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G Santalucia Investment Pty Ltd v Bundaberg Regional Council[2021] QPEC 63

G Santalucia Investment Pty Ltd v Bundaberg Regional Council[2021] QPEC 63

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

G Santalucia Investment Pty Ltd v Bundaberg Regional Council [2021] QPEC 63

PARTIES:

G SANTALUCIA INVESTMENT PTY LTD AS TRUSTEE UNDER INSTRUMENTS 7092289108 AND 711682070

(Appellant)

v

BUNDABERG REGIONAL COUNCIL

(Respondent)

FILE NO/S:

163 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

11 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

20 August and 5 October 2021 and further submissions received 4 and 5 November 2021 and further evidence received 11 November 2021

JUDGE:

Kefford DCJ

ORDER:

I order:

1. the appeal be allowed in part; and

2. the enforcement notice dated 18 December 2020 is set aside;

3. subject to further order by this Court, by 3 December 2021 Bundaberg Regional Council is to issue a new enforcement notice that is varied to reflect these reasons for judgment and to require the Appellant to:

(a) by 3 June 2022, restore the Land, as far as practicable, to the condition it was in in 2017 before the Earthworks were undertaken;

(b) or alternatively to taking the steps in paragraph (a) above:

(i) lodge with the Council a properly made development application for a development permit for operational works on the subject land for the earthworks by 4 pm on 3 March 2022;

(ii) do all things necessary to progress the development application; and

(iii) if a development approval is granted for operational works for the earthworks, carry out the development in accordance with the development approval; and

(iv) if the development application is refused, restore the subject land, as far as practicable, to the condition it was in in 2017 before the earthworks were undertaken, within six months of the giving of a decision notice refusing the development application.  

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – APPEAL AGAINST ENFORCEMENT NOTICE – where the appellant was given an enforcement notice under s 168 of the Planning Act 2016 in relation to earthworks – where the appellant appealed against the decision to give the enforcement notice – whether the Planning Regulation 2017 prohibits the Planning Scheme from categorising the operational works as assessable development – whether the enforcement notice should be set aside in the exercise of the discretion

LEGISLATION:

Planning Act 2016 (Qld), s 43, s 44, s 163, s 168

Planning and Environment Court Act 2016 (Qld), s 43, s 45

Planning Regulation 2017 (Qld), s 16, sch 6

Sustainable Planning Act 2009 (Qld), s 232

Sustainable Planning Regulation 2009 (Qld), s 16, sch 6

CASES:

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, applied

Fairmont Group Pty Ltd v Moreton Bay Regional Council [2019] QCA 81, (2019) 241 LGERA 52; [2020] QPELR 604, cited

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, cited

COUNSEL:

E Morzone QC and D Jones for the Appellant

M Batty for the Respondent

SOLICITORS:

MRH Lawyers for the Appellant

Connor O'Meara for the Respondent

TABLE OF CONTENTS

Introduction 3

What are the issues to be determined? 4

What is the legislative regime that informs the issue of an enforcement notice? 4

Was there a proper basis for the issue of the enforcement notice? 7

What is the Council’s case in the appeal? 14

Has the Council established the commission of the alleged offence? 14

Did the Appellant excavate more than 50 cubic metres of material? 15

Did the Appellant carry out excavation within a flood hazard area? 17

Was the alleged development assessable development? 17

Is there a development permit authorising the alleged development? 18

Do any of the exceptions in s 163(2) of the Planning Act 2016 apply? 18

Has the Council proved the alleged offence? 19

What is the Appellant’s case? 19

Does the legislative regime justify setting aside the enforcement notice? 20

What is the relevant legislative context? 20

Is the categorisation of operational work in the Planning Scheme of no effect? 22

Are the works in question prohibited from being categorised as assessable development by item 16? 26

Conclusion regarding the legality of the Planning Scheme’s categorisation of the operational work as assessable development 27

Are there discretionary considerations that warrant setting aside the enforcement notice? 28

Conclusion 29

Introduction

  1. [1]
    G Santalucia Investment Pty Ltd (“the Appellant”) owns land located at 109 Gahans Road, Kalkie (“the subject land”). 
  2. [2]
    On 23 December 2020, Bundaberg Regional Council (“the Council”) gave an enforcement notice to the Appellant under s 168 of the Planning Act 2016 (Qld).  The underlying basis for the enforcement notice is a stated belief that operational work in the form of earthworks has been conducted on the subject land to create a dam and that the operational work was assessable development under the Bundaberg Regional Council Planning Scheme 2015 (“the Planning Scheme”).  The enforcement notice alleges that there was no effective development permit for the operational work and that an offence was committed under s 163 of the Planning Act 2016.
  3. [3]
    This is an appeal against the decision of the Council to give the enforcement notice.  

What are the issues to be determined?

  1. [4]
    By the time of the hearing, the issues in dispute had narrowed.  The only issues that the Appellant now agitates relate to:
    1. (a)
      whether the operational work it carried out relates to management practices for the conduct of an agricultural use;
    2. (b)
      whether the operational work it carried out is not assessable development having regard to sch 6, pt 3, item 16 of the Planning Regulation 2017 (Qld); and
    3. (c)
      regardless of the validity of the enforcement notice, whether it should nevertheless be set aside in the exercise of the Court’s discretion.
  2. [5]
    Despite the narrow compass of the issues in dispute, the exercise of the Court’s discretion is relevantly informed by a broader consideration of matters, including some that are undisputed.  As such, it is convenient to consider the following issues:
  1. What is the legislative regime that informs the issue of an enforcement notice?
  2. Was there a proper basis for the issue of the enforcement notice?
  3. What is the Council’s case in the appeal?
  4. Has the Council established the commission of the alleged offence?
  5. What is the Appellant’s case?
  6. Does the legislative regime justify setting aside the enforcement notice?
  7. Are there discretionary considerations that warrant setting aside the enforcement notice?
  1. [6]
    I address each of these issues below.

What is the legislative regime that informs the issue of an enforcement notice?

  1. [7]
    Chapter 5, pt 3 of the Planning Act 2016 relates to enforcement notices.  Pursuant to s 167 of the Planning Act 2016, other than in defined circumstances, where an enforcement authority reasonably believes a person has committed, or is committing, a development offence and is considering giving an enforcement notice for the offence, the enforcement authority must first give the person a show cause notice.  Under s 167(2), the show cause notice must:
    1. (a)
      state that the enforcement authority is considering giving an enforcement notice to the person;
    2. (b)
      outline the facts and circumstances that form the basis for the enforcement authority’s reason for giving an enforcement notice;
    3. (c)
      state that the person may make representations about the notice to the enforcement authority;
    4. (d)
      state how the representations may be made; and
    5. (e)
      state a day and time for making the representations or a period within which the representations must be made. 
  1. [8]
    Under s 167(3), the show cause notice must allow at least 20 business days for the making of representations. 
  1. [9]
    Pursuant to s 167(4) of the Planning Act 2016, after considering any representations made by the person in response to the show cause notice, the enforcement authority may give the enforcement notice if the enforcement authority still considers it appropriate to do so.
  2. [10]
    The power to give an enforcement notice, and the details that it must include, are addressed by s 168 of the Planning Act 2016, which states:

168 Enforcement notices

  1. (1)
    If an enforcement authority reasonably believes a person has committed, or is committing, a development offence, the authority may give an enforcement notice to—
  1. (a)
    the person; and
  1. (b)
    if the offence involves premises and the person is not the owner of the premises—the owner of the premises.
  1. (2)
    An enforcement notice is a notice that requires a person to do either or both of the following—
  1. (a)
    to refrain from committing a development offence;
  1. (b)
    to remedy the effect of a development offence in a stated way.

