Karreman Quarries Pty Ltd v Esk Shire Council

[2] The underlying appeal is brought under s 4.1.30(1)(b) and (4) of the Integrated Planning Act 1997 (IPA) against the Respondent Council's deemed refusal of an application to the Council under s 3.5.24(1) of the IPA for a "minor change" to be made to a development approval. The approval is:

Council of the Shire of Esk

TOWN PLANNING CONSENT PERMIT

Pursuant to Section 4.13 of the

Local Government (Planning and Environment) Act

Lot 5 RP 134429, Part of Lot 17 RP 146684 & Part of Lot 3 CSH2341

Use being made of the premises at the time of application is made:

Conditions (if any) which attach to the permit:

Conditions 1 to 29 inclusive of consent order No 271 of 1994

Transitional provisions facilitating use of the IPA are in s6.1.23

[3] The order referred to was made by Judge Quirk on

[4] 17 November 1994 in P & E Appeal No 271 of 1994, in which the successful appellant against the Council was Benowen Pty Ltd. The order was for approval of an application for town planning consent to use the subject land for an "Extractive Industry (including screening, washing and stockpiling". It contained 29 conditions appropriate to regulate the activity.

[5] Mr Challoner's letter of 28 November 2005 to the Council transmitted a Form 2 Development Application Request to change an existing approval referring to the land as Lots 5, 17 and 3 described above (without restriction), also "Lots 55 and 88 RP 28542; Lot 2 RP 77219", total area "Approx 280 ha." Mr Kevin, for the Council, reported their understandable concern that a relatively enormous area of land appeared to be sought to be added to the 1995 approval. It has now been clarified that the additional area which is across the Brisbane River from Lots 5,17 and 3 is something between 7 hectares and 8 hectares, part only of Lots 55, 88 and 2 being involved.

[6] Ordinarily, such an application would be given short shrift. It is basic to planning applications that the subject site be identified. One would not expect (except perhaps in cases of the most minor or obvious omissions) that a development approval could be extended under the section relied on to cover additional land. Here, the circumstances are extraordinary.

[7] All of the above land is the appellant's. It enjoys frontages to the Brisbane River on both sides at Harlin. What might be seen as the principal application in relation to the northern side was made (in line with the general understanding of matters at the time and the appellant's own planning advice) to the State Department of Primary Industries. Exhibit 4 was a town planning report of 13 April 1994, which accompanied the Application for Town Planning Consent made to the Council in 1994 in relation to the land on the southern side, written by Planning Australia Pty Ltd. It provides in part:

"6. Due to the reserves of sand and gravel on the bed and banks of the Brisbane River abutting Robenlea, application has been made to the Water Resources Commission to extract this resource. As this is a separate application and following advice from the Department of Housing Local Government and Planning, this report is confined to the approvals required under the Local Government (Planning and Environment) Act 1992 as amended, and the Shire of Esk Town Planning Scheme.

7. As this resource is progressively extracted, it is proposed to screen and wash the material on the Robenlea site. Accordingly it is proposed to establish a screening and washing plant on a small part of the Robenlea site (9.68 hectares - 1.95% of total property area - See Map No. 3 attached.)"

[8] In due course, a Permit-Removal of Quarry Material (Water Resources Act 1989) was granted to "Karreman Bros" by the Department of Primary Industries. Whether or not it was the first of them (the first may have been mislaid) an early example from a series of such permits is Exhibit 9 to Mr Challoner's affidavit, Permit No. GQM155, issued on 27 March 1996 and valid from 2 April 1996 until 30 September 1996. This document identifies the Watercourse as Brisbane River (255.0 km - 253.0 km). There is no information entered against Maximum Quantity. A site description is given as "ADJ 2 L 17 RP146684 & L 3 Plan CSH 2431 ... & L 142 Plan CG 4402". More significantly, among the Terms of Permit is:

"QM005 Attached to this document is a map indicating the general location of the Permit area."

The map emanating from the DPI indicates diagrammatically, by highlighting an outline, part of the Brisbane River adjacent to the parcels of land described. What is highlighted is a curved swathe. From some points of view, the identification of the area may be seen as rough or "indicative". A current successor authority, in Exhibit 10 to the affidavit, is Quarry Material Allocation Notice No. 101059 issued by the Queensland Government Department of Natural Resources and Mines under the Water Act 2000 on 27 January 2005, stated to be "effective from 1 February 2005, expiry date 31 January 2010." The holder is the appellant. A total allocation of 55,000 cubic metres is indicated, with a maximum of one-fifth of that for each 12 month period. The appellant also has (Exhibit 11) licence no. SR652, pursuant to s 45 of the Environmental Protection Act 1994.

