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Perivall Pty Ltd v Rockhampton Regional Council[2018] QPEC 46

Perivall Pty Ltd v Rockhampton Regional Council[2018] QPEC 46

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Perivall Pty Ltd v Rockhampton Regional Council & Ors [2018] QPEC 46

PARTIES:

PERIVALL PTY LTD ACN 600 313 399

(Appellant)

v

ROCKHAMPTON REGIONAL COUNCIL

(Respondent)

and

VYNQUE PTY LTD ACN 010 923 618

(Co-Respondent)

and

CHIEF EXECUTIVE, DEPARTMENT OF INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING

(co-respondent by election)

FILE NO/S:

3966 of 2017

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

4 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

11 and 13 September 2018

JUDGE:

Kefford DCJ

ORDER:

The Appellant’s request for final orders is denied.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – PRELIMINARY DETERMINATION OF SEPARATE QUESTION – where the appellant filed an appeal against Council’s decision to approve a development application for an extractive industry use – where the appellant sought determination, at a preliminary stage of the proceeding, of issues with respect to the validity of the development application and public notification – whether the relief sought by the appellant was sought in the wrong proceeding – whether the existing extractive industry use on the subject land is an existing lawful use – whether the development application was properly made having regard to the extent of any existing lawful use rights and the description in the development application – whether the development application has lapsed – whether the public notification was misleading

LEGISLATION:

Local Government Act 1936 (Qld), s 33

Local Government (Planning and Environment) Act 1990 (Qld), s 3.1, s 4.3, s 4.5

Integrated Planning Act 1997, s 1.4.1, s 1.4.2, s 1.4.6, s 3.5.27, s 6.1.26, s 6.1.28, s 6.1.29, s 6.1.30, s 6.1.34

Planning Act 2016 (Qld), s 180, s 229, s 231, s 260, s 288, s 311

Planning and Environment Court Act 2016 (Qld), s 7, s 11, s 14, s 43, s 47, s 76

Sustainable Planning Act 2009 (Qld), s 260, s 261, s 266, s 267, s 269, s 293, s 296, s 297, s 298, s 299, s 300, s 301, s 302, s 303, s 304, s 307, s 335, s 337, s 681, s 682

Sustainable Planning Regulation 2009 (Qld), s 16

CASES:

Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270, applied

Eschenko v Cummins [2000] QPEC 37; [2000] QPELR 386, followed

Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10; [2016] QPELR 334, followed

Gates v Gold Coast City Council [2011] QPEC 94; [2012] QPELR 20, approved

Gladstone Regional Council v Homes R Us [2015] QCA 175; (2015) 209 LGERA 302, cited

Lacey v Attorney-General of Queensland [2011] HCA 10; [2011] 242 CLR 573, applied

Matijesevic v Logan City Council [1984] 1 Qd R 599, cited

Mimehaven Pty Ltd v Cairns City Council [2002] QCA 276, (2002) 121 LGERA 216, cited

Parramatta City Council v Brickworks Limited [1972] HCA 21; (1972) 128 CLR 1, applied

Rathera Pty Ltd v Gold Coast City Council & Ors; Liquorland (Australia) Pty Ltd v Gold Coast City Council [2000] QCA 506; [2001] 2 Qd R 476, followed

Savage v Cairns Regional Council [2016] QCA 103, cited

COUNSEL:

A N Skoien for the Appellant

D Whitehouse for the Respondent

C L Hughes QC and M Batty for the Co-Respondent

SOLICITORS:

Lillas & Loel for the Appellant

Corrs Chambers Westgarth for the Respondent

South Geldard Lawyers for the Co-Respondent

TABLE OF CONTENTS

Introduction

The allegations............................................................

The history of the application................................................

The application stage.....................................................

The notification stage.....................................................

Is there a threshold difficulty for the Appellant?..................................

Is there an existing lawful use?...............................................

Evidence about historical use of the land as a quarry............................

Impact of new planning schemes, planning legislation and approvals on lawfulness of the use......

Introduction of the first planning scheme.....................................

Introduction of the second town planning scheme...............................

Continued protection of existing lawful uses under the Local Government (Planning and Environment) Act 1990

Impact of the Judgment in 2000.............................................

Consequences if the application was made under the Local Government (Planning and Environment) Act 1990......

Consequences if the application was made under the Integrated Planning Act 1997....

When was the application made?............................................

Did the Judgment restrict the right to use the land for extractive industries?..........

Impact of the introduction of the Integrated Planning Act 1997 and Rockhampton City Plan 2005......

Continued protection of existing lawful uses under the Sustainable Planning Act 2009 and the Planning Act 2016

Conclusion regarding existing lawful use rights................................

Was the development application properly made?................................

Was the public notification defective?..........................................

Conclusion...............................................................

Introduction

  1. [1]
    On 18 October 2017, the Appellant commenced an appeal against the decision of Rockhampton Regional Council (“the Council”) to approve a development application made by the Co-Respondent.  That application sought a development permit for the making of a material change of use for extractive industry.
  1. [2]
    On 1 February 2018, the Appellant filed an Amended Notice of Appeal alleging deficiencies with the application and public notification. It challenges conduct and decisions anterior to the Council’s decision to approve the development application.
  1. [3]
    The parties seek to have the allegations with respect to the anterior decisions determined separately from the other issues in the appeal.

The allegations

  1. [4]
    On 28 February 2018, this court ordered that the allegations in paragraphs 15, 30, 31, 32 and 33 of the Amended Notice of Appeal be determined as preliminary issues in the appeal. In summary, it is alleged that:
  1. (a)
    the development application the subject of the appeal has lapsed because it was not a properly made application;
  1. (b)
    the development application the subject of the appeal is invalid on the basis that it is impermissibly piecemeal and misleading; and
  1. (c)
    the development application has lapsed because there has been a failure to comply with the requirements of the Sustainable Planning Act 2009 (Qld) in relation to the giving of public notice for the proposed development.
  1. [5]
    Central to each of these issues is the proposition that the development application as made was misleading to the extent it represented that the existing use of the land for extractive industry was lawful.
  1. [6]
    At the commencement of the hearing, the Appellant and Co-Respondent each produced a list of issues that they contend require determination. The Appellant’s List of Issues differs from its allegations in the Amended Notice of Appeal.
  1. [7]
    In final submissions, Counsel for the Appellant said:[1]

“… there is not, agitated by me, a question of lapse.  It was in the notice of appeal, amended notes (sic) of appeal.  It’s not raised now.  As your Honour can see, raising – even if there is an issue of lapse, the relief that is sought by the appellant in this proceeding is not to kill off the entire development application.  That’s not what’s asked for.  What’s asked for is an allowance of the appeal and then for relief to see the development application go back and follow the appropriate process if your Honour finds, obviously, that there hasn’t been a following of the appropriate process. …”

  1. [8]
    The Appellant contends that, upon determination of the preliminary issues in its favour, the appeal should be allowed; the decision to approve the development application be set aside; and the development application be returned to the Council to properly follow the IDAS process.

The history of the application

  1. [9]
    Although the Appellant says it is no longer seeking a determination that the application lapsed, it contends that the application process was flawed and needs to be repeated. Accordingly, it is necessary to consider the history of the application process in the context of the relevant legislative requirements.
  1. [10]
    The development application was made to the Council as assessment manager in August 2015. It was made during the currency of the Sustainable Planning Act 2009. 
  1. [11]
    The Sustainable Planning Act 2009 was repealed by the Planning Act 2016 (Qld) on 3 July 2017.  Pursuant to s 288 of the Planning Act 2016, the Sustainable Planning Act 2009 continued to apply to the assessment of, and decision with respect to, the development application. 

The application stage

  1. [12]
    In the Amended Notice of Appeal, the Appellant alleges that the development application the subject of the appeal lapsed as it was not a properly made application because:
  1. (a)
    it did not include all information required under a mandatory requirements part of an approved form; and
  1. (b)
    it was not accompanied by all supporting information the approved form states is mandatory supporting information for the application.
  1. [13]
    The Appellant no longer seeks a finding that the application lapsed, but still contends that it was not a properly made application.
  1. [14]
    At the time the development application was made, the Sustainable Planning Act 2009[2] contained the following provisions with respect to the application process:

“260 Applying for development approval

  1. (1)
    Each application must—
  1. (a)
    be made to the assessment manager; and
  1. (b)
    be in the approved form or made electronically under section 262(3); and
  1. (c)
    be accompanied by any supporting information the approved form states is mandatory supporting information for the application; and
  1. (d)
    be accompanied by—
  1. (i)
    if the assessment manager is a local government—the fee for administering the application fixed by resolution of the local government; or
  1. (ii)
    if the assessment manager is another public sector entity—the fee prescribed under a regulation under this or another Act; and

Note—

See also section 249(2).

  1. (e)
    if, under section 263, the consent of the owner of the land the subject of the application is required for the making of the application—
  1. (i)
    contain or be accompanied by the owner’s written consent; or
  1. (ii)
    include a declaration by the applicant that the owner has given written consent to the making of the application.

Note—

A single application may be made for both a preliminary approval and a development permit.

  1. (2)
    The approved form—
  1. (a)
    must contain a mandatory requirements part; and
  1. (b)
    may make provision for mandatory supporting information for the application.
  1. (3)
    In making an application, the applicant must give the information required under the mandatory requirements part of the approved form.

261 When application is a properly made application

  1. (1)
    An application is a properly made application only if—
  1. (a)
    either—
  1. (i)
    the application complies with section 260(1) and (3); or
  1. (ii)
    the assessment manager for the application—
  1. (A)
    is satisfied the application complies with section 260(1)(a), (b), (d) and (e) and (3); and
  1. (B)
    receives and, after considering any noncompliance with section 260(1)(c), accepts the application; and
  1. (b)
    if the application is taken, under the Environmental Protection Act, section 115, to also be an application for an environmental authority—the application complies with the Environmental Protection Act, section 125, as if a reference to—
  1. (i)
    the application were a reference to the development application; and
  1. (ii)
    the applicant were a reference to the applicant for the development application.
  1. (2)
    Despite subsection (1)(b), the Environmental Protection Act, section 125(1)(a) and (b) does not apply to the application.

266 Notice about application that is not a properly made application

  1. (1)
    If the application is not a properly made application, the assessment manager must give the applicant a notice stating—
  1. (a)
    that the application is not a properly made application; and
  1. (b)
    the reasons the assessment manager is satisfied the application is not a properly made application; and
  1. (c)
    the action the assessment manager is satisfied the applicant must take for the application to comply with section 261.
  1. (2)
    The assessment manager must give the applicant the notice within 10 business days after the assessment manager receives the application.
  1. (3)
    If the applicant does not take the action mentioned in subsection (1)(c) within 20 business days after receiving the notice, or the further period agreed between the assessment manager and the applicant—
  1. (a)
    the application lapses; and
  1. (b)
    the assessment manager must as soon as practicable—
  1. (i)
    return the application to the applicant, other than any part of the application made electronically; and
  1. (ii)
    refund to the applicant the fee mentioned in section 260(1)(d) that accompanied the application, less a reasonable fee, if any, decided by the assessment manager for processing the application.

267 Notice about properly made application

  1. (1)
    This section applies if the application is a properly made application.
  1. (2)
    The assessment manager must give the applicant a notice (the acknowledgement notice) unless—
  1. (a)
    the application relates to development that requires code assessment only; and
  1. (b)
    there are no referral agencies, or all referral agencies have stated in writing that they do not require the application to be referred to them under the information and referral stage.
  1. (3)
    The acknowledgement notice must be given to the applicant within 10 business days after the assessment manager receives the properly made application (the acknowledgement period).”

(emphasis added)

  1. [15]
    There is no evidence that the Council, as assessment manager, gave a notice under s 266 of the Sustainable Planning Act 2009.  To the contrary, the evidence establishes that on 19 August 2015 the Council gave the Co-Respondent an acknowledgment notice under s 267 of the Sustainable Planning Act 2009.  This demonstrates that the Council decided to accept the Co-Respondent’s development application as a properly made application.
  1. [16]
    As such, the Appellant’s allegation that the development application lapsed because of it being a not properly made application is unsustainable.
  1. [17]
    Pursuant to s 269 of the Sustainable Planning Act 2009, the application stage ended for the development application on 19 August 2015 when the Council gave the Co-Respondent an acknowledgment notice. 
  1. [18]
    The acknowledgment notice records that there were referral agencies for the development application and that the Council may make an information request. There is no suggestion that the application lapsed during the information and referral stage.
  1. [19]
    Pursuant to s 293 of the Sustainable Planning Act 2009, the information and referral stage ended when the Co-Respondent finished responding to the Council’s information request.  This occurred on 17 November 2015.

The notification stage

  1. [20]
    In the Amended Notice of Appeal, the Appellant alleges that the development application lapsed due to a failure to comply with the requirements of the Sustainable Planning Act 2009 in relation to the giving of public notice for the proposed development because:
  1. (a)
    the public notice describes the proposal as a material change of use from extractive industry (up to 1 000 000 tonnes per year over 20.6 hectares) to extractive industry (up to 1 000 000 tonnes per year over 30.75 hectares);
  1. (b)
    the development application and supporting information state that the proposed development is for an extension of an existing lawful use for extractive industry on the land from 20.6 hectares to 30.75 hectares;
  1. (c)
    either:
  1. (i)
    the Co-Respondent has not established there is an existing lawful extractive industry use on the land, or alternatively any existing lawful use on the land ceased on 25 April 2015; or
  1. (ii)
    if an existing lawful extractive industry use exists:
  1. (A)
    it only continued in relation to an area comprising 11.9657 hectares on the land and it does not include extraction of any material; or
  1. (B)
    it is limited to an average extraction rate of 240 000 tonnes per annum and a maximum of 313 000 tonnes per annum.
  1. [21]
    Under s 296(3) of the Sustainable Planning Act 2009, the Co-Respondent was entitled to start the notification period on 17 November 2015, having responded to all information requests made and given copies of the responses to the Council.
  1. [22]
    The requirements with respect to public notification under the Sustainable Planning Act 2009 were, relevantly, as follows:

“297 Applicant or assessment manager to give public notice of application

  1. (1)
    The applicant or, with the applicant’s written agreement, the assessment manager must—
  1. (a)
    publish a notice at least once in a newspaper circulating generally in the locality of the land; and
  1. (b)
    place a notice on the land in the way prescribed under a regulation; and
  1. (c)
    give a notice to the owners of all land adjoining the land.

