Transpacific Industries Group v Ipswich City Council
[2012] QPEC 69
•31 October 2012
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Transpacific Industries Group v Ipswich City Council [2012] QPEC 69
PARTIES:
TRANSPACIFIC INDUSTRIES GROUP
(ACN 105 155 221)
(applicant)v
IPSWICH CITY COUNCIL
(respondent)FILE NO/S:
2885/12
DIVISION:
Original
PROCEEDING:
Originating Application for declaration as to interpretation of development permit
ORIGINATING COURT:
Brisbane
DELIVERED ON:
31 October 2012
DELIVERED AT:
Brisbane
HEARING DATE:
26 September 2012
JUDGE:
Robin QC DCJ
ORDER:
Declaration as sought by applicant
CATCHWORDS:
Development permit for a landfill for waste disposal, an environmentally relevant activity (ERA) - no express limit on annual tonnage receivable - applicant, which acquired site subsequently, sought declaration there was no limit - State authorities licensing ERA approved large increase over their original limit, which coincided with several clear intimations in the development application of a maximum of 50,000 tonnes p/a - Council contended that reference could be made to the document submitted with the development application to establish that for town planning purposes there the development permit was so limited, such that the increase proposed required a development application.
COUNSEL:
Mr M. A. Hinson SC for the applicant
Mr S. M. Ure for the respondent
SOLICITORS:
Norton Rose Australia for the applicant
King & Company for the respondent
The applicant operates a “Landfill (General Waste Disposal with limited regulated waste)” on land owned by a subsidiary at 100 Chum Street, New Chum, which it is convenient to call lot 268, pursuant to a town planning consent permit issued by the respondent Council (or its predecessor) to National Landfill Technologies Pty Ltd on 4 February 1999. The permit number is 192/98. This proceeding is brought seeking a declaration that, properly construed, the permit authorises the use of the land for the purpose described in it (being encapsulated in the words in quotation marks above) “without any annual limit on the amount of waste received at the land per year.”
Town planning considerations aside, the activity is also regulated as an Environmentally Relevant Activity (ERA) which is included in Schedule 1 of the Environmental Protection (Interim) Regulation 1995:
“74. General waste disposal facility-operating a facility for disposing of general waste designed to receive waste at the rate of-
(a) More than 1 t but not more than 2000 t per year 500.00
(b) 2000 t or more, but less than 5000 t, per year 750.00
(c) 5000 t or more, but less than 10000 t, per year 1000.00
(d) 10000 t or more, but less than 20000 t, per year 1500.00
(e) 20000 t or more, but less than 50000 t, per year 2000.00
(f) 50000 t or more, but less than 75000 t, per year 2500.00
(g) 75000 t or more, but less than 100000 t, per year 5000.00
(h) 100000 t or more, but less than 200000 t, per year 7500.00
(i) 200000 t or more per year 10000.00”
At the time the Town Planning Consent Permit was applied for and issued, indeed until fairly recently, (e) applied to the operation. For the future, the applicant intends that it come under (i). It may be assumed that this would be in order for ERA purposes. There has been a change in the number of the ERA, on which nothing turns.
The Council opposes granting the relief sought, apprehending that it would allow for receiving up to 2 million tonnes of waste per annum on site, as opposed to a cap of 50,000 tonnes per annum which it submits is the meaning of the permit. It is only necessary to mention the burgeoning number of truck movements (as many as two per minute in peak hours on the worst case scenario contemplated by the Council) and the impact on the Council’s roads to appreciate the Council’s concern, which mirrors that underlying Refaka Pty Ltd v Scenic Rim Regional Council [2009] QPEC 139; [2010] QPELR 392. In marked contrast to the situation here, in Refaka, Council approvals expressly set out limits on production of the relevant quarry. One would expect that situation to be reflected in the general case of approved uses necessarily bringing with them potentially heavy use of haulage routes.
The permit is a one page document dated 4 February 1999 describing the land (74.09 ha), present use (“landfill”) and the use consented to by Council (being quoted at the beginning of these reasons). Under the heading “THE CONDITIONS WHICH ATTACH TO THE PERMIT” one finds “See letter dated 20 October 1998 (copy attached)”. The permit is accompanied by a letter of the same date explaining the chronology by reference to “Council’s letter dated 20 October 1998 approving the above town planning consent application” and the appeal period having expired with the Council not notified of any appeal. Accordingly the Town Planning Consent permit attached was being issued in accordance with s 4.13 of the Local Government (Planning & Environment) Act 1990. Condition 1 is:
“1. Basis of approval
The facts and circumstances set out in the application and all relevant Council Local laws and/or Local Planning Policies shall be adhered to, except as amended in these conditions and with the following clarification:
(a) The existing access to the landfill is to be closed off, to the satisfaction of the Senior Development Engineer, at the completion of construction of the facilities approved under Town Planning Consent Permit 140/98. Such facilities are to be provided prior to the commencement of the proposed use of the site under this approval.
