Terry Wall, Director-General of the Environmental Protection Agency v Douglas Shire Council [2008] QCA 56

SUPREME COURT OF QUEENSLAND

CITATION: Terry Wall, Director-General of the Environmental Protection Agency v Douglas SC [2008] QCA 56

PARTIES: TERRY WALL, DIRECTOR-GENERAL OF THE ENVIRONMENTAL PROTECTION AGENCY (respondent/respondent) v DOUGLAS SHIRE COUNCIL (applicant/applicant/appellant)

FILE NO/S: Appeal No 5410 of 2007 / P & E Appeal No 35 of 2007

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Integrated Planning Act / General Civil Appeal

ORIGINATING COURT: Planning and Environment Court at Brisbane

DELIVERED ON: 14 March 2008

DELIVERED AT: Brisbane

HEARING DATE: 22 October 2007

JUDGES: McMurdo P, Holmes JA and Dutney J / Separate reasons for judgment of each member of the Court, McMurdo P and Dutney J concurring as to the orders made, Holmes JA dissenting in part

ORDER: 1. Application for leave to appeal granted2. Appeal allowed3. Order of the Planning and Environment Court of 11 May 2007 set aside and the following order substituted: that the application for the determination of preliminary points of law be refused

CATCHWORDS: ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – RIGHT AND AVAILABILITY OF APPEAL – where applicant/appellant sought the determination of preliminary points of law – whether applicant/appellant should be granted leave to appeal on a point of law under s 4.1.56 Integrated Planning Act 1997 (Qld) from decision of primary judge / ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – OTHER MATTERS – where applicant/appellant granted itself approval to construct toilet block on State coastal land above high-water mark near Daintree river – where respondent applied for a declaration that the construction required a development permit from it to be lawful – where applicant/appellant sought the determination of preliminary points of law – where no factual findings had been made prior to applicant/appellant's application – where primary judge accepted respondent's interpretation of "interfering with quarry materials" within Sch 8 Pt 1 Table 4 Item 5(b)(i) Integrated Planning Act 1997 (Qld) – whether primary judge erred in making determination of preliminary points of law – whether application for determination of preliminary points of law was premature in the absence of factual findings / Acts Interpretation Act 1954 (Qld), s 33(10), s 33(11) / Coastal Protection and Management Act 1995 (Qld), s 3(a), s 3(c), s 11, s 50, s 59, s 90(2)(b), s 100A, s 100B, s 103, s 104, s 120A, Sch / Integrated Planning Act 1997 (Qld), s 1.2.1, s 1.2.2, s 1.2.3, s 1.3.2, s 1.3.5, s 3.1.4, s 4.1.21, s 4.1.56, s 4.3.1, Sch 8, Pt 1, Table 4, Item 5, Sch 8A, Table 3, Item 6, Sch 10 / King Gee Clothing Pty Ltd & Ors v Commonwealth & Anor (1945) 71 CLR 184, distinguished / Tickner, Minister for Aboriginal and Torres Strait Islander Affairs & Ors v Chapman & Ors (1995) 57 FCR 451, distinguished / Wall, D-G of the EPA v Douglas Shire Council [2007] QPEC 044, considered

COUNSEL: D R Gore QC, with W G Everson for the applicant/appellant / M D Hinson SC, with J D Houston for the respondent

SOLICITORS: McCullough Robertson for the applicant/appellant / Crown Law for the respondent

McMURDO P: In November 2005, the Douglas Shire Council, the present applicant, ("the Council") commenced constructing a public toilet block and two associated sewerage treatment systems on the southern bank of the Daintree River. The construction was adjacent to an existing pontoon, upstream of the Daintree River ferry crossing. The Council had applied to itself as assessment manager and, in October 2005, issued to itself the development approval it considered necessary for the construction of the toilet block. That development approval did not relate to the sewerage treatment systems. Later in October 2005, the Council issued itself an approval of plumbing work in respect of the sewerage treatment systems.

The following matters are uncontentious. The land on which the toilet block has been partially constructed is in a "coastal management district" under Part 3 of the Coastal Protection and Management Act 1995 (Qld)¹ ("the CPMA").² It is also "State coastal land"³ above the "high-water mark"⁴ within the meaning of those terms in the CPMA. The material excavated to construct the toilet block and install the sewerage treatment systems and connecting pipe work constituted "quarry material" as defined in the CPMA.⁵ Under s 3.1.4(1) Integrated Planning Act 1997 (Qld)⁶ ("the IPA") a development permit is necessary for "assessable development", relevantly, development "specified" in Sch 8 Pt 1 of the IPA.⁷ The chief executive administering the CPMA is the Director-General of the Environmental Protection Agency,⁸ the present respondent ("the EPA"). The EPA is assessment manager for applications for operational work (other than excluded work) that is carried out completely or partly within a coastal management district,⁹ including work "interfering with quarry material on State coastal land above high-water mark".¹⁰ The work associated with constructing the toilet block resulted in the excavation of the natural ground for the toilet block footings, the installation of the sewerage treatment systems and the connecting pipe work.

It seems that work stopped on the construction in early 2006. It was briefly resumed between January and February 2007. The toilet block, however, remains uncompleted and unoperational pending the determination of the present dispute as to whether the Council's development approval was lawful.