…

298 Notification period for applications

  1. (1)
    The notification period for the application must be at least—

…

  1. (b)
    if paragraph (a) does not apply—15 business days starting on the day after the last action under section 297(1) is carried out.
  1. (2)
    The notification period must not include any business day from 20 December in a particular year to 5 January in the following year, both days inclusive.

299 Requirements for particular notices

  1. (1)
    The notices mentioned in section 297(1) must be in the approved form.
  1. (2)
    The notice placed on the land must remain on the land for all of the notification period.
  1. (3)
    All actions mentioned in section 297(1) must be completed within 5 business days after the first of the actions is carried out.
  1. (4)
    A regulation may prescribe different notification requirements for an application for development on land located—
  1. (a)
    outside any local government area; or
  1. (b)
    within a local government area but in a location where compliance with section 297(1) would be unduly onerous or would not give effective public notice.

300 Applicant to give assessment manager notice about particular matters

If the applicant carries out notification, the applicant must, within 5 business days after the day the last of the actions mentioned in section 297(1) is carried out, give the assessment manager written notice of the day the last of the actions is carried out.

301 Notice of compliance to be given to assessment manager

If the applicant carries out notification, the applicant must, within 20 business days after the notification period ends, give the assessment manager written notice that the applicant has complied with the requirements of this division.

302 Application lapses if notification not carried out or notice of compliance not given

  1. (1)
    An application to which the notification stage applies lapses if—
  1. (a)
    the last action under section 297(1) is not carried out before the end of 20 business days after the applicant was entitled to start the notification stage or the further period agreed between the assessment manager and the applicant; or
  1. (b)
    the applicant has not complied with section 301 within the period stated in the section or the further period agreed between the assessment manager and the applicant.
  1. (2)
    However, if the application is revived under section 303(1), the application lapses if the applicant does not comply with—
  1. (a)
    if subsection (1)(a) applies to the application—section 303(2); or
  1. (b)
    if subsection (1)(b) applies to the application—section 303(3).

303 When application taken not to have lapsed

  1. (1)
    An application that, other than for this section, would lapse under section 302(1) is revived if, within 5 business days after the application would otherwise have lapsed, the applicant gives the assessment manager written notice that the applicant seeks to revive the application.
  1. (2)
    If the application is revived under subsection (1) and section 302(1)(a) applies to the application, the applicant must, within 10 business days after giving the notice under subsection (1) or the further period agreed between the assessment manager and the applicant, carry out the actions under section 297(1).
  1. (3)
    If the application is revived under subsection (1) and section 302(1)(b) applies to the application, the applicant must, within 5 business days after giving the notice under subsection (1) or the further period agreed between the assessment manager and the applicant, comply with section 301.
  1. (4)
    If the application is revived under subsection (1), for the purpose of the IDAS process the application is taken not to have lapsed under section 302(1).

304 Assessment manager may assess and decide application if some requirements not complied with

  1. (1)
    Despite section 301, the assessment manager may assess and decide an application even if some of the requirements of this division have not been complied with, if the assessment manager is satisfied any noncompliance has not—
  1. (a)
    adversely affected the awareness of the public of the existence and nature of the application; or
  1. (b)
    restricted the opportunity of the public to make properly made submissions.
  1. (2)
    However, the assessment manager can not assess and decide an application that has lapsed and has not been revived under this division.”

(emphasis added)

  1. [23]
    Section 16 of the Sustainable Planning Regulation 2009 (Qld)[3] sets out the requirements for placing public notices on land.  At the time, the approved form for notices was contained in the Department of Local Government and Planning “Guide on public notification of certain development applications: Approved form for public notices under the Sustainable Planning Act 2009”.[4]
  1. [24]
    The Co-Respondent carried out public notification of the application between 26 November 2015 and 17 December 2015. 
  1. [25]
    During public notification, the Appellant, through its town planner, made a properly made submission. The submission did not allege that the development application was not properly made, nor did it contain allegations with respect to deficiencies with the public notification.
  1. [26]
    There is no allegation, either in the Amended Notice of Appeal or the Appellant’s List of Issues, that the Co-Respondent failed to:
  1. (a)
    publish a notice at least once in a newspaper circulating generally in the locality of the land;
  1. (b)
    place, and retain, a notice on the land in the way prescribed under a regulation for all of the notification period;
  1. (c)
    give notice to the adjoining land owners;
  1. (d)
    ensure the notice was in the approved form;
  1. (e)
    give all of the requisite notices within the stipulated timeframe; or
  1. (f)
    give the Council the requisite notification of commencement of the public notification and compliance with the public notification requirements.
  1. [27]
    There is also no evidence to support the allegation that the Co-Respondent failed to comply with the public notification requirements. To the contrary, the affidavit of Mr Gardener demonstrates compliance. 
  1. [28]
    The allegation of lapse during the notification stage is without proper foundation.
  1. [29]
    Pursuant to s 307 of the Sustainable Planning Act 2009, the notification stage ended on 18 December 2015 when the Co-Respondent gave written notice of compliance with the public notification requirements.  The notice included a copy of the form of notice given.
  1. [30]
    The Council approved the application on 19 September 2017.

Is there a threshold difficulty for the Appellant?

  1. [31]
    The Co-Respondent submits that the statutory scheme under which the appeal is to be determined presents a threshold difficulty for the Appellant. In short, it submits that the allegations relied on in support of the relief sought involve the Appellant advancing a collateral challenge to a decision made by the Council during the development assessment process in circumstances where the legislation provides no appeal right with respect to such decisions.
  1. [32]
    The allegations relied on by the Appellant to support an order that the appeal be allowed are:
  1. (a)
    the existing extractive industry use on the subject land is not an existing lawful use;
  1. (b)
    the development application the subject of the appeal was not properly made having regard to:
  1. (i)
    existing lawful use rights;
  1. (ii)
    the description of the proposed development in the development application and IDAS forms; and
  1. (c)
    there was a failure to comply with the Sustainable Planning Act 2009 (Qld) in relation to the giving of public notice for the proposed development in respect of the description of the proposed development as an existing lawful extractive industry operating area.
  1. [33]
    The Appellant submits that the court should determine these issues in the appeal and, as such, the Co-Respondent has the onus of proof. It accepts that the court may not be required, in a jurisdictional sense, to be satisfied that the application has complied with the application process before proceeding to hear and determine the merits of a development application. However, it submits that there is no reason why issues raised in an appeal cannot include concerns about the validity of the steps taken in the development assessment process. The Appellant submits that such matters can be legitimately raised and determined as part of the “hearing anew” of the appeal.
  1. [34]
    Not all proceedings in the Planning and Environment Court are by way of hearing anew. Pursuant to s 43 of the Planning and Environment Court Act 2016, an “appeal” to this court is to be conducted by way of hearing anew.  There is no equivalent provision for proceedings commenced by Originating Application.
  1. [35]
    In Lacey v Attorney-General of Queensland [2011] HCA 10, the High Court observed at 596, [56]:

“… An appeal is a creature of statute and, subject to constitutional limitations, the precise nature of appellate jurisdiction will be expressed in the statute creating the jurisdiction or inferred from the statutory context.”

  1. [36]
    As I recently observed in Waterman & Ors v Logan City Council & Anor [2018] QPEC 44 at [21], the Planning and Environment Court is a court of statutory jurisdiction.  Its jurisdiction is defined by s 7 of the Planning and Environment Court Act 2016, which states the court has jurisdiction given to it under any Act. 
  1. [37]
    The first note to s 7 of the Planning and Environment Court Act 2016 records that one of the enabling Acts that gives jurisdiction to the Planning and Environment Court is the Planning Act 2016.  It confers jurisdiction for “Planning Act appeals”, which are defined in the Planning and Environment Court Act 2016 as:

“… an appeal to the P&E Court for which the Planning Act is the enabling Act.

Note—

For the appeal right, see the Planning Act, section 229.”

  1. [38]
    Under s 288(5) of the Planning Act 2016, the decision notice that resulted from the application is taken to have been made under the Planning Act 2016.
  1. [39]
    Pursuant to s 311(1)(c) of the Planning Act 2016, the Appellant’s rights of appeal with respect to the decision were limited to those conferred by the Planning Act 2016.
  1. [40]
    Section 229 of the Planning Act 2016 provides that Schedule 1 states the matters that may be appealed to the court.  Schedule 1, table 2, item 2 of the Planning Act 2016 relevantly states:

“2.Eligible submitter appeals

For a development application or change application other than an excluded application, an appeal may be made against the decision to approve the application, to the extent the decision relates to—

  1. (a)
    any part of the development application or change application that required impact assessment; or
  1. (b)
    a variation request.”

(emphasis added)

  1. [41]
    There is no dispute that the Appellant is an eligible submitter. It made a submission that was not withdrawn before the application was decided.[5]  As such, the court has jurisdiction to hear an appeal by the Appellant “against the decision to approve the application”. 
  1. [42]
    The Appellant’s challenge to the validity of the application cannot properly be characterised as an appeal against the decision to approve the application. Rather, it is a collateral attack on the Council’s decision, under s 261 of the Sustainable Planning Act 2009, that the development application was a properly made application.
  1. [43]
    Similarly, the Appellant’s challenge about the adequacy of the public notification cannot properly be characterised as an appeal against the decision to approve the application. The Appellant contends the description of the existing use on the form has adversely affected the awareness of the public of the nature of the application or restricted the opportunity of the public to make properly made submissions. Its contentions involve a collateral attack on the Council’s failure to decide, under s 304 of the Sustainable Planning Act 2009, not to proceed to assess and decide the application. 
  1. [44]
    There is no express right for an eligible submitter to appeal against:
  1. (a)
    an assessment manager’s decision under s 261 of the Sustainable Planning Act 2009;
  1. (b)
    an assessment manager’s decision not to give a notice under s 266 of the Sustainable Planning Act 2009;
  1. (c)
    an assessment manager’s conduct in giving an acknowledgment notice under s 267 of the Sustainable Planning Act 2009;
  1. (d)
    the conduct of an applicant in giving a compliance notice under s 301 of the Sustainable Planning Act 2009; or
  1. (e)
    an assessment manager’s decision under s 304 of the Sustainable Planning Act 2009. 
  1. [45]
    Further, consideration of the broader legislative context of the Planning Act 2016 and the Planning and Environment Court Act 2016 support a legislative intent that any eligible submitter appeal about a development application is limited to the right to appeal against:
  1. (a)
    an assessment manager’s decision to approve the application; or
  1. (b)
    a provision of the development approval, or a failure to include a provision in the development approval, to the extent the matter relates to any part of the development application that required impact assessment.[6] 
  1. [46]
    This is apparent from the following four features in the legislation.
  1. [47]
    First, the provision that confers appeal rights is prescriptive.[7]  It expressly provides:
  1. (a)
    who may appeal;
  1. (b)
    who is a respondent in the appeal;
  1. (c)
    who is a co-respondent in an appeal;
  1. (d)
    who may elect to be a co-respondent;
  1. (e)
    the subject matter of the appeal; and
  1. (f)
    the time within which the appeal must be commenced.
  1. [48]
    By way of contrast, under s 180 of the Planning Act 2016, there is open standing to commence a proceeding for an enforcement order.  Pursuant to r 8 of the Planning and Environment Court Rules 2018 (Qld), the party to be named as respondent is the entity directly affected by the relief sought.[8]  There is no time limit within which such a proceeding may be commenced.
  1. [49]
    Similarly, under s 11 of the Planning and Environment Court Act 2016, any person may commence a proceeding seeking a declaration about “a matter done, to be done or that should have been done” for the Planning and Environment Court Act 2016 or the Planning Act 2016.  Pursuant to s 76(4) of the Planning and Environment Court Act 2016, the declaratory jurisdiction is expanded to include “a matter done, to be done or that should have been done” for the Sustainable Planning Act 2009.  There is no time limit within which a declaratory proceeding must be commenced.
  1. [50]
    Second, other than for an appeal against a deemed refusal, the appeal period is defined in s 229(3) of the Planning Act 2016 by reference to the time at which notice of a particular decision is received.  It states:

“The appeal period is—

  1. (a)
    for an appeal by a building advisory agency—10 business days after a decision notice for the decision is given to the agency; or
  1. (b)
    for an appeal against a deemed refusal—at any time after the deemed refusal happens; or
  1. (c)
    for an appeal against a decision of the Minister, under chapter 7, part 4, to register premises or to renew the registration of premises—20 business days after a notice is published under section 269(3)(a) or (4); or
  1. (d)
    for an appeal against an infrastructure charges notice— 20 business days after the infrastructure charges notice is given to the person; or
  1. (e)
    for an appeal about a deemed approval of a development application for which a decision notice has not been given—30 business days after the applicant gives the deemed approval notice to the assessment manager; or
  1. (f)
    for any other appeal—20 business days after a notice of the decision for the matter, including an enforcement notice, is given to the person.

Note—

See the P&E Court Act for the court’s power to extend the appeal period.”

