Holts Hill Quarries P/L v Gold Coast C C & Ors [2000] QCA 268

Environmental Defenders Officer (Qld) Inc for the second and third respondents

[1] On 21 June 1999 a judge of the Planning and Environment Court dismissed an appeal from a decision of the respondent Gold Coast City Council which refused an application by the appellant, Holts Hill Quarries Pty Ltd, for the exclusion of a parcel of land located approximately seven kilometres to the south-west of Nerang from the Rural Zone, and for its inclusion in the Extractive Industry Zone. Also dismissed was a combined application for consent to use the land for the purpose of Medium Industry. The appellant appeals from that decision.

[2] In his reasons, the learned primary judge identified the principal issues between the parties as -

[3] Those matters were all relevant to his determination pursuant to s 4.4(3) and s 8.2(1) of the Local Government (Planning and Environment) Act 1990 ("the Act"). No submission was made to the contrary. It was common ground that the Act, although repealed by the Integrated Planning Act 1997, contained the relevant legislative provisions.

[4] In the reasons for judgment, the primary judge noted after setting out the above list, "It is convenient to consider these issues individually". He then considered the issues in the order listed. His conclusion, with respect to Town Planning considerations, was that the appeal should be dismissed for those considerations alone. He went on to find against the appellant on: Environmental Issues including Flora and Fauna; Traffic (and Noise insofar as it relates to Traffic); and Need. His Honour found it unnecessary to make any determination with respect to Dust and Blasting on the basis that "... the appeal has been determined on the issues already considered ...". He summarised his conclusions at the end of his reasons as follows-

(i) The appellant has not discharged the onus of proving that the combined applications do not conflict with the relevant strategic planning provisions or that there are sufficient planning grounds to justify approval;

(ii) The environmental impact of the proposal would be unacceptable;

(iii) The increased traffic noise which would result from the proposal would have an unacceptable impact on the amenity of residents;

Consequently I am satisfied that the Council properly refused the combined application and the appeal is dismissed."

[5] Five grounds in the Notice of Appeal alleged some nine errors of law in the primary judge's reasons in respect of Town Planning considerations.

[6] There were grounds of appeal also in relation to Environmental Issues, Traffic and Need.

[7] The ground in relation to Traffic and/or Visual Amenity was not pursued.

Whether in order to succeed on appeal the appellant must succeed on more than one issue

[8] It was submitted on behalf of the respondents that, having regard to the primary judge's separate consideration of each of the identified issues, the appeal must fail unless the appellant succeeded in challenging the findings on each of the four issues on which the appellant had failed at first instance. The appellant's contention was that it needed to succeed only on the first issue as these findings had the effect of tainting the other issues.

[9] The test to be applied for present purposes is whether an alleged error on the part of the primary judge "could ... have materially affected [the] decision."[1]

[10] The reasons do not state expressly that, irrespective of the outcome of the Town Planning considerations, the appeal would have failed as the result of the findings on one or more of the other issues on the appeal. But that the appeal would have failed for such a reason becomes plain enough when one considers the reasons overall. As previously noted, the primary judge said that the eight issues listed by him would be considered individually. After addressing the Town Planing considerations, he concluded that they alone would result in the appeal being dismissed.

[11] He then proceeded to consider the remaining issues. The first of these was Environmental Issues and his conclusion in that regard is quoted in par [4] hereof. In the course of the relevant part of the reasons, it was observed -

". Apart from the direct loss of habitat the proposal is likely to have other significant and unacceptable impacts on flora or fauna.

. I am not persuaded by Mr Agnew's argument that because the site is typical of fauna assemblages associated with similar habitats within the Gold Coast region, is not unique, and contains no endemic species, it is not sufficiently worthy of preservation to warrant refusal of the proposal."

[12] Four separate reasons were listed as showing why, in the view of the judge, the environmental impact of the appellant's proposal "... would be unacceptable".

[13] After considering Visual Amenity, the primary judge concluded, "In the circumstances I am not satisfied that the visual impact alone would be such as to warrant refusal of the application." That passage supports the conclusion that an inference may be drawn from the reasons in respect of Environmental Issues that the appeal should be dismissed on Environmental grounds, notwithstanding any other considerations.

[14] The language in which the primary judge's conclusions on Traffic were expressed is not as unequivocal. He contented himself with the observation that there would be "an unacceptable impact" on the amenity of the business centre of Nerang, on residences along the Nerang Road and on motorists using the tourist route to national parks in the Gold Coast Hinterland.

