the 2000 licence was a lawfully permitted use under the 1982 Planning Scheme, such use rights surviving the introduction of the 2005 IPA Scheme (ex 3). It also seems clear that the Council believed that the only approval needed for it to increase the intake of waste at the Mareeba landfill facility up to 100,000 tons per year was that for which it had applied to the EPA on 13 October 2006. In October 2006 that application had not been approved and in fact was not approved until 21 March 2007.
I draw the inference from later communications by the Council in relation to the Temporary Local Planning Instrument that the advice received suggested that the belief that the Mareeba landfill facility was being lawfully carried on under the superseded scheme was probably not correct. It also emerged that a number of other Council operated waste disposal facilities and waste transfer stations located in other parts of the Shire were also not being lawfully carried on. The waste disposal facilities including the Mareeba landfill facility, under question were all located in either the Public Open Space Zone or the Rural A Zone under the superseded planning scheme. In the Table of Zones “Utility Installations” were permitted uses in both of those zones. The following definitions appear in the 1982 Scheme:-
“Utility installation” – any land building or other structure or part thereof used or intended for use for the purpose of conducting a public utility undertaking: the term does not include a “public building” as herein defined.
“Public utility undertaking” – any land, building or other structure or part thereof used or intended for use for the purpose of conducting of the following undertakings, namely –
(a) A railway, tramway, road transport, air transport, water transport, wharf, harbour or river undertaking.
(b) An undertaking for the supply of water, hydraulic power, electricity or gas or the provision of sewerage or drainage services.
(c) An undertaking for the provision or maintenance of roads or traffic controls.
(d) An undertaking for the provision of postal or telecommunication services.
Therefore, a waste disposal facility or waste transfer station is not a “public utility undertaking”. Therefore the land upon which the Mareeba landfill facility and the other landfill and waste transfer stations were located were not being used for the purposes of utility installation. The problem was less serious for those operations carried on in the Rural A Zone because it appears that a waste disposal facility or waste transfer station may have been permitted with the consent of the Council. However, it appears tolerably clear, and in fact I am of the opinion, that a waste disposal facility or waste transfer station was a prohibited use in the Public Open Space Zone.
In my view it was entirely reasonable for the Council to be concerned to correct the situation as quickly as possible. The provision of its various waste disposal facilities was an important local government service. The Mareeba landfill facility was of particular importance because it provided a facility for the disposal of domestic waste generated in the major population centre of the Shire. In my view any responsible local authority would be justified in being gravely concerned to continue operating facilities which it had been advised were unlawful (irrespective of any pending or threatened legal action), and which might result in the closure of such facilities and the cessation of the important municipal services to the community of the Shire provided by those facilities. Whilst I have no doubt that the Council had the applicant’s proceeding in 269/06 well in mind when embarking upon the process of introducing the Temporary Local Planning Instrument, in my view it was perfectly reasonable and proper for the Council to embark upon that process irrespective of the applicant’s proceedings. I reject entirely any suggestion that the Council embarked upon the Temporary Local Planning Instrument procedure for the purposes of defeating the applicant’s claim against it. I am satisfied that the Council’s purpose was to move as quickly as possible to make lawful the continued operation of its waste disposal facilities.
Counsel for CEC advanced an argument that the Mareeba landfill facility was being lawfully carried out because the subject land was Crown land held by the Council as trustee for the purposes of waste disposal. This might be true, but there is no need for me to consider that possibility. There is no suggestion that the possibility was drawn to the attention of the Council, or that the Council otherwise considered it. I retain my view that the Council honestly and reasonably believed that the continued operation of the Mareeba landfill facility as well as others were at a serious risk of having to be closed down.
Part 1 Division 4 – Temporary Local Planning Instrument relevantly provides as follows:-
“2.1.9 A “temporary local planning instrument” is an instrument made by a local government under this division.
