Tomes v Toowoomba Regional Council
[2011] QPEC 48
•23 March 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Tomes v Toowoomba Regional Council [2011] QPEC 48
PARTIES:
LIONEL R.G. TOMES
(Appellant)V
TOOWOOMBA REGIONAL COUNCIL
(Respondent)FILE NO/S:
64/2010
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
23 March 2011
DELIVERED AT:
Brisbane
HEARING DATE:
14 March 2011
JUDGE:
R Jones DCJ
ORDER:
1. The appeal is dismissed.
2. I will hear from the parties as to whether any further orders are required.
CATCHWORDS:
PLANNING LAW – Appeal Against Enforcement Notice Issued by Respondent – whether appellant’s sawmilling activities on the land were rural uses (agriculture) or industrial uses (general industry) under the town planning scheme of the respondent – whether carrying out assessable development without a permit – amenity under rural residential zone – impact on amenity caused predominantly by smoke, dust and noise
Sustainable Planning Act 2009 ss 473, 474, 493(6), 578
Arpedgo Pty Ltd v Beaudesert Shire Council (1980) Qd R 88
Maher v Hervey Bay City Council (2008) QPEC 123
Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337
COUNSEL:
Mr Tomes appeared in person
Mr Ure of Counsel for the respondent
SOLICITORS:
The appellant was not represented
King & Co, Lawyers
These proceedings are concerned with an appeal by Mr Tomes (the appellant) against an Enforcement Notice issued by the respondent on 9 July 2010. That notice required the appellant to cease carrying out sawmilling activities carried out on his land located at 190 Willis Road, Meringandan. Meringandan is on the outskirts of Toowoomba. The appeal is brought pursuant to s 473 of the Sustainable Planning Act 2009 (the Act). Pursuant to s 474(1) of the Act, the lodging of a notice of appeal about an enforcement notice stays the operation of such notice until the appeal is, relevantly here, dismissed. Pursuant to s 493(6), the respondent has the onus of establishing that the appeal should be dismissed.
The issues in the appeal
The notice of appeal comprises of seven grounds of appeal. However, pursuant to an order made by Rackemann DCJ on 9 December 2010, the issues in the appeal were determined to be:
“(a)whether the sawmill activity referred to in the Enforcement Notice issued to the appellant on 9 July 2010 (“the Enforcement Notice”) falls within the definition of ‘industrial uses; general industry’ contained in s 2.1.2 of the Rosalie Shire Council Planning Scheme 2008;
(b)whether the sawmill activity referred to in the Enforcement Notice falls within the definition of ‘rural uses; agriculture’ contained in s 2.1.1 of the Rosalie Shire Council Town Planning Scheme 2008;
(c)whether the sawmill activity referred to in the Enforcement Notice constitutes a development offence pursuant to the provision of the Sustainable Planning Act 2009.”
These issues largely catch those raised in grounds 3 and 4 of the appellant’s notice of appeal.
Background
To a large extent the background to this appeal is set out in the agreed statement of facts:[1]
[1]Exhibit 1.
“1. Lionel Robert George Tomes (“the appellant”) and his wife Janine Marie Tomes were at all material times the registered owners (joint tenants) of the land described as Lot 1 on RP143425 in the county of Albany and the parish of Meringandan, situated at 190 Willis Road, Meringandan West (“the subject land”).
2.The subject land is zoned rural residential pursuant to the planning scheme of the Rosalie Shire Council (now part of the Toowoomba Regional Council).
3.Since December 2009 the appellant has conducted a sawmilling operation on the subject land.
4.The sawmilling operation is a commercial enterprise and operates from approximately 8 am-5 pm on weekdays, and for approximately four hours on a Saturday. The appellant employs one person to assist in the business.
5.The sawmilling operation consists of a portable mill for cutting down timber logs and a two-man breast bench for sawing timber. The sawmilling operation produces hardwood planks of varying quality, poles, firewood, sawdust and other sawn timber.
6.The saw logs are used to produce the finished sawn timber are imported from outside the subject land. No trees grown on the subject land are used in the sawmilling operation. It would not be commercially viable to only use logs obtained from trees grown on the subject land.
7.No effective development permit has issued authorising the sawmilling activities on the subject land.
8.On 25 February 2010 the respondent advised the appellant that in its view the subject site was being used for the purposes of general industry and required a development approval.
9.Following a meeting with the council officers on 8 March 2010 the appellant prepared a development application for the subject site. By way of letter on 9 March 2010 the appellant requested a reduction in the application fee, or an extension of time to raise funds. This request was refused and the development application was not submitted.
10.On 13 April 2010 a show cause notice was issued by the respondent requesting the appellant to show case as to why council should not proceed with an enforcement notice.
