//
[2001] QCA 334
General information, not legal advice.
Court of Appeal (Qld)
2001-08-21
Williams JA, Muir J, Atkinson JSeparate reasons for judgment of each, member of the Court, Williams JA and Muir J concurring as to the order made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Hymix Industries P/L & Anor v Alberton Investments P/L & Anor [2001] QCA 334
PARTIES: ALBERTON INVESTMENTS PTY LTD / ACN 010 092 216 / (appellant/second respondent) / BRISBANE CITY COUNCIL / (respondent/first respondent) / v / HYMIX INDUSTRIES PTY LTD ACN 000 582 221 / (first respondent by election/first appellant) / BORAL RESOURCES (QLD) PTY LTD / ACN 009 671 809 / (second respondent by election/second appellant)
FILE NO/S: Appeal No 7206 of 2000 / PE No 1915 of 1998
DIVISION: Court of Appeal
PROCEEDING: Planning and Environment Appeal
ORIGINATING COURT: Planning and Environment Court
DELIVERED ON: 21 August 2001
DELIVERED AT: Brisbane
HEARING DATE: 7 June 2001
JUDGES: Williams JA, Muir J, Atkinson J / Separate reasons for judgment of each member of the Court; Williams JA and Muir J concurring as to the order made, Atkinson J dissenting
ORDER: Appeal dismissed with costs
CATCHWORDS: LOCAL GOVERNMENT – TOWN PLANNING – CONSENT AND APPROVAL OF COUNCILS (DEVELOPMENT AND LIKE APPLICATIONS) – CONSENTS, APPROVALS OR PERMITS – CONDITIONS – RELEVANCE AND REASONABLENESS – where second respondent given permission to operate a concrete batching plant – whether Planning and Environment Court should have imposed condition limiting production – where objector at first instance seeking that the further condition be imposed – whether failure to impose the condition amounted to an error of law – where extensive conditions imposed – where production would vary depending upon market demand / LOCAL GOVERNMENT – APPEALS – QUEENSLAND – PLANNING AND ENVIRONMENT COURT / Integrated Planning Act 1997 (Qld), s 6.1.25(1)(a) / Local Government (Planning and Environment) Act 1990 (Qld), s 4.12(4), s 4.12(6), s 4.13(1), s 4.13(16), s 6.1(1)(c), s 7.1A(2B), s 7.1A(3), s 7.4(3), s 8.2(2)(a), s 8.2(5C) / Agtec Holdings Pty Ltd v Kilcoy Shire Council & Ors [1999] QPELR 208, cited / Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, considered / Barakat Properties v Pine Rivers Shire Council (1994) 85 LGERA 99, cited / Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386, considered / Holts Hills Quarries Pty Ltd v Gold Coast City Council & Ors [2001] 1 Qd R 372, cited / Hope v Bathurst City Council (1980) 144 CLR 1, considered / James Henry Grant v The Council of the Shire of Pine Rivers [1994] QPLR 99, considered / Lloyd v Robinson (1962) 107 CLR 142, considered / Maroochy Shire Council v Wise (1998) 100 LGERA 311, cited / Proctor v Brisbane City Council (1993) 81 LGERA 398, considered / Sabdoran Pty Ltd v Hervey Bay Town Council [1983] 2 Qd R 172, considered / Vetter v Lake Macquarie City Council (2001) 65 ALJR 578, considered / Woolworths Properties P/L v Ku-Ring-Gai Municipal Council (1964) 10 LGRA 177, considered / Wootton v Woongarra SC (1985) 56 LGRA 301, considered
COUNSEL: C L Hughes for the appellants / J E Gallagher QC with T N Trotter for the respondents
SOLICITORS: I R Pepper for the appellants / Brisbane City Council Solicitor for the first respondent / Minter Ellison for the second respondent
WILLIAMS JA: On 28 July 2000 the Planning and Environment Court at Brisbane allowed an appeal by the second respondent here (Alberton Investments Pty Ltd) against the decision of the first respondent here (Brisbane City Council) to refuse an application by the second respondent to use land at Windsor for a concrete batching plant. The first and second appellants in this Court (Hymix Industries Pty Ltd and Boral Resources (Qld) Pty Limited) were objectors who became respondents by election in the proceedings leading to that order in the Planning and Environment Court.
The reasons for judgment of Quirk DCJ were delivered on 14 May 1999; the hearing of the appeal had occupied four days in February of that year. The reasons for judgment concluded with the statement: "I will adjourn further consideration of the matter to allow appropriate conditions to be formulated". Thereafter it would appear there were negotiations between the first and second respondents as to the conditions which should be imposed. The Planning and Environment Court reconvened on 28 July 2000 and the learned judge was informed that there was agreement as between the first and second respondents with respect to conditions. As the formal order of the court reveals, 64 detailed conditions were attached to the consent.
On that date counsel for the appellants here informed the court that those parties were seeking the addition of two extra conditions, one of which was a condition limiting the production of concrete at the plant. The imposition of such a condition was opposed by the second respondent. Counsel for the first respondent adopted a neutral role. After hearing submissions Quirk DCJ is recorded as saying:
" . . . on the evidence given and in the circumstances of the case I am content to approve the matter on the conditions which the planning authority have seen fit to agree to without any further additions relating to limits upon production capacity."
The appellants have appealed from that decision contending in the Notice of Appeal that the learned judge erred in law in refusing to restrict the level of production and seeking an order adding the following further condition to the consent:
"65.The concrete batching plant shall not produce more than 48,000 m3 of concrete in any one calendar year nor operate with more than 13 concrete mixer trucks on any given day. Records shall be maintained in this regard and forwarded to the Council annually by 31 January in each subsequent calendar year".