[15] In relation to Need his Honour merely concluded, "... no need has been established for the reasonably foreseeable future".

[16] As remarked earlier, when the primary judge came to consider Dust and Blasting, he noted that the appeal had been "determined on the issues already considered". That passage offers further support for the conclusion that the judge considered himself to be determining the appeal by reference to issues other than Town Planning considerations. His Honour had already expressly stated that he would have dismissed the appeal for Town Planning considerations alone. The remarks quoted in par [4] hereof also support the conclusion that the appeal would have failed as a result of findings on issues other than the Town Planning considerations, irrespective of the outcome of those matters. Indeed, it seems probable that the primary judge would have been prepared to dismiss the appeal on the basis of his findings on Environmental grounds alone.

[17] The argument that the Town Planning findings tainted the findings on the other issues was not developed in any compelling way. We can see nothing in the reasons in relation to the Town Planning issues or arising out of the alleged errors in those reasons which suggest that the primary judge's conclusion on Environmental Issues, Traffic and Noise may have differed had he not made the alleged errors in his reasons on Town Planning issues. The primary judge's approach to Town Planning considerations, as the foregoing discussion discloses, was quite discrete from his treatment of the remaining issues.

[18] Accordingly, in order to succeed on the appeal, the appellant must identify an error of law in the reasons in respect of at least one of the remaining issues.

Challenge to the findings on Environment Issues

[19] The grounds of appeal included the following challenge to the reasons in respect of Environmental Issues -

"5. The primary judge erred in law in deciding that adequate studies relating to rare and endangered species had not been undertaken, because:

(a) he misinterpreted the First Respondent's planning scheme;

(i) by incorrectly concluding that it contained objectives relating to the protection or conservation of rare or endangered species;

(ii) by failing to have regard to such relevant objectives as there were;

(b) by misinterpreting the evidence of Ms Burgess in respect of the conservation significance (or lack thereof) of the Appellant's site."

[20] This ground was developed at some length. It was submitted that Ms Burgess's evidence, that adequate surveys had been undertaken to enable an appropriate planning assessment of the proposal, had been rejected without rational reasons and that this constituted an error of law.[2]

[21] The evidence disclosed that after the initial Environmental Impact Study, some 13 species of fauna not mentioned in it were located by Mr Agnew, an environmental scientist, and another three by Mr Barden, also an environmental scientist. Ms Burgess, an environmental scientist retained by the appellant, spent two to three days on the site with a view to assessing the question of the presence or absence of a "rare" long-leaved tuckeroo. During that time, she found two rare and one vulnerable species not identified in the Environmental Impact Statement. In those circumstances, the primary judge plainly had a rational basis for his conclusion.

[22] The balance of the matters argued under this ground centred around the primary judge's observation that -

"If those engaging (the experts) had carefully considered those objectives in the planning scheme relating to the protection or conservation of rare and endangered species, more detailed surveys may well have been forthcoming."

[23] It was submitted that by reference to "objectives in the planning scheme", the primary judge had applied a particular standard to the survey required. This point was then developed at some length by a consideration of objectives in the Town Planning Scheme.

[24] The passage in the reasons complained of is no more than a comment directed to the judge's observation that he made no criticism of the experts who conducted the relevant surveys. In the same paragraph, he expressed the conclusion that he was satisfied that, "further, ... specific surveys should have been carried out over a longer period and also during other seasons." That was because of the number of "rare, endangered or vulnerable species" that, in his view, were potentially affected by the subject proposal. His Honour was not purporting to make any determination as to the necessary content of surveys, having regard to provisions of the planning scheme. His observations were factual in nature and it is not possible to extract an error in law from them. Accordingly, this ground of appeal must fail.

[25] It was argued that the primary judge erred in law in failing to give adequate reasons for his conclusions in relation to the Need issue. In support of this contention, it was submitted that, having regard to difficulties which the appellant exposed in the evidence of experts accepted by the primary judge, it was all the more necessary for reasons to explain in detail why the appellant's case had been rejected. Soulemezis v Dudley (Holdings) Pty Ltd,[3] on which the appellant relied, is one of a number of recent decisions in which the question of sufficiency of a tribunal's reasons has been explored in recent years.

[26] In Soulemezis,[4] Mahoney JA said -

"In my opinion, the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion."

"There is, I think, no formula the application of which to the instant case will indicate what, in that case, the judge must do. Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if - to adapt the formula used in a different part of the law: see R v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738 at 740 - by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted."