The proceedings in the Planning and Environment Court

In January 2007, the EPA applied to the Planning and Environment Court for declarations under s 4.1.21 of the IPA that operational work, being interfering with quarry material on State coastal land above the high-water mark for the construction of the public toilet block, is assessable development under Sch 8 Pt 1 Table 4 Item 5(b)(i) of the IPA and requires a development permit from the EPA in order to be a lawful development.

That application has not yet been determined because the Council applied to the court for the determination of some preliminary points of law relating to the construction of the IPA and the CPMA. First, the Council urged that, under the proper interpretation of Sch 8 Pt 1 Table 4 Item 5(b)(i) of the IPA, the EPA's jurisdiction was limited only to consideration of work that involves acts or proposed acts involving the interference with quarry material and does not extend to other aspects of development that are declared to be assessable development under Sch 8 of the IPA which involve acts or proposed acts subsequent to the interference with quarry material. Its second contention was that upon the proper interpretation of the IPA, the question whether any work the subject of the present proceeding involves interfering with quarry material for the purposes of Sch 8 Pt 1 Table 4 Item 5(b)(i) must be determined with reference only to the acts or proposed acts comprising excavation of quarry material for the purpose of creating a stable footing for the slab of the toilet block building and for the purpose of installing the sewerage treatment systems and associated pipe work. As a corollary to that second point, the Council contended that the proper interpretation of the IPA was that the act of construction of the toilet block subsequent to the excavation of the quarry material referred to in the second contention is not operational work which is assessable development but is building work that is assessable development. Fourth, the Council contended that the question, whether the exemption for "excluded work" as defined in Sch 10 of the IPA applies to any work associated with the construction of the toilet block, must be determined with reference only to the acts or proposed acts involving direct interference with quarry material by way of excavation. It should not be determined by reference to any acts or proposed acts subsequent to the interference with quarry material.

At the hearing of these preliminary points of law in the Planning and Environment Court, engineer, Mr Neil Collins, prepared a report on behalf of the EPA. He referred to the extensive excavation work at the toilet block site. It included removal of 7 cubic metres of topsoil; excavation of 6 cubic metres of soil for footings; excavation of 43 cubic metres for effluent piping and treatment systems adjacent to the building; excavation of 6 cubic metres for pipes to the disposal area and excavation of 5 cubic metres for the treated effluent irrigation area. The floor slab of the toilet block covered and rendered inaccessible the material under it.

Mr Collins expressed the following views. The construction of the toilet block above slab level had the potential to further interfere with quarry material during floods. The building increased turbulence and under-cutting of footings and erosion in the erosion-prone area. The building is in danger of failure and collapse due to under-cutting and bank erosion during a river flood event. Its design and construction are inadequate. The footings are too shallow and the building is too close to the river bank. Remedial work is necessary to protect the building and its foundations by providing stable footings through armouring the river bank. It may be more economically and environmentally sound to relocate the building. The best outcome would be to move it 30m south of the river bank onto an elevated earth pad above frequent flood level. The present building is at high risk of being adversely impacted by floods. In a flood, the building would increase the rate of erosion and associated loss of quarry material to the river. Its collapse during significant river floods would leave building rubble and debris spread along the bank and bed of the river, damaging vegetation and possibly affecting the ferry crossing. The impact of the building on coastal management in its current location is potentially significant.

The learned primary judge found it unnecessary to determine whether to receive Mr Collins' report on the preliminary hearing, noting that the Council had no opportunity to answer his claims.¹¹ The judge determined that, because the toilet block construction was within a coastal management district, prudence would dictate that the Council obtain an exemption certificate under s 120A CPMA or some less formal indication from the EPA that it had no interest in being assessment manager.¹² The Council contended that it, as the local government, was the assessment manager for those parts of the work which might be considered "building work"¹³ rather than "operational work".¹⁴ But his Honour reasoned that the definitions are clear and their literal application requires that the EPA is assessment manager for some of the operational work unless it is "excluded work" as defined in Sch 10 of the IPA.¹⁵ The toilets are planned to effectively treat human waste. The EPA contended that the proposed toilet block was inadequately designed and could disintegrate in foreseeable flood conditions generating rubble, or worse. His Honour held that the EPA appears to have a legitimate concern in terms of coastal management in assessing the development.¹⁶ Further, the term "interfering with quarry material"¹⁷ should not be confined to direct or immediate interference through the toilet block's footprint and curtilage; but that it included potential and future interference with the surrounding river and its banks, as well as downstream towards the coast within the coastal management district.¹⁸ His Honour concluded that once there is identified operational work that is interfering with quarry material and there is no exemption certificate or equivalent, the EPA's chief executive becomes assessment manager by way of Item 5(b)(i).¹⁹

The judge stated that the determinations on the preliminary points of law sought by the Council were inappropriate and that he would refuse the Council's application.²⁰ Unfortunately, his Honour's subsequent order was not in these terms. His Honour ordered that "the Preliminary Points be determined favourably to the [EPA]". In his reasons for doing so, he agreed with the EPA's following contentions:

"10.Operational work for Item 5 includes the entirety of the undertaking of works in a coastal management district. Where that work does not interfere with quarry material, it is not assessable under Item 5(b)(i). Where that work does interfere with quarry material it is assessable.