As the application for town planning consent was made prior to the commencement of the Integrated Planning Act 1997 (on 30 March 1998), by virtue of s 6.1.25(1)(a) thereof this appeal must proceed pursuant to the provisions of the Local Government (Planning and Environment) Act 1990 (see Holts Hill Quarries Pty Ltd v Gold Coast City Council & Ors. [2001] 1 Qd R 372). By operation of s 7.4(3) of the Local Government (Planning and Environment) Act an appeal may be made to this Court relevantly "on the ground of error or mistake in law on the part of the Court"; leave is not required where such circumstances are made out.
The more usual case confronting an appellate court is that where the developer is challenging the lawfulness or reasonableness of conditions imposed upon the development. The approach to be adopted in such cases has been considered in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599-600, Sabdoran Pty Limited v Hervey Bay Town Council [1983] 2 Qd R 172 and King Ranch Australia Pty Ltd v Cardwell Shire Council (1983) 53 LGRA 336 and (1984) 58 ALJR 386. But the approach therein discussed is not determinative in this situation. It was not really contested by the second respondent that a condition of the type in question would reasonably relate to the development in question; but that does not mean that failure to impose such a condition constituted an error of law. Not all possible conditions satisfying the test of "reasonably relating to the development" must be imposed; it is for the appropriate body (local authority or court on appeal) to determine in the exercise of discretion what conditions satisfying such a test should be imposed on the development.
Where an objector is contending that the Local Government Court erred in law in not imposing a condition when giving consent to a development proposal, the objector would have to satisfy the appellate court (arguing by analogy from the decision in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) that if the tribunal acted reasonably it must have included such condition. Only if that test was satisfied would there be an error of law on the part of the tribunal. As discussed in Wednesbury, it would not be sufficient for the appellate court to say it thought the imposition of such a condition was reasonable or that it would have imposed such a condition if it was the tribunal at first instance.
The question whether or not there is an error of law involved in a decision dependent upon the exercise of a discretion may arise in a variety of circumstances and it is difficult to formulate a universal test for arriving at an answer. The High Court in Hope v Bathurst City Council (1980) 144 CLR 1 at 9 and Vetter v Lake Macquarie City Council (2001) 75 ALJR 578 at 584 concluded that there would be an error of law if on the facts "only one conclusion is open" and the tribunal found otherwise. That is another way of saying that if the tribunal acted reasonably it must have imposed the condition.
The argument developed by Mr Hughes on behalf of the appellants was along these lines. The environmental impact study which the second respondent was obliged to lodge with the local authority as part of the application was based on an anticipated initial production capacity of approximately 48,000 m3 per annum. Much of the evidence relating to traffic flow generated by the development and the impact of the development on the amenity of the neighbourhood was predicated on a production capacity of 48,000 m3 per annum. In consequence, if the capacity was not capped to that level by a condition attaching to the consent the developer would be able to avoid adverse consequences in an environmental impact statement by underestimating the level of production. The plant had a theoretical production capacity in excess of 48,000 m3 per annum and in consequence the second respondent would be able to increase production beyond that level without the necessity of getting further approval from the local authority or having the court waive or amend a condition.
Against that background it is necessary to look at the application and the evidence before the court below. The development application to the first respondent did not say anything about capacity; it merely referred to a concrete plant. The environmental impact statement prepared by Kershaw & Co contained the following passages relevant for present purposes:
"Initial production is anticipated to be approximately 4,000 m3 per month. Typical production would be 10 to 15 loads per hour during the morning. Production would not be as intense during the afternoon. Maximum production would be about 20 loads per hour which may occur from time to time".
"Initially annual production is projected to be approximately 48,000 m3 of concrete. Monthly, weekly and daily production are anticipated to be approximately 4,000 m3, 1000 m3 and 160 m3 respectively.
Annual production will depend on a number of variables which are not capable of accurate prediction. Economic cycles, major infrastructure developments, climatic conditions, competition, technological change, type of job, access and special customer needs vary and determine production".
That environmental impact statement was considered to be part of the application and was available for inspection by any potential objector. That statement was an exhibit in the proceedings before Quirk DCJ.
On the hearing of the appeal in the court below relevant evidence was given by Viney, a traffic engineer, Kershaw, a consultant geologist and planning adviser who prepared the economic impact statement, and Neilsen, the manager of the second respondent. Viney in his report noted that the plant had the capacity to be able to substantially exceed the claimed production level. He noted that the proposed plant was replacing an old plant which had become defunct and was located on virtually the same site; traffic generated by the new plant would be similar to that generated by the old. He spoke in terms of the proposed plant capturing 8% of the market within a 10 km radius. He expressed the view that it "might take some time" to get to the initial production target of 4,000 m3 per month.
What is more significant is that with respect to some calculations with regard to traffic movement Viney used figures which would equate to a production capacity of between 70,000 and 80,000 m3 per annum. In his view the ultimate production output would depend upon market forces.