[27] Earlier his Honour had quoted at length from his reasons in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd.[6] In that passage his Honour had noted that whether or not there was an appeal from the decision was relevant to the content of the reasons which ought be given, it being necessary to provide such reasons as may be necessary to enable a party to exercise its right of appeal. His Honour said [7]-

"Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 23 September 1976, unreported): Colacicco v Colacicco (Court of Appeal, 15 March 1977, unreported). The Privy Council has said that, in criminal matters, it is not necessary for a judge to refer in his judgment to every possible defence: he may, for example, consider a defence `too plain for argument' and put it aside: see Mohamed Kunjo s/o Ramalan v Public Prosecutor [1979] AC 135 at 142. Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585 at 587, 588; [1983] 1 All ER 824 at 826.

But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it."

[28] McHugh JA, the other member of the majority in Soulemezis, expressed agreement with the statement by Mahoney JA in Tatmar that the extent of the duty to give reasons is related "to the function to be served by the giving of reasons". His Honour said[8]-

"Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal. In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done."

[29] In Cypressvale Pty Ltd v Retail Shop Lease Tribunal,[9] McPherson and Davies JJA cited with approval the following passage from the judgment of Hutley JA in Tatmar -

"The extent to which a court must go in giving reasons is incapable of precise definition. A court must not nullify rights of appeal by giving no or nominal reasons, but there is no duty to expound reasons so as to facilitate appeals. This applies particularly to the situation where a judge has to decide between conflicting witnesses, including experts. The choice between conflicting experts may have to be a matter of judgment, not of detailed reasoning."

[30] Of the joint judgment in Cypressvale, it was said[10]-

"From the many cases in which the question of adequacy has been considered it is possible to extract some indications of what is required or expected. It has already been noticed that the choice between conflicting witnesses, including experts, is recognised as often being a matter not of reasoning but of judgment."

[31] The reasons for judgment are 49 pages long. Ten pages were devoted to Town Planning considerations and 16 to Environmental considerations. His Honour regarded his conclusions on each those matters as having disposed of the appeal. The discussion on Traffic was some four pages in length. The primary judge found against the appellant on that issue also. It was after his treatment of those issues that he came to set out his reasons on the issue of Need. His treatment of that issue extended over approximately two and a half pages. That background is of obvious relevance to the allegation that the reasons given were inadequate to the extent of constituting an error of law. As the above discussion makes plain, it is relevant that there is no right of appeal against findings of fact.

[32] The appellant challenged the findings on Need on the ground that:

(a) the primary judge misunderstood and misstated the evidence relating to a "quarry needs study";

(b) his Honour expressed a preference for the opinions of two experts, Mr Siemon and Dr Copp without sufficiently explaining his reasons for accepting their evidence given the strength of the challenge to their evidence during the hearing at first instance; and

(c) the judge's conclusion that no need has been established "for the reasonably foreseeable future" could not be reconciled with his finding that the court should consider the availability of the "resource over a relatively long period."

Counsel for the appellant did not pursue any contention that points (a) and (c) revealed an error of law; they were used to support the argument that, having regard to the conflict of evidence on important points it was an error of law for the primary judge not to have stated his reasons more fully.

[33] In his oral evidence, Mr Siemon expressed the opinion that resources which were the subject of present approvals could be exhausted by around the year 2038, not taking into account factors such as recycling. It was not contended by the appellant that this evidence was wrong. It was put to the witness in cross-examination, and accepted, that by 2038 all the stone in the quarries with current approvals may well be used up. It was also his opinion that "...there is no need for development of new resources in this particular location".

[34] In addition, the reasons note that recent information suggests that potential reserves could be as high as 1.5 billion tonnes and that "... it is probable that estimates of some of the reserves are imprecise and inaccurate". There was no challenge to those findings. Those findings, and his acceptance of Mr Siemon's evidence as to the life of resources the subject of existing approvals, were central to the primary judge's conclusions on the question of Need.

[35] In the circumstances, the primary judge gave adequate reasons for his conclusions in relation to Need. The evidence he relied on was identified and largely non-contentious. The appellant takes issue with the conclusions drawn by the primary judge from the facts found by him but the findings are of fact and not of law.

[36] It is apparent from the foregoing conclusions that the appeal must fail. It is therefore unnecessary to consider the other arguments advanced by the appellant. However, in deference to the detailed and careful submissions advanced by the appellant's counsel, we will address some other issues briefly. The learned primary judge identified three considerations in particular which led him to the conclusion that the appeal should be dismissed for Town Planning considerations alone. They were:

"Firstly, the proposal is in conflict with the general intent of the rural zone which specifically excludes extractive industry, and with the preferred dominant land use descriptions of `Rural'.

