Wall v. Douglas Shire Council - [2007] QPEC 44

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Wall, D-G of the EPA v Douglas Shire Council [2007] QPEC 044

PARTIES:

TERRY WALL, DIRECTOR-GENERAL OF THE ENVIRONMENTAL PROTECTION AGENCY

Applicant

v

DOUGLAS SHIRE COUNCIL

Respondent

FILE NO/S:

BD35 of 2007

DIVISION:

PROCEEDING:

Determination of preliminary points of law in underlying application for a declaration

ORIGINATING COURT:

Brisbane

DELIVERED ON:

11 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2007

JUDGE:

Judge Robin, QC

ORDER:

Preliminary points determined favourably to the Applicant (EPA)

CATCHWORDS:

Integrated Planning Act 1997 Sch 8, Sch 8A – whether or to what extent the chief executive administering the Coastal Protection and Management Act 1995 was assessment manager for development by way of operational work “interfering with quarry material” in a “coastal management district” – local government issued to itself development approvals for public toilet facilities in a coastal management district – chief executive’s role not confined to the physical interference with “quarry material” – hearing of preliminary points of law inappropriate to resolve issues such as whether work was minor or had “insignificant impact”.

COUNSEL:

Hinson SC and Houston for the applicant

Gore QC and Everson for the respondent Council

SOLICITORS:

CW Lohe, Crown Solicitor, for the applicant

McCullough Robertson for the respondent Council

The respondent Council seeks determinations to the following effect by its “Amended Notice of Preliminary Points of Law for Determination by the Court”:

“1.That, upon the proper interpretation of the Integrated Planning Act 1997 (“IPA”), in respect of work that takes place completely or partly within a coastal management district and on State Coastal land, the Applicant’s jurisdiction as either Assessment Manager or Concurrence Agency under Schedule 8, Part 1, Table 4, Item 5(b)(i) of the IPA:-

(a) is limited only to consideration of work that involves acts (or proposed acts) involving the interference with quarry material; and

(b) does not extend to other aspects of development that are declared to be assessable development under Schedule 8 of IPA which involves acts (or proposed acts) subsequent to the interference with quarry material.

2.That, upon the proper interpretation of IPA, the question whether any work the subject of the current proceeding involves interfering with quarry material for the purposes of Schedule 8, Part 1, Table 4, Item 5(b)(i) of IPA, must be determined with reference only to the acts (or proposed acts) comprising:
(a)excavation of quarry material for the purpose of creating a stable footing for the slab of the toilet block building; and
(b)excavation of quarry material for the purpose of installing two Waterboy HSTP 25 advanced sewerage treatment systems and associated piping.
3.As a corollary to point 2, that, upon the proper interpretation of IPA, the act of construction of the toilet block building subsequent to the excavation of the quarry material referred to in point 2:
(a)is not operational work which is assessable development; but
(b)rather, is building work that is assessable development.
4.That, upon the proper interpretation of IPA, the question whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] QPEC 44
Decision Date: 11 May 2007

CaseChat Overview and Summary

In the matter of Wall versus Douglas Shire Council, the dispute centred around the interpretation and application of the Integrated Planning Act 1997, particularly Schedule 8 and Schedule 8A, in relation to the Coastal Protection and Management Act 1995. The case involved the Douglas Shire Council, which had issued development approvals to itself for public toilet facilities located within a coastal management district. The Environmental Protection Authority (EPA), acting as the applicant in this case, questioned the appropriateness of these approvals and sought clarification on the role of the chief executive in administering the Coastal Protection and Management Act 1995. The central issue was whether the chief executive, in administering the Act, also functioned as the assessment manager for development by way of operational work that "interfered with quarry material" within a coastal management district. This question raised significant legal considerations about the scope of the chief executive's duties and the implications for development approvals in such districts.

The court was tasked with determining whether the chief executive's role was strictly limited to physical interference with "quarry material" or if it extended to broader operational work within the coastal management district. Additionally, the court needed to consider the appropriateness of resolving the dispute through a hearing of preliminary points of law, particularly given the complexities involved in assessing the nature and impact of the development in question. The court found that the chief executive's role was not confined to physical interference with "quarry material" and that the scope of their duties was broader. Furthermore, the court determined that a hearing of preliminary points of law was not the appropriate forum to resolve issues such as whether the work was minor or had an insignificant impact. Instead, these matters required a more comprehensive examination of the facts and circumstances of the specific development.

The court's reasoning led to a determination that favoured the applicant, the EPA, on the preliminary points of law. The court concluded that the preliminary points hearing was not suitable for resolving the complex issues at hand, and therefore, the EPA's application for clarification was granted. The final orders of the court were to determine the preliminary points in favour of the EPA, setting the stage for further proceedings to address the substantive issues related to the development approvals issued by the Douglas Shire Council.

Orders

Orders of the court

Preliminary points determined favourably to the Applicant (EPA)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wall, D-G of the EPA v Douglas Shire Council [2007] QPEC 044
PARTIES:	TERRY WALL, DIRECTOR-GENERAL OF THE ENVIRONMENTAL PROTECTION AGENCY Applicant v DOUGLAS SHIRE COUNCIL Respondent
FILE NO/S:	BD35 of 2007
DIVISION:
PROCEEDING:	Determination of preliminary points of law in underlying application for a declaration
ORIGINATING COURT:	Brisbane
DELIVERED ON:	11 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	20 April 2007
JUDGE:	Judge Robin, QC
ORDER:	Preliminary points determined favourably to the Applicant (EPA)
CATCHWORDS:	Integrated Planning Act 1997 Sch 8, Sch 8A – whether or to what extent the chief executive administering the Coastal Protection and Management Act 1995 was assessment manager for development by way of operational work “interfering with quarry material” in a “coastal management district” – local government issued to itself development approvals for public toilet facilities in a coastal management district – chief executive’s role not confined to the physical interference with “quarry material” – hearing of preliminary points of law inappropriate to resolve issues such as whether work was minor or had “insignificant impact”.
COUNSEL:	Hinson SC and Houston for the applicant Gore QC and Everson for the respondent Council
SOLICITORS:	CW Lohe, Crown Solicitor, for the applicant McCullough Robertson for the respondent Council