2.1.10(1) A temporary local planning instrument may suspend or otherwise affect the operation of a planning scheme for up to one year, but –
(a) does not amend the planning scheme;
(b) is not a change to a planning scheme under s 5.4.1.
(2) However, a temporary local planning instrument may be made only if the Minister is satisfied –
(a) there is a significant risk of serious environmental harm, or serious adverse cultural, economic or social conditions occurring in the planning scheme area; and
(b) the delay involved in using the process under Schedule 1 to amend the planning scheme would increase the risk.
…
2.1.12(1) The process stated in Schedule 2 must be followed for making a Temporary Local Planning Instrument
(2) The process involves two stages –
· proposal stage
· adoption stage
If a Temporary Local Planning Instrument is made in substantial compliance with the process stated in Schedule 2, the instrument is valid.
Schedule 2 to IPA relevantly provides as follows:-
PART 1 – PROPOSAL STAGE
1. A local government may propose a Temporary Local Planning Instrument.
2.(1) The local government must give the Minister a copy of the proposed Temporary Local Planning Instrument together a statement of the reasons why the local government considers it necessary to adopt the proposed instrument.
(2) If the Minister is satisfied the proposed instrument should be made, the Minister –
(a) Must advise the local government it may adopt the proposed instrument; and
(b) May impose conditions on the local government that the Minister considers appropriate.
(3) …
(4) If the Minister does not consider the proposed instrument should be made, the Minister must advise the local government it may not adopt the proposed instrument.
The applicants make no direct attack on the validity of the Council making the Temporary Local Planning Instrument. Rather, the attack is upon the validity of the Minister’s decision that the proposed TLPI should be made pursuant to subsection 2(2) of Schedule 2. As may be observed subsection 2.1.10(2) requires the Minister to be satisfied of, what might be called, conditions precedent before a TLPI may be made. In the written advice provided to the Council pursuant to subsection 2(2) of Schedule 2 the Minister stated that he was so satisfied. Further, in the Minister’s response to a request made by the applicant’s solicitors (ex 6.31) the Minister further stated that he was satisfied of those matters. The applicants have not challenged the Minister’s satisfaction in that regard by proceedings under the Judicial Review Act 1991. However, the applicant’s pleading (ex 16) presented with leave on the last day of the hearing seems to make some attack on such findings as follows:-
8. On 14 November 2006 for the purposes of s 2.1.10(2) and s 2(2) of Schedule 2 of IPA the Minister:
(a) determined:
(i) that he was satisfied that there is a significant risk of serious adverse economic conditions occurring in the planning scheme area.
(ii) that the delay involved in using the process under Schedule 1 of IPA to amend the planning scheme would increase the risk.
(“the Minister’s decision”)
(b) advised the Council that it may adopt the TLPI.
…
14. The Minister’s decision was invalid, because:
(a) it was made for an improper purpose.
(b) the Minister failed to take relevant considerations into account.
(c) the Minister took irrelevant considerations into account
(d) it involved a misconstruction of the TLPI
(e) it involved a misconstruction of IPA.
15. The Minister’s decision was made for an improper purpose because it was made for the purposes of:
(a) defeating the Thiess 2006 proceedings.
(b) relieving the Council of the obligation imposed on an ordinary citizen making a development application for a material change of use.
(c) giving the Council, as an applicant, and land user, special treatment under IPA.
…
17. The irrelevant considerations which the Minister took into account were:
(a) that the Council preferred to regularise use of the Mareeba landfill by the TLPI rather than by development application.
(b) that the Council’s preference was based on legal advice, rather than any factual concern or expert assessment.
(c) that the Thiess 2006 proceedings had been instituted in respect of the Mareeba landfill.
(d) that CEC may bring legal proceedings against the Council, if the Thiess 2006 proceedings were successful.
18. The Minister misconstrued the TLPI because –
(a) the Minister interpreted the TLPI as meaning that its introduction would permit the sites referred to in the Schedule to continue to operate.