Examples of what an enforcement notice may require

The notice may require a person do any or all of the following on or before a stated time or within a stated period—

  • to stop carrying out development
  • to demolish or remove development
  • to restore, as far as practicable, premises to the condition the premises were in immediately before development was started
  • to do, or not to do, another act to ensure development complies with a development permit
  • if the enforcement authority reasonably believes works are dangerous, to repair or rectify the works, to secure the works, or to fence the works off to protect people
  • to stop a stated use of premises
  • to apply for a development permit
  • to give the enforcement authority a compliance program that shows how compliance with the enforcement notice will be achieved.
  1. (3)
    The notice must state—
  1. (a)
    the nature of the alleged offence; and
  1. (b)
    if the notice requires the person not to do an act—
  1. (i)
    the period for which the requirement applies; or
  1. (ii)
    that the requirement applies until further notice; and
  1. (c)
    if the notice requires the person to do an act—
  1. (i)
    the details of the act; and
  1. (ii)
    the period within which the act must be done; and
  1. (d)
    that the person has an appeal right against the giving of the notice.
  1. (4)
    The notice may require demolition or removal of all or part of works if the enforcement authority reasonably believes it is not possible or practical to take steps—
  1. (a)
    to make the development accepted development; or
  1. (b)
    to make the works comply with a development approval; or
  1. (c)
    if the works are dangerous—to remove the danger.
  1. (5)
    A person must not contravene an enforcement notice.

Maximum penalty—4,500 penalty units.

  1. (6)
    An enforcement notice that requires development on premises to stop being carried out may be given by fixing the notice to the premises in a way that a person entering the premises would normally see the notice.
  1. (7)
    A person must not deal with an enforcement notice stated in subsection (6) in a way that is reasonably likely to prevent the recipient seeing the notice.

Maximum penalty—4,500 penalty units.”

  1. [11]
    Pursuant to s 229 and sch 1, item 1, table 1, item 6 of the Planning Act 2016, the person given an enforcement notice may lodge an appeal to the Planning and Environment Court against the decision to give the enforcement notice.  This is such an appeal.
  2. [12]
    The appeal is a hearing anew.[1]  The Council bears the onus in the appeal.[2]  Due to the nature of the proceedings, the standard of proof is that referred to in Briginshaw v Briginshaw.[3]

Was there a proper basis for the issue of the enforcement notice?

  1. [13]
    There is no dispute about the legitimacy of the process followed by the Council in giving the Appellant the enforcement notice.  The Appellant accepts,[4] and the evidence relied on by the Council establishes, the following facts.
  2. [14]
    The Council gave the Appellant a show cause notice dated 4 November 2019.  The Council was an enforcement authority in relation to the offence alleged.  The show cause notice complied with the requirements of s 167 of the Planning Act 2016.
  3. [15]
    By letter dated 13 November 2019, Mr John Santalucia responded to the show cause notice on behalf of the Appellant.  The Appellant accepts that the response was in the terms outlined in the subsequent enforcement notice.  The evidence confirms that to be so.
  4. [16]
    On or about 23 December 2020, the Council gave the Appellant an enforcement notice dated 18 December 2020 (“the enforcement notice”).  The enforcement notice outlined the facts and circumstances that formed the basis of the Council’s belief that the Appellant had committed a development offence under s 163 of the Planning Act 2016.  The enforcement notice said:

“1.A search of the Council’s records shows that G Santalucia Investment Pty Ltd as trustee under Instruments 709228108 and 711692070 is the owner of the Land.

  1. The Land:

a)is described as Lot 31 on SP 240533, Parish of Kalkie, County of Cook ;

b)is located at 109 Gahans Road, Kalkie, Qld, 4670;

c)comprises an area of 80.93 hectares; and

d)is included within the Emerging Community Zone, under the Bundaberg Regional Council Planning Scheme 2015.

  1. 3.
    Schedule 1 of the Bundaberg Regional Council Planning Scheme 2015 defines “filling or excavation” as:

Removal or importation of material to from or within a lot that will change the ground level of the land.”

  1. 4.
    Pursuant to Table 5.7.1 Categories of development and assessment – operational work of the Bundaberg Regional Council Planning Scheme 2015, operational work involving excavating or filling is accepted development if:

(a)on Council owned or controlled land; and

(b)undertaken by or on behalf of the Council;

OR

(c)on Rural zoned land; and

(d)associated with the use of the land for a rural activity;

OR

(e)involving:-

(i)excavating or filling of not more than 50m3 of material; and

(ii)filling of not more than 10m3 with an average depth not more than 150mm above natural ground level; and

(iii)excavating to a depth of not more than 1m; and

(iv)filling does not cause ponding of overland runoff flows on adjacent land.

  1. 5.
    Operational works involving excavating or filling which is not accepted development under Table 5.7.1 Categories of development and assessment – Operational work, constitutes assessable development requiring code assessment under the Bundaberg Regional Council Planning Scheme 2015.
  1. 6.
    On 8 January 2019 and 31 January 2020, Council officers undertook inspections of the Land.
  1. 7.
    The investigations undertaken by Council officers reveal that:
  1. (a)
    On dates unknown to the Council but between 2018 and 2020, earthworks were conducted on the Land involving the excavation of material (hereinafter referred to as the ‘Earthworks’) as evidenced by the aerial photographs which form Attachment A to this Enforcement Notice, namely:
  1. (i)
    aerial photograph dated 29 May 2017;
  1. (ii)
    aerial photograph dated 25 September 2017;
  1. (iii)
    aerial photograph dated 13 November 2017;
  1. (iv)
    aerial photograph dated 30 May 2018;
  1. (v)
    aerial photograph dated 3 July 2018;
  1. (vi)
    aerial photograph dated 17 August 2018;
  1. (vii)
    aerial photograph dated 18 August 2018;
  1. (viii)
    aerial photograph dated 30 August 2018;
  1. (ix)
    aerial photograph dated 19 February 2019;
  1. (x)
    aerial photograph dated 20 March 2019;
  1. (xi)
    aerial photograph dated 4 May 2019;
  1. (xii)
    aerial photograph dated 1 July 2019;
  1. (xiii)
    aerial photograph dated 16 August 2019;
  1. (xiv)
    aerial photograph dated 27 September 2019;
  1. (xv)
    aerial photograph dated 7 October 2019;
  1. (xvi)
    aerial photograph dated 6 December 2019;
  1. (xvii)
    aerial photograph dated 13 February 2020;
  1. (xviii)
    aerial photograph dated 22 April 2020;
  1. (xix)
    aerial photograph dated 5 May 2020;
  1. (xx)
    aerial photograph dated 22 June 2020;
  1. (xxi)
    aerial photograph dated 14 July 2020;
  1. (xxii)
    aerial photograph dated 10 August 2020;
  1. (b)
    The Earthworks created a large dam on the Land which collects water (hereinafter referred to as the ‘Dam’)
  1. (c)
    The Dam created by the Earthworks constitutes an area of approximately 18,330m²; and
  1. (d)
    The Earthworks which were carried out to create the Dam involved excavating more than 50m³ of material.
  1. 8.
    The Earthworks carried out on the Land:
  1. (a)
    do not constitute accepted development under the under (sic) Bundaberg Regional Council Planning Scheme 2015 because:
  1. (i)
    the Land is not owned or controlled by the Council and the works were not undertaken by or on behalf of the Council;
  1. (ii)
    the Land is not Rural zoned land; and
  1. (iii)
    the Earthworks involved excavating more than 50m³ of material;
  1. (b)
    constitute assessable development under Bundaberg Regional Council Planning Scheme 2015 because:
  1. (i)
    the Land has been included within the Emerging Community Zone under the Bundaberg Regional council Planning Scheme 2015 since the commencement of that planning scheme on 19 October 2015;
  1. (ii)
    the Earthworks were carried out after 19 October 2015, as is evidenced by the aerial photographs in Attachment A; and
  1. (iii)
    the Earthworks involved excavating more than 50m³ of material.
  1. 9.
    The Earthworks are not excluded from being regulated as assessable development under the Bundaberg Regional Council Planning Scheme 2015.
  1. 10.
    The Council has no records of any effective development permits for the Land that would authorise the carrying out of operational works for excavating more than 50m³ of material.
  1. 11.
    Section 163 of the Planning Act 2016 provides that:

163 Carrying out assessable development without permit

(1)A person must not carry out assessable development, unless all necessary development permits are in effect for the development.

Maximum penalty –

(a)if the assessable development is on a Queensland heritage place or local heritage place – 17,000 penalty units; or

(b)otherwise – 4,500 penalty units.

(2)However, subsection (1) does not apply to development carried out –

(a)under section 29(10)(a); or

(b)in accordance with an exemption certificate under section 46; or

(c)under section 88(3).”

  1. 12.
    Section 163(2) of the Planning Act 2016 does not apply to the Earthworks.
  1. 13.
    On 4 November 2019, the Council issued a show cause notice to G Santalucia Investment Pty Ltd (As Trustee) (“Show Cause Notice”).
  1. 14.
    By a letter dated 13 November 2019, you responded to the Show Cause Notice, in which it was stated, inter alia, that:

“For the past 66 years I have been contracting to numerous farmers to improve their land as well as working on my land.  The work I carried out on my property was to improve my land for cropping by improving the existing drainage and to provide water storge (sic) for irrigation.

The works were also to rectify localised flooding that was occurring over the years to Gahan’s Road due to poor drainage upstream.  I recall inspecting the drain at the time and noted it was heavily polluted, overgrown with vegetation and strewn with fence posts and other debris.  In 2012/2013 I cleaned-up this area and created a larger dam which significantly improved the drainage.  As a result of this work, Gahans Road was flood free in the peak of the 2013 flood and has eliminated the need for Council to raise Gahans Road.  This work has also significantly improved risk of localised flooding impacts on neighbouring residential projects viz. Paddington Grove and Seymour Heights.  The local drainage system now works well and has enabled flows from the upstream catchments to drain away far quicker than it did before, therefore reducing peak flood levels.

For the past 61 years I have been farming in Bundaberg and have never had to obtain approvals to undertake earthworks on my own properties.  I believe it is my right, as a farmer, to carry out regular improvements on my property, manage adverse environmental impacts and ensure ongoing sustainability.  The works I carried out on my property were exactly for these reasons and no different to work that I have carried out on all my other properties or contracting for other farmers.

I did not realise that I am required to apply to Council for operational works approval for all excavations or filling greater than 50m3 etc.  In fact, if I was required to do so, I would have to submit operational works applications for almost everything I do to maintain my property.

I believe this Show Cause Notice has been issued in error.  Farming of my property pre-dates Council’s change in the zoning of my property to the Emerging Community zone.  Farming on my property is therefore a lawful existing use.  According to Section 260(1) of the Planning Act 2016

If, immediately before a planning instrument change, a use of premises is a lawful use of premises, the change does not –

(a) stop the use from continuing

(b) further regulate the use; or

(c) require the use to be changed.”

My reading of this section of the Act means that Council cannot prevent me from continuing to undertaking (sic) farming activities including excavation or filling work on my property which is lawful under the previous Rural zone.  Further the notion that I must apply to Council for operational works approval for all excavations or filling greater than 50m3 is most certainly “further regulating the use”.  I therefore request that Council withdraw this Show Cause Notice.”

  1. 15.
    The response to the Show Cause Notice is in error in the following respects:
  1. (a)
    The Earthworks are not protected pursuant to section 260(1) of the Planning Act 2016 as that provision relates to a “use” not works of the type constituting the Earthworks; and
  1. (b)
    Whilst section 260(2) of the Planning Act 2016 may protect existing works, it does not afford any protection to the Earthworks because the Earthworks were not lawfully constructed or effected when the Bundaberg Regional Council Planning Scheme 2015 took effect on 19 October 2015The Bundaberg Regional Council Planning Scheme 2015 has, from commencement, regulated with respect to land in the Emerging Community Zone, the carrying out of operational works where involving excavating or filling more than 50m³ of material.
  1. 16.
    The response to the Show Cause Notice otherwise admits that the Earthworks were carried out on the Land.
  1. 17.
    Accordingly, having considered the representations made by letter dated 13 November 2019, the Council still believes it is appropriate to give this Enforcement Notice.
  1. 18.
    In the circumstances of the above, the Council believes that you have committed a development offence under section 163 of the Planning Act 2016 because you have carried out assessable development without all necessary development permits being in effect for the development.

To remedy the commission of the development offence, the Council requires you:

(a)By 30 June 2021, restore the Land, as far as practicable, to the condition it was in in 2017 before the Earthworks were undertaken;

(b)Or alternatively to taking the steps in paragraph (a) above:

(i)Lodge with the Council a properly made development application for a development permit for operational works on the Land for the Earthworks by 4pm on 31 March 2021;

(ii)Do all things necessary to progress the development application; and

(iii)If a development approval is granted for operational works for the Earthworks, carry out the development in accordance with the development approval;

(iv)If the development application is refused, restore the Land, as far as practicable, to the condition it was in in 2017 before the Earthworks were undertaken, within 6 (sic) of the giving of a decision notice refusing the development application.”

  1. [17]
    Mr Ellery, a town planner in the employ of the Council, deposes to the circumstances in which the enforcement notice was given.  At the time of issue of the enforcement notice, Mr Ellery was the Group Manager – Development at the Council.  In that role, he had delegated authority from the Council to issue enforcement notices.
  2. [18]
    Mr Ellery says that on 18 December 2020, he signed and issued the enforcement notice.  Prior to doing so, Mr Ellery considered s 168 of the Planning Act 2016 and was conscious that he needed to hold a reasonable belief that the Appellant had committed, or was committing, a development offence.  Mr Ellery explains that the facts and circumstances that inform the belief that he formed are those set out in paragraphs 1 to 18 of the enforcement notice.  He also identifies with particularity, and exhibits to his affidavit, those documents on which he relied to derive the facts and circumstances set out in paragraphs 1 to 18 of the enforcement notice.  Mr Ellery explains that prior to issuing the enforcement notice, he considered the representations made by Mr Santalucia on behalf of the Appellant.  Having done so, he still considered it appropriate to issue the enforcement notice to the Appellant.
  3. [19]
    Mr Ellery’s evidence was unchallenged.  The Appellant does not suggest that the information relied on by Mr Ellery does not support his findings in paragraphs 1 to 18 of the enforcement notice.  Further, the Appellant does not allege that the facts and circumstances in paragraphs 1 to 18 of the enforcement notice are not capable of supporting a reasonable belief that the Appellant committed the offence alleged. 
  4. [20]
    I accept the evidence of Mr Ellery.  It satisfies me that, at the time the Council made the decision to give the enforcement notice, its decision to do so was beyond reproach.  The Council, through its delegate Mr Ellery, had formed a belief that an offence had been committed by the Appellant under s 163 of the Planning Act 2016.  Having regard to the information then available, I am satisfied that the belief was a reasonable one.  This supports a conclusion that the appeal should be dismissed.