In his report which was admitted in evidence Kershaw repeated what he had stated in the environmental impact statement as to production capacity. He was questioned about that whilst in the witness box. The following passages from his evidence are relevant:
" . . . the engineering designer has rated it at a capacity of 120 m3 per hour. That doesn't mean that the plant can produce 120 metres an hour. It might be able to for one hour on occasions but - probably even not there because that design capacity does not take into account the scheduling of truck drivers, it doesn't take into account a whole range of factors. . . . so, there's a whole range of things that affect the actual plant production capacity and a lot of it is to do with the impact of humans in terms of the truck drivers when they're wetting down the load or slumping as it's called. . . . all sorts of things like that effect the real production capacity, but you always have a production capacity well above what you would want so that you can provide good service and if there is some scheduling problem you've got the capacity to put the horsepower into it if you know what I mean. Of course, the actual peak design capacity doesn't mean anything if it's raining that day . . . "
"Well, I expect that the production will ramp up to 48,000 m3 fairly quickly over a period of 2 or 3 years, and then it would be - fluctuate."
"In terms of my own thinking about it and particularly Neilsen's organisation assessment of what they considered they would be able to achieve, the answer came to 48,000 m3 being a reasonable target . . . "
In his statement which was before the court Neilsen said:
"I expect that this plant will produce approximately 48,000 m3 per annum, though this will depend upon the particular jobs to be serviced. While the plant as shown in the plans is capable of a greater capacity than this, the maximum capacity, because of the physical restraints of the loading time for each vehicle with this plant is up to 120 m3 per hour. While there is the potential for that capacity in practical terms production is limited to 80-90 m3 because of the time taken to load trucks and the number of trucks you can load using the single loading bay proposed for this plant".
A perusal of the record book shows that that there was quite a deal of cross‑examination about the potential maximum capacity of the plant. Comments made from time to time by Quirk DCJ indicate that he was well aware of the issue being raised by the objectors with respect to production capacity.
Against the background of the evidence, some of which I have quoted above, the learned judge said in his principal reasons:
"A matter about which there was some difference of opinion was the likely rate of production at the batching plant which would influence the number of vehicle movements that would be generated by it. Against the proposal it was urged that regard should be had to its production capacity rather than the assertions of the appellant's representative, Mr Neilsen, in respect of likely production levels. I appreciate that when town planning consents are granted, it must be borne in mind that the use rights go with the land rather than the applicant and the possibility of a mode of use more intensive than that intended by the latter must be considered.
An applicant is also entitled to have his application assessed on the basis of probabilities of what is likely to occur. I was impressed by the evidence of Mr Neilsen and accept that the proposal will probably operate as he explained. The industry is very competitive and the generous capacity that this plant will have will be of benefit to him when it is necessary to dispatch large orders expeditiously. Competition in the marketplace will make it unlikely that the plant will operate at full capacity for extended periods. Accordingly I accept as valid the predictions of the respondent's traffic engineering consultant Mr Viney as to likely levels of truck movements to and from the proposal."
As already noted, extensive conditions were attached to the approval. A perusal of them strongly suggests that the experienced judge hearing the matter in the court below, and the first respondent as the relevant planning authority, considered that the amenity of the residents in the neighbourhood of the development could best be preserved by attaching conditions to the construction and operation of the plant rather than by determining an annual cap on production. There were obvious benefits in so doing. Such an approach is understandable; if the second respondent complied with all the conditions, and there had been no complaints from nearby residents, it would be commercially absurd (and equally absurd from a planning perspective) to require the plant to shut down for (say) two months - possibly in the middle of a supply contract - merely because an annual production limit had been reached within 10 months of operation.
In that context, reference can be made to the following conditions attached to the consent, though really one needs to read all of the 64 conditions in detail to fully appreciate the impact of them on the use of the site for a concrete batching plant:
there was to be no vehicle queuing, marshalling or parking external to the site;
acoustic barriers were to be constructed and noise control measures taken in accordance with certain approved specifications; details of the acoustic barriers were set out in the conditions;
a weighted maximum adjusted sound pressure level was determined which was not to be exceeded by more than specified amounts during defined periods of the day both during construction and operation of the plant;
construction activities were limited to between the hours of 7 a.m. and 6 p.m. Monday to Friday and from Saturday 7 a.m. to 3 p.m. There was a maximum noise level fixed for such operation;
noise attenuation measures were set for truck movements off site, unloading raw material trucks, unloading pneumatic tankers, truck and car activity on site, raw material transfer, and generally;
buildings were to be constructed with materials having certain sound transmission specifications;
various conditions were inserted ensuring that there was no contamination of adjacent waterways etc from materials used on site;
there was to be no visible dust emissions from any activity;
there had to be an Environmental Management Plan covering construction, noise management, air quality management, waste management, and community relations management;
various landscaping works had to be carried out according to a specification;
heavy vehicles accessing the site were restricted to using certain designated roads only and were not to intrude upon certain residential streets;
hours of operation of the batching plant were restricted to the hours of 6 a.m. to 6 p.m. Monday to Friday and 6 a.m. to 3 p.m. Saturday;
a toll free number had to be established for the purpose of receiving complaints from nearby residents. This facility would enable monitoring of compliance with conditions.
When the evidence is considered in the light of the conditions imposed it can be said, as contended for by the second respondent, that the local authority and the court below had regard to issues of amenity and determined that they could be resolved by imposing a series of conditions, but without imposing an arbitrary cap on annual production. In the circumstances it cannot be said that a condition placing a cap on annual production capacity had to be included in the order for the decision to be reasonable. It is not a situation where the only conclusion open on the evidence was that a cap on annual production should be imposed.
It follows that the appellants have not established that the court below erred in law in not imposing the condition in issue. There was no error in the exercise of the court's discretion.