11.By way of response to the show cause notice the appellant wrote to the respondent on 13 May 2010 detailing that in his belief the sawmilling activities had been legitimately and legally conducted as a self-assessable agricultural activity, described in s 2.1.1 of the Rosalie Shire Planning Scheme.
12.The appellant also referred to the intent of the rural residential zone as being to provide the opportunity to pursue farming pursuits on a relatively small scale and low intensity.
13.An enforcement notice was issued 9 July 2010.
14.The enforcement notice sets out that (the) appellant has committed or is committing a development offence, namely the use of the subject site for the purpose of a general industry (i.e. a sawmill) in contravention of ss 578 and 582 of the Sustainable Planning Act 2009.
15.On 6 August 2010 the appellant lodged a notice of appeal in the Planning and Environment Court at Toowoomba seeking an order striking out the enforcement notice and a declaration that the activity of sawmilling below the Environmentally Relevant Activity threshold level of 5,000 tonnes per annum is a legal use of the subject land...”
To these facts I would only add that the subject land sits at the extremity of a ribbon of rural residential development which is largely surrounded by land in the rural zone. And, that the evidence of Mr Tomes, which was largely unchallenged on this point, is to the effect that his sawmilling activities produce only some 500 tonnes of milled product per annum. Finally, perhaps not surprisingly given the relatively sparse population surrounding the subject land, complaints against the appellant’s activities are relatively limited. In the statement of Mr Ham,[2] a development compliance officer employed by the Toowoomba Regional Council, reference is made to only two complainants, that of Mr and Mrs Wilson and a Ms Green. Mr Perry Wilson was the only resident who gave evidence about the impact of the sawmilling operations on the amenity to his family. The Wilsons, however, do not live within the rural residential subdivision but on a much larger lot located in the rural zone.
[2]Exhibit 2.
The town planning documents
Both Mr Ure, counsel for the respondent, and Mr Tomes agreed the central issue in this case is whether or not, under the relevant town planning scheme, the activities carried out by the appellant on his land are more properly defined as being an agricultural or rural use or an industrial use.
The land is zoned rural residential under the Rosalie Shire Council Planning Scheme (“the scheme”).[3] Section 4.8.1 of the scheme sets out the intent of the rural residential zone and relevantly provides:
“The Rural Residential Zone provides the opportunity for residents to live on larger allotments in a semi-rural/semi-remote setting. It is considered the area primarily performs a residential function with the opportunity to pursue farming pursuits at a relatively small scale and low intensity. In consideration of any development proposal in the zone, primary consideration will be given to the impact on residential amenity and the natural environment. Residents should also have access to sufficient quality, quantity and diversity of open space and facilities to meet their recreational and sporting needs.
…
Other non-residential development is generally not intended in this land use area. However, Home Based Occupations may be supported where the impact on the residential amenity of the area can be managed at acceptable levels, as provided for in Part B of the House Code. …”
[3]Exhibit 4 at p 37.
Home Based Occupations are defined under the scheme to mean:
“An occupation, not being a Home Activity or Host Home Accommodation, carried out in a house or a separate building associated with the house on the allotment.”
Under the Rural Residential Zone – Level of Assessment Table – Material Change of Use provisions of s 4.8.2 of the scheme,[4] if the sawmilling activities can be properly described as being an agricultural use, then the scheme provides that the use would be self-assessable and that the relevant code would be the Rural Development Code. However, if the use is more properly categorised as being industrial, then, under the catchall provision of “all other purposes”, it would be impact assessable development. Pursuant to s 578 of the Act, a person must not carry out assessable development unless an effective development permit exists. There is no dispute that the appellant does not hold any permit approving his sawmilling activities.
[4]At pp 37 and 38.
Various rural uses are identified under the scheme, including animal husbandry and intensive animal industry. Of significance here is the meaning given to the term “agriculture”. It is defined in the scheme to mean[5] “the growing and harvesting of crops, pastures, flowers, fruit, vegetables, trees (either native or exotic) and the like on a commercial basis”. The term relevantly includes:
“ž With regard to trees, the primary processing of trees grown on the property to produce pulp, piles, poles, saw logs, seed, leaf and bark. The term also includes limited secondary processing such as sawmilling, kiln drying, but not chemical treatment or oil extraction techniques.” (emphasis added)
[5]At p 9.
Under the scheme various industrial uses are also identified, including extractive industry, high impact industry and low impact industry. Sawmilling is not specifically defined as being an industrial activity. Instead, the respondent relies on the meaning given to the terms “industrial activity” and “general industry”. The former is defined to mean:
“The use of a premises that, in the course of any trade or business, involves:
·The manufacture, production, processing, repair, recycling, storage or transfer of any article, material or thing … .”