What is the Council’s case in the appeal?

  1. [21]
    The Council maintains that it acted legitimately in issuing the enforcement notice.  It relies on the facts and circumstances set out in the enforcement notice to support its position that the Appellant committed the development offence alleged in the enforcement notice. 
  2. [22]
    The Council further alleges that the earthworks carried out by the Appellant required a development permit by reason of a second categorisation of that development as assessable development.  The second categorisation appears in the table of assessment that applies to land that is subject to the Flood hazard overlay under the Planning Scheme.

Has the Council established the commission of the alleged offence?

  1. [23]
    The Council alleges that the Appellant committed an offence under s 163 of the Planning Act 2016, which states:

163 Carrying out assessable development without permit

  1. (1)
    A person must not carry out assessable development, unless all necessary development permits are in effect for the development.

Maximum penalty—

  1. (a)
    if the assessable development is on a Queensland heritage place or local heritage place—17,000 penalty units; or
  1. (b)
    otherwise—4,500 penalty units.
  1. (2)
    However, subsection (1) does not apply to development carried out—
  1. (a)
    under section 29(10)(a); or
  1. (b)
    in accordance with an exemption certificate under section 46; or
  1. (c)
    under section 88(3).”
  1. [24]
    To prove that the Appellant has committed an offence under s 163 of the Planning Act 2016, the Council must prove that:
    1. (a)
      the Appellant carried out development;
    2. (b)
      the development was assessable development;
    3. (c)
      there was no development permit authorising the development; and
    4. (d)
      the development was not carried out:
      1. under s 29(10)(a) of the Planning Act 2016; or
      2. in accordance with an exemption certificate under s 46 of the Planning Act 2016; or
      3. under s 88(3) of the Planning Act 2016.
  2. [25]
    The particulars of the development relied on by the Council as constituting the offence are:
    1. (a)
      excavating of more than 50 cubic metres of material (“the alleged development”); and/or
    2. (b)
      excavating in a flood hazard area as identified on a Flood hazard map adopted by the Council (also “the alleged development”). 

Did the Appellant excavate more than 50 cubic metres of material?

  1. [26]
    The Council adduced extensive evidence of the excavation undertaken on the subject land.  The evidence includes numerous certificates pursuant to s 131(2) of the Survey and Mapping Infrastructure Act 2003 (Qld) attaching State remotely sensed images (effectively aerial photographs) of the subject land captured on 16 May 2017, 25 August 2017, 17 August 2018, 18 February 2019, 17 July 2019, 11 November 2019, 6 April 2020, 9 August 2020, and 30 October 2020.  An aerial appreciation of the extent of the earthworks can also be gleaned from the photographs and video footage taken by Ms McGinley on 31 January 2020.
  2. [27]
    In its response to the show cause notice, the Appellant (through Mr Santalucia) admitted that it had carried out the operational work the subject of the allegations in the show cause notice.  This admission against interest is consistent with the evidence in the images.  It supports a finding that the Appellant undertook operational works of the type, and in the timeframe, alleged by the Council. 
  3. [28]
    Further, it is apparent from the Notice of Appeal that the Appellant accepts that the operational work was carried out as alleged by the Council in the enforcement notice.  During final submissions, Mr Morzone QC, Counsel for the Appellant, confirmed the concession made in the Notice of Appeal.  On behalf of the Appellant, he conceded that the Appellant had carried out the alleged operational work.
  4. [29]
    With respect to the volume of the material excavated, the Council relies on an affidavit of Mr Wayne Say, a registered cadastral surveyor.  In his affidavit, Mr Say explains that he reviewed the aerial images and the photographs and video footage identified in paragraph [26] above, as well as Lidar information from the Council’s records that has been provided in a certificate pursuant to s 251 of the Local Government Act 2009 (Qld) dated 16 September 2021.  He also undertook a site inspection on 14 September 2021, at which time he took survey readings.  In his affidavit, Mr Say explains in detail the exercise he undertook to obtain the survey readings on 14 September 2021. 
  5. [30]
    Based on his review of the aerial images, Mr Say opines that a substantial excavation has been undertaken on the subject land.  The first evidence of the excavation is shown on the image dated 17 August 2018, but Mr Say’s review of that image suggests that the excavation likely started prior to that date given the nature and extent of the excavation evident in the image.  He notes that the images dated 16 May 2017 and 25 August 2017 indicate that there was no discernible excavation on the subject land on those dates.  Mr Say explains that the image dated 17 July 2019 shows that the excavation that commenced in or around August 2018 had substantially progressed by 17 July 2019.  Having regard to the image dated 30 October 2020, Mr Say opines that the excavation had likely been completed by that date.  The image shows that water had filled the excavated areas.
  6. [31]
    In his affidavit, Mr Say also explains the exercises that he undertook to calculate the volume of material excavated from the location of the water bodies on the subject land.  He explains that, on his calculations, the surface area of the top of the embankment is 22,638.04 square metres.  His survey readings taken on 14 September 2021 indicate that the distance between the top of the embankment and the standing water level is approximately one metre.  Mr Say acknowledges that he has not been able to observe the depth of the excavation below the standing water level.  However, by his calculations, the volume of excavation between the top of the embankment, adjusted to reflect the Lidar information, and the standing water level for the waterbodies on the subject land is at least 19,000 cubic metres. 
  7. [32]
    Based on the matters referred to in paragraphs [29] to [31] above, Mr Say opines that on dates unknown, but from at least 17 August 2018 (and not before 25 August 2017), substantial excavations were undertaken on the subject land.  He says the excavations were completed at a point in time before 30 October 2020 but after 17 August 2018.  He opines that the excavations within the waterbodies observed on the subject land exceed 50 cubic metres and constitute at least 19,000 cubic metres.
  8. [33]
    The Appellant did not challenge the evidence of Mr Say, and I accept it. 
  9. [34]
    The Council also relies on an affidavit of Ms Amanda Matanovic, a senior development engineer employed by the Council in relation to the extent of the excavation.  Ms Matanovic deposes to preparation of a file note in which she recorded her opinion that the approximate area of the excavation was 34,650 square metres and that the depth of the excavation would need to be one millimetre for the excavated material not to exceed 50 cubic metres.  She provides a detailed explanation of the basis of her calculation.  Her file note was provided to the compliance team.  Ms Matanovic’s evidence was not challenged. 
  10. [35]
    Having regard to the evidence of Mr Say and Ms Matanovic and that referred to in paragraph [26] above, I am satisfied that, between 17 August 2018 and 30 October 2020, the Appellant excavated more than 50 cubic metres of material.  