What, in my view, further establishes that is the fact that this Court could not impose the condition as set out in the notice of appeal. There are no findings of fact which would entitle this Court to say that production capacity should be limited to 48,000 m3 of concrete in any one calendar year and that the operation should not involve more than 13 concrete mixer trucks on any given day. The evidence clearly established that on some occasions production of something more than 48,000 m3 per year within the conditions imposed would not adversely affect amenity in any way. Similarly, use of more than 13 concrete mixer trucks on one or two days a year would not on the evidence (particularly that of Viney) adversely affect the amenity. The evidence simply does not establish that as a matter of law the Local Government Court was obliged to impose a condition in the terms set out in the notice of appeal. Figures in excess of those included in the appellants' proposed conditions could well be reasonable and not incompatible with the local amenity. It is not sufficient to say that some such condition ought to have been imposed and this Court should send the matter back to enable further evidence to be taken in order to determine what cap on annual production and vehicle movements should be imposed. There would have to be a finding as to the amounts in each case which represented a reasonable upper limit. That confirms that on the present material there was no proper basis for the court below imposing a condition in those terms sought by the appellants.
It follows that the appeal should be dismissed with costs.
MUIR J: I agree with the reasons of Williams JA, which I have had the benefit of reading. I also agree with the orders proposed by his Honour.
ATKINSON J: The keystone of the law and practice of town planning is that when consent is given to use land for a certain development, whether by a local government authority or by the Planning and Environment Court, the consent attaches to the land and not to the particular operator or developer.1 Conditions run with the land, as does the approval to which they are attached.2 Accordingly, the authority giving consent is required to consider the use of the land which the approval permits, not any intention expressed by a particular developer not to make full use of the permitted development at any particular time. This principle is central to a proper consideration of the appeal in this case.
Approvals for use are commonly given with conditions attached.3 Indeed commentators have remarked that unconditional approvals are extremely rare.4 Conditions are the community price a developer must pay for a development approval. They have characteristically been the vehicle for minimising adverse effects. There is nothing unusual about a condition limiting production.5
The application for approval
In December 1997, the respondent, Alberton Investments Pty Ltd (“Alberton”), made an application to the Brisbane City Council (“Council”) for consent to use land in Le Geyt Street, Windsor, for the purposes of a concrete batching plant. The site, comprising 5,700m2, is part of Lot 4 RP 152644, and is accessed via Somerset Street (the “land”).
This application was subject to the Local Government (Planning and Environment) Act 1990 (the P & E Act). Section 6.1(1)(c)6 of the P & E Act provided that, when an application for consent to use land is made, the local government is not to:
“subject its approval of that application to a condition that is not relevant or reasonably required in respect of the proposal to which the application relates, notwithstanding the provisions of the planning scheme.”
Stripping the section of its double negatives, it provided that the Council may only impose conditions which are relevant or reasonably required in respect of the proposal.7
The discretion to impose conditions is a wide one, so long as the conditions are relevant and reasonably required. The width of the discretion has been judicially recognised in the often quoted decision of Else-Mitchell J in Woolworths Properties Pty Ltd v Ku-Ring-Gai Municipal Council:8
“It cannot be doubted that in the field of town planning a wide discretion must be permitted to a responsible authority to determine what conditions may properly be imposed under provisions such as those which are relevant to the development under consideration in this case. Precise delimitation of the power to impose conditions is undesirable, if not impossible, and one cannot perhaps do more than say that the conditions must be relevant to the subject matter “or reasonably capable of being regarded as relevant to the implementation of planning policy (Bryson Industries Ltd. v. Sydney City Council;9 cf. Hall & Co. v. Shoreham Urban District Court)”10
In respect of the land under consideration in this case, although it is very close to the residential area of Windsor, it is in an area that has been used for industry for many years. The land is in an area zoned general industry so that concrete batching plants may be established on that land but only with the consent of the Council. There is another concrete batching plant operated by the first appellant within a block of the site of the second respondent’s proposed concrete batching plant. This plant, which was built with a grant of consent by the Local Government Court in 1985, produces approximately 90,000m3 of concrete per year. It has recently been sold to the second appellant. Until the end of 1997, when it closed, Monier Concrete also operated a reasonably small concrete batching plant very close by. The evidence before the learned trial judge showed that there is a fluidity in the market for these plants with takeovers, closure and expansion of plants by other operators. Consequently, any approval for permitted development may lead to a plant operated, in accordance with the permitted development, by a company other than the respondent.
The application for consent by the respondent was accompanied by an Environmental Impact Statement dated 18 November 1997 prepared by Kershaw & Co. Appendix 7 to the Environmental Impact Statement was a Traffic Report by Viney Traffic Engineering. An Environmental Impact Statement was necessary pursuant to s 8.2(2)(a) of the P & E Act because a concrete batching plant with the capacity proposed is a ‘designated development’ pursuant to s 16 and Schedule 1, item 14 of the Local Government (Planning and Environment) Regulation 1991. An Environmental Impact Statement is not necessarily required for a concrete batching plant for manufacturing less than 20,000 tonnes of concrete a year.
There were about 220 objections to the application, predominantly by local residents. In addition there were objections by commercial competitors. Such objections are required to be taken into account in the assessment of any town planning consent application.11 The Council refused the application on 3 April 1998. On 6 May 1998, the respondent, Alberton, appealed to the Planning and Environment Court against the Council’s refusal. The present appellants elected to become respondents to that appeal.