[9] The Department of Natural Resources, Mines and Energy wrote to the Council on 30 March 2005 as follows:

"I refer to our recent discussion regarding the extraction of sand and gravel by Dick Karreman from the floodplain terrace adjacent to the left (Northern) bank of the Brisbane River, on or adjacent to Lot 88 RP28542.

This site was inspected by Departmental officers in July 2004, prior to Karreman commencing extraction of material from the site.

At that time, the Departmental officers determined the limits of the 'bed and banks' of the Brisbane River at the location.

During the inspection, it was determined that the bed and banks of the Brisbane River at the site does not include the terrace on or adjacent to the land Lot 88 RP28542, which is located adjacent to the normal flow channel of the watercourse. This determination was made on the basis that -

• water in the watercourse flows permanently or intermittently within the well defined channel adjacent to the terrace.

• water breaks out onto the terrace only in times of flood.

Hence, there is no jurisdiction under the Water Act 2000 to control the extraction of material from within the terrace.

During the inspection, Karreman was advised to retain an appropriate buffer (i.e. at least approximately 40 metres) between the extraction site and the edge of the bank of the Brisbane River, in order to minimise the possibility of avulsion of the watercourse into the extraction site.

Attached to this letter is a general sketch diagram of the site which may further guide your understanding of this matter.

I have also attached a copy of the definition of 'watercourse' as defined by the Water Act 2000.

I also confirm that I have not been able to locate the expired quarry material permit pre-dating Permit GQM120, which you requested a copy of."

That letter reflects a new understanding of the meaning of "watercourse" consistent with the decision in Cornerstone Property Ltd v Caloundra City Council [2005] QPELR 96.

[10] Section 58(1) of the Water Resources Act 1989 (now repealed) provided that:

"An application for a permit to ... remove ...

(a) controlled quarry material;

(b) quarry material other than controlled quarry material in or from a watercourse ... must be -

(c) made by the applicant in writing ... and

(d) furnished to the Chief Executive."

Everyone concerned proceeded on the basis of the applicability of that provision. There was no change of substance in the definition of "watercourse" or the related concept of "bed and banks" in the new Water Act 2000, considered in Cornerstone.

[11] It now appears that there has been a general misunderstanding of the position; the appellant or its predecessors should have applied to the Council for planning approval of a larger area than that nominated, and that, to that extent, the applications made to and permits, etc, granted by State authorities were misconceived. It was suggested that some inkling regarding the true situation may have been gleaned from a letter of the Director-General of the Department of Natural Resources (with a received stamp of 19 June 1998) responding to a communication of Mr Karreman of 1 May 1998, raising a number of concerns about a draft Riverine Quarry Material Management Plan for the Upper Brisbane River region.

[12] It might be noted that an Information Notice of 1 February 2005, in relation to the appellant's Application for New Quarry Material Allocation No. 101059, recorded, among other findings, that the appellant "has in the past demonstrated the ability to comply with the terms and conditions applicable to a similar quarry material allocation granted for a site within the Upper Brisbane River" (also that "the watercourse at the proposed site shows signs of degradation, caused by past quarry material extraction and other land use practices").

"3. Bed and banks issue

I agree that the issues of ownership and management control of resources within the high banks of a watercourse need to be resolved as soon as possible. The options for better defining these issues are currently being considered and the adopted option will need Government endorsement.

Until then, the Department will continue to assume management control of all resources within the high banks, such as sands and gravels. As you can appreciate, our stream systems are a very important and valuable public resource and the State is responsible for their protection and management. Hence, the Department is obliged to carry its responsibilities regardless of the difficulties related to defining the elements of watercourses.

The current draft Upper Brisbane Management Plan aims to provide for certainty and sustainable development of resources within the high banks and will continue to be developed, and implemented on this premise until other arrangements, if any, are adopted by the Government.

...

As you may be aware, riverine quarry material extraction operations will become assessable under the Integrated Development Assessment System (IDAS) as soon as the Water Resources Act 1989 is amended to align with the Integrated Planning Act 1997. Subject to the view of the Government, this is expected to occur later this year. Under IDAS there is greater scope for third party inputs to applications and to monitoring approved operations. This will help to ensure that operations are complying with their conditions. Hence, it is expected that these initiatives, along with some recent strengthening of monitoring and enforcement powers in the Water Resources Act 1989 will allow the Department to better manage operations in the future."

The situation has now been clarified so as to render imperative the recent application to Council, which leads to this appeal.

