Westrex Services Pty Ltd v Maranoa Regional Council

[2014] QPEC 30

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Westrex Services Pty Ltd & Anor v Maranoa Regional Council & Anor [2014] QPEC 30

PARTIES:

WESTREX SERVICES PTY LTD
(ACN 132 840 923)
appellant/applicant

and

TYSON GOLDER
applicant

v

MARANOA REGIONAL COUNCIL
respondent

and

WE KANDO PTY LTD
(ACN 076 843 993)
co-respondent

and

DEPARTMENT OF ENVIRONMENT & HERITAGE PROTECTION
co-respondent by election

FILE NO:

4921 of 2013 and 24 of 2014

DIVISION:

Planning & Environment Court of Queensland

PROCEEDING:

Hearing of Applications

ORIGINATING COURT:

Planning & Environment Court of Queensland

HEARING DATE:

30 May 2014

DELIVERED ON:

4 June 2014 (Orders made 3 June 2014)

DELIVERED AT:

Brisbane

JUDGE:

R S Jones DCJ

ORDER:

The applications succeeded in part.1.         

Originating application 24 of 2014 is to be heard and determined at the same time as amended application in pending proceedings 4921 of 2013.2.         

The “defective notification”, “finality” and “abdicating responsibility” points raised by the appellants/applicants be heard and determined as preliminary matters prior to the substantive hearing of the appeal.3.         

The preliminary hearing be set down at the earliest practicable date for 1 day.4.         

The costs of the applications on 30 May 2014 are reserved.5.         

The matter is listed for review and directions at 9.15am 19 June 2014 before Judge RS Jones.6.         

CATCHWORDS:

APPLICATION – where applicant sought to raise four preliminary matters prior to the substantive hearing of the appeal – whether matters ought be heard and determined as preliminary matters or heard at the same time as the substantive hearing of the appeal – whether matters raised so fundamental as to require them to be determined as preliminary matters

Sustainable Planning Act 2009
Reading Australia Pty Ltd v Australian Mutual Provident Society & Anor (1999) 217 ALR 495

McBain v Clifton Shire Council (1994) 2 Qd R 493

COUNSEL:

Mr D Gore QC with Mr J Haydon of counsel for Mr Golder
Mr E Morzone for We Kando Pty Ltd
Ms N Kefford for the respondent Council
Mr Loos for Westrex Services Pty Ltd

SOLICITORS:

Shine Lawyers for Mr Golder
Emanate Legal for the We Kando Pty Ltd
McGinness Wilson for the respondent Council
Corrs Chambers Westgarth for Westrex Services Pty Ltd
Ms K Harbert in-house solicitor for the Department of Environment and Heritage Protection.

1. This proceeding was concerned with applications brought by Tyson Golder (Mr Golder) and Westrex Services Pty Ltd (Westrex) to have four matters dealt with by way of preliminary points prior to the substantive hearing of their appeals.  Orders disposing of those applications were made by me on 3 June 2014.  These are the reasons for those orders.

Background

1. We Kando Pty Ltd (We Kando) is the owner and occupier of land located within the area of responsibility of the Maranoa Regional Council (the Council).  On 24 April 2013, We Kando lodged a development application with the Council relevantly seeking:

(a)        a development permit for a material change of use – High Impact Industry (waste water storage pond); and

(b)        a development permit for Environmentally Relevant Activity 56 – Regulated Waste Storage.

The development application was impact assessable and, accordingly pursuant to the Sustainable Planning Act 2009 (SPA), public notification was required.

1. On 22 May 2013, the co-respondent by election, the Department of Environment and Heritage Protection (the Department), as a concurrence agency, relevantly advised:

(a)        it had no requirements relating to the Development Application; and

(b)        the application for the Environmental Authority was approved subject to conditions.

1. By a decision notice dated 20 November 2013, the Council approved the development application subject to a number of conditions.  Mr Golder and Westrex are two of a number of submitters who made properly made submissions objecting to the proposed development.  Mr Golder has appealed the decision of the Council to approve the development for various reasons including conflict with its town planning scheme, the development will fragment and or alienate good quality agricultural land, will adversely impact on amenity and is not a needed development.  Westrex has also appealed.