The appeal to the Planning and Environment Court
The Planning and Environment Court has the power to allow an appeal against a refusal or a condition of approval, absolutely or subject to any conditions the court considers appropriate.12 The onus is on the appellant to establish that the appeal should be allowed.13 Because the application for consent was made before the commencement of the Integrated Planning Act 1997, the provisions of the P & E Act applied not only to the original application for consent, but also to the appeal to the Planning and Environment Court and to the Court of Appeal.14
On 6 November 1998, the Council set out, in Further and Better Particulars in the appeal, its reasons for refusal which demonstrated the Council’s concern with the potential impact of the proposal on the amenity of the surrounding residential area. Those reasons included:
"3.The proposal … conflicts with the intent of the General Industry zone which provides, in part, that in considering any application for consent in the General Industry zone, Council will take into account the proposed use and the likely impact of the proposal on existing and future amenity of adjoining sites and of the surrounding area. The proposal should be rejected having regard to the proposed use and its likely impact on existing and future amenity of adjoining sites and of the surrounding area (including areas proximate to the haulage routes).
The Respondent contends that the proposal would have a detrimental impact on the amenity of the area (particularly in relation to noise) and, in particular, the amenity of residences in proximity to the haulage routes.
The subject site and nearby residential uses are within the urban area under the Strategic Plan. The intent for those areas (section 3.3.2.1) discloses a primary intent for residential development albeit that non-residential activities are contemplated where, amongst other things, they are intended to serve local communities and their environmental and amenity impacts are managed to acceptable levels. The proposal is inconsistent with the intent given its nature, scale, intensity and likely amenity impacts.
The proposal conflicts with the intent for industrial areas in section 3.3.1 of the Town Plan. The subject site does not fall within a major industrial area. The statement of intent for smaller industrial areas provides that:
‘Industries with less potential for environmental impacts or nuisance may also locate elsewhere in the city where the site has adequate accessability [sic], is able to be economically serviced, and is unlikely to adversely affect residential areas or any other sensitive receiving environments. Such locations, outside the City’s major industrial areas, are the preferred sites for smaller scale service trades and light industry activities, especially those which can serve surrounding community needs. These locations include service trades areas adjoining larger centres.’
The proposal conflicts with the intent for smaller industrial areas because of its potential and likely amenity impacts. Further, it is not a “smaller scale” industrial activity and services a wider market than the “surrounding community needs”.
Further, the statement of intent for the industrial areas provides that it is intended to facilitate development ‘taking into account environmental and community concerns’ The proposed development is by reason of its potential and likely amenity impacts not one which takes adequate account of such concerns.
The proposal conflicts with section 3.2.4.5 concerning realistic expectations of future amenity. In particular, the proposal conflicts with subparagraph (a) given the nature of the use and its likely impact on residential amenity. Further, there is conflict with subparagraph (b) in that the proposal would not maintain acceptable standards of amenity in the vicinity of the boundaries of Residential zones and other zones given its likely impact. Further, the proposal would conflict with subparagraph (c) in that it would not ensure that residential areas are secure against the introduction of through traffic given the designated and likely haulage routes.
The proposal also conflicts with section 3.2.5.2(f) which seeks to locate industries having regard, amongst other things, to environmental performance. The proposal conflicts with that provision by reason of its likely impact upon amenity.
…
The proposal is contrary to section 3.2.1.3(b) in that the location of the proposed use on the subject site would not provide appropriate separation between sensitive uses namely the proposal and nearby residential uses.”
The witnesses before the learned trial judge included Mr Kershaw, a geologist and extractive industry, land use, planning and environmental consultant, and Mr Viney, a traffic engineer, who produced reports dated 5 February 1999 and 14 February 1999 respectively; and Raymond Neilsen, the principal of the respondent company, Alberton. Their evidence dealt with key areas considered on the appeal to the Planning and Environmental Court. These included the need for the plant, its capacity and planned production levels, problems during construction and operation, hours of construction and operation, traffic problems, water management, visual pollution, air pollution, noise, waste and other matters of environmental management. All of these aspects were measured against their impact on the amenity of residents in the nearby area, so many of whom had objected to the application. Mr Kershaw conceded in his evidence that the impact of the proposal depended upon the production level and that the plant ought to be assessed on the basis of 48,000m3 production per annum. That was the basis of his assessment. It follows that if the approval permitted greater operation, the assumptions on which both the Environmental Impact Statement and his evidence were based, were invalid.
On 14 May 1999, the learned trial judge allowed the appeal. On 28 July 2000, Quirk DCJ delivered a formal order, granting the application subject to conditions which had been agreed between Alberton and the Council after Alberton’s successful appeal to the Planning and Environment Court. The appellants complain about that order in one respect only, i.e. that the learned trial judge did not impose a condition limiting production levels. The effect of the appeal being allowed without such a condition being attached is that there is no town planning limit on the permitted production of concrete at the batching plant.
The material before the learned trial judge confirmed the apprehension of Council that a concrete batching plant would have a significant effect on the amenity of nearby residents and those on or near any likely haulage routes. These matters were the subject of the Environmental Impact Statement by Mr Kershaw, and the Traffic Report by Mr Viney on which the respondent relied in support of its application to the Council and the reports relied upon by the respondent in its appeal to the Planning and Environment Court.
Capacity of plant when application made to Council
The terms of reference for the Environmental Impact Statement required:
“… a comprehensive description of the processes and operations associated with the proposal … addressing:
design capacity of the plant;
nature and method of operation of plant and other equipment to be used on site;
nature and volume of raw materials processed annually, weekly and daily;
…
nature and volume of product produced annually, weekly and daily.”
With regard to production capacity and actual production, the Environment Impact Statement attached to the application to Council was based on the following assumptions:15
“Initial production is anticipated to be approximately 4000m3 per month. Typical production would be 10 to 15 loads per hour during the morning. Production would not be as intense during the afternoon. Maximum production would be about 20 loads per hour which may occur from time to time.”