(b) the correct interpretation (of s 4 of the TLPI) is that it is prospective only in its operation and applies only to “development” which may start after the TLPI is adopted.
19. The Minister misconstrued IPA because, in concluding that there was a significant risk of serious adverse economic conditions, he took into account considerations which are (and were) irrelevant to that issue (as referred to in paragraph 17 hereof).
If I were to take a strict view of this pleading then it applies only to the validity of the Minister’s decision that he was satisfied –
(a) That there was a significant risk of serious adverse economic conditions occurring in the Planning Scheme area, and
(b) The delay involved in using the process under Schedule 1 to amend the Planning Scheme would increase the risk.
However, as I construe paragraphs 14 – 19 inclusive it is not the Minister’s decision that he was satisfied under subsection 2.1.10(2) which is under attack but rather, the Minister’s satisfaction that the proposed instrument should be made pursuant to subsection 2(2) of Schedule 2. That is, the exercise of the Minister’s discretion to advise the local government that it may adopt the proposed instrument.
Counsel for the Council submit that on the proper construction of the relevant provisions of the Act, the Minister has no discretion once he is satisfied of the two matters required by subsection 2.1.10(2). That submission must depend upon the expression “the Minister is satisfied the proposed instrument should be made” in Schedule 2 subsection 2(2), being equated with satisfaction of the two matters provided for in subsection 2.1.10(2). In my view, the plain ordinary language of the provisions do not support such a construction. In my view the two matters set out in subsection 2.1.10(2) are matters about which the Minister must be satisfied before a TLPI may be made. It would obviously be necessary for the Minister to advise the local government of his satisfaction as to those two matters before the local government could make the TLPI under s 2.1.9 by carrying out the adopting stage of the introduction of a TLPI provided for in Part 2 of Schedule 2. However, in my view, Schedule 2 subsection 2(2) provides the Minister with a discretion to consider whether the proposed instrument “should be made” in spite of his satisfaction of the matters set out in subsection 2.1.10(2).
In my view, the discretion of the Minister pursuant to Schedule 2 subsection 2(2) is unfettered. The Minister has three broad options as follows:-
(a) The Minister may be satisfied that the proposed instrument should be made for no further or other reason than his satisfaction of the matters set out in subsection 2.1.10(2)
(b) The Minister may take account into additional relevant reasons in concluding that he is satisfied that the proposed instrument should be made.
(c) The Minister is entitled to take into account other relevant reasons in order to conclude that he is not satisfied that the proposed instrument should be made in spite of his satisfaction of the matters provided for in subsection 2.1.10(2).
However I reject the proposition arising out of the applicant’s pleading in paragraph 14(b) and paragraph 16 that the Minister was, in some way, bound to take into account any particular relevant considerations apart from his satisfaction of the subsection 2.1.10(2) matters. The Minister could have taken those matters into account. If the Minister had taken those matters into account it could have led him to the conclusion that he was not satisfied that the proposed instrument should be made. But there was no obligation on the Minister to consider those matters.
I will next deal with the allegation in paragraph 14(d) and paragraph 18 of the applicant’s pleading. I accept the submission made on behalf of the applicant that the TLPI could not have had any retrospective effect. That is, it could not have made lawful the use of the various waste disposal facilities which had been carried on before the TLPI took effect if such prior use was otherwise unlawful. However, there is nothing in the evidence to suggest that that is what the Council and the Minister set out to achieve. The Council was concerned about the lawfulness of continuing the use, that is, the lawfulness of its operation into the future. In neither of these proceedings do the applicants raise any issue about the lawfulness of the operations of the Mareeba landfill facility or any other facility before the TLPI took effect on 1 December 2006. The applicant’s case in both proceedings is confined to the allegation that the Council started to expand its operation at the Mareeba landfill facility to receive more than 20,000 tons of waste per annum and up to 100,000 tons of waste per annum before the TLPI came into force. My earlier finding of fact that the Council did not start that expansion of its Mareeba landfill operation is sufficient to dispose of the point.