[14] The appeal will take the appellant nowhere unless it establishes that what it seeks by the application is a "minor change". In this context, it is not the ordinary understanding of minor change (if there is one) which should be consulted, but the definition in Schedule 10 of the IPA:

"minor change, for a development approval, means a change to the approval that would not, if the application for the approval were remade including the change -

(a) require referral to additional concurrence agencies; or

(b) cause development previously requiring only code assessment to require impact assessment; or

(c) for a development requiring impact assessment - be likely, in the assessment manager's opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allowed."

While the common understanding might baulk at regarding the addition of 7 or 8 hectares to the area to have the benefit of a development approval, the important issue arises under paragraph (c). The covering letter sent with the recent application by Mr Challoner deals with the question, submitting that (c) creates no difficulty. (It does not appear that (a) and (b) does either. There is to be no new development. Mr Gore QC handed up a memorandum from Mr Connor demonstrating that (a) does not apply, the only "potential candidates" under items 2 and 11 of Table 2 in Schedule 2 of the Integrated Planning Regulation 1998 being the EPA and the DNRM under the Water Act 2000).

[15] Mr Challoner wrote, in support of his view about (c):

"• The proposal is identical to the proposal that the community had before it when the two applications made in the mid 1990's were viewed together, including extent of area, hours of operation, method of operation, plant and equipment used, number of persons engaged, etc.

• Objections were made to the proposal at the time;

• Since the operation commenced it has been carried on in a responsible way without incident or undue impact.

The accompanying letter from Ecoroc Pty Ltd addresses in detail the concerns previously raised by objectors and concludes that the "adverse environmental impacts described in the objections ... ... have not occurred". Despite this, the company is willing that in future the operation be carried out in accordance with the EMP which is now submitted. This will give the Council additional controls and provide additional safeguards for the community."

The EMP is before the court, but, like any investigation involving Mr Challoner's third "dot point", is more germane to issues that may arise in the merits appeal, if it is allowed to proceed, on the basis that it relates to a "minor change".

[16] Mr Gore, for the appellant, referred to a number of decisions in the court. In Bartlett v Brisbane City Council [2003] QPELR 56, 60, Judge Brabazon said:

"The idea of a remade application for development approval no doubt assumes that it will be remade at a later stage in time than the original application. That will mean, as in this case, that circumstances may have changed between the giving of the approval and the time of the application to amend it. A strata titled building has been created; there are over 100 new freehold owners of lots in the building, and for all we know other buildings might have been built on surrounding land in the meantime, creating a different neighbourhood.

Secondly, where the word 'development' appears in (c) it would seem to refer to the original development, not just the change which is now sought."

Judge Quirk identified the issue in Carillon Development Ltd v Maroochy Shire Council [2000] QPELR 216 at 218, par [18]:

"Importantly it is whether any further (and adverse) submissions at all might have been provoked by the removal of the cinema complex. Whether such submissions would involve objection sustainable in town planning terms is beside the point."

and Senior Judge Skoien in Sinnamon v Miriam Vale Shire Council [2003] QPELR 195, 198 said:

"[21] Although the definition of the term 'minor change' in Schedule 10 relates to development approvals, it is appropriate to take a comparable view of the concept of 'minor change' in the interpretation of s 4.1.52; (Carillon Development Ltd v Maroochy Shire Council & Anor [2000] QPELR 216 at para [9]). The determinative question is whether the change to the proposal 'would be likely to attract an adverse submission that was not provoked by the proposal in its original form' (Carillon at para [14]), that is, whether a person who would not have objected to the original proposal would object to the changed application; (Colman & Ors v Brisbane City Council & Anor [2002] QPELR 288 at para [14]).

[22] The matter is to be determined from the perspective of the members of the community to whom the right of objection extends; (Carillon at para [18]). It is fair to assume that the hypothetical potential objector would take a rational view of the matter; (Ausbuild Pty Ltd v Redland Shire Council [2001] QPELR 409 at para [11]). Recently it has been held that the Schedule 10 definition is unlikely to be the only criterion and that the test is simply whether the change is only a minor change (Baptist Union of Queensland v Brisbane City Council & Anor [2003] QPELR 61, at 11). Although a determination of the issue depends upon the merits of each case, the test is more likely to be satisfied if the changes constitute a 'lessening in intensity' (Ausbuild at para [12]).

[23] It is unlikely that any person who was interested in the development proposal in its original form but concluded that it was acceptable and so did not object, would consider that the two sets of changes to the proposal are such as to render it unacceptable and accordingly warrant an objection. Thus, the effect of both alterations to the proposal is a minor modification only."

See also Ausbuild Pty Ltd v Redland Shire Council [2001] QPELR 409 at 410:

"The determinative question therefore is whether the Court is, on the evidence, satisfied that the changes to the proposal would be likely to attract an adverse submission that was not provoked by the proposal in its original form.