The latter is defined to mean:
“Premises used for a trade or used for an industrial activity not separately defined.”
Impact on amenity
It is clear from the evidence of Mr Wilson that the sawmilling activities carried out by the appellant have had a not insignificant impact on the amenity of not only him but also his wife and daughter. These impacts include in particular, although not necessarily together or on a constant basis, noise, smoke, dust and sawdust. Even though both Mr Wilson and his wife work Mondays to Fridays these impacts are noticeable. Mr Wilson gave evidence that his daughter changed her university studies so that she is now enrolled and lives in Brisbane. Prior to that, as I understood Mr Wilson’s evidence, she had been studying in Toowoomba and living at home.
It is clear from the evidence of the appellant that he has endeavoured to establish an operational regime which, as far as practicable, is intended to reduce the amenity impacts described by Mr Wilson. This includes constructing a Colorbond fence around the site. This fence interrupts any direct line of vision from the residence of the Wilson’s to the sawmill. Some landscaping has also been carried out along the fence to soften its appearance. Steps have also been taken to control noise. Burning of waste material is limited to when the wind is blowing away from the direction of the Wilsons’ residence and when they are not at home. I accept that the appellant is attempting to address the matters raised by Mr Wilson. However, it is also clear that he himself recognises that further works are required, particularly to address equipment noise. In this regard the appellant recognises that to further reduce noise, it would be necessary to construct a shed with a solid concrete block wall to accommodate the portable saw.[6]
[6]Exhibit 8 para 37.
While the evidence establishes that the sawmilling activities carried out on the subject land causes not insignificant impacts on amenity in so far as the Wilsons are concerned there is no persuasive evidence that it has any material impact on the amenity of the balance of the rural residential development of which the subject land is a part. The most likely reason for that is that the usual wind direction across this area is from the south-east and north-east which would tend to blow dust, smoke and possibly even noise, whilst towards the direction of the Wilsons’, away from the rural residential lots.
The competing arguments
As Mr Ure pointed out in his closing submissions, town planning documents are to be construed in a practical and commonsense way which best achieves their identifiable purposes and objectives.[7]
[7]Arpedgo Pty Ltd v Beaudesert Shire Council (1980) Qd R 88 at 94; Maher v Hervey Bay City Council (2008) QPEC 123 at para 20; Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337 at para 18.
In the support of his case the appellant points to the low key nature of his operation and argues that it is consistent with what would be envisaged within a rural residential zoning. However, more importantly the appellant points to the fact that under the meaning given to the word “agriculture” under the scheme, the specific reference to “sawmilling” must be interpreted as an intention by the drafters of the scheme to include sawmilling as a rural use. In final addresses, the appellant presented his argument in this way:[8]
[8]T1-31 LL 12-55.
“… I will just expand further on that definition as we understand it. Obviously it speaks about the growing and harvesting, it speaks about it being commercial, it speaks about it – primary processing of logs grown on the property, and then it goes on to say: “The term also includes limited secondary processing such as sawmilling, kiln drying but not chemical treatment, or extraction techniques.”
– It’s just interesting to note in the scheme that it talks about – … ‘The term includes’, ‘the use includes’. Only this once in this whole scheme does it say ‘the term also includes’. It’s clear that it was necessary to separate on this point from the standard way of reading that. ‘The term also includes’, not just ‘this includes’, ‘the term includes’, ‘ancillary to this’, ‘only logs grown on the property’. There are plenty of schemes where it’s limited to logs that are grown on the property.
…
It is fundamentally wrong to come in and try to say, ‘it is an industrial use on the basis that we consider it to be an industrial use.’ It doesn’t say that it’s industrious. It says sawmilling is an agricultural activity. It says sawmilling is a rural use. It says nothing about industrial definitions except in wooden product manufacture where it says, ‘the term does not include sawmilling’, making it clear that in the industrial uses there is not sawmilling. It’s remarkable that it would even be considered an industrial use when it’s so clear from the scheme it’s a rural use.”
The appellant also contended that when construing this scheme, it ought to be borne in mind that it was prepared by the Rosalie Shire Council prior to its amalgamation with the Toowoomba Regional Council. According to the appellant the Rosalie Shire was a “rural based council with rural ideas” and the Toowoomba Council being more of a “head office” type entity. In this regard the appellant argued:[9]
“The scheme was written for the Rosalie Shire people by the representatives of the Rosalie Shire, and the people that live in the area, as I’ve noted, with the exception of Mr Wilson, believe its an appropriate and proper use of land and they wish to have their rights respected with regard to the uses they’re allowed to carry out on their properties.”
[9]T1-32 LL 48-58.