  1. [51]
    A “deemed refusal” is defined in Schedule 2 of the Planning Act 2016 as:

“a refusal that is taken to have happened if a decision has not been made when the following ends—

  1. (a)
    for a development application, other than an application to which section 64 applies—the period, under the development assessment rules, for making a decision;
  1. (b)
    for a matter as follows—the period allowed under this Act for the matter to be decided—
  1. (i)
    a change application;
  1. (ii)
    an extension application;
  1. (iii)
    a conversion application;
  1. (iv)
    a compensation claim under section 31(6);
  1. (v)
    a claim for compensation under section 265.”
  1. [52]
    The types of decisions for which a deemed refusal appeal may be commenced do not include interlocutory decisions during the application process.
  1. [53]
    Further, with respect to each of the decisions referenced in s 229(3) of the Planning Act 2016:
  1. (a)
    there is a corresponding obligation in the legislation to provide or publish the type of notice that triggers the commencement of the appeal period; or
  1. (b)
    a failure to give notice of a decision triggers the appeal right.[9] 
  1. [54]
    Either way, the recipient of an appeal is able to ascertain whether the appeal has been filed within the appeal period.
  1. [55]
    Under s 337 of the Sustainable Planning Act 2009, the assessment manager was obliged to give a copy of the decision notice to each principal submitter within a statutorily prescribed period.  Section 335 of the Sustainable Planning Act 2009 provides that a decision notice must state, amongst other things, whether the application is approved, approved subject to conditions or refused; any conditions; and the rights of appeal for any submitters.[10]  
  1. [56]
    By way of contrast, there is no legislative obligation for an assessment manager to notify a submitter about any conduct of, or anterior decisions made by, an assessment manager prior to its final decision with respect to the development application.
  1. [57]
    This supports the legislative intent that the appeal right is limited to an appeal about the decision recorded in the decision notice, not anterior conduct or decisions.
  1. [58]
    Third, the court’s decision making power on an appeal in s 47 of the Planning and Environment Court Act 2016 also supports the confined nature of an appeal.  It states:

“47 Appeal decision

  1. (1)
    In deciding a Planning Act appeal, the P&E Court must decide to do 1 of the following (the appeal decision) for the decision appealed against—
  1. (a)
    confirm it;
  1. (b)
    change it;
  1. (c)
    set it aside and—
  1. (i)
    make a decision replacing it; or
  1. (ii)
    return the matter to the entity that made the decision appealed against with directions the P&E Court considers appropriate.
  1. (2)
    The appeal decision may also include other orders, declarations or directions the P&E Court considers appropriate.
  1. (3)
    The appeal decision (other than one to confirm the decision appealed against or to set it aside and return the matter) is taken, for the Planning Act (other than chapter 6), to have been made by the entity that made the decision appealed against.”

(emphasis added)

  1. [59]
    While the nature of the appeal is by way of hearing anew, in deciding a Planning Act appeal, under s 47 of the Planning and Environment Court Act 2016, the court is to confirm, change or set aside “the decision being appealed against”, not some anterior decision.
  1. [60]
    Section 47(2) of the Planning and Environment Court Act 2016 permits the appeal decision to include other orders, declarations or directions the court considers appropriate.  The provision is silent about the extent of the declaratory power, other than to indicate that any declaration forms part of the “appeal decision”, which is a decision the subject of a right of appeal – not some other decision. 
  1. [61]
    Fourth, the existence of an express declaratory power, under s 11 and s 76(4) of the Planning and Environment Court Act 2016, which permits a challenge to matters done, and decisions made, during the development assessment process supports a legislative intention that the court’s jurisdiction on appeal does not extend to such matters.
  1. [62]
    That anterior decisions are to be subject to judicial review, rather than a hearing anew in an appeal, is supported by s 231 of the Planning Act 2016.  It states:

“231 Other appeals

  1. (1)
    Subject to this chapter, schedule 1 and the P&E Court Act, unless the Supreme Court decides a decision or other matter under this Act is affected by jurisdictional error, the decision or matter is non-appealable.
  1. (2)
    The Judicial Review Act 1991, part 5 applies to the decision or matter to the extent it is affected by jurisdictional error.
  1. (3)
    A person who, but for subsection (1) could have made an application under the Judicial Review Act 1991 in relation to the decision or matter, may apply under part 4 of that Act for a statement of reasons in relation to the decision or matter.
  1. (4)
    In this section—

decision includes—

  1. (a)
    conduct engaged in for the purpose of making a decision; and
  1. (b)
    other conduct that relates to the making of a decision; and
  1. (c)
    the making of a decision or the failure to make a decision; and
  1. (d)
    a purported decision; and
  1. (e)
    a deemed refusal.

non-appealable, for a decision or matter, means the decision or matter—

  1. (a)
    is final and conclusive; and
  1. (b)
    may not be challenged, appealed against, reviewed, quashed, set aside or called into question in any other way under the Judicial Review Act 1991 or otherwise, whether by the Supreme Court, another court, any tribunal or another entity; and
  1. (c)
    is not subject to any declaratory, injunctive or other order of the Supreme Court, another court, any tribunal or another entity on any ground.”
  1. [63]
    The provision contemplates that decisions and conduct under the Act cannot be challenged unless express provision is made for the challenge in the chapter, Schedule 1 of the Planning Act 2016 or the Planning and Environment Court Act 2016.  The only express provision made for challenging conduct and decisions during the application process is the declaratory power in s 11 of the Planning and Environment Court Act 2016.
  1. [64]
    Were it intended that an appeal right under s 229 of the Planning Act 2016 include an ability to challenge anterior conduct and decisions, it would have been easy for the legislature to make express provision for it.  It did not.
  1. [65]
    In this case, the Appellant’s right to appeal was triggered by the Council’s decision to approve the application. The subject appeal is an appeal against that decision. The Planning Act 2016 does not provide an appeal right against anterior decisions or conduct during the development assessment process.  As such, this appeal is the wrong vehicle for the Appellant’s allegations. 
  1. [66]
    In the event I determined that the issues could not be dealt with in the appeal, the Appellant requested the opportunity to file an Originating Application. It indicated that any Originating Application would contain the same substantive allegations. It requested the court determine that application on the evidence before the court for this hearing. There was no opposition to that course.[11]
  1. [67]
    Under s 14 of the Planning and Environment Court Act 2016, I may make an order or direction about the conduct of a proceeding.  The Appellant’s request is akin to a request for an order under r 13 of the Uniform Civil Procedure Rules 1999 that the preliminary points in the Amended Notice of Appeal be treated as allegations in an Originating Application.  I am not prepared to make an order of that kind in this case for three reasons.
  1. [68]
    First, in the absence of a right of appeal, the only basis for challenge is by way of declaratory proceedings. The review is akin to judicial review of the relevant administrative actions.[12] 
  1. [69]
    The Appellant has not obtained a statement of reasons from the Council in respect of the decision made pursuant to s 261 or s 304 of the Sustainable Planning Act 2009.  The Appellant’s identified issues do not disclose a proper basis for challenging the decision of the Council.  The Appellant does not identify jurisdictional error.  The Appellant is unable to demonstrate if, and how, the decision maker may have misdirected itself.
  1. [70]
    Second, for reasons detailed below, the Appellant would fail on its central contention about existing lawful use rights.
  1. [71]
    Third, in my view, the development application was not misleading.

Is there an existing lawful use?

  1. [72]
    The Appellant submits that the use of the land for extractive industry was not lawful at the time of the making of the development application. 
  1. [73]
    The Appellant further submits:
  1. (a)
    at the time of any change in planning controls, the question of the lawfulness of the existing use is determined by the extent of the actual use at the time of that change in planning controls, not the extent of any entitlement to commence a use, or expand a use, at the time of that change in planning controls;
  1. (b)
    with the introduction of the 1986 Town Planning Scheme for the City of Rockhampton (“1986 Planning Scheme”), any entitlement to use those parts of the land zoned “Non-Urban A” for extractive industry was lost;
  1. (c)
    with the exercise of the rights conferred under a rezoning approval granted in 2000 (and the undertaking of the concomitant obligations), any pre-existing rights to use the land for extractive industry were lost and the right to use the land for extractive industry was thereafter governed by the rezoning approval;
  1. (d)
    under the rezoning approval:
  1. (i)
    the use of the land for extractive industry was limited to those areas authorised under the rezoning approval;
  1. (ii)
    the use of the land for extractive industry did not include those parts of the 1986 Extractive Industry zoned land that were to be excluded from the Extractive Industry Zone under the rezoning approval;
  1. (iii)
    any use of the land for extractive industry had to cease by 26 April 2015;
  1. (e)
    with the inclusion of the land in the Yeppoon Road Corridor Environmental Protection Area under Rockhampton City Plan 2005, any entitlement to use the land for extractive industry was limited to the areas authorised by the rezoning approval;
  1. (f)
    the entitlement to use the land for extractive industry expired on 26 April 2015; and
  1. (g)
    the development application was only made in August 2015, after the expiry of the entitlement to use any part of the land for extractive industry.
  1. [74]
    The Co-Respondent submits it has an existing lawful use right for extractive industry over that part of the land in the Extractive Industry Zone under the 1986 Planning Scheme. It also submits that it has a reasonable argument that it has an existing lawful use right to use the whole of the land for extractive industry purposes. In that respect it relies on the historical use of the land predating the 1971 Town Planning Scheme for the City of Rockhampton (“the 1971 Planning Scheme”) and the inherent nature of an extractive industry use.
  1. [75]
    It is the Council’s position that the Co-respondent has an existing lawful use right to conduct an extractive industry use over at least that part of the land that was in the Extractive Industry Zone under the 1986 Planning Scheme. It also accepts that it is open to the court to make a finding that existing lawful use rights attach to the whole of the land.[13]

Evidence about historical use of the land as a quarry

  1. [76]
    It is undisputed that the Peak Hill Quarry has operated on the subject land since the 1960s. Readymix secured the first formal lease over the land in the early-mid 1960s. It is undisputed that extractive industry has continued on the land since that time. Aerial photographs as early as September 1970 show an access to the land from Yeppoon Road, as well as two extraction areas.
  1. [77]
    An article titled “Workings of Extractive Materials in the Rockhampton Area” by the Queensland Government Geologist, W.F. Willmott was published in the Queensland Government Mining Journal in July 1976.  It noted:

“Peak Hill Pit, 4820 (G. R. 475 201)

A small pit on Peak Hill, north of Rockhampton, leased by the Readymix Group (Qd), is worked on an occasional basis for fill by a sub-lessee, G. F. Wiggington and Co.  The pit was not inspected, but is reported to be in completely weathered to decomposed intrusive diorite and andesite or andesitic tuff of the Berskerker Beds.”

  1. [78]
    A report titled “Peak Hill Quarry Visual Assessment” prepared for the Readymix Group Ltd records that Readymix leased the land for 15 years from 1965.  It notes:

“Some material has been removed from the site; and continues to be at the present time, under agreements between Readymix and local contracting firms.” 

  1. [79]
    The report also records a proposal to undertake further extraction of rock and processing within the leased area. In a section titled “Proposed Development of the Quarry Site”, the report recorded an intention to progressively increase the area of the land to be quarried. 
  1. [80]
    Aerial photographs indicate that quarrying of the land continued after 1986.
  1. [81]
    In 1991, the Co-Respondent purchased the land. Mr Anderson, a director of the Co-Respondent, gave evidence about the Co-Respondent’s use of the land. He gave unchallenged evidence that:
  1. (a)
    between 1991 and May 2007, the Co-Respondent operated a quarry on the land on an ongoing basis;
  1. (b)
    from 1 May 2007 until 1 March 2017, the operation of the quarry was continued by Earth Commodities (Rockhampton) Pty Ltd pursuant to a lease with the Co-Respondent; and
  1. (c)
    the Co-Respondent retook possession of the quarry in 2014 and has continued to operate the quarry on an ongoing basis since that time. 
  1. [82]
    As part of that ongoing use, the Co-Respondent had obtained various environmental authorities with respect to the use.
  1. [83]
    On 15 May 1997, the Council wrote to the Co-Respondent about its use of the land for extractive industry. That letter included the following paragraphs:

“Council understands that quarrying operations are being carried out outside of the land zoned Extractive Industry, being land zoned Non-Urban ‘A’.  The use of the land zoned Non-Urban ‘A’ for extractive industry is not to be carried out without the consent of Council.  Furthermore, any such use would also require compliance with the Environmental Impact provisions set out in Section 8.2 of the Local Government (Planning and Environment) Act 1990.

You are hereby directed to immediately cease using any land on Lot 2 on RP 618088 that is not zoned Extractive Industry for the purposes of extractive industry.  Furthermore, you are directed to immediately restore any such land to its condition as existed prior to carrying on quarrying operation.

Please note that failure to immediately carry out the direction above may result in Council seeking injunctive relief in the Planning and Environment Court.”

(original emphasis)

  1. [84]
    In a subsequent letter to the Co-Respondent’s solicitors on 16 June 1997, the Council requested the Co-Respondent provide an undertaking not to carry out any extractive industry outside of the Extractive Industry Zone.
  1. [85]
    On 7 July 1997, the solicitor for the Co-Respondent wrote to the Council. The letter included the following paragraphs:

“We advise that we have no instructions to provide the undertaking sought in your letter and indicate that we believe, at this preliminary stage, that our client has an existing lawful non-conforming use in relation to those areas, outside the extractive industry zone which may be in use.

We have recommended to our client that it provides sufficient evidence to you pursuant to s 3.1 of the Local Government (Planning & Environment) Act 1990 (“PEA”) to convince the Council that existing non-conforming use rights exist in relation to the balance of the land.

…

Whilst our client’s investigations are far from complete, given the lack of response to the FOI application the evidence which has emerged tends to suggest that the land outside the existing Extractive Industry zone enjoys protection pursuant to the PEA particularly having regard to the decision of the High Court in The Council of the City of Parramatta v Brickworks Limited [1971] 128 CLR 1 and the agreements and proposals for the land emerging from discussions with previous landowners.”