Did the Appellant carry out excavation within a flood hazard area?

  1. [36]
    A comparison of the State remotely sensed images referred to in paragraph [26] above to the Flood hazard map adopted by the Council, and proved by way of certificate, demonstrates that the Appellant carried out excavation within a flood hazard area on a Flood hazard map adopted by the Council. 

Was the alleged development assessable development?

  1. [37]
    Assessable development” is defined in s 44(3) of the Planning Act 2016 as development for which a development approval is required.
  2. [38]
    Pursuant to s 6 and sch 2 of the Planning Act 2016, “development” is defined to include carrying out operational work. 
  3. [39]
    Operational work” is defined in the Planning Act 2016 to mean:

“work, other than building work or plumbing or drainage work, in, on, over or under premises that materially affects premises or the use of premises.”

  1. [40]
    There is no dispute that the particulars of the development relied on by the Council and referred to in paragraph [25] above constitute operational work as that term is defined under the Planning Act 2016.  In any event, having regard to the evidence about the works referred to in paragraphs [26] to [36] above, I am comfortably satisfied that the work is operational work.
  2. [41]
    As is noted in paragraphs 3 to 5 of the enforcement notice (set out in paragraph [16] above), the Council says that, at the relevant time, the Planning Scheme categorised operational work involving excavating or filling that is not accepted development under Table 5.7.1 Categories of development and assessment – Operational work as assessable development.  That form of assessable development required code assessment. 
  3. [42]
    The Council’s allegation about what operational work was accepted development is set out in paragraph 4 of the enforcement notice. 
  4. [43]
    In addition, the Council says that, at the relevant time, the Planning Scheme categorised development of land subject to the flood hazard overlay mapping as assessable development requiring code assessment as follows:

Operational work if-

  1. (a)
    within a flood hazard area or storm tide inundation area as identified on a Flood hazard map adopted by Council; and
  1. (b)
    involving excavating or filling.”
  1. [44]
    The Appellant does not dispute that the Planning Scheme categorised the alleged development as assessable development.  In any event, the Council’s allegations about the categorisation of development are proved by the certificates prepared pursuant to s 251 of the Local Government Act 2009 (“the certificates”).  Those certificates establish the relevant content of the Planning Scheme and its mapping at the time of the alleged offence. 
  2. [45]
    The certificates demonstrate that, at the relevant time:
    1. (a)
      the Planning Scheme made operational work assessable development in the circumstances alleged by the Council and identified in paragraphs [41] to [43] above;
    2. (b)
      the subject land was in the Emerging community zone;
    3. (c)
      the subject land was subject to the Flood hazard overlay; and
    4. (d)
      parts of the subject land were within a flood hazard area as identified on a Flood hazard map adopted by the Council. 
  3. [46]
    As such, the carrying out of operational work on the subject land was assessable development:
    1. (a)
      if it involved excavating or filling of more than 50 cubic metres of material; or
    2. (b)
      if it involved excavating or filling within a flood hazard area or storm tide inundation area as identified on a Flood hazard map adopted by Council.

Is there a development permit authorising the alleged development?

  1. [47]
    The certificate pursuant to s 251 of the Local Government Act 2009 dated 14 June 2021 proves that there are no development approvals for the carrying out of building works or operational works or the making of a material change of use in respect of the subject land.  This is not disputed by the Appellant. 

Do any of the exceptions in s 163(2) of the Planning Act 2016 apply?

  1. [48]
    The Appellant does not contend that the development was carried out:
    1. (a)
      under s 29(10)(a) of the Planning Act 2016; or
    2. (b)
      in accordance with an exemption certificate under s 46 of the Planning Act 2016; or
    3. (c)
      under s 88(3) of the Planning Act 2016.
  2. [49]
    As such, it is not necessary for the Council to prove that the exceptions in s 163(2) of the Planning Act 2016 do not apply.  They are not issues put in dispute in the Notice of Appeal.[5]

Has the Council proved the alleged offence?

  1. [50]
    The extensive evidence adduced by the Council readily establishes that between 17 August 2018 and 30 October 2020, the earthwork carried out by the Appellant on the subject land involved excavation of more than 50 cubic metres of material and that it was undertaken within a flood hazard area identified on a Flood hazard map adopted by the Council.  The excavation created a dam that diverted overland flow water in an area mapped as a flood hazard area on a Flood hazard map adopted by the Council.  It was development that was categorised as assessable development under the Planning Scheme.  There was no development permit that authorised the development.
  2. [51]
    For the reasons provided in paragraphs [23] to [50] above, the Council has proved that the Appellant committed a development offence under s 163 of the Planning Act 2016.  This supports a conclusion that the appeal should be dismissed.

What is the Appellant’s case?

  1. [52]
    As I have already mentioned above, the Appellant does not dispute that:
    1. (a)
      it carried out the operational work as alleged in the enforcement notice;
    2. (b)
      the Planning Scheme categorises the operational work it carried out as assessable development; and
    3. (c)
      it did not have a development permit authorising it to carry out the works, nor any lawful excuse under s 163(2) of the Planning Act 2016.
  2. [53]
    Despite that, the Appellant says the enforcement notice should be set aside. 
  3. [54]
    To justify its position, the Appellant points to part of its response to the show cause notice, namely that part of the letter that states:

“The work I carried out on my property was to improve my land for cropping by improving the existing drainage and to provide water storage for irrigation.”

  1. [55]
    The Appellant says that statement is relevant in the context of sch 6 of the Planning Regulation 2017, which sets out development that a local categorising instrument is prohibited from categorising as assessable development.  In particular, the Appellant says that statement should be compared to that part of sch 6, pt 3, item 16 of the Planning Regulation 2017 that states:

“Operational work relating to—

  1. (a)
    management practices for the conduct of an agricultural use …”
  1. [56]
    The Appellant argues that it is apparent from that comparison that it is incumbent on the Council to demonstrate that the excavation was not operational work relating to management practices for the conduct of an agricultural use.  The Appellant says that the Council has not done so and, as such, the enforcement notice should be set aside.
  2. [57]
    This approach invites the Court to consider part only of sch 6, pt 3, item 16 of the Planning Regulation 2017.  The Appellant’s submissions also ignore the legislative context of the provision, including those legislative provisions that give sch 6, pt 3, item 16 of the Planning Regulation 2017 its operative effect.  I do not accept the legitimacy of such an approach.  To understand whether item 16 justifies setting aside the enforcement notice, it is necessary to consider the whole provision and the legislative context in which it operates.

Does the legislative regime justify setting aside the enforcement notice?

  1. [58]
    Schedule 6, pt 3, item 16 of the Planning Regulation 2017 operates within a broader legislative context.  Its operation is informed by the Planning Act 2016, pursuant to which the Planning Regulation 2017 is promulgated.

What is the relevant legislative context?

