Warwick Shire Council v Wall
[2006] QPEC 82
•3 August 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Warwick Shire Council v Wall & Anor [2006] QPEC 082
PARTIES:
WARWICK SHIRE COUNCIL
Applicant
V
DARREN MICHAEL WALL and AMANDA LEANNE WALL
Respondents
FILE NO/S:
BD 3995/05
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
3 August 2006
DELIVERED AT:
Brisbane
HEARING DATE:
6, 7 and 9 March 2006
JUDGE:
Alan Wilson SC, DCJ
ORDER:
CATCHWORDS:
PLANNING – PLANNING LAW – EXTRACTIVE INDUSTRY – terms of lawful operation of a quarry – compliance with conditions of approval – ambiguity of conditions in two different approvals
Integrated Planning Act 1997 (Qld)
Cases considered:
Mariner Construction Pty Ltd v Maroochy Shire Council (2000) QPELR 334
Webster and Anor v McIntosh (1980) 32 ALR 603
COUNSEL:
Mr W G Everson for the Applicant
Mr A Skoien for the Respondents
SOLICITORS:
McCullough Robertson for the Applicant
V C Catanzano for the Respondents
This case concerns the terms upon which a quarry on the respondents’ land can be lawfully operated and whether, as the applicant Council contends, the respondents are in breach of those terms and should be ordered to comply with them[1].
[1] The remedies sought are declarations under s 4.1.21(1)(c) of the Integrated Planning Act 1997, and consequential orders under ss 4.1.22 and/or 4.3.25
The quarry is located on the New England Highway, approximately 2.5 kilometres from Warwick. It is 379.4 hectares in area and has a frontage of 529.5 metres to the highway. Extractive industries have taken place on the site since the mid 1980’s. The evidence indicates the respondents are not, in truth, the operators of the quarry; the extractive industries are being conducted by a company, Walls Sand and Gravel Pty Ltd on their land[2] but through their Counsel, Mr Skoien, they expressly disavowed any reliance on the point[3].
[2] Affidavit of Robert Wall 28 February 2006, para 1
[3]Unsurprisingly – none of the approvals were directed to the company
The land has two development approvals, each with attached conditions. The first was issued on 10 June 1987, and the second on 6 September 1993. The parties agree both approvals continue to apply, but are at arm’s length about their meaning and effect. As the case was conducted, those questions of construction will largely determine whether or not any orders ought to be made.
Council alleges that two conditions attached to the 1993 approval have not been complied with:
(a) maintenance of the land in a neat and tidy state (condition 8); and,
(b) progressive rehabilitation (condition 9).
The initial approval in 1987 authorised the ‘extraction of material’ from the land. Its relevant conditions were:
2. Excavations are to be progressively rehabilitated by spreading the overburden evenly over the excavation to promote growth. No excavation shall take place in the gully adjacent to the existing site at or below mein (sic) flood level, and no more than 2.5ha shall be opened for excavation at anyone (sic) time
…
8. There is to be no excavation or mining or taking of material closer than 50 metres to any boundary of the site.
9. During the period of operation on the site and following the completion of the mining operations on the site, the site is to be left in a neat and tidy and safe state to the satisfaction of the Shire Clerk. The rehabilitation of the site must ensure that the natural drainage patterns of the land upstream or downstream of the subject site are not affected.[4]
[4]Affidavit of Kenneth James Harris 24 October 2005, Ex KH2
In 1993, the current operators applied for a ‘… variation of conditions of Council’s existing approval for the extraction of material from [the site]… to include the use of explosives on site as well as the use of a crushing and screening plant’. The application enclosed a plan described as representing ‘… the approximate area of site to be used for this purpose which has a 200 metre buffer from the boundaries of the property’[5]. The applicants undertook to continue to comply with all the 1987 conditions.
[5]Ibid, Ex KH3
Approval was granted subject to these relevant conditions:
1. The blue metal quarry is to be located as shown on Plan 2257-01 submitted by the Applicant. There shall be no quarrying operations outside of the hatched area on this drawing.
…
6. No mining operation, including the extraction of gravel is to be carried out closer than 200m from the boundary of the site adjoining any road.
…
8. During the period of operation on the site and following the completion of mining operations on the site, the site is to be left in a neat and safe state to the satisfaction of the Shire Clerk.
9. All gravel extraction areas shall be extracted in a manner which will reduce the potential for erosion. All excavations are to be progressively rehabilitated by spreading the overburden evenly over the excavation and vegetation is to be established to the satisfaction of the Shire Clerk.