…

In the case of paragraph (b)(i), interfering with quarry material is the relevant descriptor. Once that descriptor is engaged, operational work being work in a coastal management district which is, wholly or partly, interfering with quarry material, is assessable development.

Item 5(b)(i) is not to be read, as the [Council] apparently would have it, as though it said 'operational work that is only interfering with quarry material' or 'operational work to the extent that it is interfering with quarry material'. To construe Item 5(b)(i) in that way is erroneous because it draws artificial and unstated distinctions between different aspects of the work required to be undertaken to execute a single project, and thus segments and complicates the administration of IPA.

The definition of 'quarry material' embraces all physical terrestrial materials, i.e. stone, gravel, sand, rock, clay, mud, silt and soil, other than waste material removed from drainage infrastructure. The purpose of that definition and Item 5(b)(i) is to require any interference with land as a physical object where that land is State coastal land to be the subject of a development permit granted following an assessment of that interference.

Scope of Excluded Work

Excluded work is work which is operational work and which has the additional characteristics described in the definition of excluded work. The undertaking of work in a coastal management district is operational work, and it is that work which needs to be considered in applying the definition of excluded work. Since that operational work includes what would in other circumstances be defined as building work the definition of excluded work and in particular the words 'minor work' in paragraph 2(a) requires consideration of the entirety of the work and the consequences of that work."²¹

The proposed grounds of appeal

The Council has applied for leave to appeal to this Court against the primary judge's determination of the preliminary points of law. To succeed in this case, it must show an error of law and then persuade this Court that leave to appeal should be granted.²² The Council contends that the judge's decision was wrong in law and that leave to appeal should be given because the jurisdiction of the EPA in the assessment of development applications within coastal management districts is an issue of general importance in Queensland. Were leave to appeal granted, its grounds of appeal would be that the judge erred in law in concluding that the EPA was an assessment manager for operational work proposed by the Council; the expression "interfering with quarry material" should be confined to direct interference; and that the judge erred in interpreting both Item 5(b)(i) in Sch 8 Pt 1 Table 4 of the IPA and the term "excluded work" in Sch 10 of the IPA. The Council asks that the application for leave to appeal be granted, the appeal allowed, the order of the Planning and Environment Court set aside and instead that this Court makes the declarations the Council sought at first instance.

Regardless of the outcome of this application for leave to appeal, the application for the declaration sought by the EPA awaits determination in the Planning and Environment Court.

Relevant statutory provisions

Before returning to the Council's contentions, it is useful to set out the relevant provisions of the IPA and the CPMA.

The purpose of the IPA is to achieve ecological sustainability by coordinating and integrating planning at the local, regional and State levels; managing the process by which development occurs; and managing the effect of development on the environment (including managing the use of premises²³).²⁴ A function or power conferred on an entity as assessment manager requires the entity to have regard to the IPA's purpose.²⁵ Advancing the IPA's purpose includes ensuring decision-making processes take account of short and long term environmental effects of development at local, regional, State and wider levels²⁶ and avoid if practicable, or otherwise lessen, adverse environmental effects of development.²⁷

The term "development" includes carrying out building work; carrying out plumbing or drainage work; carrying out operational work; reconfiguring a lot and making a material change of use of premises.²⁸

The term "building work" is relevantly defined as:

"(a)building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure; or

…

(c)excavating or filling –

(i)for, or incidental to, the activities mentioned in paragraph (a); or

(ii)that may adversely affect the stability of a building or other structure, whether on the land on which the building or other structure is situated or on adjoining land; …"²⁹

The term "building work" does not include undertaking operations of any kind and all things constructed or installed that allow taking, or interfering with, water (other than using a water truck to pump water) under the Water Act 2000 ; or tidal works.³⁰

The term "material change of use" of premises relevantly means:

"(a)generally –

(i)the start of a new use of the premises; …"³¹

The term "operational work" relevantly means and includes:

"1 (a)extracting gravel, rock, sand or soil from the place where it occurs naturally; or

(b)conducting a forest practice; or

(c)excavating or filling that materially affects premises or their use; or

(d)placing an advertising device on premises; or

(e)undertaking work in, on, over or under premises that materially affects premises or their use; or

(f)clearing vegetation, including vegetation to which VMA applies; or

(g)undertaking operations of any kind and all things constructed or installed that allow taking, or interfering with, water (other than using a water truck to pump water) under the Water Act 2000 ; or

interfering with, water (other than using a water truck to pump water) under the Water Act 2000; or

(h)undertaking –

(i)tidal works; or

(ii)work in a coastal management district;

…

Operational work does not include –

(a)for items 1(a) to (f) or (j) – any element of the work that is building, drainage or plumbing work; …"³²

In Sch 10, the term "assessable development" is defined as:

"(a)development specified in schedule 8, part 1; or

(b)for a planning scheme area – development that is not specified in schedule 8, Part 1 but is declared under the planning scheme for the area to be assessable development."³³

Schedule 8 Pt 1 of the IPA sets out tables of development which is assessable development. Table 4 is headed "Operational works" and includes the following:

For tidal work or work within a coastal management district

5 Operational work, other than excluded work, that is— / (a) tidal work; or / (b) any of the following carried out completely or partly within a coastal management district— / (i) interfering with quarry material on State coastal land above high-water mark; / (ii) disposing of dredge spoil or other solid waste material in tidal water; / (iii) draining or allowing drainage or flow of water or other matter across State coastal land above high-water mark; / (iv) constructing or installing works in a watercourse and not assessable under item 3 or 4; / (v) reclaiming land under tidal water; / (vi) constructing an artificial waterway associated with the reconfiguration of a lot; / (vii) constructing an artificial waterway not associated with the reconfiguring of a lot on land, other than State coastal land, above high-water mark if the maximum surface area of water on the waterway is at least 5000m2 / (viii) constructing a bank or bund wall to establish a ponded pasture on land, other than State coastal land, above high-water mark; / (ix) removing or interfering with coastal dunes on land, other than State coastal land, that is in a erosion prone area and above high-water mark; …"

Schedule 8A of the IPA sets out tables of the relevant assessment managers for the development applications depending on the type of application. Under Table 3 Item 6(a)(ii), the assessment manager in the present case is the chief executive administering the CPMA (the EPA), if the work is only "operational work…that is work carried out completely or partly within a coastal management district".

The term "excluded work" is relevantly defined as:

"1 For schedule 8, part 1, table 4, item 5 … maintenance work on a lawful work.

2 Excluded work, for schedule 8, part 1, table 4, item 5(b)(i), …also means –

(a)minor work that –

(i)has insignificant impact on coastal management; and

(ii)is reversible or expendable; or

(b)work for which an exemption certificate under the Coastal Protection & Management Act 1995 has been issued."³⁴

The term "minor work" is not defined in either the IPA or the CPMA.

"Quarry material" is relevantly defined as:

"1… material on State coastal land, other than a mineral within the meaning of any Act relating to mining.

2For item 1, material includes, for example, stone, gravel, sand, rock, clay, mud, silt and soil, unless it is removed from a culvert, stormwater drain or other drainage infrastructure as waste material."³⁵

The main objects of the CPMA are to provide for the protection, conservation, rehabilitation and management of the coast, including its resources and biological diversity and providing, in conjunction with other legislation, a coordinated and integrated management and administrative framework for the ecologically sustainable development of the coastal zone.³⁶

The term "coastal management" is defined as including the protection, conservation, rehabilitation, management and ecologically sustainable development of the coastal zone.³⁷

The term "State coastal land" is relevantly defined as land in a coastal management district other than specified excluded land.³⁸

Chapter 2 of the CPMA deals with coastal management. Part 5 deals with quarry materials below the high-water mark.³⁹ Part 6 deals with development approvals for assessable development and applies if the chief executive (that is, the present respondent, the Director-General of the EPA) is the assessment manager for a development application.⁴⁰ In assessing the application, the chief executive must consider the following: the potential impact of the development on coastal management;⁴¹ natural coastal, riverine and estuarine processes, including, for example, erosion and accretion, wave and tidal currents, littoral drift, tidal prism and tidal inundation;⁴² natural topography and drainage of coastal land, including, for example, the integrity of dune systems and natural surface runoff;⁴³ coastal wetlands and other coastal ecological systems including, for example, the wildlife, biological diversity and water quality of the wetlands or systems.⁴⁴

The CPMA provides that application may be made to the EPA for an exemption certificate to carry out operational work that would have insignificant impact on coastal management.⁴⁵

The Council's contentions

The Council contends the following. The learned primary judge erred in law in interpreting "operational work" to include all the work at the site, including building work. The legislative context does not support the judge's conclusion. The long title of the IPA states it is an Act for a framework to integrate planning and development assessment so that development and its effects are managed in a way that is ecologically sustainable and for related purposes. The purpose of the IPA includes coordinating and integrating planning at the local, regional and State levels. Chapter 3 of the IPA deals with the integrated development assessment system (IDAS). Section 3.1.1 describes IDAS as "the system detailed in this chapter for integrating State and local government assessment and approval processes for development". By contrast, in the CPMA Pt 5 of Ch 1 deals with quarry material in terms of regulating their extraction. The CPMA does not seek to control development or building work at large through the medium of controlling interference with quarry material. The primary judge's conclusion is not supported by a consideration of the broader intent of the IPA or the CPMA. It is not supported by s 14A Acts Interpretation Act 1954 (Qld) as there is no apparent purpose in either statute to give these powers to the EPA simply because development involves some interference with quarry material in a coastal management district. The learned primary judge's interpretation effectively gives the EPA the power to determine its own jurisdiction.

Further, under s 4.3.1 of the IPA it is an offence to start assessable development unless there is an effective development permit. This offence is punishable by up to 1,665 penalty units. It is unlikely the legislature intended such serious consequences to attach to an indirect invoking of jurisdiction to make certain work assessable development by the EPA. Private certifiers could unknowingly be exposed to criminal sanction if this were so.

Had the legislature intended to place all development within a coastal management district under the control of the EPA whenever there was indirect interference with quarry material, it can be expected to have stated this intent more clearly (see, for example, Sch 8 Pt 1 Table 5 Item 2 of the IPA⁴⁶). The words used in Sch 8 Pt 1 Table 4 Item 5 do not demonstrate an intention that the EPA should control all development in a coastal management district.