1. The subject development was described by Mr Gore QC, senior counsel for Mr Golder, without objection, in the following terms:[1]

“The facility proposed, your Honour, is, essentially, a very rudimentary sewerage treatment plant.  The material is clear (sic) that it will be treated but, more relevantly, untreated effluent coming from mining camps, what the material calls both black water and grey water. …”

[1]Transcript (T)1-4, l 33.

1. At page 23 of Exhibit 1 the development was described in these terms:

“… the development will comprise construction of a single storage pond for treated and untreated effluent, sourced from Coal Seam Gas (CSG) operations within the region.  General site and operational constraints provided by We Kando include:

·     total storage capacity of around 50 ML;

·     60% of effluent received at the site will be untreated effluent;

·     40% of the effluent received at the site will be treated effluent;

·     nominal operational pond depth (for storage purposes) will be 1.0 m

·     minimum freeboard depth (vertical height between maximum operational level and embankment crest) will be 0.5 m.”

The applications

1. Mr Golder supported by Westrex, contended that the four matters that ought be dealt with and determined prior to the substantive hearing of the appeals were:

1.          Had We Kando complied with the public notification regime prescribed by the SPA? (“the public notification point”)

2.          Was the decision of the Council to approve the development defective in that it failed to finally decide matters it was required to finally decide?  (“The finality point”)?

3.          Was the decision of the Council to approve the development defective in that it impermissibly abdicated part of its statutory responsibility to the Department (“the responsibility point”)?

4.          Was the development properly categorised as Regulated Waste Storage (ERA 56)?  (“The characterisation point”)

1. Before dealing with each of these matters separately it is appropriate to make some general observations.  Save for the public notification point, the Council and We Kando opposed the applications.  The Department’s position was to the effect that it was only interested in the “characterisation point” and agreed that it should be dealt with as a preliminary point.  It is significant in my view that none of the parties contended that any of the matters raised by Mr Gore and Mr Loos, counsel for Westrex, lacked merit and/or were otherwise doomed to fail.  Nor were Mr Gore’s submissions to the effect that if the applicants were to succeed on the preliminary matters the development approval might be required to be set aside and the development application be remitted to the Council for a fresh decision.  Finally, it seems tolerably clear that the hearing of the substantive appeal would be likely to occupy at least 6 days.  Given the location of the land and the number of parties involved, the inspection, openings and final addresses would occupy at least two days.  Again, given the number of parties involved and the issues raised in the notices of appeal (which are likely to include waste water management, odour, noise and more general town planning issues) the evidence would be likely to occupy at least four more days.

The Public Notification Point

1. All the parties agreed that the “public notification” point ought to be dealt with as a preliminary matter.  That would require the consideration of whether We Kando had complied with the requirements of the SPA or, if not, whether its non-compliance ought be excused pursuant to s 440 of the Act.

The finality point

1. Condition 21 of the Council’s conditional approval provides

“The developer is to submit an Environmental Management Plan to Council to be approved prior to commencement of use.  This plan is to be in accordance with Schedule 9: ‘Environmental Management Plan Guidelines’ in Bungal Shire Council Planning Scheme 2006.’”

1. Schedule 9 of the planning scheme then provides:[2]

“An Environmental Management Plan must be prepared by a suitably qualified consultant and/or agency, and must include details of the author’s qualifications.  Any proposal requiring the submission of an Environmental Management Plan shall conduct works and operations in accordance with the approved Environmental Management Plan.  Council may refuse an application if an Environmental Management Plan has not been completed to Council’s satisfaction. …”

[2]Exhibit 2, p 74(3)(iii).

1. During the course of his submissions Mr Gore referred me to the decision of the Court of Appeal in McBain v Clifton Shire Council.[3]  It is not necessary to go into the submissions made on behalf of Mr Golder in detail.  As I have already indicated, there was no suggestion by those opposing that this was an unarguable point doomed to fail.  I agree.  It is also tolerably clear to me that, with the assistance of written submissions, this point could be argued in a relatively short period of time.

   [3][1994] 2 Qd R 493.