Alternatively, facilities, as indicated on Plan Number 50350-14 ‘Alternative Infrastructure Locations’, prepared by Environautics and dated 21 June 1998, are to be constructed on site before the commencement of the proposed use.
(b) The Developer is to notify Council in writing of the commencement of operations of each individual landfill cell the subject of this approval together with the expected date of closure of each cell.”
The conditions run to some 21 pages.
It is accepted that a development approval may incorporate other documents by reference. The permit clearly incorporates the letter; no one contends otherwise. The “application” referred to in condition 1, received by the Council on 27 March 1998 and later supplemented by additional reports and material declared to be part of it, extends to a couple of hundred pages. It would be inconvenient in the extreme to have to trawl through such a volume of material to identify development conditions running with the relevant land.
It is interesting that both parties have at earlier times embraced different views from those contended for now. The applicant has lodged development applications 3735/2010 and 4250/2011, each for a material change of use for special industry and services/trades use (extension to landfill activities) and for certain ERAs. It has sought to withdraw components requiring the Council to adjudicate any issue of increasing annual tonnages. The Council has not been required to do so in the past, although it has made decisions varying the types of waste which the permit authorised receipt of on the site.
For its part, the Council was given the opportunity to determine what role it ought to play when a development application was made to the administering authority as defined by the Environmental Protection Act for a development permit for a material change of use for “ERA 75(a)(ix) being a facility for disposing of only general waste or limited regulated waste designed to receive waste at the rate of 200,000 tonnes or more per year” with respect to the site. For reasons described in the Further Amended Originating Application, discussions occurred about this time between the Council and the administering authority as to which of them was the assessment manager for that development application by National Landfill Technologies Pty Ltd, resulting in the Council’s writing to the other:
“Re: Determination of Assessment Manager
Application for an in increase in ERA licence from ERA 75(a)(v) to ERA 75(a)(ix)
100 Chum Street, New Chum (Lot 268 on SP103913).
Thank you for providing Council with the opportunity to consider National Landfill-Technologies Pty Ltd’s proposal to upgrade their existing Environmentally Relevant Activity (ERA) licence.
It is Council’s understanding that National Landfill Technologies Pty Ltd propose to upgrade their current ERA licence from ERA 75(a)(v) – Waste Disposal – operating a facility for disposing of only general waste or limited regulated waste, if the facility is designed to receive waste at the rate of 20,000 – 50,000 tonnes per year, to a licence for ERA 75(a)(ix). This upgraded licence would enable disposal of the same at a rate of 200,000 tonnes or more per year.
By letter dated 4 February 1999, Council issued ‘Town Planning Consent for the development of Landfill. (General Waste Disposal with limited regulated waste) on the subject land.
Provided that the development continues to comply with all of the conditions of this approval, it is considered that the proposed increase in rate of disposal does not constitute assessable development under Council’s planning scheme.
As such, provided the application does not include other development (ie operational works, building works), council has no objection to the Environmental Protection Agency (as administering authority for ERA 75(a)(ix) assessing the subject ERA licence application as an Alternative Assessment Manager, in accordance with the provisions of Schedule 1A: Alternative Assessment Managers of the Integrated Planning Regulation 1998.”
That is a stance the Council now repents of. That letter, dated 20 February 2001 was the culmination of a process that had taken months. National Landfill Technologies’ letter to the Council of 12 December 2000 refers to a meeting that had been held on the last day of the preceding month regarding the company’s application:
“to upgrade the existing EPA licence from ERA 75(a)(v) to ERA 75(a)(ix). In that meeting it was agreed that the present town planning approval, issued by the Ipswich City Council on 4 February 1999, covered the proposed increase in the rate of disposal.”
It was not contended that either party was in some way estopped by the inconsistent positions previously taken.
Mr Hinson SC, for Transpacific, relied on the advisory notices contained in the conditions letter:
“2. Integrated Planning Act and Further approvals
Further approvals, as required by the Integrated Planning Act 1997, shall be obtained in respect of any operational works, building works and/or plumbing works in relation to this approval before any such works are commenced.
…
5. Department of Environment and Heritage
Further requirements may exist under and compliance will be required in accordance with the following legislation as administered by the Department of Environment and Heritage:
(a) Environmental Protection Act 1994;
(b) the Integrated Planning Act 1997
With respect to any amendment to the Environmental Authority or any other required application, such should be made directly to:
…”
There is no indication there that the Council must be applied to before there can be any increase in rates/tonnages. This was not Transpacific’s main point.
It is clear that the permit conditions restrict the categories of waste that may be received. This is in stark contrast to the silence of the conditions on the matter of tonnages. The question is whether any restriction as a matter of “Town Planning Consent” arises from “the facts and circumstances set out in the application”, which are plainly enough identified as the basis of the approval.
It is accepted that a development approval may incorporate other documents by reference - and clear from the authorities relied on by Mr Hinson - that reference does not necessarily pick up restrictions proposed or offered in a development application.
In Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 an application for consent to erect a hospital laundry designating proposed working hours as “weekdays, 7.30 – 4.30 pm” was never approved in any formal document issued, but particulars in a register kept by the Council as required by the County of Cumberland Planning Scheme Ordinance were described as follows:
“In the column which bears the heading ‘Nature of Development’, the register contains the words ‘Application for Development Approval for a Hospital Laundry’; and in the columns headed ‘Conditions of Permit (if any)’ and ‘Remarks’ the following appears:
‘Approved by Council Minute 432 CM 6/7/65 subject to the following conditions:
(a) That the application be referred to the State Planning Authority for consultation as required under cl. 43 of the County of Cumberland Planning Scheme Ordinance.
(b) If the State Planning Authority concurs with the development the application be deemed to be approved subject to any conditions imposed by the State Planning Authority.
State Planning Authority concurrence 11/8/65. Ref. 8/52 D741.”
No conditions were imposed by the State Planning Authority.
Else-Mitchell J said at 323-34 in dismissing an application seeking to restrain laundry operations outside the hours proposed:
“Upon this material the plaintiff contended that the development consent was a consent to the application in the terms in which that application was framed, so that the proposed hours became a term or condition of the consent binding the defendant to their observance as a matter of law by virtue of cl. 27 and cl. 41(3) of the Ordinance.
It was submitted on the basis of decisions such as Rocca v Ryde Municipal Council[1] and Attorney-General v Bristva Pty Ltd[2] that it was not necessary for all the conditions of a development consent to be incorporated in the consent or other document which purported to operate as a consent, and that in the absence of any limitation or express statement to the contrary the consent to the application should be read and construed as incorporating as conditions all the matters set out in the form of application.
[1](1961) 7 LGRA 1
[2](1964) 10 LGRA 348
I have no doubt that the first of these submissions is sound and that a consent can incorporate conditions contained in another document. But the mere approval of an application does not, I think, necessarily have the effect of incorporating all the matters stated in the application. For one thing, many of the matters so stated are general matters of fact or assertions of intention furnished or made for the purpose of informing the council of the nature of the development, and for another, an application will often consist of or be supplemented by informal documents and even oral statements made by or on behalf of an applicant. Serious inconvenience, ambiguity and confusion could arise if, in all instances, general statements of fact and assertions of intention in an application form, as well as every other statement made in support of an application, were to be regarded as terms or conditions of a development consent, and problems would inevitably arise as to the real scope and tenor of any such consent.
In the present case, the fact that there was no formal consent was urged as a reason for treating the terms of the application as conditions of the consent, but that fact seems to me to point in the contrary direction; and indeed, for what it is worth, the only conditions recorded in the council’s register are simply not capable of being construed in an extensive fashion.
It must not be overlooked that a consent to the development of land under a prescribed planning scheme is not personal to the applicant but enures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title.
I therefore think it sound to say that the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject.
I accordingly have come to the conclusion that the consent granted by the plaintiff council to the construction of a laundry building and the conduct of a hospital laundry is not subject to any limitation of hours, and as the relief claimed in the suit is based solely upon some such limitation, it seems to me to follow that the originating summons must be dismissed.”
In the following year in Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433-4, Hope J said:
“The question arises whether, in order to determine what development that consent authorised, one is required or permitted to go to the application for approval or to any other document. This matter was considered by this Court in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 and by the Court of Appeal in Miller-Mead v Minister of Housing and Local Government (1963) 2 QB 196. It is apparent from these decisions that in determining what a council has approved, one primarily looks at the document constituting the approval, and construes it. The necessity to do this arises, inter alia, from the fact that a development approval does not enure only for the benefit of the applicant. It enures for the benefit of all future owners or occupiers, and it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval. The terms of another document may be incorporated in a development approval either expressly or by necessary implication, but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved. In particular, it is not possible to go to the form of application for approval unless in some way that document has in whole or in part, expressly or by necessary implication, been incorporated in the consent. On some occasions no doubt there is such an incorporation. Thus, if an application were made and a council did no more than approve the application, it seems to me that by necessary implication the terms of the application must be incorporated.”
What may be seen as a related principle, to the effect that in a case of ambiguity, development approvals are construed in the way most favourable to (or placing the least burden on) the landowner is established locally in Matijesivic v Logan City Council [1984] 1 Qd R 599 at 605. In this court the principles have been applied many times, an early incidence being Hawkins andIzzard v Permarig Pty Ltd(No. 1) [2001] QPELR 415.
In Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2004] QPEC 074, Judge Dodds declared that multiple dwellings referred to in a Town Planning consent might be lawfully used for permanent residential accommodation, contrary to the Council’s contention that the use of the word “resort” in the approval, which was for “multiple dwelling and ancillary facilities, resort administration, shop, restaurant and recreation facilities” (see [22]), somehow connoted tourist or temporary accommodation or precluded long term or permanent accommodation: [36]. As Judge Dodds noted in the following paragraph, it was open to the Council to have attached or sought to attach conditions to the Town Planning consent restricting use of the multiple dwellings and the development to visitor or tourist occupancy. There were all manner of indications that a resort (contended to be a use not consistent with permanent occupancy) was intended, including the parking arrangements proposed: [26]. The reasons contained further observations upon a condition requiring all development to be undertaken in accordance with the EIS submitted with the application:
“The respondent contended that condition 27 had the effect of incorporating the whole content of the EIS into the approval. The EIS had acknowledged that the subject land was identified in the respondent’s planning instruments for tourist accommodation and that development as a resort would be optimal use of the site. There is no reference in the EIS to use of any of the dwellings for permanent accommodation as opposed to visitor accommodation. There is reference to “units being strata titled and sold separately with a lease back arrangement to the resort operator.” Page 1 executive summary. There is reference to the subject land being “a tourist facility” to units being “sold off the plan to investors and then returned to a short term letting pool …” Included was a traffic engineering report which referred to the application as proposed development “for the purpose of a tourist resort”. Included also was an economic impact assessment by KPMG Peat Marwick which described the proposed development as “planned to incorporate 276 strata title two and three bedroom units which are to be sold off the plan to investors and then returned to a short term letting pool for the operation of a budget to medium priced tourist resort.”
Other decisions in this court collected by Mr Hinson are Tom Dooley Developments Pty Ltd v Brisbane City Council [2010] QPELR 630 at 632 K-L and 634 B-H, Expectation Pty Ltd v Maroochy Shire Council [2007] QPELR 566 at 569-70 ([20]-[22]), Maxen Developments Pty Ltd v Burnett City Council [2007] QPELR 599 at 601 [14] and Brisville Pty Ltd v Brisbane City Council [2007] QPELR 637 at 369-40 [7]-[16]. There is appellate authority in New South Wales affirming that a development approval “must speak according to its written terms, construed in context but having regard to its enduring function”: “The search is not for what the Council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended”: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at 507 - an approach claimed to have obtained recognition in the High Court in Weston Aluminium Pty Ltd v The Environment Protection Authority (2007) 82 ALJR 74 at 77-78; 239 ALR 641 at 645. It was not necessary in that case “to consider what reference may be made to the development application to which the consent responds”. The High Court considered that neither a 1980 consent permitting the operation of a can reclamation plant nor a 1981 consent for operating an aluminium re-smelting facility permitted Alcoa to process imported dross in part of its can reclamation plant: [26].
In Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66 reference to the relevant development application showed that it related only to stage 1 of the proposed development, which was for an integrated tourist resort on Lake Jindabyne. As the headnote sets out:
“(2)A development consent has to be construed by reference to the application to which it relates. Properly construed, the development application was for stage 1 of the proposed development and was limited to an application for sub-division and some initial minor development. To the extent that the documentation lodged in support of the application made reference to the overall development it did so, so as to provide a context for the consent sought for stage 1.”
Mr Ure’s submissions noted that:
“Beasley JA with whom Handley JA and Powell JA relevantly agreed had regard to statements of environmental effects which accompanied the initial application, correspondence with the Council in respect of the application which consistently referred to the application as being for stage 1 of the development and further statements of environmental effects lodged on 31 August 1992 and 1 October 1992. The consent was granted on 3 December 1992. Beasley JA said:
‘Scope of the Consent
[42]The principles as to the proper construction of a development consent were not in dispute. Regard is had primarily to the terms of the consent as it appears on the face of the notice of determination, together with any documents which are specifically or by necessary inference imported into the consent: Auburn Municipal Council v Szabo (1971) 67 LGRA 427; North Sydney Municipal Council v Sydney Services Apartments Pty Ltd (1990) 21 NSWLR 532; 71 LRGA 432.
…
[44]The October documents made it clear that the reference to further stages in the development were to enable the amended DA 55/92 to be understood in the context of the overall project. This was relevant for a number of reasons, including in relation to the conditions which might be imposed. The statement of environmental effects lodged at that time specified that the application before the council was ‘principally for subdivision of most of the land’ and that ‘successive applications [would] follow for subdivision and development of the majority of the Torrens Title lots and the golf course’.
[45]The appellant also placed reliance upon the fact that the council had endorsed plans AO1, AO2, and AO3 as part of the consent given on 3 December and that these plans related to the whole development. However, the plans cannot be considered in isolation. They formed part of the overall documentation lodged with the council in October and must be considered in the context of the documents lodged at that time. Their purpose for inclusion at that time was clear, namely to provide a context for the overall proposal. They did not have the effect of enlarging the application then before the council. (Emphasis added)
[46]The consent granted, can of course, be no wider than the application to which it relates. In my opinion, the application before the council was in respect of the subdivision of the land into 16 lots 1-14 for the erection of dwellings, lot 15, which was to be subject of a further development application for the creation of 50 freehold lots and a residue described as lot 16, and for the erection of the tennis courts and a clubhouse on the latter.