The Council contends that the present project involved both building work that was not self-assessable (the construction of the toilet block) and drainage work (the sewerage treatment plants and connecting pipes) which was excluded operational work under Sch 8 Pt 1 Table 4 Item 5 because of the definition of "excluded work" in Sch 10 of the IPA. In other words, Item 5(b)(i) has the effect that operational work there refers to only that part of the work which directly interferes with quarry material on State coastal land above the high-water mark. If the interpretation favoured by the EPA and accepted by the primary judge were correct, there would be no need to specify Items (ii) to (ix) in Item 5 of Table 4. That is because those items would each be interfering with quarry material in the broad sense discussed by the engineer, Mr Collins.

The EPA's contentions

The EPA supports the approach taken by the learned primary judge and contends that his Honour did not err in law in adopting the wider view in interpreting Sch 8 Pt 1 Table 4 Item 5(b)(i). In support of that contention, it made the following submissions.

Where operational work other than excluded work carried out within a coastal management district interferes with quarry material on State coastal land above the high-water mark, all the work is assessable, not just that part of the work which directly interferes with quarry material. Item 5 is concerned to identify development which is assessable, that is, work which requires a development permit. A development permit can only be granted following an assessment process against specified criteria and a decision which, based on that assessment, conforms with specified outcomes. Item 5 is aimed at controlling or regulating development to achieve the purpose of the IPA. This includes seeking to achieve ecological sustainability by managing the effects of development on the environment (including managing the use of premises).⁴⁷

The Council's contention that Item 5(b)(i) should be construed narrowly as "operational work that is only interfering with quarry material and to the extent that it is interfering with quarry material" is artificial. It requires distinctions to be drawn between different aspects of work required to be undertaken to execute a single project. It would complicate the administration of the IPA.

The term "quarry material" should be broadly construed because the legislature intended that any physical interference with State coastal land be the subject of a development permit granted following an assessment of the interference by the EPA.

Conclusions

If the toilet block construction and associated work is ultimately found, on the hearing of the EPA's application for declarations in the Planning and Environment Court, to be building work and not operational work under the IPA, the Council is the assessment manager of the relevant development application. If, however, it is found to be operational work that is assessable development, then the EPA is the assessment manager.⁴⁸ It may be that some of the work is ultimately found to be building work and some operational work so that the Council and the EPA are the assessment managers for different aspects of the work. These issues, which involve determinations of fact, remain to be resolved.

Should the preliminary points of law have been determined?

The definition of operational work relevantly includes "work in a coastal management district".⁴⁹ There is no doubt that all the work associated with the toilet block construction was "work in a coastal management district".⁵⁰

Schedule 8 Pt 1 of the IPA contains tables of development which is assessable. Table 4 ("Operational works") includes Item 5(b)(i): operational work (other than excluded work) carried out completely or partly within a coastal management district that is "interfering with quarry material on State coastal land above the high-water mark". Whether in any case work is operational work that is interfering with quarry material is ultimately a mixed question of fact and law. Mr Collins' report may not have been received in evidence at the preliminary hearing and it was not accepted by the primary judge as truth of the information contained in it. Ultimately, at the determination of the EPA's application for declarations, Mr Collins' report may be accepted or rejected in full or in part. In the context of the objects and purposes of the IPA⁵¹ and the CPMA,⁵² the report nevertheless raised matters at the preliminary hearing which provided a sound basis for the judge to conclude that the Council's application was inappropriate.⁵³ The Council's application was premature. Occasionally, there may be cases where it is constructive to determine preliminary legal points before the determination of associated factual issues. Savings in time and costs may result. This case was not in that limited category. It was impossible to determine the scope of the application of Item 5(b)(i) to the work associated with the construction of the toilet block until the relevant facts were established. The judge was right in finding that the Council's application for determination of preliminary points of law was inappropriate.

Should the EPA's contentions have been accepted?

Unfortunately, despite stating that he would refuse to give the determinations sought by the Council in their application, the judge did not go on to order that the Council's application be refused. His Honour instead ordered that the preliminary points should be determined favourably to the EPA. The points of law accepted by his Honour are set out at [9] of these reasons. His Honour accepted the EPA's contentions 10, 16, 17, 18 and 19.

Contention 10 is consistent with the plain meaning of the words of Item 5(b)(i) in Table 4 of Pt 1 of Sch 8 of the IPA, and is, or should be, uncontroversial.

The words "wholly or partly" in contention 16 are more problematic. Those words involve assessments of degree and the exercise of judgment in the light of identified facts. An interference with quarry material may be such a minor aspect of the work that the work could not fairly be considered to be such that the legislature intended it to come within Item 5(b)(i). On the other hand, a partial interference with quarry material, depending on the facts, could be of sufficient significance to amount to interfering with quarry materials under Item 5(b)(i).

Contention 17 correctly limits the Council's attempt to place an unadvised gloss on the words of Item 5(b)(i). It is unlikely the legislature intended that the tiniest interference with quarry material by work would make the EPA the assessment manager for work which would otherwise be solely a local government concern. The Council's contrary contention, however, could lead to equally unrealistic and undesirable results and wrongly exclude the EPA's involvement in work in an environmentally sensitive coastal management district. Again, whether different aspects of work required to be undertaken to execute a single project are sufficiently connected to amount to work "interfering with quarry material" in Item 5(b)(i) can only be determined by a practical application of the plain words of Item 5(b)(i) in their legislative framework to the relevant facts, once ascertained.