(emphasis added)

  1. [86]
    A Council report dated 2 September 1997 records that the Co-Respondent offered not to pursue its existing use rights over the whole of the land if the current zone was realigned to incorporate areas that contain areas of better rock. The offer was contingent on the Council agreeing to a number of conditions.
  1. [87]
    On 11 August 1997, the solicitor for the Co-Respondent wrote to the Council about the use of the land. The letter included the following paragraphs:

“Having carefully reviewed all available information, we have come to the conclusion that our client’s use of the land outside that part zoned Extractive Industry, is lawful by virtue of existing lawful non-conforming use rights.

In our view the whole of the land contained in “Subdivision 2 of Selection 503” enjoys existing use rights.  It is noted that this part of the land:

  • was the subject of a 20 year lease dated 19 October 1965, for the purpose of extractive industry;
  • was the subject of Interim Development Permit No. 860/930 dated April 1966, for quarrying purposes;
  • was zoned Extractive Industry between 1971 and 1986; and
  • was the subject of a lease, believed to have been executed some time in 1963, to the Readymix Group for the purpose of an extractive industry.

It should be noted that the fact that the whole of the land may have not been physically used for extraction activity does not detract from the existing use rights which it may enjoy.  We refer you to the High Court’s decision in Parramatta City Council v Brickworks Ltd (1971) 128 CLR 1, and the comments of Barwick CJ in Eaton & Sons v Warringah Shire Council (1963) 50 LGRA 124:

…

In light of Council’s recent correspondence our client is now preparing to make application to the Planning & Environment Court for a declaration that the continued use of the land for Extractive Industry is lawful, by virtue of its existing use rights.

However our client is not opposed at this stage to the alternative course of action of formalising the current use of Lot 2 on RP 618088 (Lot 2) by a town planning process in which a realignment of the Extractive zoning of Lot 2 would now accurately reflect current geological knowledge of hard rock resources on this site.

The consideration, by our client, of this option and the abandonment of pursuing a claim for existing use rights over the whole of Lot 2 would however be contingent upon the following:

…

This offer should not be seen as any form of admission regarding our client’s existing use entitlements.  Rather, it is intended to resolve Council’s concerns regarding the use of the land, and remove the uncertainty facing our client, allowing it to continue making a valuable contribution to the local economy.”

(emphasis added)

  1. [88]
    Further correspondence between the parties indicated that the Council did not accept there were existing lawful use rights over the whole of the land. The Council and the Co-Respondent continued to correspond about the matter and the potential resolution of their dispute about the lawfulness of the expansion by the Co-Respondent making a development application.
  1. [89]
    Around March 1998, the Co-Respondent made an application to the Council with respect to the subject land.
  1. [90]
    The evidence about the application includes a letter from Warren Bolton of Warren Bolton Consulting Pty Ltd and an application form.
  1. [91]
    The letter from Mr Bolton was dated 27 March 1998. It included the following paragraphs:

“RE: Vinque Pyt Ltd- Quarry- Yeppoon Road- Town Planning Rezoning Application

Please find attached an Application by my client to change zoning boundaries for Real Property Description:- Lot 2 Registered Plan 618088

This application is submitted in response to Councils letter of the 28th April 1997.  The application is submitted without prejudice to and is not to be construed as in substitution of any Existing Lawful Use right that my client may have.”

(emphasis added)

  1. [92]
    There is a stamp on the letter that refers to “R.C.C. Records”.  Information that has been inserted within the box includes a file reference number of R 5/98 and a received stamp of 8 April 1998.  On the basis of that date received stamp, the Appellant submits the application was made on 8 April 1998.
  1. [93]
    The application form is titled “Application for Amendment of a Planning Scheme”.  It notes that advertising is to be carried out in accordance with the requirements of the Local Government (Planning and Environment) Act 1990.
  1. [94]
    The application form appears to be signed by Warren Bolton. Next to the signature is a handwritten date: 27 March 1998. The stamp on the form records the application number as R5/98. It notes the date received as 27 March 1998. A fee and receipt number have been written in by hand.
  1. [95]
    It is common ground that the Council’s decision with respect to the application was the subject of an appeal to the Planning and Environment Court. On 26 April 2000, the Court allowed the appeal. The Judgment, relevantly, ordered:

“1. The appeal be allowed;

  1. The conditions of the grant of approval for the land described as Lot 2 on RP608088, Parish Murchison to be excluded part of from the Non-Urban A Zone and included in the Extractive Industry Zone under the Planning Scheme for the City of Rockhampton imposed by the Respondent on 18 August 1998 be amended and approved so as to be as follows:

A. Excluding those parts of the land totalling 8.643ha more particularly described in the metes and bounds description in Sheets 1 and 2 and as Areas A and B on Finch Surveying Plan 1026-Z1 on Sheet 6 of Annexure 1 from the existing Extractive Industry Zone including the same in the Non-Urban A Zone

B. Excluding that part of the land totalling 14.2ha more particularly described in the metes and bounds description in Sheet 3 as Area C on Finch Surveying Plan 1026-Z1 on Sheet 6 of Annexure 1 from the Non-Urban A Zone and including the same in the Extractive Industry Zone, subject to the following conditions:-

  1. submission of a copy of the Environmental Protection Agency approved Stormwater Management Plan for the Extractive Industry zoned land referred to in this order;
  1. submission of a vegetation rehabilitation plan for the Extractive Industry Zone and Non-Urban A Zoned lands referred to in this order; such plan to be staged to incorporate the following:-
  1. (i)
    initial enhancement of the existing landscaped mound on the northern road frontage of the site to promote improved vegetation screening; such works to be commenced within 6 months of the date of this order and substantially completed within 18 months;
  1. (ii)
    the rehabilitation of the batter bank located behind the weigh bridge office, to be completed within 18 months of the date of this order, to Council’s satisfaction and approval;
  1. (iii)
    progressive rehabilitation of the quarry areas as such areas fall into disuse;
  1. (iv)
    rehabilitation shall be with native species, ensuring stability of worked areas, and generally match and blend into the immediate surrounding area of natural vegetation.

…

  1. Submission of a dust control strategy including details of proposed dust minimisation techniques to be employed with all associated quarry operations and internal trafficked areas.  Such a plan is to be submitted to the Environmental Protection Agency’s satisfaction within 3 months of the date of this order.  A written copy of the EPA approval shall be lodged within 6 months of the date of this order.

…

  1. The quarry use and its operations shall cease 15 years from the date of this order.  Council may seek to include the land in the Non-Urban A Zone at such time, or other zone it views appropriate at the time.
  1. Prior to the application being forwarded to the Chief Executive Officer of the Department of Local Government and Planning, obtain approval in writing from the Environmental Protection Agency, the Department of Mines and Energy and other relevant agencies for the proposed blasting management plan/strategy, to ensure all mitigation measures are implemented to minimise potential conflict (ie. noise, vibration, etc) with surrounding land uses within the locality.  Copies of these written approvals shall be lodged with Council for its information.
  1. Prior to the application being forwarded to the Chief Executive of the Department of Local Government and Planning, the applicant shall submit approved documentation pertaining to Conditions B1, B2, B5 and B9

…

  1. The approved application be referred to the respondent to make application to the Chief Executive for approval by the Governor in Council within 14 days of the date of the fulfilment of all preconditions.”

(emphasis added)

  1. [96]
    On 15 August 2003, the Council wrote to the Co-Respondent noting that the Council’s files indicated the rezoning approval had not been finalised as a number of conditions remained outstanding, particularly conditions B9 and B10. The Council informed the Co-Respondent that it needed to comply with those conditions before the Council could refer the rezoning approval to the Chief Executive Officer of the Department of Local Government and Planning.
  1. [97]
    Documents in the affidavit of Mr Anderson indicate that there was compliance with conditions B1, B5 and B9. However, there is no evidence of compliance with condition B2 or, to the extent that it relates to that condition, condition B10.
  1. [98]
    There is no dispute that there was no order in council approving the amendment to the planning scheme, nor a gazettal of the rezoning.
  1. [99]
    The aerial photographs indicate that after 2000 the footprint of the quarry continued to expand in a manner inconsistent with the judgment given in 2000.

Impact of new planning schemes, planning legislation and approvals on lawfulness of the use

  1. [100]
    A number of planning regimes have applied over the course of the extractive industry use of the land. An approval was also granted in 2000. The impact of each is considered below.

Introduction of the first planning scheme

  1. [101]
    The first town planning scheme to regulate use of the land was the 1971 Planning Scheme. It commenced on 24 July 1971. It was promulgated under s 33 of the Local Government Act 1936 (Qld). 
  1. [102]
    Under the 1971 Planning Scheme, the whole of the land was declared to be in the Extractive Industry Zone. Part II, Division I, clause 4(a) and the Table of Zones in Part II, Division I of the 1971 Planning Scheme, permitted the use of the whole of the land for “extractive industries” without the consent of the Council. 
  1. [103]
    “Extractive industry” was defined in the 1971 Planning Scheme as:

“Any industry involving the extraction of sand, gravel, clay, turf, soil, rock, stone or similar substances from land and including, when carried out on the land from which any such substances are extracted or on land adjacent thereto, the treatment of such substances and the manufacture of products from such substances.  The term includes a mine”.

  1. [104]
    Both s 33 of the Local Government Act 1936 and the 1971 Planning Scheme defined “use” as:

“In relation to land, includes the carrying out of excavation work in or under land and the placing on land of any material or thing which is not a building or other structure: The term includes any use which is incidental to and necessarily associated with the lawful use of the land in question”.

  1. [105]
    As such, at the commencement of the 1971 Planning Scheme, use of the land for extractive industry was as of right.
  1. [106]
    On 15 May 1975, the Local Government Act Amendment Act 1975 (Qld) amended s 33 of the Local Government Act 1936 by inserting the following subsection:

“(1A) Where there is in an Area a use of land or of any improvements on land that is lawful use on the date of publication in the Gazette of an Order in Council notifying the approval of the Governor in Council of a town planning scheme or of any amendment thereof, that use shall continue to be a lawful use notwithstanding any provision of the scheme or of the scheme as amended, as the case may be, and where in any by-law of a Local Authority or in any provision of a town planning scheme reference is made to the term “appointed day” and such term is therein defined to mean the day upon which there is published in the Gazette the approval of the Governor in Council of a town planning scheme or is defined to have similar meaning, that term shall be taken to be defined, in the case of publication in the Gazette of the approval of the Governor in Council of any amendment of the scheme, to mean that date of publication of the approval of the amendment. 

The provisions of this subsection apply, with necessary adaptions, to Brisbane City Council and the Town Plan for the City of Brisbane in force for the time being pursuant to the City of Brisbane Town Planning Act 1964-1974 and, in relation thereto and without limiting the generality thereof, the term “Local Authority” includes Brisbane City Council, the terms “Area” includes the City of Brisbane, the term “town planning scheme” or “scheme” includes the Town Plan for the City of Brisbane as aforesaid, the term “Order in Council” includes notification and the term “by-law” includes ordinance.

This subsection applies to the use of the land or of any improvement on the land that is a lawful existing use on a date of publication in the Gazette as aforesaid whether such date of publication is before or after the commencement of the Local Government Act Amendment Act 1975.”

(emphasis added)

  1. [107]
    On 21 April 1977, the Local Government Act Amendment Act 1977 further amended s 33 of the Local Government Act 1936 by numbering the second paragraph above as subparagraph (c), and omitting the first and third paragraphs above and inserting in substitution thereof the following:

“(a) Except as hereinafter provided, a lawful use made of land or of a building or other structure—

  1. (i)
    immediately before the date when a town planning scheme or an amendment of such a scheme becomes applicable to such land, building or structure shall; or
  1. (ii)
    immediately before the date when a town planning scheme or an amendment of such a scheme became applicable to such land, building or other structure (where the scheme or amendment came into operation before the commencement of the Local Government Act 1977) always did,

continue to be a lawful use of the land, building or other structure for so long as the land, building or other structure continues or continued to be so used notwithstanding any provision of the scheme or amended scheme to the contrary.

(b) (i) The provisions of this paragraph (b) apply to a lawful use made of land or of a building or other structure such that if it had not been in existence—

  1. (A)
    immediately before the date with a town planning scheme or an amendment of such a scheme becomes applicable to such land, building or other structure; or
  1. (B)
    immediately before the date when a town planning scheme or an amendment of such a scheme became applicable to such land, building or other structure (where the scheme or amendment came into operation before the commencement of the Local Government Act Amendment Act 1977),

would, having regard to the zone under the scheme or amended scheme in which the use is or, as the case may be, was carried on, be a use for which the land so used may not or could not be used or the building or other structure so used may or, as the case may be, could not be erected or used under the provisions of the scheme or amended scheme.

  1. (ii)
    If a lawful use to which this paragraph (b) applies is discontinued for a period of at least six months or such longer period as is prescribed in the scheme applicable to the site of such use or, where the use is of a building or structure, if the building or structure is demolished or destroyed or suffers damage that, in the opinion of the Local Authority having jurisdiction, is so substantial as to preclude the continuance of such use, that use of the land, building or structure in question shall cease to be a lawful use unless the Local Authority consents to that use.
  1. (iii)
    The provisions of this section that apply to an application to use land or to erect or use a building or structure for a purpose that under a relevant town planning scheme is permitted only with the consent of the Local Authority concerned applies to an application for consent made by reason of the preceding provision (ii).”

(emphasis added)

  1. [108]
    These amendments to the Local Government Act 1936 protected any use of the land for a quarry that existed immediately prior to the commencement of the 1971 Planning Scheme as an existing lawful use, subject to the loss of any rights because of the discontinuance of the use. 
  1. [109]
    In any event, under the 1971 Planning Scheme, any recommencement of an extractive industry use could occur as of right under the 1971 Planning Scheme.