Both approvals contain, then, similar conditions about progressive rehabilitation and a requirement that the site be maintained in a neat and safe state. Council’s complaint is that a large amount of disused, derelict machinery is strewn about the site, and that is inimical to the conditions; and, that no rehabilitation has occurred since 1993 despite the requirement in condition 9 that it be undertaken progressively - that is, Council says, as operations conclude in one area of the site then it must be rehabilitated, while operations continue in others. The respondents’ position is that extraction has not finished in the area between the 50m and 200m setbacks, and the requirement to rehabilitate them has not yet been triggered.
As Mr Everson, for the Council, conceded in submissions[6] the dispute turns in large part on whether the requirement to rehabilitate has, in truth, come into effect; and, as the parties argued the matter, that question hinges on whether the 200 metre limit imposed in the 1993 conditions lawfully changes, and replaces, the 50 metre limit imposed in 1987 (as Council contends). Unsurprisingly, it is said this flows from the terms of condition 6 in 1993 which, on its face, specifically prohibits any mining operations, ‘…including the extraction of gravel’.
[6]Transcript 170.45 - 53
The Walls’ contrary submission is that, on its proper construction, the 1993 conditions only pertain to the specific activity of mining hard rock through the use of blasting (and crushing and screening, whether to produce hard rocks, or gravel). As inspection showed, this hard rock is located well back from the New England Highway and the 200 metre setback in the 1993 conditions only relates, the Walls contend, to that activity and they are still permitted, under the 1987 conditions, to extract gravel and the like up to 50 metres from the boundary (but not by using explosives, or kind of quarrying approved in 1993).
The application which lead to the 1987 approval sought permission for ‘extraction of material’; the conditions of approval provided, in addition to those set out above, that there must be no use of explosives, and no crushing or screening. The 1993 application sought something quite different: an ‘extension of Council’s consent to include the use of explosives on site as well as the use of a crushing and screening plant…’. The letter of approval from this Council’s predecessor in response referred specifically, in condition 1, to a ‘blue metal quarry’ to be operated within an area marked by hatching on a drawing. This means, Mr Skoien (for the Walls) says, that the approvals are in essence for different kinds of quarrying and the 200 metre limit only relates to hard rock quarrying, involving blasting and the reduction of the quarried product to hard rock, or gravel by crushing and screening; and the 50 metre limit still applies to the original activity, i.e. extractive industry not involving blasting, crushing or screening.
On any view, various terms are used in the approval conditions with something less than precision. Condition 1 in 1993 purports to prohibit something described as ‘quarrying operations’ outside a defined area, but condition 6 refers to ‘mining operations’; and the 200m setback required by the latter is at odds with the parameters of the defined area in which the former is permitted, which appears to be further than 200m from the New England Highway. Save for the words ‘… including the extraction of gravel’ in clause 6 there could be little doubt the approvals relate to different activities; but the nature of what is intended to be permitted is itself clouded by the evidence, which indicates gravel, sometimes called ‘deco’ was always to be extracted from both the front of the site (up to 50 metres from the Highway) and, also, from the quarrying operation further back.
It cannot, I think, be said that the phrase ‘including the extraction of gravel…’ in condition 6 satisfactorily removes whatever uncertainty arises, and makes it clear the setback of 50 metres allowed in 1987 was unilaterally altered and replaced by a new one, of 200 metres, in 1993. As a matter of general principle, a later legal document which appears to touch the terms of an earlier one will not necessarily be construed to create a binding variation of it, unless that construction is tolerably clear and the two documents cannot, otherwise, stand side by side[7].
[7]Webster v McIntosh (1980) 32 ALR 603
Permits of this kind will also, generally, be read in a common sense way and, if ambiguity arises, in a manner which favours the grantee; as Skoien SJDC said in Mariner Construction Pty Ltd v Maroochy Shire Council (2000) QPELR 334, at 337:
[16] In reaching a conclusion on the meaning of condition 1 of the permit I should adopt a sensible, rather than a strictly legalistic approach… In doing that I consider it is proper to resolve any ambiguity in favour of Mariner and against the Council. It seems to me that there is a very good reason for that approach. If a condition is imposed which is to restrict the operation of the permit… it should be expressed clearly. That allows the permittee, if unhappy with the condition, to appeal to this Court… But if the condition is obscurely worded the permittee may honestly interpret it in a way which is not restrictive and fail to exercise one right of appeal…
Those remarks are apposite here: the different nature of the activities contemplated by the applications, reflected in part in the terms used in the two sets of conditions of approval, means the interpretation which, I am satisfied, was in fact placed on them by the respondents and the quarry operator is open, and unsurprising[8]. Ambiguity is, then, manifest, and because the ultimate meaning is unclear the conditions should be read in a way which is reasonably open, and not harsh or unfair to the respondents.