Secondly, I am not satisfied exceptional circumstances as required under implementation provision (ii) of Extractive Industry Objective 1 have been demonstrated, that the establishment and operation of the quarry could be managed in such a way as not to affect significantly the amenity of the surrounding area.

Thirdly, the Council made a conscious decision, one which it was quite entitled to make, to exclude the subject land from the Extractive Industry zone. For this Court now to approve a re-zoning application would be to `cut across in a quite unacceptable manner, a planning strategy which has been adopted by the Planning Authority and publicly exhibited for community comment.' (Sheezel & Anor. v. Noosa Shire Council [1980] QPLR 130 per Carter J.)"

[37] The appellant alleged that three errors of law could be identified in the last mentioned consideration.

[38] They were explained as follows in the appellant's written outline of submissions -

"(a) the judge spoke of a conscious decision by the Council to exclude the site from the extractive industry zone; there was never any decision to exclude the site from the extractive industry zone; this is an erroneous reference to the fact that a strategic plan designation of extractive industry, as a preferred dominant land use, was not carried forward from a 1982 strategic plan map to the 1988 and 1995 strategic plan maps;

(b) the passage attributed to the decision in Sheezel is simply not in that case; the passage is one which has come from some other decision and which uses the language of the Coty principle[11]; Sheezel did not deal with the Coty principle;

(c) the Coty principle is concerned with draft planning instruments; a draft planning instrument is the type of `planning strategy' contemplated by the passage referred to by the primary judge; there was no draft planning instrument in this appeal."

[39] It is convenient to firstly address the arguments based on Sheezel and the Coty principle.

[40] It was submitted that an error of law was revealed in the primary judge's reliance on the Coty principle, and on the decision in Sheezel, as both were irrelevant.

[41] Sheezel, although not containing the words quoted does express a notion somewhat similar to that under challenge. The case involved an appeal against a local authority's refusal of a rezoning application. Carter DCJ said[12] -

"In the context it is useful to bear in mind what Mylne D.C.J. said in Canine Caterers Pty Ltd v. Torres Shire Council 33 L.G.R.A. 182 at 188:-

`The function of the Court is not to conduct an overall review of the planning scheme or to amend the planning authority's zoning.'

That is in my view a salutory reminder of the role of the Court in this context. The Court cannot in an appeal such as this conduct an overall review of the town planning scheme as though it were in some way an appellate tribunal empowered to sit to review the decision of the Governor-in-Council embodied in the gazetted scheme. Nor indeed can the Court be expected to have an encyclopaedic knowledge of all matters affecting planning in the area of a particular Local Authority. The enquiry before it is necessarily limited although the material placed before it should be sufficiently comprehensive to permit of a proper adjudication in the individual case."

[42] The passage under challenge appears to have been taken form the judgment of Quirk DCJ in Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors,[13] where his Honour said -

"It should not be necessary to repeat it but his Court is not the Planning Authority for the City of Brisbane. It is not this Court's function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper has to adopt (sic) (Brazier v Brisbane City Council 26 LGRA 322 at 327). As was observed by Carter J in Sheezel & Anor v. Noosa Shire Council 1980 Q.P.L.R. 130 (when he then constituted this Court), it would be quite inappropriate for this Court to deal with an individual application for rezoning in a way which might be construed as determinative of some wider question. Adopting the phraseology of those cases which deal with the non-derogation principle, I feel that to allow this appeal would be to `cut across' in quite unacceptable manner, a planning strategy which has been adopted by the Planning Authority and publicly exhibited for community comment."

[43] That case came before Quirk DCJ on an appeal from a Local Authority's refusal of a rezoning application. His Honour was concerned with a planning strategy in the course of adoption but it is difficult to see why generally similar observations could not be made in relation to a planning strategy which had been adopted.

[44] In Coty[14] it was held that a planning court should give weight to a Town Planning Scheme in the course of preparation and, in particular, take care not to give a judgment "which would render more difficult the ultimate decision as to the form the scheme should take". The decision, as the appellant contends, was concerned with Town Planning decisions or amendments which are in progress but which have not got to the stage of being implemented so as to have the force of law.

[45] In Lewiac Pty Ltd v Gold Coast City Council,[15] Coty was treated as authority for the proposition "...that it is possible to give some weight to planning decisions that are interim but which do not yet have the force of law."