“Initially annual production is projected to be approximately 48000m3 of concrete. Monthly, weekly and daily production are anticipated to be approximately 4000m3, 1000m3 and 160m3 respectively.
Annual production will depend on a number of variables which are not capable of accurate prediction. Economic cycles, major infrastructure developments, climatic conditions, competition, technological change, type of job, access and special customer needs vary and determine production.”
The Environmental Impact Statement was attached to the application for approval and so was open to the public during the objection period.16
It was proposed at that stage that the plant would have a “peak design capacity of 280 metres of concrete per hour.” It was proposed to limit the hours of operation of the plant to 6.00am – 6.00pm, Monday to Friday, and 6.00am – 3.00pm on Saturdays. This gave 69 hours of operation a week. If the plant had operated at the peak design capacity proposed in the application, it would have had the capacity to produce 3,360m3 daily, 19,320m3 weekly, 77,280m3 monthly, or over a million cubic metres of concrete a year. This is about 20 times what is said to be the anticipated initial annual production on which the assumptions in the Environmental Impact Statement were based.
Capacity of the plant on appeal
Perhaps unsurprisingly, between the time of application to the Council and the hearing of the appeal, the respondent decided to reduce the design capacity of the plant to 120m3 per hour. This was described by Mr Viney as its practical capacity. Even so this means that the maximum production capacity is 1,440m3 daily, 8,280m3 weekly, 33,120m3 monthly, or an annual production of 430,560m3 of concrete which is still nine times the initial production estimates on which the Environmental Impact Statement was based or the estimated production level given in evidence by Mr Kershaw in the Planning and Environment Court.
In his report prepared on 5 February 1999 for the hearing in the Planning and Environment Court, Mr Kershaw said that it was estimated that the plant would produce 48,000m3 per annum. He agreed that this differed from his estimate in the Environmental Impact Statement that the initial production would be 4,000m3 per month. Mr Kershaw said in his oral evidence:
“the assessment is that this plant will ramp up hopefully to 48,000 cubic metres per year and fluctuate from there on. Now, that’s the target. That target may not be achieved, but it’s an expectation that it will.”
He said it was forecast that the plant when operated by Alberton would produce 48,000m3. He conceded that there was a possibility that it could be exceeded “to some extent” “on a particular year.” When asked whether or not production of 48,000 m3 per annum was a conservative estimate of the production and therefore the impact, his evidence was:
“In terms of my own thinking about it and particularly Neilsen’s organisation assessment of what they considered they would be able to achieve, the answer came to 48,000 cubic metres being a reasonable target.”
The evidence of Mr Kershaw was that the plant would not be able to work at its design capacity of 120m3 per hour because of human factors, scheduling and demand.
When Mr Neilsen was asked about production, his evidence was that the plant would be unlikely to produce more than 100m3 per hour. This would nevertheless give rise to potential production of 6,900m3 per week, 27,6000m3 per month and 358,800m3 per year, still seven and a half times the production at which the plant was assessed.
Traffic Impact
An hourly production rate of 120m3 per hour would require loading 20 concrete agitator trucks with 6m3 capacity per hour or, as Mr Viney said, 24 loads of 5m3 trucks. Mr Kershaw conceded that this was possible and that therefore this scenario would have been considered when the land use was being tested. An hourly production rate of 100m3 per hour requires loading 16 – 17 such trucks per hour or 20 x 5m3 trucks per hour. The Environmental Impact Statement refers to 13 agitator trucks with a capacity of up to 8m3 each which would have a capacity of 104m3. It can be seen that the traffic impact and production capacity are inextricably interrelated.
Mr Kershaw estimated that a production rate limited to 48,000m3 per annum would generate a monthly average fully laden, one-way vehicle movements of 25 x 25 tonne cement trucks, 11 x 25 tonne flyash trucks, 10 x 25 tonne blast furnace slag trucks, 83 x 27 tonne 20mm aggregate trucks, 67 x 27 tonne 10mm aggregate trucks, 37 x 27 tonne fine sand trucks, 82 x 27 tonne medium sand trucks, 1 additive delivery and 800 concrete agitator trucks with unstated capacity. Greater production would of course give rise to a commensurate increase in heavy vehicle movements.
Mr Viney estimated that an annual output of 70,000 to 80,000m3 would generate 50 to 60 loaded concrete agitator trucks per day. He said in evidence that there was no reason to think that the proposal would generate more than that number of loaded concrete agitator trucks a day. In fact he thought it was probably an overestimation.
Conditions were imposed by the Planning and Environment Court with regard to traffic including a condition17 that there should be signage showing that “no vehicle queuing, marshalling or parking of vehicles shall occur external to the site”. However, there was no limit imposed on the number of concrete agitator trucks that could be loaded. The Environmental Impact Statement showed there was parking for 13 agitator trucks as well as ample marshalling areas available to accommodate agitator trucks during the day. No condition which was imposed would necessarily limit production to 48,000m3 per annum or even 70,000 – 80,000m3 per annum.
Likely operation of the plant by the respondent
The evidence before the trial judge on the likely operation of the plant was given by Mr Neilsen, and by Mr Kershaw and Mr Viney based on Mr Neilsen’s assessment of the likely production levels. However, Mr Neilsen conceded in his evidence that the plant could produce more than 48,000m3 per annum. He said:
“I expect that this plant will produce approximately 48,000m3 per annum, although this will depend upon the particular jobs to be serviced. While the plant as shown in the plans is capable of a greater capacity than this, the maximum capacity, because of the physical restraints of the loading time for each vehicle with this plant set up is 120m3 per hour. While there is the potential for that capacity in practical terms production is limited to 80 – 90m3 because of the time taken to load trucks and the number of trucks you can load using the single loading bay proposed for this plant.”
