Hymix Australia Pty Ltd v Brisbane City Council (No. 2)
[2015] QPEC 6
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- Hymix Australia Pty Ltd v Brisbane City Council (No. 2)[2015] QPEC 6
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Hymix Australia Pty Ltd v Brisbane City Council (No. 2)[2015] QPEC 6
Hymix Australia Pty Ltd v Brisbane City Council (No. 2)[2015] QPEC 6
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Hymix Australia Pty Ltd v Brisbane City Council & Ors (No. 2) [2015] QPEC 6 | |
PARTIES: | HYMIX AUSTRALIA PTY LTD v BRISBANE CITY COUNCIL and CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION and CENTRAL SEQ DISTRIBUTOR – RETAIL AUTHORITY (t/as Queensland Urban Utilities) and MAXJET PTY LTD | |
FILE NO: | 4096 of 2012 | |
DIVISION: | PLANNING AND ENVIRONMENT | |
PROCEEDING: | APPEAL | |
ORIGINATING COURT: | BRISBANE | |
DELIVERED ON: | 27 February 2015 | |
DELIVERED AT: | BRISBANE | |
HEARING DATE: | 6 February 2015 | |
JUDGE: | Judge Rackemann DCJ | |
ORDER: | Conditions 7 and 8 will be as proposed by the respondent. | |
CATCHWORDS: | PLANNING AND ENVIRONMENT – CONDITIONS TO BE IMPOSED ON APPROVAL GRANTED BY THE COURT – where conditions proposed by the council included conditions as to hours of operation and lighting – where those conditions, as proposed, accorded with the evidence – where applicant sought to qualify those conditions so that they not apply in the event that its development comes to be used for a future project which is exempt development and the subject of conditions imposed pursuant to the State Development and Public Works Organisation Act 1971. | |
COUNSEL: | B Cronin for the Applicant T Trotter and J Lyons for the Respondent | |
SOLICITORS: | HopgoodGanim Lawyers for the Applicant Brisbane City Legal Practice for the Respondent | |
- [1]This conditions dispute relates to a successful applicant appeal against the refusal of a development application to facilitate the recommencement of a concrete batching plant and pre-cast facility. That facility will be able to produce items suitable for use in the construction of large projects. On 27 June 2014 reasons were published[1] for allowing the appeal and approving the development application, save for the proposed use for external deliveries of concrete. The matter was then adjourned to enable the parties to consider appropriate conditions of approval.
- [2]Only two conditions are now in contention. Those conditions, as proposed by the respondent, are as follows:
“ 7 Hours of operation development
Limit the hours of operation of the approved development to between 5.30 am and 6.00 pm Monday to Friday, 7.00 am to 6.00 pm Saturdays and 9.00 am to 6.00 pm Sundays.
- With the exception of the dispatch of manufacture of precast concrete items via road trucks between 6.00 pm and 10.00 pm.
- The loading of the items on the trucks shall occur within the normal hours of operation.
8 Lighting
Lighting of the site during the evening and the night is to be limited to security lighting. Lighting must be directed downwards, and be low glare to minimise overspill and comply with the requirements of ‘Australian standard AS4282: control of the obtrusive effects of outdoor lighting.’
Lighting required for the commencement of operations at 5.30 am (during some months of the year) will be limited to lighting at the concrete plant for work areas and truck manoeuvring areas and lighting within the precast concrete manufacturing building and associated car park areas. This lighting is to be designed, installed and operated to comply with the relevant standards.