Contention 18's reference to "any interference" is too sweeping to be a correct statement of the scope of Item 5(b)(i). Perhaps it is intended to be read together with and subject to contention 10. It seems improbable the legislature intended that even a miniscule interference with land in the course of work would necessitate the involvement of the EPA as the assessment manager when otherwise the local government would have that role. The Council's contrary contention is at least equally unattractive. Whether an interference with land is an interference with quarry material and therefore falls under Item 5(b)(i) cannot be determined in the absence of established facts. To the extent that contention 18 equates "land" with "quarry material" rather than following the definition of "quarry material" in Sch 10 IPA,⁵⁴ it goes too far.

For like reasons, the judge should not have accepted contention 19 of the EPA's submissions.⁵⁵ Depending on the ultimate findings of fact, the determination of whether the present operational work is "excluded work" as defined in Sch 10 IPA may require a consideration of the "entirety of the work and the consequences of that work".⁵⁶ But contention 19 in its present terms without application to established facts is too wide.

In my view, the judge should not have accepted the excessively broad propositions of law in contentions 16, 18 and 19. Whether the work (or part of it) associated with the construction of the toilet block amounted to interfering with quarry material in Item 5(b)(i) first required factual findings. It then required a practical, common sense application of the plain and ordinary meaning of the words of Item 5(b)(i) in its legislative context to those facts.

Scope of Item 5(b)(i)

The Australian Concise Oxford Dictionary defines the verb "interfere" from which the adverb "interfering" derives as: "1. (usu. foll. by with) … (of a thing) be a hindrance; get in the way".⁵⁷ Whether operational work is work "interfering with quarry material" within Item 5(b)(i) is a mixed question of fact and law. It may involve a consideration of direct, indirect, potential, foreseeable or future interference with quarry material where the interference is significant, that is, more than minimal or trivial. The clear legislative intent in both the IPA and the CPMA is that, when work undertaken in a coastal management district interferes with quarry material, the EPA will be the appropriate assessment manager for development applications in respect of the work. The legislative scheme⁵⁸ suggests that parliament intended that the EPA be the assessment manager for the development where there is a real prospect that the work does or may interfere with quarry materials in an environmentally sensitive coastal management district. Where that is established, the legislative scheme also suggests that it is likely that parliament intended the EPA to be the assessment manager for all work associated with the interference with quarry materials, even where minor aspects of associated work do not interfere with quarry material. This will involve common sense assessments of degree, remoteness and practicality in the application of the terms of Item 5(b)(i) to the established facts, keeping in mind the objects and purposes of the legislative scheme established by the IPA and the CPMA.

The Council contended that this wider view of Item 5(b)(i) must be rejected for lack of specificity. The term "assessable development" relevantly means development specified in Sch 8 Pt 1 of the IPA. The use of the term "specified" requires clarity, not vague generalities, so that members of the public can have an effective opportunity to understand the decision-making process: King Gee Clothing Pty Ltd & Ors v Commonwealth & Anor⁵⁹ and Tickner, Minister for Aboriginal and Torres Strait Islander Affairs & Ors v Chapman & Ors.⁶⁰ The present case can be factually distinguished from King Gee and Tickner. Further, it is not suggested it was necessary under the IPA or the CPMA to publicly advertise the present development application. It follows that the observations made in King Gee and Tickner are not directly apposite in the present case. The IPA and the CPMA contain many concepts which lack a high degree of specificity. A dispute between parties may ultimately result in the Planning and Environment Court applying the terms of the legislation to the established facts in a practical, common sense way, keeping in mind the legislative intent discerned through the relevant statutory scheme. The concept of what amounts to work that is "interfering with quarry material" in Sch 8 Pt 1 Table 4 Item 5(b)(i), like the concept of what may amount to work that is "interfering with coastal dunes" in Sch 8 Table 4 Item 5(b)(ix), may be one about which different reasonable minds could reach different but reasonable conclusions. But that does not persuade me that the broader construction of Item 5(b)(i), which I prefer, so lacks specificity that it is wrong in law. Indeed, the legislative intent expressed in the IPA⁶¹ and the CPMA⁶² appears entirely consistent with this interpretation of Item 5(b)(i). As the primary judge who is experienced in this jurisdiction, recognised,⁶³ the sensible approach for a local government planning to carry out work that may interfere with quarry material in a coastal management district is to liaise with the EPA. This is the obvious answer to the Council's contention that a broader interpretation of Item 5(b)(i) could result in local governments inadvertently committing offences against s 4.3.1 of the IPA. Nor does this view render meaningless the specified matters in (ii) to (ix) of Item 5(b). Those items, like Item 5(b)(i), provide a useful list of work where liaison with the EPA would be prudent.

The Council's proposed grounds of appeal

I turn now to the Council's proposed grounds of appeal if successful in its application for leave. The first is that the judge erred in law in concluding that the EPA was the assessment manager for operational work proposed by the Council. It is not entirely easy to understand this ground of appeal because this question presently remains undetermined. The statutory scheme is clear that if the work undertaken is not excluded work and is work in a coastal management district, it is assessable development if it is operational work that interferes with quarry material on State coastal land above the high-water mark. In so finding, the judge did not make an error of law. I emphasise, as his Honour well appreciated, that the EPA's application for declarations remains to be decided in the Planning and Environment Court, where disputed facts will be determined.