Introduction of the second town planning scheme

  1. [110]
    The second town planning scheme for Rockhampton, the 1986 Planning Scheme, commenced on 6 March 1986. It was also promulgated under s 33 of the Local Government Act 1936.
  1. [111]
    Under the 1986 Planning Scheme, part of the land was included in the Extractive Industry Zone and part was included in the Non-Urban A Zone.
  1. [112]
    That part of the land in the Extractive Industry Zone could be used for “extractive industries” without the consent of the Council.[14]  Subject to the provisions of Part 3 and 4, use of that part of the land in the Non-Urban A Zone for “extractive industries” required consent of the Council.[15] 
  1. [113]
    “Extractive industry” was defined in the 1986 Planning Scheme as:

“Any industry involved in the extraction of sand, gravel, turf, soil, rock, stone or similar substances from land and including, when carried out on the land from which any such substances are extracted or on land adjacent thereto, the treatment of such substances including crushing and screening and the manufacture of products from such substances.”

  1. [114]
    The definition of “use” in the 1986 Planning Scheme was identical to the definitions in s 33 of the Local Government Act 1936 and the 1971 Planning Scheme.
  1. [115]
    As I have noted above, the need for consent of the Council was subject to the provisions of Part 3 and 4. Part 4 of the 1986 Planning Scheme provided:

“EXISTING LAWFUL FETTERED USES

  1. The following provisions shall apply to an existing use which had it not been in existence before the appointed day would, having regard to the Zone in which it is carried on, constitute a purpose for which any building or other structure may be erected or used only with the consent of the Council in that Zone, pursuant to subclause (2) of clause 2 of Part 2: Such a use is hereinafter in this Part referred to as an “existing fettered use”.
  1. A person may continue an existing fettered use of any building, or other structure, or of any land on which there is no building or other structure.”
  1. [116]
    The Appellant submits that with the introduction of the 1986 Planning Scheme, any entitlement to use those parts of the land in the Non-Urban A Zone for extractive industry was lost. I disagree.
  1. [117]
    At the time the 1986 Planning Scheme commenced, the Local Government Act 1936 was still on foot.  As I have already observed, under s 33(1A) of the Local Government Act 1936, a use that came into being prior to a planning scheme being introduced continues to be a lawful use, regardless of the provisions of the planning scheme.
  1. [118]
    In such circumstances, the fact that part of the land was included in the Non-Urban A Zone under the 1986 Planning Scheme is not of itself determinative. If that part of the land in the Non-Urban A Zone was subject to an existing lawful use for extractive industry, that use could lawfully continue regardless of the change of zone.
  1. [119]
    The Appellant does not allege that there was no extractive industry use on the land at the time the 1986 Planning Scheme commenced, nor that the use was discontinued. Rather, the Appellant submits that any extractive industry use of land includes only those areas physically used for extractive industry, such as areas of excavation, areas of stockpiling, access roads, water storage bodies, infrastructure and the like. It submits that the extractive industry use did not include those parts of the land that functioned as a buffer to the extractive industry, or those parts of the land adjacent to the land physically used for extractive industry that may have to be the subject of some rehabilitation or remediation arising from the extractive activities on the land. I disagree.
  1. [120]
    In Parramatta City Council v Brickworks Limited [1972] HCA 21; (1972) 128 CLR 1, the High Court considered similar provisions protecting existing lawful use rights with respect to a use of land for brickworks and a quarry.  In that case, clause 32 of Planning Scheme Ordinance stated:

“32. An existing building or an existing work may be maintained and may be used for its existing use and an existing use of land may be continued.”

  1. [121]
    One of the issues requiring determination was whether land adjoining an existing quarry and brickworks was part of the existing use of the land in 1951. The adjoining land was purchased in 1939 as a reserve and was not put to use until 1960.
  1. [122]
    With respect to that issue, Gibbs J (with whom Barwick CJ, Menzies J and Owen J agreed - Walsh J not deciding the issue) observed at 21-4:

“The appellant contended that the new land was not used for the purpose of quarrying or brick-making immediately before 27th June 1951 and that therefore cl. 32 has no application in respect of the use of the new land. I would agree that the word “use” in cl. 32 means a present use; it does not include a contemplated or intended use. It is not enough to bring cl. 32 into operation that land has been acquired with the intention of using it for a particular purpose in the future. On the other hand, it is not necessary, to constitute a present use of land, that there should be a physical use of all of it, or indeed of any of it. Thus in Council of the City of Newcastle v. Royal Newcastle Hospital[16] it was held that land which was acquired by a hospital to keep the atmosphere clear and unpolluted, to bar the approach of factories and houses, to provide quiet and serene surroundings for patients and to give room for the expansion of the activities of the hospital was used for the purposes of the hospital although no physical use was made of it, and their Lordships said[17] that “an owner can use land by keeping it in its virgin state for his own special purposes”. In the same case, in this Court, Taylor J. said[18]:

“The uses to which property of any description may be put are manifold and what will constitute ‘use’ will depend to a great extent upon the purpose for which it has been acquired or created. Land, it may be said, is no exception and s. 132” (of the Act) “itself shows plainly enough that the “use” of land will vary with the purpose for which it has been acquired and to which it has been devoted … But where an exemption is prescribed by reference to use for a purpose or purposes it is sufficient, in my opinion, if it be shown that the land in question has been wholly devoted to that purpose even though, the fulfilment of the purpose does not require the immediate physical use of every part of the land.”

The facts of that case are of course distinguishable from those of the present, but those remarks support the view, which I accept as correct, that if the whole of the land in question was acquired for and devoted to the purpose of quarrying and brick-making, the whole may be held to have been used for that purpose although only part of it was physically used. Obviously where an expanse of land has been acquired for the purpose of quarrying it cannot, because of practical considerations, be excavated all at once, but this does not mean that the part which has not been actually dug up is not used for the purpose of quarrying. Similarly a farmer, who has acquired land for the purposes of an orchard, may be said to use the whole of it for that purpose, although only part has been planted with trees.

In the present case, immediately before 27th June 1951 the respondent owned one tract of land, all of which had been acquired for the purposes of the quarry and brickworks, and all of which was devoted to those purposes. Some of the land was physically occupied by the buildings and by the brick pit which was in the process of gradual extension. It is beyond argument that some of the land was at the relevant date used for the purpose of quarrying and brick-making. In my opinion there is no justification for regarding the new land as separate from the old, or for saying that the old land was used, but the new land was not, immediately before 27th June 1951. The mere fact that an area of land comprises a number of parcels with separate titles and different histories does not mean that each parcel should be regarded separately for the purposes of cl. 32. If it were otherwise there would be no justification in the present case for treating the old land as an entity; each parcel comprising the old land would have to be separately regarded. However, when cl. 32 speaks of “an existing use of land” it refers to land which from a practical point of view should be regarded as one piece of land, and not to land contained within the boundaries of one subdivision, or described in one certificate of title. It is commonplace that in Sydney land which is devoted to one purpose, and generally treated as being in fact one piece of land—whether it be the site of a commercial building or industrial enterprise or the grounds of a dwelling house—frequently comprises various parcels which remain shown on separate title deeds. There is however nothing in the provisions of the Planning Scheme Ordinance that suggests a concern with conveyancing details rather than with actual use. In argument some reliance was placed by the appellant on the reference in cl. 33 (b) to “adjoining land”, but that phrase does not indicate that “land” in cll. 32 and 33 primarily means land within one subdivision. When cl. 33 (b) speaks of “adjoining land”, this plainly means land adjoining that on which the existing building or work was situated, provided it was and has remained in the same ownership, but whether it is within or beyond the boundaries of a particular subdivision is quite immaterial. The question in the present case is whether the whole land—the old and the new—was immediately before 27th June 1951 used for the purpose of quarrying and brick-making. The learned primary judge said that he could not accept the respondent's claim that the new land had become integrated with the old land as part of the site of the company's brick-making business as early as 1951. In the circumstances of the case, all that is meant by this finding is that before 1951 there had been no actual physical use of the new land for the purpose of that business. The evidence makes it abundantly clear that the new land was acquired and kept for the purpose of using it in conjunction with the old land. It became part of an entire area which was wholly devoted to the purpose of quarrying and brick-making and was used for that purpose immediately before the appointed day. It follows that in my opinion the respondent was entitled under cl. 32 to continue to use the whole of the land for quarrying and brick-making.”

(emphasis added)

  1. [123]
    Similar observations were made by the High Court in Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270.  That case considered the extent of existing lawful use rights for a timber and hardware reselling business.  The use involved, amongst other things, the storage of building timber.  Prior to the commencement of a new planning scheme ordinance on 5 June 1963, timber had not been stacked on a substantial part of the uncleared land.
  1. [124]
    Barwick CJ (with whom Walsh J and Gibbs J agreed) observed at 273-4:

“There was no evidence, in the present case, that the total area acquired was disproportionate to the nature of the business intended to be conducted. True, the demands of its business had not so far required that the appellant physically use the whole of that land. Though part of lot C1 had been fenced, this was for the purposes of security. Nothing in the evidence suggests that it was fenced off so as to segregate the balance from the business and its purposes. Nor, in my opinion, was the fencing off indicative of a conclusion by the appellant to place in reserve for future use the portion not then physically used for the stacking of timbers, its introduction into current use to be the result of a further decision on the part of the appellant. Further, by the relevant date, the fence no longer set the limit of the physical use of the lot. Timber had been stacked beyond the fence to a significant extent. The surveyor's plan referred to in the decretal order represents an attempt to fix the outer limits of the physical use of the lot at that time according to the evidence produced at the hearing of the suit. It did not represent or correspond to any subdivided boundary or any limit of ownership or occupation. It is clear, in my opinion, from this Court's decision in the case to which I have referred, that physical use is not an indispensable element in an existing use of land for the purposes of such a provision as cl. 30 of the Warringah Scheme. Land which is kept vacant for use as the needs of a business demand is not of necessity properly designated, in my opinion, as land not in existing use, but merely intended for future use. Much will depend on the extent of its integration with land in actual physical use and the nature of the business being conducted. The title boundaries of parcels will not be, of themselves, definitive. But, particularly in the case of suburban allotments, it will be a rare case, in my opinion, in which that part of an allotment not in actual physical use will not have the same existing use as the other part of the allotment used for the purposes of a business. But, of course, all the relevant facts need to be known and interrelated before a conclusion as to existing use in the relevant sense is drawn. No doubt there will be cases, particularly in relation to expanding businesses, where the line between a reserve of land intended only for future use and the present use in a business of vacant and physically unused land may be extremely fine. But I cannot think that it will be often that a line can properly be drawn within a suburban allotment confining the existing use of the allotment to the area of physical use, treating the balance of the allotment as land intended only as a reserve for future use. Progressive physical use of the allotment, even though the progress be at irregular and long spaced intervals, would mean, if such a line were drawn, that the existing use of such an allotment as lot C1 would always be coterminous with its physical use. But it seems to me that the relevant use of land in the situation of lot C1 will not vary from time to time as its physical use varies according to the exigencies of the business to whose purposes the land as a whole has been devoted.

Whilst the purpose for which land was purchased will not, of itself, determine its existing use at any subsequent time, that purpose coupled with the integration of the land with land in undoubted business use will, in my opinion, be an important factor tending towards the conclusion that the land is currently used for the purposes of the business carried on on the land with which it is integrated.”

(emphasis added)

  1. [125]
    At 281, Gibbs J (with whom Walsh J agreed) stated:

“It is clear since the decision of this Court in Parramatta City Council v Brickworks Ltd that the whole of an area of land may be held to have been used for a particular purpose although only part of it was physically used for that purpose. If the land is rightly regarded as a unit, and it is found that part of its area was physically used for the purpose in question, it follows that the land was used for that purpose.”

(citations omitted)

  1. [126]
    In Eaton & Sons Pty Ltd v Warringah Shire Council[19] Stephen and McTiernan JJ dissented.  However, in his dissenting judgment, Stephen J (with whom McTiernan J agreed) stated at 288:

“A rather special case is that of extractive industry and of rubbish disposal activities. Neither activity uses land simply as a site for its operations; the first employs a suitable site by winning the clay, stone or minerals underneath the surface and removing them; in effect it consumes the site, regarding it or much of it as a raw material; the second, if it involves the depositing of rubbish into quarry holes, employs the site as a waste receptacle. In each case the process of consuming, or replacing with fill, the original site is necessarily a progressive one; when a site is selected it will only be used physically bit by bit but the use of the whole is predicated from the start and is not contingent upon any future expansion of trade; the whole of the land within the site constitutes in a very real sense land used for the purpose of the business. The same may be said of an underground mine which requires an ever increasing area as a spoils dump or slag heap. The rather special features of these two activities were recognized in the now repealed Town and Country Planning Act 1932  (UK) where, in s. 53, in defining “existing use”, a proviso to the definition was included so that, in the case of a person who on the material date was using land for extractive industry or for the deposit of waste materials or rubbish and was also then entitled to use neighbouring land for similar purposes, that person's use of that neighbouring land under that title for that purpose was deemed to be an existing one.”