[47]It follows from the above that in my opinion, the development consent on 3 December was in respect of Part 1 of the project only …’
(iii)In Aqua Blue Noose Pty Ltd v Noosa Shire Council[3] Dodds DCJ in discussing Sericott said:-
[3]2004 QPEC 074.
[21]As Brabazon QC DCJ said in Hawkins and Izzard at 416 sometimes ‘ there is some room for extrinsic material’. Sericott Pty Ltd v. Snowy River Shire Council (1999) 108 LGERA 66 is an example where the issue was whether the applicant had existing use rights for an integrated tourist report which involved the whole of the subject land. The application to the council had been for subdivision in the context of a staged development for an integrated tourist resort. In dispute was whether the council’s approval was only for subdivision of the land, or was for an integrated tourist resort. In order to be able to determine what the consent was for, it was necessary to construe what had been applied from. That involved the amended application and the accompanying documents which went to explain it. Beasley JA with whom Handley JA agreed, decided that reference to further stages in the development documents was to enable the application, which was for subdivision, to be “understood in the context of the overall project” and did not have the effect of enlarging the application. The council’s consent was therefore for the fist stage of subdivision only.
(iv)In Hawkins and Izzard v Permarig P/L & Brisbane City Council[4]
[4]2001 QPELR 414
Brabazon DCJ stated :-
There is some room for extrinsic evidence, as the cases show. Expert evidence, in accordance with the usual principles, might be called to explain a technical term and also (in my opinion) the possible implications of different constructions of a condition. That would be particularly so where the purpose of the approval is evident. If one construction would advance the proposal while another would tend to frustrate it, then that may be an important factor in construing the true meaning of the approval. Also evidence may be given to explain the nature of the site so that the impact and meaning of the condition may be understood. Evidence as to the meaning of the marks on plans or, perhaps, the absence of particular marks can also be the subject of extrinsic evidence.” (emphasis added)
21.In the instant case, the application documents in [Exhibit] MJQ20 have been either expressly or by necessary implication incorporated into the approval. For example:-
(i)Condition 1 of the approval[5] provides:-
[5]Affidavit of Mr Quirk. Court document [10] exhibit MJQ25
‘1.Basis of Approval
The facts and circumstances set out in the application and all relevant Council Local Laws and/or Local Planning Policies shall be adhered to, except as amended in these conditions and with the following clarification …
(ii)Condition 1(a), 1(b), 6(c), 7(b), 15(a), 33(d), 35(a), 35(b) all require resort to be had to the application documents to construe their meaning.
(iii)Condition 6(c) requires that the Chum Street pavement widening design shall be “consistent with predicted traffic volumes”. The predicted traffic volumes are the subject of the Traffic Report (MJQ page 264) referred to (supra) which provides:
“The proposal also indicates that the site will be ‘operating a facility of general waste designed to receive waste at a rate of 20,000 tonne or more, but less that 50,000 tonne per year.
(iv)Condition 33(d) deals with vegetation in the immediate vicinity of the proposed buildings. The form TP-07 (MQJ20 page 186 on page 187) explicitly states that there are no proposed buildings involved in the use. The Environautics report in MJQ20 deals with the proposed buildings and Drawing 50350-8 Management Infrastructure Area shows the buildings and their location. The Environautics report is required to understand the condition and appears to have corrected form TP-07.
…”
Conditions 1(a) and 1(b) are set out above. In condition 6, only (e) requires compliance prior to commencement of the use.[6] 7(b) refers to “the three sets of parking bays” and “the southernmost set” in particular. 15(a) is:
[6]Condition 39 only adds confusion by requiring compliance with conditions “unless otherwise stated” - at that prior stage “or as determined by Council”.
“15. Operational Woks [sic]
(a)Prior to commencement of construction of the relevant cell, an Operational Works Application shall be made for Cells 1 and 2 initially, and thereafter for each Cell, through to Cell 5. The Geotechnical report dated 4 September 1998 is considered adequate for the design parameters regarding settlement for Cells 1 and 2. Further cells 3-5 will require additional Geotechnical information at the time of the application for Operational Works for those Cells, as generally indicated in the Geotechnical report and to the satisfaction of the Senior Development Engineer.”
33(d) is:
“(d) Conservation Significance
Vegetation in the immediate vicinity of the proposed buildings is regrowth of approximately 3 years. The more significant trees in the area appeared to be along the front fence line, as these areas may not have been disturbed in the past coal mining operation. There was also some relatively undisturbed vegetation at the rear of the site, however this is not impacted upon by the current proposal. This vegetation is to be preserved and incorporated into the development proposal.”
35(a) and (b) are lengthy and set out in a footnote.[7] In my opinion the contention in 21(ii) misrepresents the situation. The conditions speak for themselves. What is required to be done will be pretty obvious from what they say, and from what is happening or has happened on the ground as time goes by.