  1. [59]
    Section 44(1) of the Planning Act 2016 provides that there are three categories of development, namely prohibited, assessable and accepted development.  Prohibited development is development for which a development application may not be made.[6]  Assessable development is development for which a development approval is required.[7]  Accepted development is development for which a development approval is not required.[8]
  2. [60]
    Development may be categorised by a categorising instrument,[9] which includes a regulation or local categorising instrument that categorises development as prohibited, assessable or accepted development.[10] A local categorising instrument includes a planning scheme.[11]
  3. [61]
    As was observed by the Honourable Justice of Appeal McMurdo in Fairmont Group Pty Ltd v Moreton Bay Regional Council,[12] the potential tension between the operation of a regulation and a planning scheme is addressed by s 43.  It states:

“(4) A regulation made under subsection (1) applies instead of a local categorising instrument, to the extent of any inconsistency.

  1. (5)
    A local categorising instrument
  1. (a)
    may state that development is prohibited development only if a regulation allows the local categorising instrument to do so; and
  1. (b)
    may not state that development is assessable development if a regulation prohibits the local categorising instrument from doing so; and
  1. (c)
    may not, in its effect, be inconsistent with the effect of a specified assessment benchmark, or a specified part of an assessment benchmark, identified in a regulation made for this paragraph.

Note–

Assessment benchmarks are given effect through the rules for assessing and deciding development applications under section 45, 59 or 60.

  1. (6)
    To the extent a local categorising instrument does not comply with subsection (5), the instrument has no effect.

  1. (8)
    Subsections (4) and (6) apply no matter when the regulation and local categorising instrument commenced in relation to each other.”

(emphasis added)

  1. [62]
    The Planning Regulation 2017 is a categorising instrument under s 43 of the Planning Act 2016.
  2. [63]
    Section 16 of the Planning Regulation 2017 states:

“For section 43(5)(b) of the Act, a local categorising instrument is prohibited from stating that development stated in schedule 6 is assessable development.”

  1. [64]
    Schedule 6, pt 3 of the Planning Regulation 2017 relates to various forms of operational work.  Item 16 states:

16 Operational work for agriculture

Operational work relating to—

  1. (a)
    management practices for the conduct of an agricultural use, other than—
  1. (i)
    the clearing of native vegetation; or
  1. (ii)
    operations of any kind and all things constructed or installed for taking or interfering with water under the Water Act, other than using a water truck to pump water; or
  1. (b)
    weed or pest control, unless the work involves the clearing of native vegetation; or
  1. (c)
    the use of fire under the Fire and Emergency Services Act; or
  1. (d)
    the conservation or restoration of natural environment as defined under the Environmental Protection Act, schedule 4; or
  1. (e)
    the use of premises for a forest practice.”

Is the categorisation of operational work in the Planning Scheme of no effect?

  1. [65]
    The Appellant does not allege that there is any inherent inconsistency between sch 6, pt 3, item 16 of the Planning Regulation 2017 and the relevant categorisations of operational work in the Planning Scheme in issue in this appeal.  Nevertheless, ss 43(4) and (6) of the Planning Act 2016 call for a consideration of whether an inconsistency exists.
  2. [66]
    The Council argues that the operational work categorised as assessable development in the Planning Scheme is outside the ambit of the prohibition in sch 6, pt 3, item 16 of the Planning Regulation 2017 as it falls within the exception in item 16(a)(ii).
  3. [67]
    To understand the scope of development that falls within sch 6, pt 3, item 16(a)(ii) of the Planning Regulation 2017, it is necessary to consider the Water Act 2000 (Qld).[13]
  4. [68]
    The Water Act 2000 defines water as follows:[14]

water

1 Generally, water means all or any of the following–

  1. (a)
    water in a watercourse, lake or spring;
  1. (b)
    underground water;
  1. (c)
    overland flow water;
  1. (d)
    water that has been collected in a dam.

2 In chapter 2A and section 1163, water also includes recycled and desalinated water, from any source.”

  1. [69]
    The Water Act 2000 also defines overland flow water.  That definition is as follows:[15]

overland flow water

1 Overland flow water means water, including floodwater, that is urban stormwater or is other water flowing over land, otherwise than in a watercourse or lake–

  1. (a)
    after having fallen as rain or in any other way; or
  1. (b)
    after rising to the surface naturally from underground.

2 Overland flow water includes particular underground water declared to be overland flow water under section 1006A.

3 Overland flow water does not include–

  1. (a)
    water that has naturally infiltrated the soil in normal farming operations, including infiltration that has occurred in farming activity such as clearing, replanting and broadacre ploughing; or
  1. (b)
    tailwater from irrigation if the tailwater recycling meets best practice requirements; or
  1. (c)
    water collected from roofs for rainwater tanks.”
  1. [70]
    The Water Act 2000 also stipulates that “taking, for water, includes diverting water”.
  2. [71]
    The Appellant submits that item 16 is aimed at prohibiting a local categorising instrument from stating development is assessable development.  It says that, in that context, the reference to “operations of any kind and all things constructed or installed for taking or interfering with water under the Water Actcannot be read literally.  The Appellant submits that to adopt the construction that follows from reading the ordinary meaning of “operations of any kind and all things constructed or installed” together with the definitions of “water” and “taking” under the Water Act 2000 would deny item 16 any operative effect.  This is because the works captured by the exception would be as extensive as those falling within the phrase “operational work relating to management practices for the conduct of an agricultural use”.  The Appellant submits that, in those circumstances, the exception must be construed more narrowly.  It says it must mean piping water or taking water for the purposes of using it.  I am unable to accept that argument for the following reasons.
  3. [72]
    First, the Appellant’s constraint on the interpretation is difficult to reconcile with the language in item 16.  It becomes even more difficult when the language of item 16 is considered in the context of the definitions of “water” and “taking” under the Water Act 2000.
  4. [73]
    Second, the ordinary construction does not deny item 16 any operative effect.  Given the broad definition of operational work in the Planning Act 2016 (set out at paragraph [39] above), there are many forms of work relating to management practices for the conduct of an agricultural use that would fall outside the exception in item 16(a)(ii).  That is apparent from the affidavit of Mr Holliss, an experienced sugar cane producer.  He says that works conducted on cane farms generally include the application of organic material, minerals, and fertilizer to soils to remediate or improve the soils on the land; spraying of crops; and harvesting of crops.  Each of those activities may materially affect premises or the use of the premises but are unlikely to fall within the exception in item 16(a)(ii).
  5. [74]
    Third, the context of the provision does not support the Appellant’s argument that such a broad exception was not intended.  The exception in item 16(a)(i) is the clearing of native vegetation.  Under sch 24 of the Planning Regulation 2017, “native vegetation” is defined as “vegetation under the Vegetation Management Act”. 
  6. [75]
    Section 8 of the Vegetation Management Act 1999 (Qld) defines “vegetation” as a native tree or plant other than:
    1. (a)
      grass or non-woody herbage;
    2. (b)
      a plant within a grassland regional ecosystem prescribed under a regulation; or
    3. (c)
      a mangrove. 
  7. [76]
    As such, item 16(a)(i) is also an exception that is cast in very broad terms.
  8. [77]
    Fourth, there is nothing in the purpose of the legislation that supports the Appellant’s argument.  As was observed by the Honourable Justice of Appeal McMurdo when considering a similar issue in Fairmont Group Pty Ltd v Moreton Bay Regional Council:[16]

[27] Nor is there anything in the purpose of this legislation which supports the applicant’s argument. The Act provides for the categorisation of development, according to a regulation or a local categorising instrument, with the former prevailing in the event of an inconsistency. A proper role for a local authority, in the categorisation of development, is recognised and facilitated by the Act and the Regulation. A regulation, as a categorising instrument, should not be interpreted upon a presumption that it was intended to categorise every kind of development.”