The Council's second contention is that the term "interfering with quarry material" in Item 5(b)(i) should be confined to direct interference. As I have explained earlier in these reasons, I do not accept that contention.⁶⁴

The Council contends the judge erred in adopting a wide view of "excluded work" in Sch 10. For the reasons already given, I do not accept that contention.⁶⁵

Leave to appeal

The judge was right to reject the determinations of preliminary points of law sought by the Council. The Council's application was premature in the absence of full factual findings. The judge should have ordered only that the Council's application be refused. The Council has not made out its proposed grounds of appeal but it has demonstrated that the judge erred in accepting completely the EPA's contentions 16, 18 and 19.

The Council has shown the primary judge made errors of law in interpreting complex legislation with potentially significant public interest and impact. Leave to appeal should be granted so that these errors can be corrected before the hearing of the EPA's application for declarations under s 4.1.21 of the IPA.

I would allow the appeal, set aside the order made by the Planning and Environment Court of 11 May 2007, and instead order that the application for the determination of preliminary points of law be refused. As both parties have only enjoyed partial success in this appeal, I would make no order as to costs.

Orders:

Application for leave to appeal granted

Appeal allowed

Order of the Planning and Environment Court of 11 May 2007 set aside and the following order substituted: that the application for the determination of preliminary points of law be refused

HOLMES JA: I have had the advantage of reading the judgment of the President, whose comprehensive account of the factual and statutory background and issues I gratefully adopt. However, I have come to a different conclusion as to the proper construction of Sch 8, Pt 1, Table 4, Item 5(b)(i) of the Integrated Planning Act 1997 (“IPA”).

The literal meaning of Item 5(b)(i)

Taking a literal approach to construction of Item 5(b)(i), the precise form of expression is important. It is not “operational work … interfering with quarry material”, but “operational work that is … interfering with quarry material”. As a matter of grammar, the participle “interfering” does not operate in a descriptive way, as an adjective in an adjectival phrase qualifying the noun “work”; instead it is a verbal noun. “Operational work” is the subject, and “interfering” the object, of the verb ‘to be’; they are consequently, one and the same. In other words, rather than describing the operational work, “interfering” is the operational work. That construction of s 5(b)(i) is consistent, as a matter of syntax, with the balance of the items in the sub-section at (ii) to (viii), all of which commence with a verbal noun and identify the relevant work rather than being descriptive of its effects. The conclusion, on a literal reading, is that the only operational work with which the sub-section is concerned is work which constitutes interfering with quarry material, not work which might have that tendency, and not subsequent work for the purposes of which the interference is undertaken.

The statutory context

Is there any statutory purpose or practical consequence of the Coastal Protection and Management Act 1995 (“CPMA”) or IPA which would mandate a broader construction than the plain meaning of the words in Item 5(b)(i)? An examination of both statutes suggests the contrary. It is clear that the CPMA and the IPA are intended to work in tandem. The objects of the CPMA indicate, at s 3(c), that the management framework set up by the Act for “the ecologically sustainable development of the coastal zone” is to operate in conjunction with other legislation. Consistently with that object, s 50 of the CPMA requires the assessment manager for a development application under the IPA to assess it as if a relevant coastal plan were a State planning policy under the CPMA. The integration of the two pieces of legislation is further promoted by their sharing of common definitions.

Again consistently with the integrated operation of the two Acts, Pt 5 of the CPMA is concerned with quarry material on State coastal land below high water mark, while quarry material on State coastal land above high water mark is dealt with, albeit less prominently, in the IPA in Sch 8, Pt 1, Table 4, Item 5(b)(i). Part 5 of the CPMA concerns removal of quarry material below high water mark, which is managed by the Chief Executive through allocation notices⁶⁶ and approved dredge management plans.⁶⁷ A dredge management plan is a plan “prepared by a person proposing to remove quarry material below high water mark or place spoil derived from the removal …and… used to manage the removal or the placement”.⁶⁸ The plan must include “a description of the method to be used to remove or interfere with quarry material” (italics added).

Section 100A of the CPMA makes it clear that authorisation to remove quarry material under an allocation notice or approved dredge management plan does not excuse the holder from obtaining a development permit for the removal of quarry material if one is required. Where an application for a development permit involves removal of quarry material below high water mark for operational work mentioned in Sch 8, Pt 1, Table 4, Item 5, the application must be supported by an allocation notice, dredge management plan or the Chief Executive’s written consent. The Chief Executive’s involvement in that context does not extend to the larger development, but is limited to the actual physical dealing with the quarry material.

Under s 100B(2), a person who has an approved dredge management plan dealing with operational work mentioned in Sch 8, Pt 1, Table 4, Item 5 does not need a developmental approval if the Chief Executive would be the assessment manager for the work and any requirements of a referral agency for the work have been met. Similarly, a development application for the work does not have to be referred to the Chief Executive if the Chief Executive is a referral agency for it: s 100B(3). Those sub‑sections only apply to the extent that the operational works have been approved under the dredge management plan. The logic seems to be that there is no further need for the Chief Executive to consider the operational work proposed, because it has already been reviewed in the course of approving the dredge management plan. Since the only work which could be approved under a dredge management plan is removal of quarry material and placement of the spoil, the section supports a view that the operational work which is the concern of the Chief Executive under Item 5(b)(i) is direct physical interference with quarry material.