[46] It was not suggested on behalf of the appellant that the words under challenge, in themselves, gave expression to some erroneous statement or principle of law. The vice was identified as the erroneous attribution of the words to a particular case and to an inference, said to arise from such error, that the primary judge had in mind, and had misapplied, what the appellant referred to as "the Coty principle". The point has no substance. Although the words quoted by the primary judge were wrongly attributed by him to Sheezel, he was merely stating a commonsense proposition for which no authority was required. His Honour did not assert that the facts under consideration were identical to those in Sheezel or in any other case and, for that reason, a particular result ought follow. Nor is it implicit in his reasons that he was under the misapprehension that he was considering an amendment to the relevant Planning Scheme which was in the process of being implemented. The passage under consideration does no more than attempt to acknowledge the source of the language adopted by the primary judge to express a consideration which he thought applicable to the facts before him. The primary judge made no error of law in this regard.

[47] It was submitted that the primary judge, on several occasions, wrongly confused the distinction between a zone and a Strategic Plan designation, and that he relied on the "fictitious" rezoning for the following conclusions -

"The provisions relating to the protection of the resource on the one hand, and the decision to exclude the land from the Extractive Industry zone and include it in the rural zone on the other, are not easily reconcilable."

"...it is reasonable to assume that the decision to retain the rural zoning was because the material on the subject land was not considered to be in a location suitable for extraction." "Rezoning it to rural, thereby allowing other forms of development `as of right', would mean that there was a good chance that the deposit would be lost."

[48] In addition to this alleged confusion of concepts, it was submitted that the primary judge erred in rejecting the appellant's contention that if the Council's intention was to exclude the resource on the subject site from possible future exploitation, it would not have been included in fig 16.1 of the planning studies. It is further submitted that the primary judge's reliance upon the 1988 Planning Study in support of an interpretation of the 1995 Strategic Plan was wrong.

[49] In order to fully understand the appellant's submissions, it is necessary to supply some factual background.

[50] In the 1982 Strategic Plan the subject land was designated extractive industry. In the 1988 Strategic Plan Map the subject land was not so designated. At relevant times, the 1995 Strategic Plan was in force.

[51] In the 1995 Planning Studies, under the heading "Extractive Industry", the following appeared -

"In the preparation of the 1982 and 1988 Strategic Plan and Zoning Schemes particular attention was paid to the need to protect extractive industry resources and also the need to consider the use of land in the locality of resource areas to minimize potential land use conflict."

[52] Major sources of quarry material were then identified (not including any sources on the subject land) and the Planning Studies document continued -

"These major sources of quarry rock and river sand and gravel will be identified on the Strategic Plan Map consistent with the approach adopted on the 1988 Strategic Plan.

It is the continuing intention that these important resource areas be protected to meet the needs of the regions' continuing growth ...". (emphasis supplied)

[53] Under the Local Government (Planning & Environment) Act 1990 the 1995 Planning Scheme was required to be supported by planning studies.[16] The Planning Studies were required to be made available for inspection during the period when the Planning Scheme was available for inspection and submission. After the Planning Scheme came into force, the Planning Studies were required to be kept available for inspection, along with the Planning Scheme.

[54] The approach in the 1988 Planning Scheme was to exclude the subject land from protection afforded by its designation of extractive industry in the 1982 Strategic Plan. That Planning Scheme was prepared under the provisions of the Local Government Act 1936, which required the supporting information to form part of the Planning Scheme.[17]

[55] The subject site was contained in the rural zone. In that zone, both extractive industry and medium industry constituted a prohibited development.[18]

[56] Economic Development Objective 5 (`ED05') in the Council's 1995 Strategic Plan provided (amongst other things):

"To protect economically valuable extractive resources for exploitation.

(i) The Strategic Plan Map 5 shows extractive resources that it is intended to exploit, possibly during the life of this plan. The related provisions of subsection 1.4.14 are intended to protect the resources, adjacent buffer areas and haul routes, from incompatible development.

(ii) There may be a need in the long-term to establish other extractive industries, including sites in the southern part of the Shire ... Some known resources are shown on Figure 16.1 of the Planning Studies. It is intended that these resources would not be exploited in the life of the Plan.

In considering applications for other forms of development in areas of possible hard rock resources, in the southern part of the Shire, regard will be had to whether the long term possibility of exploiting the resource will be permanently alienated. Further studies will be essential to outline hard rock resources in these areas, if protection is to be effected ..." (emphasis supplied)

The subject land was not shown on Strategic Plan Map 5. It was however shown on fig. 16.1 of the planning studies as one of the "areas of possible hard rock resources in the southern part of the Shire".