[7]“35. Site rehabilitation
(a)Site rehabilitation is to be carried out generally in accordance with the document entitled “Rehabilitation Plan for Queensland Trade Waste Pty Ltd. Waste Disposal Facility: 21 Rhondda Rd, New Chum” prepared by Ison Environmental Planners dated August 1996. Additionally, details of the progressive rehabilitation of the site are to be submitted to the satisfaction of and for approval by Council’s Conservation and Parks Manager as follows:
(i) for each individual landfill cell, details are to be submitted eighteen months prior to the expected final receipt of wastes in that individual landfill cell; and
(ii) for all other areas of the site requiring rehabilitation not the subject of a landfill cell, details are to be submitted eighteen months prior to the expected final receipt of wastes in the final landfill cell.
(b)Further, each progressive rehabilitation plan required by item (a) above is to be generally in accordance with the following:
(i) the landform as generally indicated in the submitted plan number 50350-7 issue B, entitled ‘Proposed Final Surface Contours’ prepared by Environautics Pty Ltd , dated 2 March 1998, or any other final landuse plan which may be approved by Council’s Conservation and Parks Manager; and
(ii) any rehabilitation requirements set down under the Department of Environment and Heritage environmental authority Licence No SR611 or any subsequent document replacing or amending that authority; and
(iii) any rehabilitation requirements of the Department of Mines and Energy in respect to the previous relinquishment of the Mining Leases.
Details are to be submitted to the satisfaction of and for approval by Council’s Conservation and Parks Manager in accordance with the timing requirements of (a)(i) and (a)(ii) above.”
Mr Hinson submitted that, although it might suit the applicant’s case to go wider, at the widest references in the Permit to the “application” do not go beyond documents 20 and 21 (i.e. the application for town planning consent – pp 186 to 279) in the report of Environautics (pp 280 to 377). It seems to me that documents 22 and 23 should be included as well, as the application foreshadowed that an associated request for a relevant determination by the Department of Local Government and Planning had been made and information regarding it would be provided “in the form of an addendum … prior to advertising”. I agree with Mr Hinson that the Council ought not be entitled to make reference to anything before March 1997 in support of its contention that the permit fixes a 50,000 tonne annual limit unless it was specifically incorporated in the development application which resulted in that permit being issued.
The issue in the application now before the court boils down to whether the development application which led to the subject permit indicates as a restriction a cap on waste received at the site to 50,000 tonnes per annum. The approach to the Department was one of a series of approaches successfully seeking exemption from having to prepare an environmental impact statement. The Department obliged by letter of 20 May 1996 (Mr Quirk’s document 11) and again by letter of 21 March 1998 (document 22). The earlier letter resulted from an application dated 3 April 1996 which advised the Department:
“2.4AAnnual production or annual production capacity as a result of the proposed use:
The acceptance of 20,000 to 50,000 m3.”
Item 2.6 was concerned with means of transporting goods and materials to and from the site. The information provided gave hours of operation and advised “Estimated Quantity for the current year is 20,000 to 50,000 m3.” While such details are asserted to support the Council’s argument that a limit is stipulated here, in a document which I think Mr Hinson correctly characterises as coming too early to be part of the development application of interest to the court, it may be noted that the document offers some support for arguing that the proponent did not indicate any idea of a limit. One finds under 2.2 - the capacity of the facility:
“Capacity in excess of 13 Million Cubic Metres
30-50 Years of Life Expectancy
Planned to accept between 20,000-50,000 Cubic Metres under the current State Licence.”
On Mr Hinson’s calculation, if the capacity is to be exploited to the full, there would be acceptance of 423,000 m3 of waste per annum averaged over 30 years, 260,000 m3 averaged over 50 years.
What are the more pertinent indications in the development application relied on by the Council? (I pass over features that are part of the history, such as the Department of Environment and Heritage’s issuing an Environmental Authority on 29 February 1996 to Queensland Trade Waste Pty Ltd for what is said to be ERA 74(e): as Mr Hinson says, identifying the environmentally relevant activity in terms of that lettered component as a general waste disposal facility receiving between 20,000 tonnes and 50,000 tonnes per annum misstates the situation of the ERA; “74 General Waste Disposal Facility” is the relevant one; the point of the lettered paragraphs is to set fees by reference to annual disposal quantities.)
On 28 August 1996 the Council received an application for town planning consent which indicated:
“The proposed source, nature, composition, rate and immediate and ultimate destination of wastes generated.
Source – Industrial/Commercial and Residential Waste.
Nature – Industrial/Commercial and Building and Demolition materials.
Composition – As applied for in the Waste acceptance section.
Rate – Unknown, however it is envisaged that between 20,000 to 50,000 tonne per annum as business grows.
Ultimate destination of Waste generated – Bury or recycle.”