In symmetry, as it seems to me, with the focus in Part 5 of the CPMA on the Chief Executive’s management of direct interference with quarry material below the high water mark, Sch 8, Pt 1, Table 4, Item 5(b)(i) provides for management of interference with quarry material above high water mark by making the Chief Executive assessment manager for that activity. In Item 5, the legislature deals with a range of specific activities: the removal of quarry material, disposal of dredge spoil, tidal water, drainage, waterway construction and interference with dunes in erosion prone areas; all subjects of the Chief Executive’s responsibilities under the CPMA. With a single exception (where the operational work is constructing an artificial waterway associated with the reconfiguration of a lot), the Chief Executive is made assessment manager for each of those activities under the IPA. But Item 5 is not concerned with the general consequences suggested by the learned Judge at first instance, such as the impact of the proposed building on the site in question on the river and its banks. Those larger concerns are addressed by provisions of the CPMA such as s 50, requiring the assessment manager to have regard to the coastal plan, and s 59, which gives the Chief Executive a broad power to stop damaging activity.⁶⁹

Conclusion

It follows that I do not accept the respondent’s contentions numbers 10 and 17 as correct. My conclusion is that the Chief Executive has a role to play in assessment for some specific types of work identified by Item 5; work of the kind with which he or she would be concerned under the CPMA. Item 5(b)(i) identifies one such activity. Operational work, other than excluded work, which interferes with quarry material on State coastal land above high water mark is, to the extent of that interference only, assessable development for which the Chief Executive is assessment manager.

I would grant leave to appeal and allow the appeal with costs, set aside the order of the Planning and Environment Court and, in respect of the first of the applicant’s points of law, substitute a determination in terms of the last sentence of the preceding paragraph. The remaining points involve the application of the law to the facts, and are appropriately addressed in the proceedings below.

DUTNEY J: I have had the benefit of reading the reasons for judgment of the President and Justice Holmes. It is unnecessary for me to set out either the facts or the statutory framework both of which appear in the judgment of the President.

The real issue in this appeal is what is meant by the expression “work that is interfering with quarry materials.”

Too literal an interpretation of the phrase would lead to odd or inconvenient results. If the phrase was strictly limited to those physical activities by which the quarry materials are interfered with, it would mean that the Chief Executive was assessment manager for the digging of the holes into which it was intended to lay the pipes; but not for the laying of those pipes into those holes.

In another case, a strict literal interpretation might result in the Environmental Protection Agency being the assessment manager in relation to the digging of a shallow trench in a coastal dune. A trench might quickly disappear with the action of wind and sand leaving no residual impact. But the Environmental Protection Agency might not be the assessment manager for the high wall erected in and above the trench and for which purpose the trench was dug. The wall might well alter the natural wind pattern and cause erosion.

Even here, the Council concedes that the drainage work, sewerage treatment works and pipe laying is work that is interfering with quarry materials. Rather, it argues that the phrase, although broader than just the physical activity that causes the interference, does not extend to the building above the slab.

In other words, it does not contend for a strictly literal approach.

Once a strictly literal approach is abandoned, it is a question of fact as to where the cut off point between work which is interfering with quarry materials and other work is drawn.

The legislation recognises that the boundary is not necessarily at the point at which the work would otherwise become building work. That is because the exclusion of building work from the definition of operational work in s 1.3.5 of the Integrated Planning Act 1997 (Qld) has no application where work is carried out in a coastal management area.

It is not irrelevant that the Environmental Protection Agency in approving operational work in a coastal management area is required to have regard to the wider impacts of the proposed work and not just the extent of its direct interference.⁷⁰ If the work in this case was limited to the digging of the holes and what was to be done with the holes was excluded, the objects of the Coastal Protection and Management Act 1995 would in many cases be defeated.⁷¹

Since these are factual issues, it is inappropriate to determine the limits of the operational work for which the Environmental Protection Agency is assessment manager as a preliminary point of law.

I agree with the President that the determination of the question of the extent of the works for which the Environmental Protection Agency was assessment manager was premature.

I agree with the President’s proposed orders and with her Honour’s conclusions.

Footnotes

1. It was common ground that the relevant reprint was No 2H, as in force 1 July 2005. ↩

2. See also Integrated Planning Act 1997 (Qld), Sch 10. ↩

3. CPMA, s 17 and Sch. ↩

4. CPMA, Sch. ↩

5. CPMA, Sch; IPA, Sch 10. ↩

6. It was common ground that the relevant reprint was No 6F, as in force 19 September 2005. ↩

7. IPA, Sch 10 "assessable development", (a). ↩

8. See Acts Interpretation Act 1954 (Qld), s 33(10)-(11). ↩

9. IPA, Sch 8A, Table 3, Item 6(a)(ii). ↩

10. IPA, Sch 8, Pt 1, Table 4, Item 5(b)(i). ↩

11. Wall, D-G of the EPA v Douglas Shire Council [2007] QPEC 044 at [23]. ↩

12. Wall, D-G of the EPA v Douglas Shire Council [2007] QPEC 044 at [16]. ↩

13. As defined in IPA, s 1.3.2(a); s 1.3.5. ↩