Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [No 4]
[2025] QPEC 2
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- Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [No 4][2025] QPEC 2
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Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [No 4][2025] QPEC 2
Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [No 4][2025] QPEC 2
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors (No. 4) [2025] QPEC 2 |
PARTIES: | PARKLANDS BLUE METAL PTY LTD (appellant) v SUNSHINE COAST REGIONAL COUNCIL (respondent) THE CHIEF EXECUTIVE ADMINISTERING THE TRANSPORT INFRASTRUCTURE ACT (first co-respondent by election) CHIEF EXECUTIVE OF THE DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION, AND CHIEF EXECUTIVE OF THE DEPARTMENT OF NATURAL RESOURCES AND MINES (FORMERLY CHIEF EXECUTIVE OF THE DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT) (second co-respondent by election) YANDINA CREEK PROGRESS ASSOCIATION (third co-respondent by election) |
FILE NO/S: | 247/2011 |
DIVISION: | Planning and Environment |
PROCEEDING: | Determination of conditions |
DELIVERED ON: | Order made on 14 February 2025 Reasons delivered on 17 February 2025 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | Determined ‘on the papers’, written submissions received 7 February 2025, 12 February 2025 |
JUDGE: | Cash DCJ |
ORDERS: | Conditions 38 and 59 and Advisory Note 12, as proposed by the Council in exhibit 2 tendered on 24 January 2025, will be imposed on the development approval. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPEAL – OPERATIONAL WORKS – MATERIALLY AFFECTS – whether Council should bear the responsibility for ‘routine maintenance’ of the haulage route – whether the routine maintenance work ‘materially affects’ the premises or their use – whether the work will be considered ‘operational work’ – whether the imposition of conditions would be unreasonable |
COUNSEL: | D R Gore KC with J D Houston for the appellant C L Hughes KC with A N S Skoien for the respondent |
SOLICITORS: | P&E Law for the appellant Sunshine Coast Council Legal Services for the respondent |
- [1]On 17 December 2024 I delivered the third set of substantial reasons in this long-running appeal (‘Parklands No. 3’).[1] The reasons explained why Parklands should bear the responsibility for the maintenance of the haulage route to be constructed by Parklands and which is necessary to operate a quarry at Yandina. I concluded that conditions should be attached to the development approval generally in accordance with those proposed by the Council, subject to some matters I identified in the reasons. Of present relevance is a reservation I expressed about who should bear responsibility for ‘routine maintenance’.[2]
- [2]This concerned proposed conditions 38 and 59, and Advisory Note 12 contained in exhibit F3 in the proceeding (‘the routine maintenance conditions’), which was a marked-up set of conditions identifying proposed amendments and disputes. As I recorded in Parklands No. 3, the effect of the proposed conditions would be to define ‘routine maintenance’ in accordance with the defects described in Advisory Note 12 and to require Parklands to address such defects within a specified time.[3]
- [3]I concluded that the conditions proposed by the Council as to this ‘routine maintenance’ were relevant and reasonable,[4] subject only to a reservation about the difficulties which might arise if Parklands were required to secure approval for ‘operational works’ each time they carried out the routine maintenance. As I noted at the time, this ‘should be avoided’.
- [4]My reservation has led to the present dispute, which is of concern only to the appellant and the respondent Council. Parklands submits that the need for operational works approval cannot be avoided, raising the spectre that the satisfaction of the proposed conditions would be unduly onerous, if not impossible, and therefore the imposition of the conditions would be unreasonable. To resolve the issue, I directed the parties to provide further written submissions. Those submissions have been provided, and the parties are content for me to decide the issue ‘on the papers’.
- [5]In my view, the determination of the issue turns on the definition of ‘operational work’ in Schedule 2 of the Planning Act 2016 (Qld) (‘the PA’). For the reasons which follow, the sort of work involved in the routine maintenance of the haulage route in accordance with proposed conditions 38 and 59, and Advisory Note 12 is not likely to be ‘operational work’. The remoteness of the possibility that the work will be considered ‘operational work’ is such that the conditions proposed by the Council are not unreasonable and should be imposed.
What is ‘operational work’?
- [6]‘Operational work’ is defined in the PA to mean ‘work, other than building work or plumbing and drainage work, in, on, over or under premises that materially affects premises or the use of premises’.
- [7]‘Premises’ includes land. ‘Building work’ and ‘plumbing and drainage work’ are also defined terms. For present purposes, it can be assumed that the work which might be required for routine maintenance is not ‘building work’ or ‘plumbing and drainage work’.