The next matter for consideration is the allegation contained in paragraph 14(c) and paragraph 17 of the applicant’s pleading that the Minister took irrelevant consideration into account. Exhibit 6.31 is the Minister’s response to the Judicial Review Act request to him made by the solicitors for the applicants. In my view, there is not the slightest reason to believe, or even suspect, that the Minister gave any consideration to any matter other than those stated in his response. As to the matters alleged in paragraph 17(a) and (b) of the applicant’s pleading I accept that it was objectively the fact that the Council preferred to regularise the use of the Mareeba landfill by the TLPI rather than by a development application and possibly that the Council’s preference was based on legal advice rather than any factual concern or expert assessment. I also accept that the Minister was aware of those matters. However, in my view there is not the slightest hint in the Minister’s reasons for making the findings arising out of subsection 2.1.10(2) and the exercise of the discretion arising out of Schedule 2 subsection 2(2) that the Minister gave any weight whatsoever to those factors.
In respect of the matters alleged in paragraph 17(c) and (d) I have no doubt that the Minister took those matters into consideration. In my view, he was entitled to because they were of particular relevance. The applicant’s proceeding in 269/06 were relevant to, and in my view demonstrated, firstly that there was a significant risk of serious adverse economic conditions occurring in the Planning Scheme. That was because the applicant’s proceeding made a direct attack on the Council’s operation of the Mareeba landfill facility. Further, the commencement of that proceeding had prompted the Council to obtain legal advice which led to a genuine and reasonable concern that the continued operation of the Mareeba landfill facility and other waste disposal facilities in the Shire might have to be shut down because they were not being lawfully carried on. Even further, if the Council had simply been left to amend the Planning Scheme using the process under Schedule 1 a significant period of time would need to be consumed in order to give effect to such an amendment. Given that the significant risk of serious adverse economic conditions occurring, was an immediate one at the time the Council commenced the process of introducing the TLPI, there can have been no doubt in my view that the delay which would occur in amending the Planning Scheme pursuant to the process under Schedule 1 would have increased the risk. The above conclusion also disposes of the allegations in paragraphs 14(e) and 19 of the applicant’s pleading that the Minister misconstrued IPA.
I now turn to give consideration to the allegation in paragraph 14(a) and 15 of the applicant’s pleading that the Minister’s decision was made for an improper purpose. I reject the suggestion that the Minister made his decision for the purposes of defeating the Thiess 2006 proceedings. In fact, the failure of the applicant’s proceeding 269/06 had nothing to do with the Minister’s decision. That failure is the result of my finding of fact that the council had not started the increase in the intensity of the use at the Mareeba landfill facility either when the 2006 proceedings had been commenced or before the TLPI took effect on 1 December 2006 or even before the grant of the EPA licence for the expansion in March 2007. As to the matters alleged in paragraph 15(b) and (c) in my view the commencement of the process of adopting the TLPI by the Council did not occur because the Council sought to use its position as the local authority to gain an advantage not available to an ordinary citizen. The Council commenced the TLPI process in its capacity as the planning authority. As the planning authority it had responsibility to ensure the provision of an important community service namely the efficient disposal of waste. It had been alerted to a situation which suggested that a major component of that service might have to be brought to a halt. In my view it was entirely appropriate for the Council to take the fastest lawful step available to ensure that the continued operation of the various waste disposal facilities was lawful so that the important service to the community could be maintained. As the Minister’s reasons clearly indicate, it was that purpose and that purpose alone which he had in mind when he made the findings required by subsection 2.1.10(2) and when he concluded that the TLPI should be made. May I say with respect that on the evidence before me in these two proceedings it would have been surprising if the Minister had reached any contrary conclusion.
In respect of paragraph 21, 22, 22A and 23 of the applicant pleading only two things need be said. Firstly, as I have already indicated I am satisfied (1) that the Minister’s decision was valid; (2) as was the making of the TLPI by the Council.
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