(emphasis added)

  1. [127]
    In the present case, the inclusion of only part of the land in the Extractive Industry Zone does not demonstrate that use of the land for extractive industry was so limited.
  1. [128]
    Here, immediately before 6 March 1986, the subject land was a single tract of land on a single title.
  1. [129]
    The report titled “Peak Hill Quarry Visual Assessment” prepared for the Readymix Group Ltd is not dated.  However, it refers to the 1971 Planning Scheme and the Council’s intention to “reduce the area available for extraction”.  The boundaries of the Council’s “proposed zonings”, depicted on Map 2 in the report, are similar to the zone boundaries under the 1986 Planning Scheme.  I consider it to be a useful contemporaneous record of the use of the land immediately prior to the commencement of the 1986 Planning Scheme.
  1. [130]
    The evidence, particularly the Peak Hill Quarry Visual Assessment report, indicates that immediately prior to the commencement of the 1986 Planning Scheme the whole of the land was devoted to use as an extractive industry.  As such, on the evidence available it seems to me that any existing lawful use for extractive industry related to the whole of the land, not just those areas physically used for extractive industry.
  1. [131]
    In any event, under the 1986 Planning Scheme, use of that part of the land in the Extractive Industry Zone for extractive industry was as of right.
  1. [132]
    The evidence indicates that the quarrying of the land continued after the adoption of the 1986 Planning Scheme. The aerial photographs on 23 January 1990 show areas of excavation that coincide with that part of the land in the Extractive Industry Zone under the 1986 Planning Scheme. However, by 16 March 1994, the extent of the land over which there is evidence of extraction had expanded into that part of the land in the Non-Urban A Zone.

Continued protection of existing lawful uses under the Local Government (Planning and Environment) Act 1990

  1. [133]
    On 15 April 1991 the Local Government (Planning and Environment) Act 1990 (Qld) commenced.  On commencement, s 3.1(1) stated:

“Existing lawful uses

3.1 (1) (a) A lawful use made of premises, immediately prior to the day when a planning scheme or an amendment of a planning scheme commences to apply to the premises, is to continue to be a lawful use of the premises for so long as the premises are used notwithstanding—

  1. (i)
    any provision of the planning scheme or amendment of the planning scheme to the contrary (other than a provision to which subsection (b) applies); or
  1. (ii)
    that the use is a prohibited use.
  1. (b)
    For the purposes of paragraph (a), a planning scheme includes those interim development control provisions approved under section 2.22.”
  1. [134]
    As such, the Local Government (Planning and Environment) Act 1990 continued to afford protection to existing lawful uses.

Impact of the Judgment in 2000

  1. [135]
    The Appellant submits that the Co-Respondent exercised the rights conferred under the 2000 rezoning approval (and was subject to the concomitant obligations). It submits that upon the exercise of the rights, any pre-existing rights to use the land for extractive industry were lost and the 2000 rezoning approval governed the right to use the land for extractive industry. As such, with the inclusion of the land in the Yeppoon Road Corridor Environmental Protection Area under the Rockhampton City Plan 2005, any entitlement to use the land for extractive industry was limited to the areas authorised by the 2000 rezoning approval.
  1. [136]
    The Appellant further submits that, having regard to condition 8 of the 2000 rezoning approval, any entitlement to use any part of the land for extractive industry has expired.
  1. [137]
    The Appellant’s case, that there are no existing lawful use rights, centres around the contention that the Co-Respondent exercised rights under the 2000 rezoning approval, thereby foregoing any existing lawful use rights that it maintained at that time.
  1. [138]
    In the Amended Notice of Appeal, the Appellant alleges that the judgment of the Planning and Environment Court on 26 April 2000 (“the Judgment”) was a rezoning approval by which:
  1. (a)
    an area of 8.6343 hectares of the land was rezoned from existing Extractive Industry Zone and included in the Non-Urban A Zone; and
  1. (b)
    an area of 14.2 hectares of the land was rezoned from Non-Urban A Zone to Extractive Industry Zone.
  1. [139]
    Despite its assertions in the Amended Notice of Appeal, in oral submissions the Appellant contended that the Judgment was not a rezoning approval under the Local Government (Planning and Environment) Act 1990.  It submits that the Judgment was a development permit assessed and decided pursuant to the transitional provisions of the Integrated Planning Act 1997 (Qld).
  1. [140]
    The Respondent and Co-Respondent dispute that there was an exercise of rights under the Judgment. They submit that it was a rezoning approval and that there could be no exercise of the rights under the rezoning approval because it was never perfected.
  1. [141]
    The nature of the approval that the Planning and Environment Court could grant depends on when the application was made. 
  1. [142]
    Under s 6.1.26 of the Integrated Planning Act 1997, the Local Government (Planning and Environment) Act 1990 continued to apply to any application for amendment of a planning scheme made prior to the commencement of the Integrated Planning Act 1997 on 30 March 1998.[20]  Such an application was to be processed and all matters incidental to the processing were required to proceed as if the Local Government (Planning and Environment) Act 1990 had not been repealed. 
  1. [143]
    Under s 6.1.28 of the Integrated Planning Act 1997, if the application was made after the commencement of the Integrated Planning Act 1997, it was to be processed under that Act.  It would have been an application for a development permit for material change of use, not an application to amend the planning scheme.  Such an application was required to be assessed and decided under s 6.1.29 and s 6.1.30 of the Integrated Planning Act 1997. 
  1. [144]
    A failure to perfect the amendment of the planning scheme has different consequences under the different legislative regimes.

Consequences if the application was made under the Local Government (Planning and Environment) Act 1990

  1. [145]
    If the application was made prior to 30 March 1998, it was an application for amendment to a planning scheme. Section 4.5 of the Local Government (Planning and Environment) Act 1990 outlines the process that was required to be followed to give effect to the Judgment of the Court in 2000.  It states:

“Approval of planning scheme amendment by Governor in Council

4.5 (1)  Where in respect of an application for an amendment of a planning scheme—

  1. (a)
    which has been approved by the local government, an appeal instituted in the Court pursuant to section 7.1 is withdrawn from the Court; or
  1. (b)
    the Court, upon the hearing of an appeal, determines that the application should be approved and referred to the local government; or
  1. (c)
    which has been approved by the local government and no appeal has been instituted in the Court pursuant to section 7.1;

the local government is, where that application is an application referred to in section 4.3(2) (other than an application made under paragraph (b) of that subsection), to apply to the chief executive for approval by the Governor in Council of the amendment.

(2) An application is to be made—

  1. (a)
    where the time for institution of an appeal has expired and no appeal has been instituted—
  1. (i)
    where security is required to be lodged to ensure compliance with the conditions of the local government—within 14 days of the date of lodgment of that security and the fulfilment of any other preconditions, whichever is later; or
  1. (ii)
    where security is not required—within 14 days of the date of the expiration of the appeal period and the fulfilment of any other preconditions, whichever is later;
  1. (b)
    where an appeal has been instituted—
  1. (i)
    within 14 days (or such longer period as may be ordered by the Court) of the date of the determination by the Court or the date of withdrawal from the Court of the appeal; or
  1. (ii)
    where, as a result of a determination by the Court or a withdrawal of the appeal from the Court, it is necessary for the local government to obtain security from the applicant to ensure compliance with the conditions of the local government—within 14 days of the date of lodgment of that security and the fulfilment of any other preconditions, whichever is later.

(3) An application made by a local government under subsection (1) is to be accompanied by—

  1. (a)
    a copy of the application which was open to inspection pursuant to section 4.3, including the relevant maps (if any);
  1. (b)
    a statement of the grounds on which the application is made and of the facts and circumstances relied on by the local government in support of those grounds;
  1. (c)
    a copy of the statutory declaration lodged by the applicant pursuant to section 4.3(10);
  1. (d)
    a copy of each objection duly made pursuant to section 4.3(8) and (9);
  1. (e)
    the representations by the local government in respect of those objections;
  1. (f)
    the assessment by the local government, where applicable, of the matters set forth in section 4.4(3) and copies of any reports submitted in respect thereof;
  1. (g)
    where the application is made as a result of and in accordance with a determination of the Court—details of the relevant determination of the Court and the date of the determination or, in relevant circumstances, details of the withdrawal of the appeal;
  1. (h)
    other material required by the chief executive.

(6) The Governor in Council may either—

  1. (a)
    approve the amendment of the planning scheme; or
  1. (b)
    refuse to approve the amendment of the planning scheme.

(7) The power of the Governor in Council to approve an amendment of a planning scheme includes power to make such modifications as the Governor in Council considers appropriate.

(8) The Governor in Council may approve an amendment of a planning scheme under subsection (6) notwithstanding that certain provisions of section 4.3 have not been complied with, where the Governor in Council is satisfied that the noncompliance has not adversely affected the awareness of the public of the existence and nature of the application nor restricted the opportunity of the public to exercise the rights conferred by section 4.3.

(9) The approval of an amendment of a planning scheme is to be given by order in council.

(10) The order in council is to identify each amendment that is approved.

(11) The planning scheme as amended becomes the planning scheme for the area concerned, and has the force of law, on notification in the gazette of the making of the order in council.

(12) Any conditions imposed under section 4.4(5) (as subsequently amended under this Act) attach to the land and are binding on successors in title.”

(emphasis added)

  1. [146]
    Paragraph 3 of the Judgment states that the approved application is to be referred to the Council to make application to the Chief Executive for approval by the Governor in Council within 14 days of the date of the fulfilment of all preconditions.
  1. [147]
    Conditions B9 and B10 were expressed as preconditions. As I have already observed, the Co-Respondent did not comply with all preconditions. Consequently, the application was not made to the Chief Executive and the 1986 Planning Scheme was not amended.
  1. [148]
    As such, if the Judgment is a rezoning approval, it does not have the force of law and, as is submitted by the Co-Respondent and Respondent, the Appellant could not have exercised rights in accordance with the approval, nor be bound by the concomitant burdens of the approval.

Consequences if the application was made under the Integrated Planning Act 1997

  1. [149]
    If the application was made after 30 March 1998, it would be taken to be an application for a development permit for material change of use, not an application to amend the planning scheme.
  1. [150]
    Section 6.1.34 of the Integrated Planning Act 1997 would apply to the resultant approval.  It states:

“Consequential amendment of transitional planning schemes

6.1.34. (1) If an assessment manager approves a development application for assessable development that would, under the repealed Act, have first required the amendment of the former planning scheme, the local government must amend its transitional planning scheme to reflect the approval.

(2) The local government must make the amendment within 20 business days after the day the approval takes effect.

(3) If the local government makes the amendment, section 3.5.27 does not apply.”

  1. [151]
    The Appellant submits s 3.5.27 of the Integrated Planning Act 1997 applies because the Council did not amend its transitional planning scheme to reflect the approval in the Judgment within 20 business days after it took effect.
  1. [152]
    Section 3.5.27 of the Integrated Planning Act 1997 states:

“Certain approvals to be recorded on planning scheme

3.5.27. (1) If the development approval was given by a local government as assessment manager and the local government is satisfied the approval is inconsistent with the planning scheme, the local government must note the approval on its planning scheme.

(2) To remove any doubt, it is declared that—

  1. (a)
    the note on the planning scheme is not an amendment of the planning scheme; and
  1. (b)
    a contravention of subsection (1) does not affect the validity of the approval given.”
  1. [153]
    The Appellant submits that, pursuant to s 3.5.27 of the Integrated Planning Act 1997, the Council’s failure to note the inconsistency on the planning scheme did not affect the validity of the approval.
  1. [154]
    Neither the Respondent nor the Co-Respondent dispute the accuracy of the Appellant’s submissions with respect to the law. Rather, they contend that the Judgment was a rezoning approval.

When was the application made?

  1. [155]
    As stated at paragraph [137] above, the nature of the approval that the Planning and Environment Court could grant depends on when the application was made.
  1. [156]
    The Appellant submits the application was made on 8 April 1998. It points to the date received stamp on the letter that formed part of the application in this regard.
  1. [157]
    I accept that the “R.C.C. Records” stamp notes a receipt date of 8 April 1998.  However, nothing in the evidence suggests that this reflected anything more than the date on which the Council’s records department (as opposed to the Council) received the application.  To the contrary, there is overwhelming evidence that the application was made on 27 March 1998. 
  1. [158]
    Under s 4.3(3) of the Local Government (Planning and Environment) Act 1990, an application for amendment of a planning scheme was required to be on a form determined by the Council, contain the prescribed information and be accompanied by the appropriate fee.
  1. [159]
    As I have noted above, the application was on the Council’s form for an application for amendment of a planning scheme. The date received recorded on that form is 27 March 1998. That form also records receipt of a fee. There is no suggestion that it was not the appropriate fee. The form also contains information in each of the prescribed fields.[21]  It appears that the form was provided to the Council under cover of a letter dated 27 March 1998.  (That is the letter on which the “R.C.C. Records” stamp notes a receipt date of 8 April 1998.)
  1. [160]
    It is also telling that there is an absence of evidence of the Council requiring the submission of a new form, being the approved form for an application for a material change of use under the Integrated Planning Act 1997.
  1. [161]
    The form of the Judgment is also instructive. It is expressed to be an approval to rezone land. Paragraph 3 of the Judgment refers to the process of obtaining approval by the Governor in Council - a process that did not apply to the approval of an application made after the commencement of the Integrated Planning Act 1997. 
  1. [162]
    For those reasons, I am satisfied that the application was made on 27 March 1998. It was an application for an amendment to the planning scheme.

Did the Judgment restrict the right to use the land for extractive industries?