Even 80 – 90m3 per hour gives a weekly production of 5,520 – 6,210m3, a monthly production of 22,080 – 24,840m3 and a yearly production of 287,040 – 322,920m3 – still many times in excess of the yearly figures on which assumptions of the experts and in the judgment are made.
Effectiveness of conditions
A matter before the Planning and Environment Court was whether the conditions imposed were sufficient to ensure that the operation of the concrete batching plant did not have an unacceptable impact on the amenity of the local residential area. As the learned trial judge observed, the protection of existing and likely future residential amenity is not only important, it is fundamental to town planning and the Town Plan requires it to be taken into account.
When dealing with the question of production levels, the learned trial judge made the following observations:
“A matter about which there was some difference of opinion was the likely rate of production at the batching plant which would influence the number of vehicle movements that would be generated by it. Against the proposal it was urged that regard should be had to its production capacity rather than the assertions of the appellant’s representative, Mr Nielsen, in respect of likely production levels. I appreciate that, when town planning consents are granted, it must be borne in mind that use rights go with the land rather than the applicant and the possibility of a mode of use more intensive than that intended by the latter must be considered.
An applicant is also entitled to have his application assessed on the basis of probabilities of what is likely to occur. I was impressed by the evidence of Mr Neilsen and accept that the proposal will probably operate as he explained. The industry is very competitive and the generous capacity that this plant will have will be of benefit to him when it is necessary to dispatch large orders expeditiously. Competition in the marketplace will make it unlikely that the plant will operate at full capacity for extended periods. Accordingly I accept as valid the predictions of the respondent’s traffic engineering consultant Mr Viney as to likely levels of truck movement to and from the proposal.”
Having accepted that the consent attaches to the land and not to the applicant, His Honour said he was impressed by the proposed operator’s evidence and so he accepted the applicant’s evidence as to the likely operation of the plant rather than basing his decision on the actual production capacity of the plant. However, as I have said, the consent does not attach to the operator but to the land. The question is an objective one of what the permitted development is. As the evidence showed, there is fluidity in the market for concrete batching plants with the known potential for another operator to purchase the plant or the land with the approval attached and operate it closer to its capacity and therefore at much higher levels of production. Similarly the consent puts no town planning restriction on a higher than anticipated operation of the plant by the applicant with its impact on local amenity. In other words the development permitted is in excess of the operation of the concrete batching plant that was assessed.18
In his reasons for accepting that he should impose only the conditions agreed between the Council and Alberton, His Honour merely said:
“ … on the evidence given and in the circumstances of the case I am content to approve the matter on the conditions which the planning authority have seen fit to agree to without any further additions relating to limits on production capacity.”
An appeal from a decision of the Planning and Environment Court to the Court of Appeal is an appeal as of right19 but may only be brought on the ground of error or mistake in law on the part of the Planning and Environment Court.20
The first matter to consider is, as the Court of Appeal held in Proctor v Brisbane City Council,21 whether the Planning and Environment Court has in truth applied the statutory test – i.e. whether the condition sought by the appellants is “relevant or reasonably required”22 – or whether it has, as the appellants contended, failed to do so. In determining the answer to that question, the court in Proctor relied on the decision of the High Court in Cardwell Shire Council v King Ranch Australia Pty Ltd23 where consideration was given to the proper construction of a section of the Local Government Act 1936 (the “1936 Act”) which was the predecessor to the P & E Act. Under the 1936 Act, for a condition to be attached to the approval, it had to be “reasonably required”. In King Ranch,24 Gibbs CJ explained the meaning of that test with regard to a subdivision. The test applies equally to the type of approval here under consideration:
“The statutory test which has to be applied by a local authority in deciding whether to attach conditions to its approval in a case such as the present is whether the conditions are reasonably required by the subdivision. This means that the local authority, in deciding whether a condition is reasonably required by the subdivision, is entitled to take into account the fact of the subdivision and the changes that the subdivision is likely to produce – for example, in a case such as the present, the increased use of the road and of the bridge – and to impose such conditions as appear to be reasonably required in those circumstances.”
In Sabdoran Pty Ltd v Hervey Bay Town Council,25 the local council proposed to impose charges for water supply and sewerage headworks on a subdivision in an area which was not served by sewerage and no sewerage was proposed. Since no sewerage works were being constructed nor were planned, the condition was held by the Full Court to be unlawful. The imposition of conditions relating to water supply and sewerage was not covered by the general provision with regard to development which, as Connolly J held:26
“must fairly and reasonably relate to the development being approved.”
Under the P & E Act, a condition must be either “relevant” or “reasonably required”. With that in mind the Court of Appeal in Proctor considered the test of relevance as set out in the High Court decision of Lloyd v Robinson.27 As the Court of Appeal held:28
“It may be that a condition which is not reasonably required … is nevertheless lawful, because relevant.
…
It may well be that a condition which is in no proper sense of the word “required” … is nevertheless relevant in the way indicated by the High Court [in Lloyd v Robinson], as falling within the proper limits of a local authority’s functions under the Act, as imposed to maintain proper standards in local development or in some other legitimate sense. For example, a condition relating to the layout of the subdivisional roads may not be able to be supported as “required” – reasonably or otherwise – by the subdivision in question, but may be defensible as reasonably imposed in the interests of the rational development of the area in which the subdivision is located. We would not, without further argument, be prepared to accept that the broad notion of relevance as applied in Lloyd v Robinson can have no application under s 6.1(1)(c) of the [P & E Act].