1. In the written submissions of Mr Morzone, counsel for We Kando, it was said in respect of the “finality” and the “responsibility” points:

“(These) preliminary points are judicial review type allegations attacking the decision of the Council.  The appeal before this court is a hearing de novo.  There is no utility, as the court has recognised many times, in pouring over and scrutinizing the decision making of Council when the merits of those matters will be determined afresh by this court on fresh expert evidence before this court.  Whether the consideration has a preliminary point in the appeal or as a separate originating proceeding it is clear that those issues are futile and of no utility.  The court itself will determine the merits of the matters raised and itself consider the same issues included with any condition or that may have been the subject of an EMP (Environmental Management Plan) before the Council.”

1. During his oral submissions Mr Morzone, reinforced those written submissions.  Ms Kefford, counsel for the Council, made similar submissions during argument:[4]

“Yes, in terms of the formality [sic] point and the abdication point there seems to be no utility in determining those points.  If the Council has wrongly decided it, the Council is on notice that that’s the views of the appellants.  It’s not confined in what it addresses in the merits hearing to take the same approach to assessment and to put the same evidence before the court as the approach it took at the decision stage.  There seems to be no utility in sending it back to the Council to make a fresh decision when there are concerns raised certainly in the Golder appeal about the merits of the proposal in terms of its impacts on land use, visual amenity, noise, odour, ground water and the like.  If the Council took the wrong approach, the court is now seized of the matter, the court, no doubt, will be directed as to what matters are appropriate to consider in terms of the merits of determination.  And that can all occur as part of a merits hearing.  Why send it back to the Council to be re-determined when clearly between the parties there is not just a dispute about the process but, also, legitimate concerns that the appellant’s regard is legitimate with respect to the very merits of the proposal in terms of impacts on noise, odour, ground water and the like.  That’s apparent from the notice of appeal.”

[4]T1-29, l 20-37.

1. In support of her submissions Ms Kefford referred me to the decision of Branson J of the Federal Court of Australia in Reading Australia Pty Ltd v Australian Mutual Provident Society & Anor[5] where her Honour, in paragraph 8, referred to a number of principles relevant in applications such as this.  In particular, my attention was drawn to paragraph 8(g) which provided:

   [5](1999) 217 ALR 495.

“Factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may:

(i)         give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial; …..

(ii)        result in significant overlap between the evidence adduced on the hearing of the separate question and at trial – possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding … this factor will be of particular significance if the court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or

(iii)       prolong rather than shorten the litigation. …” (citations deleted)

1. I cannot accept these submissions in opposition.  First, the “finality” point does not involve significant contested factual issues nor is it likely to require further evidence.  Essentially it can be dealt with on the material currently filed in this court.  I am also unable to accept Mr Morzone’s submission to the effect that to determine this matter would require the court to “pour over” and “scrutinize” the decision making process of the Council.  The point is a concise and readily articulated one.  It is also a matter about which a judicial final or conclusive decision can be made[6].  I am also unable to accept, at least at this preliminary stage, the argument advanced by Mr Morzone to the effect that if the finality principle was in fact offended, Condition 21 could be severed from the balance of the approval as was the case with the offending condition in McBain.  The difficulty I had with this submission was that, unlike the situation in McBain where the approval still allowed the proposal to proceed (albeit in a more limited way), the severing of Condition 21 might very well make the actual carrying out of the purpose of the proposed development impossible until that defect was rectified.

   [6]Cairns City Council v Xontan Pyt Ltd (1999) QSC 215 at para [13] citing McBain

The responsibility point

1. On 27 May 2013, the Department gave its concurrence agency response to the development application.  As I understand it, following that response by the Department, an appropriate officer of the Council prepared a report in support of the proposed development but which contained the following statement:

“Because the environmental management of waste water storage facilities is controlled by an environmental authority which is approved by the Department of Environment and Heritage Protection, the Council should not refuse a development application on any grounds which are within the scope of the environmental authority.  If the Council were to refuse a development application on grounds associated with the environmental management of waste water storage facilities approved by that Department, it would need to defend its refusal against both the applicant and the Department in the event of an appeal.”  (emphasis added).