Mr Quirk’s document 13 (page 92), a traffic report of Johnston Consulting Pty Ltd (which was used again in support of the development application received on 27 March 1998) picked up that estimate and advised that trip generation on the particular proposal being considered would not be significantly different from existing generation. At several points there was an express intimation that the consequences of granting the further approval sought (to change the nature of wastes to be received) would be “minor”. The Council even relies on the description of the proposal by Queensland Trade Waste Pty Ltd in its appeal to this court in appeal number 4672 of 1996 (document 15) against the Council’s refusal to allow acceptance of industrial waste - in that the licence issued by the Queensland Department of Environment and Heritage (which at that time contained a 50,000 tonnes per annum limit) was cited as establishing the relevant use of the subject land. It may be convenient to set out from Mr Ure’s written submissions the full list of such alleged intimations of a limit at times prior to the making of the development application now of interest.[8]
[8]3. On 10 February 1994 the Council issued to Queensland Trade Waste Pty Ltd (“QTW”), Town Planning Consent Permit 32/94 with respect to the subject land for a landfill and demountable office to allow the deposit of refuse derived from the demolition or construction of buildings only (MJQ3 page 10).
4.On 29 February 1996 the Department of Environment and Heritage issued Environmental Authority 5080000133 to QTW with respect to the subject land in respect of environmentally relevant activity:-
“74(e) General Waste Disposal Facility – operating a facility for disposing of general waste designed to receive waste at the rate of 20,000 tonnes or more, but less than 50,000 tonnes, per year …” (MJQ4, page 49)
5.On 19 March 1996 QTW applied to the Council to modify Permit 32/94 to be able to accept a broader rang of waste than the waste nominated in the permit (MJQ4 page 13). The material indicated the rate was envisaged to be up to 50,000 tonnes per annum (MJQ4 page 23).
6.On 26 March 1996 Council wrote to QTW and advised that the modification was not of a minor nature and a new town planning consent application would be required (MJQ5, page 65).
7.On 3 April 1996 QTW wrote to the Department of Local Government and Planning and enquired whether the department would require an environmental impact statement for the new modification application to be made to Council. The material revealed that it was “planned to accept 20,000-50,000 cubic metres under the current State licence” and that the “estimated quantity for the current year is 20,000 to 50,000 cubic metres” (MJQ6 pages 71, 72).
8.On 20 May 1996 DHLGP advised QTW that “the consequences of approval of the development will be minor” no EIS was required (MJQ11 page 86).
9.On 28 August 1996 QTW lodged Town Planning Consent Application 445/96 to permit the taking of the waste other than building construction and demolition waste authorised by Permit 32/94 (MJQ13 page 88). The rate was described as:-
“Unknown, however it is envisaged that between 20,000 to 50,000 tonne [sic] per annum as the business grows.” (MJQ13 page 92)
10.The application included a traffic engineering assessment #641 of August 1996 by Johnston Consulting Pty Ltd (MJQ13 page 142). The report indicated:-
“the proposal also indicates that the site will be ‘operating a facility of general waste designed to receive waste at a rate of 20,000 tonne or more, but les than 50,000 tonne per year’”. (MJQ13 page 152)
11.On 22 November 1996 the Council notified QTW that the application had been refused on the basis that the proposed screening measures were inadequate to ensure that hazardous materials would not be disposed of at the site and there was no backup measures (such as leachate containment systems) to cater for the possible disposal of hazardous materials. (MJQ13 page 159).
12.On 18 December 1996 QTW filed an appeal in the Planning and Environment Court against the Council’s refusal. The proposal was described as:-
“a waste disposal/landfill facility for non-putrescible waste to the same extent as allowed by licence no. 5080000133 issued by the Queensland Department of Environment and Heritage and effective from 16 March 1996”. (MJQ15 page 160) (Licence 5080000133 only permitted less than 50,000 per year).”
13.On 16 June 1997 Environmental Authority No. SR611 issued with respect to the subject land. The authority replaced Environment Authority 5080000133 which had previously issued. The approved ERA remained as:-
“ERA 74(e) General Waste Disposal Facility – operating a facility for disposing of general waste designed to receive waste at the rate of 20,000 tonnes or more, but less than 50,000 tonnes per year.”
(MJQ17 page 167)
14.On 25 February 1998 Environautics Consultants wrote to the Department of Housing, Local Government and Planning advising that they intended to apply to the Council on behalf of QTW for the variation of the conditions of consent applying to the subject land. The letter advised that the requested variation will be similar to that submitted in April 1996 and requested that the department’s determination contained in the letter of 20 May 1996 that “the consequences of the approval will be minor” would apply to the new application. (MJQ18 page 183).
15.On 27 March 1998 (wrongly dated 1997) the department responded advising that:-
“On the basis of the information submitted with your letter that the original determination requirements specified in the waiver of 20 May 1996 are applicable for the new application … accordingly an EIS is not required for the new application.” (MJQ19 page 184)
Turning to the development application itself, Mr Ure makes the following argument, commencing with a reference to the summary in item 6.0 of the Town Planning report accompanying the development application (as Mr Hinson says, the Summary says nothing about volumes):
‘“The Town Planning Consent of Council to this proposal will align the allowable operation of the landfill under the terms of its DOE Environmental Authority.’