Of course the mere fact that a condition is relevant to the proposed subdivision will not necessarily be sufficient to justify its imposition.”
The relationship between relevance and what is reasonably required was characterised by Ryan J in Wootton v Woongarra SC as follows:29
“The question must be whether there is a relevant nexus between the use of the land and the conditions sought to be imposed, that nexus being that the proposed use creates such a change in existing affairs that the condition is a reasonable response to it.”
The P & E Act puts a relevant condition or one that is reasonably required in the alternative so that only one criterion need be satisfied.
A condition limiting production capacity could, on any view, have been imposed as relevant to the permitted use or a reasonable requirement of the permitted use. Such a condition would be related to a proper planning purpose,30 being the effect of the permitted development on the amenity of residents in the adjacent areas. It would also fairly and reasonably relate to the permitted development,31 since the development which has been permitted has a greater production capacity than the production levels on which its assessment was based; and the condition is one that a reasonable planning authority, duly appreciating its statutory duties, could properly have imposed.32
However, the complaint is not that such a condition was imposed but that the Council failed to impose such a condition. Was it an error of law not to impose such a condition? I agree with Williams JA that the test to be applied is that the failure to impose the condition is an error of law if the Planning and Environment Court, acting reasonably, must have imposed the condition.33
The evidence before the Planning and Environment Court shows that production levels will impact upon amenity and the greater the production of concrete at the batching plant, with its effects on noise, dust and truck movements, the greater the impact on amenity. If the assessment on amenity has been based on production levels of 48,000m3 per annum, as it appears to have been, or even 70,000 to 80,000m3 per annum when the production level that the approval permits is many times in excess of either of these figures, then it would appear to be inevitable that it was an error of law not to have imposed a condition limiting production so that the permitted development has no greater impact on amenity than has been assessed by the Planning and Environment Court as acceptable.34 While it is a question of law whether or not a condition limiting production ought to have been imposed, the precise content of the condition is a matter of fact which should be remitted to the Planning and Environment Court for determination.35
It follows that the appeal should be allowed and the matter should be remitted to the Planning and Environment Court to determine the terms of a condition which imposes a limit on the permitted production of concrete.
Local Government (Planning and Environment) Act 1990 s 4.13(16); Integrated Planning Act 1997 (“IPA”) s 3.5.28 ↩
Fogg, Meurling and Hodgetts, Planning and Development Queensland [4370] ↩
P & E Act s 4.13(5)(b) ↩
Fogg, Meurling and Hodgetts at [4395] ↩
See for example Agtec Holdings Pty Ltd v Kilcoy Shire Council & Ors [1999] QPELR 208 at 215 ↩
cf IPA s 3.5.30(1) ↩
Maroochy Shire Council v Wise (1998) 100 LGERA 311 at 313 ↩
(1964) 10 LGRA 177 at 180 ↩
(1963) 8 LGRA 395 at 400 ↩
[1964] 1 All ER 1 at 7 ↩
P & E Act s 4.13(1) ↩
P & E Act s 7.1A(3) ↩
P & E Act s 7.1A(2B) ↩
Hymix Industries P/L & Anor
Alberton Investments P/L & Anor [2001] QCA 334
(1994) 85 LGERA 99
(1984) 58 ALJR 386
(1980) 144 CLR 1
(1962) 107 CLR 142
(1998) 100 LGERA 311
(1993) 81 LGERA 398
(2001) 65 ALJR 578
Holts Hill Quarries Pty Ltd v Gold Coast City Council & Ors [2001] 1 Qd R 372 ↩
p 19; p 25 Environmental Impact Statement, 18 November 1997 ↩
P & E Act s 4.12(4) and (6); s 8.2(5C) ↩
Condition 4 ↩
Barakat Properties v Pine Rivers Shire Council (1994) 85 LGERA 99 at 102; cf James Henry Grant v The Council of the Shire of Pine Rivers [1994] QPLR 99 at 100 where Quirk DCJ observed: ↩
P & E Act s 4.13(8); cf IPA s 4.1.56(2) ↩
P & E Act s 7.4(3); Proctor v Brisbane City Council (1993) 81 LGERA 398 at 399 ↩
(supra) at 401 ↩
P & E Act s 6.1(1)(c) ↩
(1984) 58 ALJR 386 ↩
(supra) at 389 ↩
[1983] 2 Qd R 172 ↩
(supra) at 178 ↩
(1962) 107 CLR 142 at 254 ↩
Proctor (supra) at 403 - 404 ↩
(1985) 56 LGRA 301 at 303 ↩
Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 476 at 499 – 500; Fawcett Properties Ltd v Buckingham County Council [1961] AC 636 at 684 ↩
Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554 at 572; Newbury Council v Environment Sec [1978] 1 WLR 1241 at 1252; King Ranch Australia Pty Ltd v Cardwell Shire Council (1983) 53 LGRA 336 at 343 per GN Williams J ↩
Newbury Council v Environment Sec [1981] AC 578 at 618 ↩
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223; Hope v Bathurst City Council (1980) 144 CLR 1 at 9; Vetter v Lake Macquarie City Council (2001) 75 ALJR 578 at 584 ↩
cf McBain & Ors v Clifton Shire Council & Anor (1995) 89 LGERA 372 at 381 where the Court of Appeal referred to the self-evident proposition that a piggery of 20,000 pigs is substantially different from a piggery of 80,000 pigs. ↩
Sabdoran Pty Ltd (supra) at 176 ↩