  1. [163]
    As the planning scheme amendment was not gazetted, nor approved by order in council, it did not have the force of law. The Co-Respondent could not exercise rights pursuant to the Judgment, nor was it bound by condition B8.[22]  As such, the entitlement to use the land for extractive industry did not expire on 26 April 2015 as contended by the Appellant.
  1. [164]
    Further, and in any event, I accept the submissions of the Co-Respondent that the mere existence of either a rezoning approval or a development permit does not obliterate any existing lawful use right for the land.[23] 

Impact of the introduction of the Integrated Planning Act 1997 and Rockhampton City Plan 2005

  1. [165]
    Rockhampton City Plan 2005 commenced in August 2005. It included all of the land in the Yeppoon Road Corridor Environmental Protection Area. In that area, the making of a material change of use of premises for an extractive industry use requires a development permit. An application for a development permit would be impact assessable.
  1. [166]
    The Appellant submits that the commencement of Rockhampton City Plan 2005 extinguished any entitlement to expand the extractive industry use. It submits any material expansion of the extractive industry use required a development permit under the Integrated Planning Act 1997 or, subsequently, the Sustainable Planning Act 2009 because of the concept of “material change of use”.
  1. [167]
    In oral submissions, Counsel for the Appellant referred to s 1.4.1 and s 1.4.6 of the Integrated Planning Act 1997 as they applied on the commencement of the Act on 30 March 1998.  The Appellant submits that, properly construed in the context of the definition of material change of use, those provisions preserved lawful uses only to the extent of the actual, physical use that was being undertaken at the time.  It submits that the Integrated Planning Act 1997 cut across the line of reasoning in Parramatta City Council v Brickworks Limited.[24]  The Appellant submits that the reference to the “extent” of the lawful use in s 1.4.1(2)(b) and s 1.4.6(2)(b) of the Integrated Planning Act 1997 evidences a legislative intent to limit the extent of existing lawful use rights to the physical extent of the use that was lawful immediately prior to the commencement of the new planning scheme.
  1. [168]
    At the commencement of the Integrated Planning Act 1997, s 1.4.1 and s 1.4.6 appeared in Chapter 1, Part 4, Division 1 and Division 2 respectively and stated:

“Division 1—Uses and rights acquired after the commencement of this Act continue

˙Lawful uses of premises protected

1.4.1. (1)  If immediately before the commencement of a planning instrument or an amendment of a planning instrument the use of premises was a lawful use of the premises and there has been no material change of the use since the commencement of the instrument or the amendment, neither the instrument nor the amendment can—

  1. (a)
    stop the use from continuing; or
  1. (b)
    further regulate the use; or
  1. (c)
    require the use to be changed.

(2) If there has been a material change of the use of premises since the commencement of a planning instrument or an amendment of a planning instrument, any lawful use of the premises immediately before the commencement is taken to be a lawful use of the premises after the commencement—

  1. (a)
    for as long as the use continues; but
  1. (b)
    only to the extent the lawful use of the premises immediately before the commencement continues.

(3) Subsection (2) applies whether or not the material change of use was authorised under a development permit.

Division 2—Uses and rights acquired before the commencement of this Act continue

˙Lawful uses of premises protected

1.4.6. If immediately before the commencement of this section the use of premises was a lawful use under the repealed Act and there has been no material change of the use since the commencement—

  1. (a)
    the use is taken to be a lawful use under this Act; and
  1. (b)
    neither a planning instrument nor an amendment of a planning instrument can—
  1. (i)
    stop the use from continuing; or
  1. (ii)
    further regulate the use; or
  1. (iii)
    require the use to be changed.

(2) If there has been a material change of the use of premises since the commencement of this section, any lawful use of the premises immediately before the commencement is taken to be a lawful use of the premises after the commencement—

  1. (a)
    for as long as the use continues; but
  1. (b)
    only to the extent the lawful use of the premises immediately before the commencement continues.”˙
  1. [169]
    These provisions protect the continuation of an existing lawful use on the premises the subject of the use. The protection from further regulation afforded by these provisions did not extend to a material change of use of the premises.  As such, a new use of the premises could be regulated.  Similarly, if the use was abandoned, the existing lawful use rights were lost and the re-establishment of the abandoned use could be regulated.  Further, while the original use was protected, if there was a material change in the intensity or scale of the use, there could be regulation of the use to the extent of the change.
  1. [170]
    Central to the question of whether a particular activity on premises is an existing lawful use or involves the making of a material change of use is the identification of the use in question and the premises the subject of the existing use.
  1. [171]
    Schedule 10 of the Integrated Planning Act 1997 contains the following relevant definitions:

“premises means—

  1. (a)
    a building or other structure; or
  1. (b)
    land (whether or not a building or other structure is situated on the land).

use, in relation to premises, includes any use incidental to and necessarily associated with the use of the premises”. 

  1. [172]
    Neither “premises” nor “use” is defined by reference to the extent of physical activity.  The identification of the premises the subject of the existing use involves a consideration of the extent of the planning unit devoted to the use in question.  Had the legislature intended to confine the concept of use to physical use, it could have so provided in the definition of “use”.
  1. [173]
    I am not persuaded there is an evident legislative intent to define existing lawful use rights in a manner inconsistent with the line of reasoning in Parramatta City Council v Brickworks Limited[25] and Eaton & Sons Pty Ltd v Warringah Shire Council[26].
  1. [174]
    The Integrated Planning and Other Legislation Amendment Act 2003 (Qld) replaced Chapter 1 Part 4 of the Integrated Planning Act 1997 on 16 October 2003.  Relevantly, the replacement Part 4 included the following:

“1.4.1 Lawful uses of premises on 30 March 1998

To the extent an existing use of premises was lawful immediately before 30 March 1998, the use is taken to be a lawful use under this Act on 30 March 1998.

1.4.2 Lawful uses of premises protected

  1. (1)
    Subsection (2) applies if immediately before the commencement of a planning instrument or an amendment of a planning instrument the use of premises was a lawful use of the premises.
  1. (2)
    Neither the instrument nor the amendment can—
  1. (a)
    stop the use from continuing; or
  1. (b)
    further regulate the use; or
  1. (c)
    require the use to be changed.”
  1. [175]
    On 18 November 2005, the provision was further amended to renumber the above s 1.4.1 as subsection (1) and insert the following subsections:

“(2) To remove any doubt, it is declared that subsection (1) does not, and has never, affected or otherwise limited a requirement under another Act to obtain an approval for the existing use.

  1. (3)
    In this section—

approval includes an environmental authority under the Environmental Protection Act 1994, as in force from time to time from 30 March 1998.”

  1. [176]
    The absence of an intention to limit existing lawful use rights to the extent of premises physically used is confirmed by the Explanatory Notes for the Integrated Planning and Other Legislation Amendment Bill 2003, which state at pages 65 to 67:

“Replacement of ch 1, pt 4

Clause 37 replaces the existing chapter 1 part 4. That part currently consists of three divisions. Division 1 deals with rights acquired before the commencement of IPA in March 1998. Division 2 deals with rights of the commencement of other Acts on rights under IPA.

The current structure of the part reflects an expectation during its original drafting that the requirements for protecting pre-existing uses and work would differ from those for uses and work established under the IPA.

In fact, these differences are minor and there is consequently significant duplication between divisions 1 and 2.

In addition, several provisions in divisions 1 and 2 were originally included to emphasise the distinction between the existing rights provisions of IPA and those of the repealed Local Government (Planning and Environment) Act 1990, which were considered deficient in several respects. These provisions have now been reviewed and are considered unnecessary given that it is now five years since the implementation of the IPA arrangements.

Consequently this Bill includes a consolidated and simplified existing rights regime. However the scope, and effect of the provisions are intended to be the same as that as under the replaced part.

There are no longer separate divisions dealing with pre-existing rights and rights acquired under IPA. Instead, section 1.4.1 “brings forward” existing lawful use rights acquired before the commencement of IPA, and subsequent sections deal with the treatment under IPA of those rights and rights acquired subsequently. Section 1.4.3 (dealing with buildings or works as opposed to uses) has been designed to apply to buildings or works constructed or effected before or after the commencement of IPA.

PART 4—EXISTING USES AND RIGHTS PROTECTED

1.4.1 (Lawful use of premises on 30 March 1998)

This section provides for the continuing lawfulness under the IPA of existing uses that were lawful under the repealed Act (previously dealt with in s 1.4.6).

The equivalent provision in the repealed Local Government (Planning and Environment) Act 1990 suggested an existing lawful use of premises would completely lose the protection afforded by that Act if the use changed in any way. As a consequence s 1.4.6(2) and (3) were included in the IPA. However, similar provisions to these are unnecessary under the IPA and have not been retained. If the use changes after the commencement of the IPA, the protection afforded by subsection 1 continues for the “underlying” existing use to the extent that use continues (i.e. is not abandoned).

1.4.2 (Lawful use of premises protected)

Protects lawful uses under the Act that might otherwise become unlawful or be subject to further regulation because of the commencement of new or amended planning scheme provisions.”

(emphasis added)

Continued protection of existing lawful uses under the Sustainable Planning Act 2009 and the Planning Act 2016

  1. [177]
    Upon its introduction, the Sustainable Planning Act 2009 continued to afford protection to existing lawful uses.  Relevantly, s 681 and s 682 provided:

“681 Lawful uses of premises on commencement

  1. (1)
    To the extent an existing use of premises was lawful immediately before the commencement of this Act, the use is taken to be a lawful use under this Act on the commencement.
  1. (2)
    To remove any doubt, it is declared that subsection (1) does not, and has never, affected or otherwise limited a requirement under another Act to obtain an approval for the existing use.

Example of an approval—

an environmental authority under the Environmental Protection Act

682 Lawful uses of premises protected

  1. (1)
    Subsection (2) applies if—
  1. (a)
    immediately before the commencement of a planning instrument or an amendment of a planning instrument, the use of premises was a lawful use of the premises; or
  1. (b)
    immediately before an existing planning instrument starts applying to land, the use of premises was a lawful use of the premises.
  1. (2)
    Neither the instrument nor the amendment can—
  1. (a)
    stop the use from continuing; or
  1. (b)
    further regulate the use; or
  1. (c)
    require the use to be changed.”
  1. [178]
    There was no amendment to these provisions during the currency of the Sustainable Planning Act 2009.
  1. [179]
    Protection for existing lawful use rights was also continued on the commencement of the Planning Act 2016.  Relevantly, s 260 of the Planning Act 2016 provides:

“260 Existing lawful uses, works and approvals

  1. (1)
    If, immediately before a planning instrument change, a use of premises was a lawful use of premises, the change does not—
  1. (a)
    stop the use from continuing; or
  1. (b)
    further regulate the use; or
  1. (c)
    require the use to be changed.
  1. (2)
    If a planning instrument change happens after building or other works have been lawfully constructed or effected, the change does not require the building or works to be altered or removed.
  1. (3)
    If a planning instrument change happens after a development approval is given, the change does not—
  1. (a)
    stop or further regulate the development; or
  1. (b)
    otherwise affect the approval to any extent to which the approval remains in effect.”

Conclusion regarding existing lawful use rights

  1. [180]
    The Appellant alleges the Co-Respondent did not have the benefit of existing lawful use rights with respect to the whole of the land for three reasons. They are:
  1. (a)
    upon the commencement of the 1986 Planning Scheme, any existing lawful use rights were confined to that part of the land included in the Extractive Industry Zone;
  1. (b)
    the Co-Respondent lost all existing lawful use rights by exercising its rights under the Judgment of the Planning and Environment Court given in April 2000; and
  1. (c)
    upon the introduction of the Integrated Planning Act 1997 and the commencement of Rockhampton City Plan 2005, any existing lawful use rights that existed at that time were preserved only to the extent of the actual, physical use that was being undertaken at the time.
  1. [181]
    For the reasons outlined above, I am satisfied that there has not been a loss of existing lawful use rights over the whole of the land by reason of any of those matters.

Was the development application properly made?

  1. [182]
    The Appellant submits the development application was not properly made because:
  1. (a)
    it is apparent that the references to an extractive industry use in the development application are, properly construed, references to an existing lawful extractive industry use;
  1. (b)
    the references to an existing extractive industry (i.e. an existing lawful extractive industry use) in the development application are erroneous, as the extractive industry use was not lawful at the time of the making of the development application (indeed it had already not been lawful for some four months);
  1. (c)
    any extractive industry use of land includes only those areas physically used for extractive industry (for example, areas of excavation, areas of stockpiling, access roads, water storage bodies, infrastructure and the like) and does not include:
  1. (i)
    areas of land that function as a buffer to the extractive industry; or
  1. (ii)
    areas of land adjacent to the land physically used for extractive industry that may have to be the subject of some rehabilitation or remediation arising from the actual activities on the extractive industry land;
  1. (d)
    the proposed development, for which approval under the Sustainable Planning Act 2009 was necessary at all times between 26 April 2015 and the making of the development application, is properly characterised as a material change of use (within the meaning of that expression in both the Sustainable Planning Act 2009 and the Planning Act 2016).  It is either “the start of a new use of the premises” or “the re-establishment on the premises of a use that has been abandoned” (i.e. the commencement or re-commencement of a use that does not then lawfully exist);
  1. (e)
    the development application really only describes development that is “a material increase in the intensity or scale of the use of the premises” (i.e. an expansion of an existing lawful use);
  1. (f)
    there is a significant difference between a material change in use involving the commencement, or recommencement of a use of land, and a material change of use involving only an expansion of an existing use;
  1. (g)
    there is a significant difference between the description of a lawful existing extractive industry use of about 20.6 hectares and a lawful existing extractive industry use of only 11.965 hectares; and
  1. (h)
    there is a significant difference between a purported expansion of an extractive industry use covering some 18.785 hectares, in the context of an existing quarry of 20.6 hectares, and an expansion of 18.785 hectares in the context of a quarry with existing use rights over only 11.965 hectares.
  1. [183]
    I do not accept that the development application was not properly made for three reasons.
  1. [184]
    First, as is noted in paragraphs [15], [66] and [67] above, the evidence establishes that the Council decided to accept the development application as a properly made application and there has been no effective challenge to the legitimacy of the Council’s decision.
  1. [185]
    Second, for the reasons identified above, I am not satisfied that the Co-Respondent does not have the benefit of existing lawful use rights.
  1. [186]
    Third, even if there was no existing lawful use, it does not necessarily follow that the development application was not properly made.
  1. [187]
    The mandatory requirements part of approved IDAS form 1 includes a requirement to specify “Current use/s of the premises (e.g. vacant land, house, apartment building, cane farm etc.). 
  1. [188]
    In Gates v Gold Coast City Council [2011] QPEC 94; [2012] QPELR 20, His Honour Judge Newton held that for the purpose of that part of the form, it is information about the current use of the land that is sought, not the lawful use of the land.  I agree. 
  1. [189]
    Here, in that part of the IDAS form, the current use was recorded as “Hard Rock Quarry”.  The unchallenged evidence of Mr Anderson establishes that this is the current use of the land.
  1. [190]
    Further, there are no deficiencies, as alleged, in the mandatory supporting information. The nature, location and extent of the proposed extractive industry use, including the proposed areal extent of extraction and the areas proposed as buffers, is apparent from Figure 5 in the Engineering & Planning Commentary Report that accompanied the application, particularly when read in the context of the report as a whole.