On behalf of the respondent it is argued that when the definition of “agriculture” is read in an objective way, the limited secondary use or activity of sawmilling must be seen to be limited or governed by the primary activity of, relevantly here, the growing of trees. And accordingly, sawmilling within the context of the definition of “agriculture” must be limited to the sawmilling of trees grown on the subject land.[10] That substantive proposition was expanded on by Mr Ure in his closing argument:[11]
[10]T1-6 LL 50-60 and T1-7 LL 1-5.
[11]T1-22 LL 25-50.
“… agriculture is the growing and harvesting of, in this case, trees, either native or exotic, on a commercial basis. It’s not beyond the realms of probability to assume that there would be rural residential parcels of land where people will grow paulownia or other timbers and harvest them on a scale commensurate with the size of their blocks. And that’s something that this scheme has permitted because it goes on to say: ‘the term includes, with regard to trees, the primary processing of trees grown on the property to produce sawlogs.’
So that would otherwise be an industry processing of a material or thing, the scheme has said, ‘well, in the limited circumstances where you grow the trees on your own property, this scheme will include within the definition of agriculture, the primary processing of those trees.’
So what would otherwise be an industry processing of a material or thing, the scheme has said, ‘well, in the limited circumstances where you grown the trees on your own property, this scheme will include within the definition of agriculture, the primary processing of those trees.’
It goes on to say: ‘the term also includes limited secondary processing such as sawmilling.’ There, with respect, is no doubt that the secondary processing referred to follows the primary processing, and the primary processing is limited to trees grown on the property. There’s nothing surprising about that because the primary definition – I shouldn’t repeat that word. The principle component of the definition of agriculture means the growing and harvesting of trees. So it contemplates that, on the land, trees are grown. If they are, this scheme says, ‘Well, within the definition of agriculture, we will let you cut down the trees that are grown on your land and we will let you process them by sawmilling.’ And there is nothing, with respect, unusual about that. What would be unusual is if sawmilling, an industrial activity unrelated to this parcel of land, was permitted.”
Conclusions
Relevant to this appeal the definition of agriculture, in my view, is:
“the growing and harvesting of trees (either native or exotic) on a commercial basis. The term includes: with regard to trees, the primary processing of trees grown on the property to produce pulp, piles, poles, saw logs, seed, leaf and bark. The term also includes limited secondary processing such as sawmilling.”
Central to what is meant by agriculture is, relevantly here, the growing and harvesting of trees on a commercial basis. However the definition also includes within the meaning of the term, the primary processing of trees grown on the property to produce (more relevantly here) piles, poles and saw logs. In my view the “limited secondary processing” included in the definition is directly associated with or related to the primary processing as identified. That is, the scheme envisages that under the definition of agriculture some limited secondary processing such as sawmilling is permissible to carry out the production of, by way of example, poles and saw logs.
When the definition of agriculture is read as a whole I do not consider it open to conclude that a standalone commercial saw milling use in no way associated with or related to the growing, harvesting and primary processing of trees grown on the property could be included within that definition. Conversely the business of sawmilling fits quite comfortably within the definition of an industrial activity. That is it involves the processing of solid material, i.e. timber in a relatively raw state. Contrary to the thrust of the appellant’s submissions, it is not at all inconsistent with the Scheme’s identification of industrial uses to distinguish sawmilling from more low key wooden product manufacture of items or uses such as cabinet making, carpentry and “other wood working.”[12]
[12]Section 493(6) SPA
On the facts of this case the sawmilling use to which the land is being put could in no way be described as “limited secondary processing”. It is the primary use of the land. It is secondary to nothing.
For the reasons given I have reached the conclusion that the sawmilling activity carried out on the land does not fall within the meaning of agriculture or rural uses and is more properly described as an industrial use falling under the heading of “general industry”. As a consequence, its use within the rural residential zone is impact assessable. And, in circumstances where the appellant has no permit to carry out such a use on the land that use in conflict with the scheme and is unlawful.[13] The respondent has established that the appeal should be dismissed. [14]
[13]Section 578 of SPA.
[14]Section 493(6) SPA
I do not doubt that this decision is likely to impact significantly on the financial circumstances of the appellant. The Act recognises that when sufficient grounds exist, a use may be condoned despite conflict with the scheme.[15] However, such grounds of the purposes of the Act means matters of public interest. It does not include the personal circumstances of the owner.[16] Public interest or benefit was not an issue raised in this appeal.
[15]Sections 326 and 329 of SPA.
[16]Definition of “grounds” Schedule 3 SPA.
Accordingly the appeal must be dismissed.
Orders:
The appeal is dismissed.
I will hear from the parties as to whether any further orders are required.
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