…”
- [3]Those conditions accord with the evidence in relation to the control of noise and lighting impacts. The appellant does not assert to the contrary, although it was pointed out that there was no argument in the substantive appeal about how conditions on the development approval it sought would operate in the event that its development is used in future to service a large project which is itself exempt development. It sought the following:
- (i)an amendment to condition 7 to add:
“The approved development may only operate outside the aforementioned hours if the use becomes exempt development pursuant to an amendment to the Sustainable Planning Regulation 2009, or an equivalent provision of any law or regulation replacing the Sustainable Planning Regulation 2009 (“the exemption”), and then only strictly in accordance with the terms of any such law or regulation and any conditions applicable on the use under the exemption while the exemption remains in effect”; and
- (ii)an amendment to condition 8 to add:
“The approved development may operate lighting as required for the use of the site during the evening and night if the use becomes exempt development pursuant to an amendment to the Sustainable Planning Regulation 2009, or an equivalent provision of any law or regulation replacing the Sustainable Planning Regulation 2009 (‘the exemption’), and then only strictly in accordance with the terms of any such law or regulation and any conditions applicable to the use under the exemption while the exemption remains in effect.”
- [4]Although those suggested qualifications refer to any amendment to the Sustainable Planning Regulation 2009 (the Regulation) pursuant to which the use (of the subject proposal) may become exempt development, it was clarified, in the course of argument,[2] that the appellant is only concerned about the possibility of an amendment which would add to the list of projects in items 10, 10A and 10B of table 5 in Schedule 4 of the Regulation. That is, the appellant does not wish conditions 7 and 8 to apply in the event that: (i) a new major project is added to the list of those which are exempt, and (ii) the effect is to render the use of the subject development, to supply that project, also exempt.
- [5]Assuming (without deciding) that the use of the subject development would, in that event, become exempt development, the appellant’s fear is that it would nevertheless be bound by conditions 7 and 8. The consequence, it was submitted, is that it would become “precluded from considering this established state of the art facility in tenders to service future large projects which may require delivery of large quantities of pre-mixed concrete or manufactured pre‑cast concrete items over extended hours”.
- [6]That fear arises because of the recent decision of the Court of Appeal in Peet Flagstone City Pty Ltd v Logan City Council.[3] That decision is not without difficulty and its implications, beyond its own facts, is yet to be authoritatively determined. Indeed, it was submitted, for the respondent, that the appellant’s fear is based on a misunderstanding of the effect and scope of the decision, particularly in light of the fact that, in Peet, the land was subject to a declaration under the Urban Land Development Authority Act and that s 14 of that Act was triggered.
- [7]It is unnecessary for me to decide whether the appellant’s concern is based on the misunderstanding of the decision in Peet. For the reasons which follow, I would not be prepared to add the suggested qualifications in any event.
- [8]Each of the suggested qualifications end with the words “and then only strictly in accordance with the terms of … any conditions applicable to the use under the exemption…” It emerged, during the course of argument,[4] that the appellant assumed that any major project which was added to the list of those which are exempt development under the Regulation would also be declared as a co-ordinated project under the State Development Public Works and Organisation Act 1971 (SDPWOA)[5] with the consequence that it would become the subject of what was referred to as “a rigorous and comprehensive impact assessment” pursuant to that legislation, with the prospect of the imposition of conditions including, potentially, as to hours of operation, noise and lighting. The appellant accepted that the qualifications for which it contended should be linked to a project which becomes declared under the SDPWOA and is subject to conditions pursuant to the provisions of that Act.[6] It was submitted that:
“Should the facility be reactivated in the future to supply other exempt development, the project the subject of the exemption will likely have been subjected to the rigorous impact assessment and mitigation process at the State level … Potential impacts of the project, such as lighting and noise, will likely have been considered by the Coordinator-General and mitigation conditions deemed appropriate imposed. The Appellant will need to comply with the coordinated project’s conditions and will face prosecution for any non-compliance in respect of operating to service a coordinated project identified in table 5 of schedule 4 of SPR.”
- [9]Moreover, in seeking to justify qualifying conditions 7 and 8 in order to deal with a hypothetical future scenario, the appellant assumed that:
- (i)an as yet unidentified major project might, in the future, become exempt development by reference to the Regulation;
- (ii)the terms of the Regulation might be such that the use of the appellant’s development to supply concrete or pre-cast items for the construction of that project, itself becomes exempt development;
- (iii)the project would also become a co-ordinated project under the SDPWOA;
- (iv)the outcome of the processes under the SDPWOA would be that the project could proceed subject to conditions which are less restrictive than those which would apply to the subject development pursuant to conditions 7 and 8;
- (v)those less restrictive conditions would apply to the appellant (whilst imposed conditions bind an agent, contractor, sub-contractor or licensee[7], they do so where they are undertaking the project. Whether manufacturing components to supply to those constructing the project is itself undertaking the project would appear to be at least open to argument); and
- (vi)to comply with conditions 7 and 8, as formulated by the Council, would put the appellant at an undue disadvantage in a potential tender to supply to the project.