The DOE Environmental Authority referred to is Authority SR611 which is set out in Appendix C to the report (page 236) and it is a licence to carry out:-
‘ERA 74(e) General Waste Disposal Facility – operating facility for disposing of general waste designed to receive waste at the rate of 20,000 tonnes or more but less than 50,000 tonnes per year.’
(ii)The Traffic Report, Appendix E at page 264, when discussing the trip generation of the site refers to the site:-
‘operating a facility of general waste designed to receive waste at a rate of 20,000 tonne or more but less than 50,000 tonne per year’ (MJQ 273)
From the information above it can be concluded that the trip generation of this site will not be significantly different, for design purposes, than the existing generation.’
The ‘existing generation’ referred to therein is a reference to the generation set out in Table 4.1 referable to the facility existing in 1996 which had an upper limit of no more than 50,000 tonne per annum.
This report originally accompanied the application referred to in paragraph 9 of these submissions of 28 August 1996 (MJQ13 page 88). That application was limited to less than 50,000 tonnes per year and the fact that the same traffic report was utilised in the instant application is the clearest indication that it too was limited to less than 50,000 tonnes per year.
(iii)The Environmental Management Manual referred to in the application at page 204 is found at MJQ21 page 307. It provides at page 320, section 3.2 “Environmental Aspects”:-
‘Waste Management
General waste disposal facility (e) 20t or more, but less than 50,000 tonnes per annum (ERA no. 74).’
(iv)The Environmental Procedures Manual referred to in the application at page 204 and found at page 335 provides in the Environmental Management Plan at page 342, 358 and 360 that the environmental activity is ERA no. 74(e) (which is limited to 20,000-50,000 tonnes per annum).
18.By letter dated 20 October 1998 the Council advised NLT that Application 192/98 had been approved. Following the expiration of the appeal period the Council confirmed the issue of Development Permit 192/98 by letter dated 4 February 1999. (MJQ25 page 406, MJQ24 page 385)
19.Following approval of Application 192/98 the Planning and Environment Court appeal referred to in paragraph 12 of these submissions was withdrawn.”
Apropos (iv) there are indeed the references mentioned to ERA No. 74(e) and others, for example at 357. None of these references goes any further; none of them expressly states the limit found in paragraph (e) of ERA 74. In this regard, the point made in (iii) is different, as is that in (ii) regarding the old traffic report. In all the circumstances, where there is no reference in the completed standard form – Application for Town Planning Consent or in the attached Consent Use Application Report referring to any tonnage limit, I think it is not a correct reading of the development application to construe it as seeking no more than a rate of 50,000 tonnes per annum. I do accept that a development approval can grant no more than the underlying development application asks for. The applicant there may have been offering to accept such a limit, and could hardly have complained had it eventuated, but in my opinion it was not limiting what it applied for by reference to any cap on quantities or rate. Its application did expressly confine the expanded categories of waste to be received (formerly limited to demolition and construction waste) to:
“ ‘General Waste disposal with Limited Regulated Waste’
Accepting the following:
· Demolition and construction wastes
· Industrial and commercial (non-putrescible) wastes
· Tyres
· Asbestos
· Green waste
· General waste
· General fill
· Clean fill
· Paper/cardboard
· Plastics
· Wastes from materi[a]l recovery facilities
· Shredder fluff from metal recyclers
· Seasoned timber
· Tree stumps
· Bricks/ceramics
· Carpet
· Plasterboard
· Concrete
· Glass
· Aluminium wastes
· Steel wastes
· Non-ferrous wastes
· Asphaltic concrete wastes”
There was never any confining of quantities in a similar or, in my judgement, any effective way. The Council may have taken comfort from a tonnage limit applicable for purposes of the ERA, which would, so long as it lasted, effectively limit quantities of waste received on site per annum. It was open to the Council to impose a limit for town planning purposes, but it never did so. As it happens, the applicant in the proceeding is not the applicant at whose instance the permit was granted. I am comfortably persuaded that the approach taken by Else-Mitchell J is the one that applies here. It being established that the Council lacks any ability to regulate quantities, the best it can do is persuade the State authorities licensing the ERA that their brief extends to imposing conditions of the kind the Council may think necessary to protect the public interest.
Any reader of the development application documents would be left with the impression that the annual tonnages of waste brought to the site would not exceed 50,000: such were the intentions communicated by the developer/applicant at the time, which was 1998. It is not possible, against the history recounted above, to have any confidence that the Council’s expectation was that a further development application (capable of refusal or having new kinds of conditions imposed on a resulting approval) would be made to it before annual tonnages increased beyond 50,000. Even if things stood otherwise, the Council failed to employ the simple and obvious device of including in the development permit it did issue a provision controlling and restricting the new use in that way. True it is that Transpacific cannot present a convincing case that it came in expecting the benefit of a development permit devoid of annual tonnages caps. That is what it got. It would be mischievous for the court to read into a development permit “running with the land” a restriction neither express nor necessarily incorporated by a reference to something else or implied.
There should be a declaration as sought.
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