(emphasis added)

  1. [78]
    Fifth, I do not accept that the Explanatory notes to the Integrated Planning Act 1997 (Qld) suggest that the exception in item 16(a)(ii) should be read down.  The Explanatory notes relate to similar provisions in the Integrated Planning Act 1997.  They record that the provisions were intended to balance the need for regulation of agricultural and forestry activities “where appropriate” with the necessity to provide certainty to operators that, once lawfully established, the “ground rules” for the activity are not changed by the imposition of additional requirements to obtain approval.  The Explanatory notes indicated that this degree of certainty was necessary to promote investment confidence for “long-term cyclical activities involving a variety of operational works”.  Having regard to the evidence of Mr Holliss that “[e]xcavators are generally not seen on farms as part of the day to day business”, I am satisfied that operational works that might be captured by the exception in item 16(a)(ii), such as the construction of a dam, are not a long-term cyclical activity.
  2. [79]
    Having regard to the proper construction of the exception in item 16(a)(ii), I am satisfied that the operational work on land subject to the flood hazard overlay that is categorised as assessable development by the Planning Scheme is outside the ambit of the prohibition in sch 6, pt 3, item 16 of the Planning Regulation 2017.  Given the breadth of the definitions of “water”, “overland flow water” and “taking” in the Water Act 2000, operational work that involves excavating or filling in a flood hazard area falls within the exception in item 16(a)(ii). 
  3. [80]
    Further, and in any event, I am satisfied that there is no inherent inconsistency between the words “operational work relating to management practices for the conduct of an agricultural use” in sch 6, pt 3, item 16 of the Planning Regulation 2017 and the Planning Scheme’s categorisation of operational work that involves excavating or filling within a flood hazard area as a form of development that requires code assessment.  They address different planning purposes.  One is to prevent regulation of management practices for the conduct of an agricultural use.  The other seeks to regulate excavating or filling in a flood hazard area.  As such, I do not consider the potential for overlap in certain circumstances to be demonstrative of an inherent inconsistency between the provisions.
  4. [81]
    I am also satisfied that operational work that involves excavating or filling of more than 50 cubic metres of material that is categorised as assessable development by the Planning Scheme is outside the ambit of the prohibition in sch 6, pt 3, item 16 of the Planning Regulation 2017.  They are operations of a kind that would divert overland water flow.  For the reasons already provided above, this falls within the exception in sch 6, pt 3, item 16(a)(ii) of the Planning Regulation 2017.
  5. [82]
    There are three other observations that support a finding that the Planning Scheme has been drafted to respect the limitations in sch 6, pt 3, item 16 of the Planning Regulation 2017 and is not inconsistent with the provision. 
  6. [83]
    First, that the categorisation is directed at operations of a kind that would divert overland water flow is supported by reading it in conjunction with the assessment benchmarks against which the development is to be assessed, namely the Works, services and infrastructure code.  In that code, overall outcome 9.3.7.2(2)(h) requires that filling and excavation not adversely or unreasonably impact on drainage conditions.  Similarly, performance outcome PO6 of that code requires that excavation and filling does not result in ponding, concentration, or diversion of overland runoff flows that cause damage to adjacent lands or infrastructure.
  7. [84]
    Second, operational work involving excavating or filling is accepted development if it is on Rural zoned land and it is associated with the use of the land for a rural activity.  This is demonstrative that the Planning Scheme was drafted with an awareness of, and an intention to appropriately reflect, the limitation in item 16 of the Planning Regulation 2017.
  8. [85]
    Third, the Planning Scheme was promulgated under the Sustainable Planning Act 2009 (Qld).  The process for making a planning scheme under that Act required any proposed planning scheme to be approved by the Minister administering the Sustainable Planning Act 2009.  That Minister would be aware of the limitations on what a planning scheme could regulate.  The limitation imposed by s 232(2) of the Sustainable Planning Act 2009 and s 10 and sch 4, table 4, item 9 of the Sustainable Planning Regulation 2009 (Qld)[17] was in the same terms as the limitation under s 43 of the Planning Act 2016 and s 16 and sch 6, pt 3, item 16 of the Planning Regulation 2017.
  9. [86]
    For the reasons provided above, properly construed, sch 6, pt 3, item 16 of the Planning Regulation 2017 does not prohibit the Planning Scheme from requiring code assessment for operational work that involves excavating or filling within a flood hazard area or excavating or filling of more than 50 cubic metres in the Emerging community zone.

Are the works in question prohibited from being categorised as assessable development by item 16?

  1. [87]
    The Appellant says that the alleged development relates to management practices for the conduct of an agricultural use and that, as such, the provision of the Planning Scheme that categorises the development as assessable development is inconsistent with item 16. 
  2. [88]
    The Appellant’s written submissions focus on the wide operation of the words “relating to” as they appear in item 16.  I accept the Appellant’s submissions that the words “relating to” have a wide operation; and that an indirect, but relevant, connection is a sufficient relationship.  The words “management practices”, “conduct”, and “agricultural use” are not defined.  They should be given their ordinary meaning. 
  3. [89]
    The Appellant further submits that there is no need to consider the balance of the words of item 16 sub-paragraph (a) as they do not apply to the works in question. 
  4. [90]
    Inherent in the Appellant’s submission is the proposition that, when considering whether works are prohibited from being categorised as assessable development in a planning scheme, one looks to the detail of the works in question.  That proposition is difficult to accept, as s 43(5)(b) of the Planning Act 2016 seeks to control the actions of a local government in making its planning scheme, not the actions of an individual undertaking development. 
  5. [91]
    If I am wrong about that, I do not accept that item 16 prohibits the Planning Scheme from categorising the works in question as assessable development for the reasons explained below.
  6. [92]
    It is plain from the ordinary meaning of the words “other than” in item 16 that the effect of s 43(5)(b) of the Planning Act 2016, and s 16 and sch 6, pt 3, item 16 of the Planning Regulation 2017 is not to prohibit a planning scheme from categorising (as assessable development) all development that is “operational work relating to management practices for the conduct of an agricultural use”.  By using the words “other than”, the Planning Regulation 2017 left open the potential for two forms of operational work relating to management practices for the conduct of an agricultural use to be made assessable by a planning scheme, namely:
    1. (a)
      the clearing of native vegetation; and
    2. (b)
      operations of any kind and all things constructed or installed for taking or interfering with water under the Water Act 2000, other than using a water truck to pump water.
  7. [93]
    The operational work carried out by the Appellant involved excavating material to create a dam.  Having regard to the State remotely sensed images referred to in paragraph [26] above and the evidence of Mr Say, I am satisfied that the operational work diverted overland flow water.  This can also readily be inferred from the presence of water in the dam constructed by the Appellant.  A finding that the operational work carried out by the Appellant diverted overland flow water is also supported by the admissions made by the Appellant in its response to the show cause notice, wherein it stated:

“The works were also to rectify localised flooding that was occurring over the years to Gahan’s Road due to poor drainage upstream.  …  This work has also significantly improved risk of localised flooding impacts on neighbouring residential projects viz. Paddington Grove and Seymour Heights.  The local drainage system now works well and has enabled flows from the upstream catchments to drain away far quicker than it did before, therefore reducing peak flood levels.”