Was the public notification defective?

  1. [191]
    The Appellant submits there has been a failure to publicly notify the development application in accordance with the requirements of the Sustainable Planning Act 2009 because:
  1. (a)
    the description of the proposed development in the public notices and the relevant documents supporting the development application was not an accurate description of the proposed development;
  1. (b)
    members of the public would have been misled by the description of the proposed development in the public notices and the relevant documents supporting the development application; and
  1. (c)
    the proper description of the proposed development may well have, and probably would have, triggered additional submissions in respect of the development application.
  1. [192]
    The Appellant’s case is founded on its allegation that there is not an existing lawful extractive industry use.
  1. [193]
    I do not accept that there has been a failure to properly publicly notify the development application for three reasons.
  1. [194]
    First, as is noted in paragraphs [20] to [29], [66] and [67] above, there is no allegation of a failure to comply with a requirement of the Sustainable Planning Act 2009 with respect to public notification, nor has there been any effective challenge to the legitimacy of the Council’s decision to proceed to assess and decide the application.
  1. [195]
    Second, for the reasons identified above, I am not satisfied that the Co-Respondent does not have the benefit of existing lawful use rights.
  1. [196]
    Third, and in any event, I do not regard the public notification as misleading.
  1. [197]
    As was observed by Jones J in Rathera Pty Ltd v Gold Coast City Council & Ors; Liquorland (Australia) Pty Ltd v Gold Coast City Council [2000] QCA 506; [2001] 2 Qd R 476 at 484:

“[17] The purpose of s 3.2.1 and the role of the application form itself must therefore be seen as part of this detailed and complex procedure which precedes a local authority making a decision on a development proposal. The first step is the lodgment of the application. Only when the assessment manager is satisfied that adequate information about the proposal has been supplied, including the assessment of any referral agency, does the IDAS process proceed to the next stage.

[18] That information and referral stage requires the applicant or the assessment manager to give notice of the development to the public and to the owners of all lands adjoining the subject land. This notice then supplies the basic information to interested persons as to the land where the identified development is to take place, how to obtain details of the proposal and the time within which submissions about the proposal must be made.

[19] In form, the application itself is little more than a broad record of the parties, property and type of development. But by the end of the information and referral stage the assessment manager ought to know in precise detail what the development proposal entails. This information comes, not so much from the application form, but from accompanying documents, from requests for further information and from the assessment of referral agencies.

[20] For members of the public or the adjoining land owners the place at which the precise details of the proposed development is to be obtained is not the public notification - be it by newspaper advertisement or by notice board - but rather at the local authority office which is identified in the advertisements along with the time within which submissions would need to be made.”

  1. [198]
    And at 486:

“[31] It would not be expected that an objector to the proposal would frame a submission based on the information contained in the public advertising, nor indeed in what is set out in the application form. It is the accompanying maps, sketches, site plans and development details which one expects would be relevant to any intending objector.”

  1. [199]
    Here, the public notification described the proposed development as follows:

“From: Extractive Industry (up to 1 Million t/yr over 20.6 ha)

To: Extractive Industry (up to 1 Million t/yr over 30.75 ha)”

  1. [200]
    There could be no doubt to a member of the public that the land was being used for extractive industry and the proposal sought permission to lawfully extract from land with an area of 30.75 hectares.
  1. [201]
    The nature of the application is well summarised in paragraph 3.1 of the Engineering & Planning Commentary Report, where it states:

“This application seeks approve to continue operations of the existing quarry and to allow for expansion of the quarry’s operational area to occupy the full KRA area plus a small area slightly beyond the existing key resource area’s ‘resource/processing’ area.”

  1. [202]
    Regardless of whether there was existing lawful use rights, a member of the public could readily ascertain that the Co-Respondent sought a development permit so that it might lawfully undertake an extractive industry use on the land. The extent of the operational area is readily ascertainable from the application read as a whole, as is the extent of the land to be used as buffer.

Conclusion

  1. [203]
    The Appellant requests orders that:
  1. (a)
    the appeal be allowed;
  1. (b)
    the Council’s decision to approve the development application be set aside; and
  1. (c)
    the development application be returned to the Council to properly follow the development application process. 
  1. [204]
    There is no proper foundation to the allegations relied on by the Appellant to found the relief it seeks. The Appellant’s request is denied.

Footnotes

[1]T2-20/L40 – T2-21/L5.

[2]At the time, the relevant reprint was that current as at 5 July 2015.

[3]Reprint current as at 6 July 2015.

[4]See Version 2.0, effective 1 March 2012.

[5]See the definition of eligible submitter in schedule 2 of the Planning Act 2016.

[6]A “provision” of a development approval is defined as “all words or other matters forming, or forming part of, the approval.”  Examples provided include a development condition and the currency period

[7]Planning Act 2016, s 229.

[8]Rule 8(2) of the Planning and Environment Court Rules 2018 confirms that a notice of appeal must name as a respondent or co-respondent the entity that is the respondent or co-respondent under an Act.

[9]For example, for an appeal by a building advisory agency, see the definition of “building advisory agency” in Schedule 2 and s 63 of the Planning Act 2016, which requires notice of a decision to be given to a building advisory agency (being a referral agency for the assessment of building work against the building assessment provisions).  With respect to deemed refusal appeal rights, see s 63 of the Planning Act 2016 for the right to receive notice of a decision about a development application; see s 83 of the Planning Act 2016 for the right to receive notice of a decision about a change application; see s 87(5) of the Planning Act 2016 for the right to receive notice of a decision about an extension application; see s 141 of the Planning Act 2016 for the right to receive notice of a decision about a conversion application; and see s 32 of the Planning Act 2016 for the right to receive notice of a decision about a compensation claim under s 31(6) and under s 265 of the Planning Act 2016. 

[10]Similar requirements exist under s 63 of the Planning Act 2016.

[11]T1-26 – T1-27.

[12]Eschenko v Cummins & Ors [2000] QPEC 37; [2000] QPELR 386, 389 [20];  Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10; [2016] QPELR 334. 

[13]T2-18/L41-43.

[14]Part 2, Division 1, clause 2(1) and the Table of Zones in Part II, Division I of the 1986 Planning Scheme.

[15]Part 2, Division 1, clause 2(2) and the Table of Zones in Part II, Division I of the 1986 Planning Scheme.

[16](1959) 100 CLR 1.

[17](1959) 100 CLR, at p 4.

[18](1957) 96 CLR 493, at p 515.

[19][1972] HCA 33; (1972) 129 CLR 270, 278.

[20]under s 4.3(1) of the Local Government (Planning and Environment) Act 1990.  An application under s 4.3(1)(a) of the Local Government (Planning and Environment) Act 1990 was often referred to as an application for rezoning.

[21]These fields reflect the information prescribed by the Council for a rezoning application under Chapter 38, by-law 5(1) (as it appears in the Government Gazette on 8 March 1986) and s 33(6A) of the Local Government Act 1936. 

[22]I do not accept, as was submitted by the Appellant, that the Judgment provided the “charter of rights” exercised by the Co-Respondent from 26 April 2000.

[23]One needs to look at the entitlement to pursue the proposed development: Mimehaven Pty Ltd v Cairns City Council [2002] QCA 276, (2002) 121 LGERA 216.  At any one time, there can be multiple rights to use land: Savage v Cairns Regional Council [2016] QCA 103, [37] and [38]; Gladstone Regional Council v Homes R Us [2015] QCA 175; (2015) 209 LGERA 302, [9]; Matijesevic v Logan City Council [1984] 1 Qd R 599.

[24][1972] HCA 21; (1972) 128 CLR 1.

[25][1972] HCA 21; (1972) 128 CLR 1.

[26][1972] HCA 33; (1972) 129 CLR 270.

Close

Editorial Notes

  • Published Case Name:

    Perivall Pty Ltd v Rockhampton Regional Council & Ors

  • Shortened Case Name:

    Perivall Pty Ltd v Rockhampton Regional Council

  • MNC:

    [2018] QPEC 46

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    04 Oct 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1
2 citations
Jump To
Cite 1 - (1959) 100 CLR 1
Cite 2 - (1959) 100 CLR 1
Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270
6 citations
Jump To
Cite 1 - (1972) 129 CLR 270
Cite 2 - (1972) 129 CLR 270
Cite 3 - (1972) 129 CLR 270
Cite 4 - (1972) 129 CLR 270
Cite 5 - (1972) 129 CLR 270
Cite 6 - (1972) 129 CLR 270
Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33
4 citations
Jump To
Cite 1 - [1972] HCA 33
Cite 2 - [1972] HCA 33
Cite 3 - [1972] HCA 33
Cite 4 - [1972] HCA 33
Eaton & Sons v Warringah Shire Council (1963) 50 LGRA 124
1 citation
Jump To
Cite 1 - (1963) 50 LGRA 124
Eschenko v Cummins [2000] QPEC 37
2 citations
Jump To
Cite 1 - [2000] QPEC 37
Cite 2 - [2000] QPEC 37
Eschenko v Cummins (2000) QPELR 386
2 citations
Jump To
Cite 1 - (2000) QPELR 386
Cite 2 - (2000) QPELR 386
Ferreyra & Ors v Brisbane City Council & Anor (2016) QPELR 334
2 citations
Jump To
Cite 1 - (2016) QPELR 334
Cite 2 - (2016) QPELR 334
Ferreyra v Brisbane City Council [2016] QPEC 10
2 citations
Jump To
Cite 1 - [2016] QPEC 10
Cite 2 - [2016] QPEC 10
Gates v Gold Coast City Council [2011] QPEC 94
2 citations
Jump To
Cite 1 - [2011] QPEC 94
Cite 2 - [2011] QPEC 94
Gates v Gold Coast City Council [2012] QPELR 20
2 citations
Jump To
Cite 1 - [2012] QPELR 20
Cite 2 - [2012] QPELR 20
Gladstone Regional Council v Homes R Us (Australia) Pty Ltd [2015] QCA 175
2 citations
Jump To
Cite 1 - [2015] QCA 175
Cite 2 - [2015] QCA 175
Gladstone Regional Council v Homes R Us (Australia) Pty Ltd (2015) 209 LGERA 302
2 citations
Jump To
Cite 1 - (2015) 209 LGERA 302
Cite 2 - (2015) 209 LGERA 302
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
2 citations
Jump To
Cite 1 - (2011) 242 CLR 573
Cite 2 - (2011) 242 CLR 573
Lacey v The Attorney-General of Queensland [2011] HCA 10
1 citation
Jump To
Cite 1 - [2011] HCA 10
Matijesevic v Logan City Council [1984] 1 Qd R 599
2 citations
Jump To
Cite 1 - [1984] 1 Qd R 599
Cite 2 - [1984] 1 Qd R 599
Mimehaven Pty Ltd v Cairns City Council [2002] QCA 276
2 citations
Jump To
Cite 1 - [2002] QCA 276
Cite 2 - [2002] QCA 276
Mimehaven Pty Ltd v Cairns City Council (2002) 121 LGERA 216
2 citations
Jump To
Cite 1 - (2002) 121 LGERA 216
Cite 2 - (2002) 121 LGERA 216
Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493
1 citation
Jump To
Cite 1 - (1957) 96 CLR 493
Parramatta City Council v Brickworks Limited [1972] HCA 21
4 citations
Jump To
Cite 1 - [1972] HCA 21
Cite 2 - [1972] HCA 21
Cite 3 - [1972] HCA 21
Cite 4 - [1972] HCA 21
Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1
5 citations
Jump To
Cite 1 - (1972) 128 CLR 1
Cite 2 - (1972) 128 CLR 1
Cite 3 - (1972) 128 CLR 1
Cite 4 - (1972) 128 CLR 1
Cite 5 - (1972) 128 CLR 1
Rathera P/L v Gold Coast C C[2001] 2 Qd R 476; [2000] QCA 506
5 citations
Jump To
Cite 1 - [2000] QCA 506
Cite 2 - [2000] QCA 506
Cite 3 - [2001] 2 Qd R 476
Cite 4 - [2001] 2 Qd R 476
Cite 5 - [2001] 2 Qd R 476
Savage v Cairns Regional Council [2016] QCA 103
2 citations
Jump To
Cite 1 - [2016] QCA 103
Cite 2 - [2016] QCA 103
The Council of the City of Parramatta v Brickworks Limited (1971) 28 CLR 1
2 citations
Jump To
Cite 1 - (1971) 28 CLR 1
Cite 2 - (1971) 28 CLR 1
Waterman v Logan City Council [2018] QPEC 44
1 citation
Jump To
Cite 1 - [2018] QPEC 44

Cases Citing

Case NameFull CitationFrequency
Bigini Pty Ltd v Brisbane City Council [2019] QPEC 12 citations
Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor [2022] QPEC 161 citation
Friends of Buddina Ltd v Sunshine Coast Regional Council [2021] QPEC 578 citations
Leeward Management Pty Ltd v Noosa Shire Council [2022] QPEC 582 citations
McKean v Council of the City of Gold Coast [2018] QPEC 612 citations
We Kando Pty Ltd v Western Downs Regional Council [2018] QPEC 654 citations
1

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