1. The submissions made on behalf of Mr Golder and Westrex are to the effect that the Council failed to, as it was required to, carry out an independent assessment of the environmental impacts and management issues associated with the proposed development, instead relying on the conditional approval granted by the Department.  In this regard the last sentence of the passage set out above seems to imply that the Council might have preferred to proceed in that way rather than carry out its own assessment which might have caused it to refuse the development application which could then, in turn, place it in the situation of having to defend its position in a full merits appeal which might be brought by We Kando relying, at least in part, on the Department’s assessment and conclusions.

1. The opposition to this matter being dealt with in a preliminary way was materially the same as that taken to the finality point.  For essentially the same reasons, I also reject them in respect of this matter.  Before disposing of these two matters I should also state that I agree with the submission made by Mr Gore to the effect that this court would be reluctant to preside over a full merits appeal against a decision of a local authority in circumstances where that decision may be so fundamentally flawed as to render it a nullity and of no effect.

The characterisation point

1. The issue involved here is whether or not the approval approves what in fact is going to occur if the development proceeds.  As identified above, the Environmentally Relevant Activity involved in the proposal is Waste Water Storage – ERA 56.  It was submitted on behalf of Mr Golder that what would actually occur goes beyond storage and would include at least some level of treatment.  And, if that were the case, then other defined Environmentally Relevant Activities might be appropriate, for example ERA 63 (sewerage treatment), ERA 58 (regulated waste treatment) or ERA 55 (regulated waste recycling or reprocessing).  That more than storage simpliciter would occur on the site seems at least arguable.  The Council’s “Officer Report”, dated 4 November 2013, made reference to, by way of examples, “waste treatment and resource recovery facility”, “it is a very low cost method with minimal treatment of the waste” and “the facility is an effluent treatment plant”.[7]  Some mechanical treatment (aeration) seems necessary if for no other reason than to control odour emissions.[8]  The Department’s position is to the effect that it considers that the development has been properly categorised but, in any event, even if it were not, its operational conditions would be materially the same.

   [7]Exhibit 1, pp 234, 240 and 245.

   [8]Exhibit 1, p 252.

1. It may well be the case that the categorisation point has some merit.  However, unlike the other matters, it is likely that if this point were to be dealt with in a preliminary manner, some evidence would be required including the potential cross-examination of expert witnesses and would be likely to result in the hearing going beyond one day.  Further, unlike the other matters, even if the applicants’ succeeded on this point, it does not go directly to the standing of the Council’s decision to approve the proposed development.  It would not result in the Council’s approval being invalid.  In my view it could readily be dealt with during the conduct of the substantive appeal.

1. It might be the case that the “finality” and the “responsibility” points would be capable of being dealt with at the same time as the substantive hearing of the appeal.  However, in circumstances where the successful prosecution of those matters might impact on the Council’s future conduct in these appeals and will almost certainly impact on the way Mr Golder and Westrex will conduct themselves, it is desirable that they be dealt with as preliminary matters.  In this regard both applicants have made it clear that if they succeed on any of the preliminary points they would be seeking immediate relief.  Such relief would include a declaration that the approval was invalid and orders that it be set aside and the appeals allowed.[9]  In my opinion, there is clear utility in having these three matters dealt with prior to having the appeals set down for a full blown merits dispute.  Also in favour of the orders are that the matters ought be able to be disposed of in 1 day, and in the near future.  And, at this stage no final hearing dates have been set for the hearing of the appeal.

   [9]Mr Golder’s outstanding application: Westrex’s amended application.

1. For these reasons I order:

1.          The applications succeed in part.

2.          Originating application 24 of 2014 is to be heard and determined at the same time as amended application in pending proceedings 4921 of 2013.

3.          The “defective notification”, “finality” and “abdicating responsibility” points raised by the appellants/applicants be heard and determined as preliminary matters prior to the substantive hearing of the appeal.

4.          The preliminary hearing be set down at the earliest practicable date for 1 day.

5.          The costs of the application on 30 May 2014 are reserved.

6.          The matter is listed for review and direction at 9.15am 19 June 2014 before Judge RS Jones.