[8] Affidavit of Robert Wall 28 February 2006, paras 26, 27 and 30
This conclusion disposes of a significant part of Council’s complaint if, as the evidence also persuades me, the operator still has plans to extract material from the setback area beyond 50 metres and, for that reason, has not undertaken complete rehabilitation of that area and is storing material there. While that intention remains the obligation to rehabilitate some parts of the site is not triggered although, as the evidence showed and inspection confirmed, some work of that kind has been undertaken near areas where extractive work is finished (albeit at the behest, it seems, not of the Council but rather the Environmental Protection Agency)[9]; and, the respondents accept that they should undertake some additional work in accordance with a plan of works provided to, and accepted by, Council in mid 2003 within a reasonable period.
[9] Including the building of screening bund walls and sediment ponds
Different rehabilitation plans were proposed. The plan produced by Mr Walker, an Environmental consultant who gave evidence for the Walls, addresses the prospect of further extraction up to the 50 metre buffer and therefore presents as the most appropriate.
The Council does not contend that the alleged want of neatness and tidiness compromises safety, but rather that too much derelict and unwanted equipment lies around the site. I was taken on an inspection of the site and another two quarries in the Warwick district: one performed similar operations but, it appeared, on a smaller scale, and the other harvested sandstone. On the respondents’ site a good deal of time was spent looking at machinery, equipment and vehicles in, principally, two locations.
The other quarries I saw had less unused equipment lying about, and what was retained was stored in a more orderly way. Inspection, and the evidence, was persuasive that some of the equipment lying around this site may be surplus in the sense that not all of it is necessary for spare parts, or future use; and, that some ought to be removed and the rest stored in a better, less obvious fashion. Mr Wall signified a willingness to remove car bodies, and that should occur promptly. Mr Walker appeared to acknowledge that some of the equipment lying around the site was superfluous and ought to be taken away, and otherwise suggested it be collected in one area[10].
[10]Ex 1, Mr Walker’s report, para 5.4
That said, I was not persuaded the material constitutes a serious visual blight, or warranted orders of the kind sought by the Council. Although these proceedings are not prosecutorial, they seek remedies in the nature of enforcement arising form allegations of unlawful conduct. Council’s evidence did not persuade me the material is manifestly excessive, or that some parts of it might not be required for spare parts or future activities, or that it ought to be moved, yet again, to an area nominated by Council witnesses. Some concrete silos were, for example, claimed to be surplus but Mr Wall’s evidence was persuasive they have a future use.
Even if different conclusions had been reached I would be disinclined to grant the relief Council seeks in these proceedings. The quarry has been operating for some time; it is in a relatively remote area and, apart from one or two nearby households, is not within the vision of others – certainly, the occupants of vehicles passing on the New England Highway are unlikely to be aware of it. After earlier proceedings were commenced in 2002 a rehabilitation plan (the ‘Kershaw Plan’[11]) was produced and, it appears, accepted by Council. It involved rehabilitation works over a period up to 2005 but the Walls have, I accept, been hamstrung in performing some work it required as a consequence of an undertaking they gave the Court in July 2002 which, in particular, prevented extraction in the 50-200 metre zone, and by these proceedings in which the right to continue working there was a vivid issue.
[11]Ex 5
It is appropriate, in light of these conclusions, to signify to the parties the orders I think ought be made and to allow them time to discuss terms, and return with an agreed format. I accept that, to avoid further litigation, it is appropriate to declare that the 1993 conditions do not limit the operator from undertaking extractive industry up to the 50 metre setback set by the 1987 conditions; and that the 2002 undertaking may be lifted.
The works envisaged in the Kershaw plan, and in particular the removal of equipment stored near the southern boundary and its placement elsewhere, and the filling and battering of encroachments into the 50 metre buffer, and re-profiling of the land around sediment ponds and bund walls, should be undertaken with a relatively short period. Otherwise, progressive rehabilitation of the site should occur in general accord with Mr Walker’s report and within 18 months but, for the sake of avoiding further conflict, any declaration will involve an acknowledgment that the area which Mr Walker calls ‘C3’[12] may await rehabilitation until a reasonable interval after extraction has ceased there.
[12]Ex 1, map after p 16, and p 17
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