[57] The Planning Study to which fig 16.1 related stated -

" ... potential extractive resources not intended to be exploited during the life of the this plan, but which nevertheless require long term protection, have been identified on fig.16.2."[19]

[58] Extractive Industry Objective 1 (E101") provided (amongst other things):

"To ensure that those known extractive material resources in locations suitable for extraction are preserved for exploitation when required to meet the needs of the Shire and areas beyond.

(i) Map 5 - Preferred Dominant Land Uses designates significant resources of quarry rock, sand and gravel which are located in areas where exploitation can occur with minimal detrimental effect on other land uses.

(ii) Extractive industry will not be permitted to establish in locations other than those designated on strategic plan map 5 other than in exceptional circumstances, ie. if it can be demonstrated that exploitation of the resource, and transportation of the extracted material, can be undertaken in a manner that will not detrimentally affect amenity nor cause environmental or water quality problems taking into account the preferred character of the potentially affected areas, implied by their designations on the Map 5...." (emphasis supplied).

[59] While the reasons are open to criticism for the looseness of terminology pointed out in the appellant's submissions, it is doubtful though that any error of law has been identified.

[60] The references in the reasons to excluding the land from "the Extractive Industry Zone" and excluding "it in the Rural Zone" are obviously erroneous. But when the reasons are read as a whole it seems unlikely that the primary judge was proceeding on a mistaken premise that the site had changed from an Extractive Industry Zone to the Rural Zone in 1995 or at any other time or that he had an erroneous understanding of relevant facts.

[61] A consideration of the whole of the reasons shows that the primary judge was quite conscious of the relevant provisions of the current Strategic Plan, including Economic Objective 5, Strategic Plan Map 5, Extractive Industry Objective 1 and fig 16.1 of the planning studies.

[62] The reasons trace the history of the site's "designation" in the various strategic plans. After the first of the erroneous references to zones and rezoning, correct reference is made to the "Extractive Industry Designation".

[63] Set out in the reasons are the arguments advanced respectively on behalf of the appellant and the respondent local authority. It is not suggested that the primary judge misstated them.

[64] He expressly recorded the appellant's submission that -

"...if the Council's intention was to exclude the resource on the subject site for possible future exploitation, it would not have been excluded in fig 16.1 of the Planning Studies, and in any event to do so would have been contrary to Extractive Industry Objective 1 which was designed to protect such a resource."

[65] In making reference to the 1988 planning study, the primary judge was doing no more than tracing the history of the treatment of the site in Strategic Plans and related instruments. It was not suggested that the history concerning the way in which the site had been treated in successive Strategic Plans were irrelevant. There was no error of law in this regard.

[66] In reaching his conclusion in the Town Planning issue, the primary judge focussed on the following -

1. The designation of the site as "extractive industry" on the 1982 Scheme Map.

2. The fact that no such designation was made in 1988 or in 1995.

3. The fact that the site was not designated on Preferred Dominant Land Use Map 5 as extractive industry and that, in consequence, exceptional circumstances had to be shown before extractive industry could be conducted on the site.

4. The site was identified on fig 16.1 of the Planning Studies as a known resource but such resources were not intended to be exploited in the life of the current plan.

5. His view that "exceptional circumstances" had not been shown.

[67] In view of the foregoing, we do not find it necessary to decide whether the primary judge has interpreted Economic Development Objective 5 erroneously, as the appellant submits. Even if an error of law could be demonstrated in that regard it is unlikely that adoption by the primary judge of the appellant's construction would have produced a different conclusion on the Town Planning issue.

[68] We would dismiss the appeal and order that the appellant pay the respondents' costs of and incidental to the appeal to be assessed.

[1] H A Bachrach Pty Ltd v Caboolture Shire Council [1992] QCA 384; (1992) 80 LGERA 230 at 237,8.

[2] Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, 382.

[3] (1987) 10 NSWLR 247 (CA).

[6] (1983) 3 NSWLR 378.

[9] [1995] QCA 187; [1996] 2 Qd R 462.

[11] taken from Coty (England) Pty Ltd v Sydney CC [1957] 2 LGRA 117.

[13] [1990] QPLR 209 at 211.

[14] Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117.

[15] [1996] 2 Qd R 266.

[16] Section 2.6(1)(a) although the studies do not form part of the Scheme s 2.6(2).

[19] There was no figure 16.2; it is common ground that this was a reference to fig.16.1.