What does ‘materially affects’ mean?
- [8]Satisfaction of the routine maintenance conditions would be ‘work … in, on, over or under premises.’ The critical question is whether the work would be of a kind which ‘materially affects’ the land or its use.
- [9]The phrase ‘materially affect’, or its analogues, is a common enough legislative formulation. In Deming No. 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129, 166, Sir Ronald Wilson considered the words ‘materially affected’ in relation to group titles legislation. The legislation permitted a contract to be avoided in the event a purchaser had been ‘materially affected’ by changes to lot entitlements. Sir Ronald observed the words ‘would seem to bear their ordinary meaning’ and that, ‘[i]t must be a question of fact and degree whether there is such an effect in any particular case.’
- [10]A similar approach was taken by McPherson J dealing with the same legislation in Bassingthwaite v Butt [1982] Qd R 670, 680-681. His Honour noted that ‘material’ had been treated as meaning ‘of consequence’ or ‘of much consequence; important.’ The second meaning is consistent with that found in the Macquarie Dictionary, where the relevant meaning is ‘to an important degree; considerably’. McPherson J also observed that, ‘[i]t is clear that much depends on the context in which the word is used.’
- [11]This last observation, with which I agree, is important. The context in which a legislative term appears must be considered, and may be important, when determining the meaning of the term. The designation of work as ‘operational work’ can have many consequences under the PA and other legislation. It will often be the marker distinguishing work which requires the approval of a local government authority and that which does not. It may also affect the level of assessment required before such approval may be given. These consequences inform the purpose of the definition of ‘operational work’, which distinguishes between ‘work’ and ‘work that materially affects’ premises. The context supports a conclusion that ‘operational work’ is concerned with work that is ‘important’, ‘of consequence’ or ‘substantial’ to such a degree that it is appropriate to impose regulation by legislation.
- [12]One further case should be mentioned. In Mirvac Queensland Pty Ltd v Wilson [2010] QCA 322, the Court of Appeal construed the term ‘materially prejudiced’, which had by then replaced ‘materially affected’ in the cognate legislation considered in Deming and Bassingthwaite. Jones J (McMurdo P and Fraser JA agreeing) considered a person would be ‘“materially prejudiced” if disadvantaged “substantially” or “to an important extent”’.[5] The legislation being considered required an objective assessment of the materiality of any asserted prejudice, having regard to the community standards and the personal circumstances of the buyer.
- [13]In my view, having regard to the context provided by the legislation and the cases I have mentioned, the following approach is appropriate. A ‘material’ effect is one which affects the premises or its use to a degree which is ‘important’, ‘of consequence’ or ‘substantial’. In determining this issue, regard must be had to the premises, or the use of premises, said to be affected by the work. The scale of each may be an important consideration. Work done on a very large piece of land is less likely to be ‘material’ than the same work done on a small piece of land, though of course much will depend on the nature of the work being undertaken. The issue of whether work is material is a question of fact and degree to be determined objectively.
Would the routine maintenance work materially affect the premises or their use?
- [14]It is in this context that it is necessary to consider the scope of the work which may be required under the routine maintenance conditions and the scale of the land, being the premises in respect of which the work is carried out.
- [15]Conditions 38 and 59 would, if imposed, require maintenance in accordance with Advisory Note 12. This note concerns potholes, pavement cracks and defects, and drains. The routine maintenance obligation relates to potholes no larger than 300mm in diameter and 100mm deep. Any such potholes are to be repaired within one, five or ten days depending on their size. Pavement defects are cracks which are more than one metre long and three millimetres wide. These are to be repaired within a month of detection. Missing or damaged joint seals, where the loss or damage affects more than 20% of the length of the seal, are to be repaired within a month. Finally, blockages and other issues which diminish the functioning of edge drains and drainage swales are to be repaired within a month.
- [16]There is a requirement for the replacement or improvement of the subgrade if soft subgrade is the reason for any pavement defects.
- [17]In my view, the sort of work which is likely to result from the routine maintenance conditions is not material. The repair of potholes under these conditions would involve work on small sections of the road to repair holes no larger than a foot in diameter. The repair of cracks and joint seals would be similarly trivial. Maintenance of the drains would be unlikely to encroach on the pavement itself or effect the use of the road.