- [10]Even if all these were to come to pass, the SDPWOA itself makes provision for the resolution of conflict between a condition imposed in the co‑ordinator general’s report (imposed conditions) pursuant to s 54B of the SDPWOA and another condition. In that regard s 54E provides:
“54E Imposed conditions override conditions of other approvals
If an imposed condition for the undertaking of the project is inconsistent with a condition of an approval that applies to the approval of the undertaking of the project, the imposed condition prevails to the extent of the inconsistences.”
- [11]Sections 54B and 54E are in Division 8 of Part 4 of the SDPWOA. Subject to some exceptions,[8] that division applies to the extent that the project does not involve a material change of use under the Sustainable Planning Act (SPA) requiring impact assessment under that Act[9] (e.g. development which is exempt does not require impact assessment under the SPA).
- [12]Division 4 of Part 4 of the SDPWOA deals with the relationship with the SPA. Subdivision 1 of Division 4 applies where the project involves development requiring an application for a development approval and the co‑ordinator general’s report has not lapsed.[10] In those circumstances the co-ordinator general’s report may state (amongst other things) conditions that must attach to the development approval.[11] The assessment manager may impose conditions which are not inconsistent with those which the co-ordinator general’s report required.[12] Further, a condition required by the co-ordinator general’s report prevails to the extent of any inconsistency with a concurrence agency condition under the SPA.[13]
- [13]In arguing that it would be better to qualify conditions 7 and 8 in some way, it was submitted for the appellant there could be some uncertainty and room for debate about whether conditions 7 & 8 are truly inconsistent with any future less restrictive imposed conditions. It was contended that, whilst the general effect of the SDPWOA is that the co-ordinator general’s conditions have primacy, it would be better to avoid possible future argument.[14]
- [14]I am not persuaded, as a matter of discretion, to formulate conditions 7 and 8 in a way which seeks to plug perceived gaps (or arguable gaps) in the way that the legislature has chosen to deal with resolving the priorities between conditions imposed or required by the co-ordinator general’s report pursuant to the SDPWOA and other conditions. That is particularly so where the concern is in relation to the possibility of some (indeterminate) tension between conditions 7 and 8 (as proposed by the Council) of an approval of the subject development and possible future conditions (of unknown content) imposed pursuant to the SDPWOA, on an as yet unidentified hypothetical project on the assumption that those conditions would also apply to the appellant, but be less restrictive than conditions 7 and 8 as proposed by the respondent.
- [15]The better course is to set the conditions of the subject approval by reference to what is appropriate on the basis of the evidence in this case and to leave such hypothetical matters for resolution by reference to the legislative provisions, as they might be at the relevant time, in the event that such an issue were to arise.
- [16]It was submitted, for the respondent, that there are other obstacles to adoption of the course contended for by the appellant, including that the qualifications would, it was submitted, render the approval bad for want of finality. It is, however, unnecessary for me to pause on such arguments given my conclusion that the qualifications sought by the appellant should not be made in any event, in the exercise of discretion.
Footnotes
[1] [2014] QPEC 35.
[2] 6 February 2015 T 1-43.
[3] [2014] QCA 210.
[4] 6 February 2015 T 1-44.
[5] See s 26.
[6] 6 February 2015 T 1-46, 47.
[7] See s 54D(4) of the SDPWOA.
[8] S 54A (b).
[9] See s 54A (a).
[10] S 36.
[11] S 39 (i)(a).
[12] S 39 (3)(b).
[13] S 239 (7).
[14] 6 February 2015 T 1-47, 48.