[11] I think not. As was pointed out in Carillon, the question is to be answered not from the perspective of an expert town planner, but from that of a hypothetical potential objector who must be taken to be an average representative of the community. However, in my opinion, it is fair to see the hypothetical potential objector as taking a rational view of the matter."

[17] Here, there will be no lessening of activity, but there will be no intensification; the operation will proceed as it has always been conceived and presented - or, if anything, in a more environmentally sensitive fashion, should this court take up the offer of the EMP (which is in evidence) in due course. Objections were provoked by the original application to the Council, which Mr Challoner collects in his Exhibit 5. The six objections included ones from the Moore family, and the Dunning family. There was a petition submitted as well.

[18] Mr Kevin, for the Council, noted that rights of objection were available only in respect of the planning application made to it, and did not exist in relation to the DPI. This did not dissuade the Dunnings and the Moores (upstream property owners) from sending detailed submissions to the DPI, reproduced in Mr Challoner's Exhibit 6. They were under no illusion that, as things stood at the time, the appellant's application to the DPI was of vital importance. They were astute to ensure the Council was informed of the existence and content of the communications to the DPI, thus, they are replicated in Exhibit 5.

[19] The authorities noted focus on submitters rather than on submissions. One can imagine circumstances in which, in assessing whether or not a change sought is a "minor change" within the definition, it might be important to consider whether or not, imagining a remade application, the submitters might not change, but the submissions might. This is not such a case. The Dunnings and the Moores had their say and it is difficult to imagine they could have said more. The petition indicates a general community awareness of the proposal.

[20] I was concerned that the addition of land to the development approval may mean that there could be additional adjoining owners entitled to personal notice of the proposal. Mr Kevin did not seek to show that there were any. In my opinion, the possibility that there might have been potential objectors/submitters who did nothing, but who would have done something had they known that all or part of what was sought by the appellant from the DPI was going to be sought from the Council, may be disregarded.

[21] The circumstances are most unusual. The court could well be solicitous for any proper concerns of the Dunnings and the Moores (whose continuing interest in the matter the Council is aware of); there may be others potentially interested. I would expect the court to be sympathetic to a desire of any such people having a genuine case to mount to be heard in some way in the merits appeal in this matter, whether as parties, or as witnesses for the Council. Mr Gore on behalf of his client made a general concession that the court might impose conditions on his client, citing Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd [1989] FCA 46; (1989) 67 LGRA 238, 241. Although he had in mind, I think, conditions of the kind set out in Judge Quirk's order in 1994, I would be inclined to think that the court could impose conditions (should it become necessary) so that the views of people with genuine interests to protect in this appeal can be ventilated, especially people who could show they have in some relevant way been taken by surprise by the change in the way the water legislation is understood.

[22] A surveyor, Mr Welsh, prepared a plan designed to define the area which is the subject of the application. As noted, such plans and descriptions of the area as exist already must be counted rather rough. The Council, through Mr Kevin, indicated its proper concern to have precise identification of the area over which it will bear administrative responsibility, on the assumption that the appellant is successful. State authorities will presumably retain jurisdiction over any relevant area within the more confined understanding of the "watercourse" constituted by the Brisbane River now. The Water Act 2000 provides, in section 279:

"Quarry material that is in the part of a watercourse or lake, the beds and banks of which are the property of the State, is the property of the State."

[23] This is not the occasion for sorting out the implications of the principle Mr Gore asserts that, "if there is ambiguity in the wording of a planning approval, the approval is to be interpreted against the planning authority and in favour of the person entitled to act upon it (Ryde MC v Royal Ryde Homes (1970) 19 LGRA 321, 324; Willoughby MC v Bell (1974) 29 LGRA 423, 430; Matijesevic v Logan CC [1984] 1 QdR 599, 605; see also Television Corp Ltd v Commonwealth [1963] HCA 30; 1963 109 CLR 59, 83)". There may be some difficulties in using this principle to extend the area which the appellant may exploit in the present context. The oral evidence Mr Welsh gave revealed that there is a certain amount of approximation in his work (for which he does not deserve criticism, in the circumstances); in the time available, it has not been possible to locate more than one of the pegs relied on by Mr Cameron who prepared plans in 1994. So far as we have them, those plans do not seem to me to indicate definitively the boundaries of the area the Council wants identified. Here lies the explanation for the provision in the order envisaging participation by the Council's surveyor in resolving this issue. Mr Welsh has ready access to Mr Cameron and the surveyors who assisted him. It should be emphasised that the appellant is not seeking any expansion of its "rights" derived through the DPI and its successor, the Department of Natural Resources. The court's determination that the appeal involves a "minor change" depends crucially on an assumption to that effect.