- [18]There is some prospect of a requirement for subgrade treatment if poor subgrade is the cause of pavement defects such as cracking. It is a little difficult to judge the likelihood of this being required. Other conditions provide for the design and construction of the road. The design and construction conditions are comprehensive, and deal with the analysis and preparation of the subgrade before the road is built. In part, these conditions are intended to ensure the road is constructed in a way that minimises the risk of pavement defects caused by problems with the subgrade. If subgrade treatment as part of the routine maintenance work is required, it will be work of a more substantial kind than the other routine maintenance. But given the conditions for the design and construction of the road, I do not think there is a significant chance that the routine maintenance work will require subgrade treatment. And, if it is necessary, I do not think it will be frequent.
- [19]Regard may also be had to the purpose of the work, which is to maintain the road rather than to change or alter it to some significant degree. That is not itself determinative, but it has bearing on whether the work materially affects the premises, one meaning of ‘affect’ being to change or alter. It fortifies me in my view that the works involved are unlikely to materially affect the road.
- [20]There is then the scope of the work compared to the scale of the land on which it is to occur. The haulage route will be nearly five kilometres long. It is very difficult to imagine that the works required by the routine maintenance conditions would affect anything more than small sections of the road on intermittent occasions. Repairing a few potholes or cracks here or there along a five-kilometre road could hardly amount to a material effect.
- [21]Parklands submits that there will be an ‘inevitable impact on and disruption to’ the use of the road. This may be accepted. But some impact or disruption does not equate to a material effect. The work and attendant disruption I have envisaged above are unlikely to have a material impact on the use of a road that is nearly five kilometres long and which, on the evidence at the hearing, carries little traffic.
- [22]Parklands also points to the probability that the work would be characterised as ‘engineering work’ for the purpose of tables of assessment categories in the Sunshine Coast Planning Scheme. I do not think the possible classification of the work under the planning scheme is of assistance when deciding if the work will have a material effect for the purpose of the definition of operational work. Parklands also points to a provision of the Local Government Act 2009 (Qld) which makes it an offence to carry out works on a road without lawful excuse’ or ‘the written approval of the local government’. Given Parklands would be carrying out the work in accordance with conditions imposed by an order of this court, and with the full knowledge of the local government authority, it is hard to see how any offence could be committed.
- [23]Ultimately, it will be a ‘question of fact and degree’ as to whether any of the routine maintenance work materially affects the premises or its use. Of course, I cannot offer some prospective, binding opinion about what is or is not ‘operational work’. As Parklands submits, that can only be determined if and when the question properly arises. But to decide whether the proposed conditions are not unreasonable, it is sufficient to form a judgment about the likelihood of the work being determined to be operational work.
- [24]For the reasons I have set out above, I think the possibility that any of the work could be properly characterised in that way is remote.
Should the conditions be imposed?
- [25]I have already determined in Parklands No. 3 that the conditions are relevant to the development. I also concluded the conditions were not unreasonable, subject to the complications which could arise if the work was considered to be operational work.
- [26]Seen in the context of the remoteness of the possibility that the works will be considered to be operational works, and the nature and scale of the proposed development, the burden imposed by the routine maintenance conditions is not an unreasonable one.
- [27]It is for these reasons that on 14 February 2025 I ordered: -
Conditions 38 and 59 and Advisory Note 12, as proposed by the Council in exhibit 2 tendered on 24 January 2025, will be imposed on the development approval.
Other matters
- [28]The written submissions of the parties addressed other arguments. Because of the importance of providing the parties with a timely answer to this dispute, I have not addressed every argument raised. That is because, in my view, the conclusion I have reached about the remoteness of the possibility that the routine maintenance work will be regarded as operational work means it is unnecessary to decide the other arguments.
- [29]Finally, at one stage the Council proposed a change to Advisory Note 12 by adding a paragraph at end. The proposed change was as follows: -
- For the avoidance of doubt, the routine maintenance work in this advisory note does not constitute operational work under the Planning Act.
- [30]For the reasons mentioned in paragraph [19] above, it would not be appropriate to add such a paragraph to Advisory Note 12.
Footnotes
[1]Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council and Ors (No. 3) [2024] QPEC 52. I will assume familiarity with the reasons in Parklands No. 3 which provides a more detailed background to the present dispute.
[2]Parklands No. 3, [88].
[3]Broadly speaking, these are potholes, pavement cracks, problems with joint seals, and blocked or non-functioning drains.
[4]Integrated Planning Act 1997 (Qld), section 3.5.30.
[5]Mirvac Queensland Pty Ltd v Wilson [2010] QCA 322, [59].