  1. [94]
    For the reasons provided above, I am satisfied that, to the extent that s 43(5)(b) of the Planning Act 2016 and sch 6, pt 3, item 16 of the Planning Regulation 2017 calls for a consideration of the works in question, the works fall within the exception in item 16(a)(ii).  As such, item 16 does not prohibit the Planning Scheme from categorising the operational work as code assessable.

Conclusion regarding the legality of the Planning Scheme’s categorisation of the operational work as assessable development

  1. [95]
    There is no inconsistency between sch 6, pt 3, item 16 of the Planning Regulation 2017 and the Planning Scheme’s categorisation of that form of development referred to in paragraphs [41] and [43] above as assessable development.  The categorisations fall within the exception in item 16(a)(ii).
  2. [96]
    Further, and in any event, the provisions have different planning purposes.  As such, there is no inherent inconsistency between them.
  3. [97]
    To the extent that it is necessary to have regard to the operational work in question when considering whether there is an inconsistency, the operational work carried out by the Appellant falls within the exception in sch 6, pt 3, item 16(a)(ii) of the Planning Regulation 2017
  4. [98]
    The operational works carried out by the Appellant could legitimately be categorised as assessable development in the Planning Scheme.  The Planning Scheme did so categorise them.  The Council is the enforcement authority for the operational work.  It had power to issue the enforcement notice. 

Are there discretionary considerations that warrant setting aside the enforcement notice?

  1. [99]
    The Court’s discretionary power is wide.  Relevant considerations that might inform the exercise of the discretion are set out in Warringah Shire Council v Sedevcic.[18]  The considerations outlined in that case are not exhaustive.
  2. [100]
    Despite the uncontested evidence referred to above, the Appellant says the appeal should be allowed and the enforcement notice set aside in the exercise of the Court’s discretion.[19]  It says that outcome is warranted because of:
    1. (a)
      the delay in excess of 12 months by the Council in commencing enforcement action (being the time limitation for the commencement of proceedings for a development offence);
    2. (b)
      the absence of any evidence that the alleged works:
      1. have not been done properly;
      2. do not comply with the assessment benchmarks specified in Table 5.7.1 of the Works, services and infrastructure code and Table 8.2.8.3.1 of the Flood hazard overlay code;
      3. have any adverse impact; and
    3. (c)
      the absence of any evidence that there is any utility for the giving of an enforcement notice.[20]
  3. [101]
    These matters do not persuade me that it is appropriate to order that the enforcement notice should be set aside. 
  4. [102]
    It would not be appropriate to deny the Council the form of remedy it seeks in the enforcement notice as:
    1. (a)
      there is a legislated purpose of upholding the planning law;
    2. (b)
      enforcement of the planning law is in the public interest;
    3. (c)
      the extent of excavation of the subject land is considerable, such that the breach of the planning law is not simply a technical breach; and
    4. (d)
      the form of remedy called for would facilitate a proper assessment of the impacts of the offending earthworks if the Appellant wishes to maintain them.
  5. [103]
    That said, given the timeframes set for the taking of each of the steps in the enforcement notice have passed, it is appropriate for me to exercise my discretion to order that the enforcement notice is set aside and to direct the Council to issue a new enforcement notice.  The new enforcement notice should reflect my reasons for judgment and should adjust the remedy to reset the timeframes.

Conclusion

  1. [104]
    For the reasons provided above, I order:
  1. the appeal be allowed in part;
  1. the enforcement notice dated 18 December 2020 is set aside; and
  2. subject to further order by this Court, by 3 December 2021, Bundaberg Regional Council is to issue a new enforcement notice that is varied to reflect these reasons for judgment and to require the Appellant to:
  1. (a)
    by 3 June 2022, restore the Land, as far as practicable, to the condition it was in in 2017 before the Earthworks were undertaken;
  1. (b)
    or alternatively to taking the steps in paragraph (a) above:
  1. (i)
    lodge with the Council a properly made development application for a development permit for operational works on the subject land for the earthworks by 4 pm on 3 March 2022;
  1. (ii)
    do all things necessary to progress the development application; and
  1. (iii)
    if a development approval is granted for operational works for the earthworks, carry out the development in accordance with the development approval; and
  1. (iv)
    if the development application is refused, restore the subject land, as far as practicable, to the condition it was in in 2017 before the earthworks were undertaken, within six months of the giving of a decision notice refusing the development application.

Footnotes

[1]Planning and Environment Court Act 2016 (Qld) s 43.

[2]Planning and Environment Court Act 2016 s 45(3).

[3] [1938] HCA 34; (1938) 60 CLR 336.

[4] A number of these concessions are apparent from the Notice of Appeal.

[5] Even if these exceptions were a matter of controversy, I am satisfied that they do not apply.  In that respect, I have had regard to the time at which the works were carried out and the evidence in the certificates pursuant to s 251 of the Local Government Act 2009 about the contents of the Council’s planning scheme (including those that would be a superseded planning scheme under s 29 of the Planning Act 2016) and the absence of development approvals.

[6]Planning Act 2016 s 44(2).

[7]Planning Act 2016 s 44(3).

[8]Planning Act 2016 s 44(4).

[9]Planning Act 2016 s 44(5).

[10]Planning Act 2016 s 43(1).

[11]Planning Act 2016 s 43(3)(a).

[12] [2019] QCA 81; (2019) 241 LGERA 52; [2020] QPELR 604, 606-7.  An application for leave to appeal to the High Court was dismissed.

[13] Section 3 of the Planning Regulation 2017 states that the dictionary in sch 24 defines particular words used in the Regulation.  In sch 24, “Water Act” is defined to mean the Water Act 2000.

[14]Water Act 2000 s 4 and sch 4.

[15]Water Act 2000 s 4 and sch 4.

[16] [2019] QCA 81, (2019) 241 LGERA 52; [2020] QPELR 604, 609.

[17] Schedule 4, table 4, item 9 of the Sustainable Planning Regulation 2009 refers to:

“Operational work associated with–

  1. (a)
    management practices for the conduct of an agricultural use, other than–
  1. (i)
    the clearing of native vegetation; or
  1. (ii)
    operations of any kind and all things constructed or installed for taking or interfering with water (other than
    using a water truck to pump water) if the operations are for taking or interfering with water under the Water Act
    2000; or
  1. (b)
    weed or pest control, unless it involves the clearing of native vegetation; or
  1. (c)
    the use of fire under the Fire and Emergency Services Act 1990; or
  1. (d)
    the conservation or restoration of natural areas; or
  1. (e)
    the use of premises for forest practices.”

[18] (1987) 10 NSWLR 335, 339-41.

[19] Although the Notice of Appeal and the Appellant’s Amended Written Submissions raised additional grounds of appeal, considering the evidence tendered by the Council, those additional grounds were abandoned by the Appellant through its Counsel at the final hearing.

[20] Of the discretionary considerations raised in the Appellant’s List of Discretionary Matters (Exhibit 1.3), the only matters now maintained are those in the Appellant’s Amended Written Submissions dated 19 August 2021. 

Close

Editorial Notes

  • Published Case Name:

    G Santalucia Investment Pty Ltd v Bundaberg Regional Council

  • Shortened Case Name:

    G Santalucia Investment Pty Ltd v Bundaberg Regional Council

  • MNC:

    [2021] QPEC 63

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    11 Nov 2021

Appeal Status

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

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