Baker v Chief Executive, Department of State Development, Manufacturing, Infrastructure and Planning & Anor [2021] QPEC 10 [2022] QPELR 142

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Baker v Chief Executive, Department of State Development, Manufacturing, Infrastructure and Planning & Anor [2021] QPEC 10 PARTIES: DAVID ERROL BAKER (applicant) v CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCUTRE AND PLANNING (respondent) and BUNDABERG REGIONAL COUNCIL (co-respondent) FILE NO: 1315/2020 DIVISION: Planning and Environment PROCEEDING: Originating application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 2 March 2021 DELIVERED AT: Brisbane HEARING DATE: 25-26 February 2021 JUDGE: Everson DCJ ORDER: Originating application dismissed CATCHWORDS: PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – application seeking declarations and consequential orders as to whether a development application required assessment by the respondent – whether the development application was for high impact earthworks – whether operational work diverts water to or from a wetland in a wetland protection area LEGISLATION: Planning and Environment Court Act 2016 (Qld) s 11 Planning Act 2016 (Qld) ss 3, 45, 56, Schedule 2 CASES: Jones v Sutherland Shire Council [1979] 2 NSWLR 206 Kin Kin Community Group Inc v Sunshine Coast Regional Council [2011] QPELR 349 Wall v Douglas Shire Council (2008) 157 LGERA 327 -- 1 of 7 -- 2 COUNSEL: S J Keim SC and DC Fahl for the applicant D O’Brien QC and H Stephanos for the respondent SOLICITORS: IM Lawyers for the applicant Clayton Utz Lawyers for the respondent Introduction [1] In his amended originating application, the applicant seeks declarations and orders pursuant to s 11 of the Planning and Environment Court Act 2016. It is uncontentious that the relief sought lies within the jurisdiction of the court. It is sought in the context of a development application for a material change of use of land located at 159 Mon Repos Road, Mon Repos, near Bundaberg (“the site”), which is owned jointly by the applicant and his wife. 1 [2] The site is currently used for a tourist park which includes accommodation cabins, campsites and supporting facilities.2 It is about 5 hectares in size.3 The development application seeks to redevelop the tourist park. Notably, it seeks to increase the density of the tourist park by 21 sites to a total of 127 with a more contemporary accommodation mix.4 [3] It is uncontentious that the site is mapped as wholly contained within “a wetland protection area” and adjoins a wetland which is classified as being of high ecological significance,5 as defined in the Environmental Protection Regulation 2019. On 5 August 2019, the respondent issued a Referral Confirmation Notice to the applicant advising that the respondent would assess the development application pursuant to the provisions of Schedule 10, Part 20, Division 4, Table 3, Item 1 of the Planning Regulation 2017 (“PR”). On 8 May 2020, the respondent gave a notice to the co- respondent pursuant to s 56(1)(c) of the Planning Act 2016 (“PA”) directing the co- respondent to refuse the development application. [4] The applicant seeks declarations that the development application did not trigger or require assessment by the respondent pursuant to the above provisions of the PR, that its assessment was unlawful, and that the decision of the respondent to direct refusal 1 Affidavit of David Errol Baker filed 8 June 2020, para 5. 2 Ibid, para 6. 3 Affidavit of John Randall Barrington, filed 7 September 2020, para 7. 4 Ibid, exhibit “DEB1”, p 6. 5 Affidavit of Simon David McNeilage filed 18 September 2020, exhibit “SDM1”, p 10. -- 2 of 7 -- 2 of the development application is invalid. Consequential orders are also sought that the respondent be required to amend its Referral Confirmation Notice to remove reference to the above provisions of the PR and that it decide its referral agency response without any assessment pursuant to them. [5] At the commencement of the hearing, the co-respondent was granted leave to withdraw from the proceeding in circumstances where it had taken no part in the proceeding and was content to abide the orders of the court. The relevant statutory framework [6] The assessment undertaken by the respondent which is contentious in this proceeding derives from jurisdiction conferred by Schedule 10, Division 4, Table 3 of the PR. It is relevantly in the following terms:6 Table 3 – Material change of use of premises in wetland protection area Column 1 Column 2 1 Development application requiring referral Development application for a material change of use that is assessable development under a local categorising instrument, other than a material change of use relating to a domestic housing activity, government supported transport infrastructure or electricity operating works, if – (a) all or part of the premises are in a wetland protection area; and (b) the material change of use involves operational work that is high impact earthworks in a wetland protection area 2. Referral agency The chief executive [7] The definition of “operational work” is found in Schedule 2 of the PA in the following terms: “operational work means 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.” 6 This provision is relevant as a consequence of PA s 45(5)(a)(ii) and PECR s 31(1)(a). -- 3 of 7 -- 3 [8] The term “high impact earthworks” is relevantly defined in Schedule 24 of the PR in the following terms: “high impact earthworks – (a) means operational work that changes form of land, or involves placing a structure on land, in a way that diverts water to or from a wetland in a wetland protection area…” [9] The wetland in a wetland protection area runs along the entirety of the south western boundary of the site.7 The development application involves operational work consisting of roads, access pathways, carparks and a bus parking bay as well as campsites which are proposed to have a covering of permeable artificial grass.8 It is uncontentious that this operational work is within 200 metres of the wetland and involves more than 100m3 of excavating or filling. What is contentious is whether the operational work “involves placing a structure on land, in a way that diverts water to or from a wetland in a wetland protection area.” Discussion [10] It is important to bear in mind that the applicant is seeking declarations and orders to the effect that the respondent is not entitled to assess the development application at all. It is alleged that the structures sought to be placed on the land, essentially the road, the paving and the artificial grass, do not divert water to or from the adjacent wetland. This is different from an analysis of the extent to which they may do so and whether this has any consequences for the health of the wetland. It is uncontentious that the applicant bears the onus of proving “all the facts which are necessary to enable” the declarations to be obtained.9 Or as it was put by Dodds DCJ in this court in Kin Kin Community Group Inc v Sunshine Coast Regional Council, “the Applicant bears the onus of proving matters necessary to the declarations it seeks, and of persuading the Court that declarations and orders should be made”.10 [11] Surprisingly, in circumstances where the proposed development will increase the permanent impervious area of the site to 6204m2,11 no comprehensive analysis of the 7 Affidavit of Simon David McNeilage, exhibit “SDM1” p 9. 8 Affidavit of Mr Barrington, para 22(b) and Exhibit 2. 9 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 212. 10 [2011] QPELR 349 at 353. 11 T1-46, ll 20-32. -- 4 of 7 -- 4 hydrological conditions underlying the site has been undertaken by the applicant. Before the court was a report concerning a bore which was drilled on 2 October 1981 in an area close to the boundary of the site and the adjoining wetland.12 It showed surface sand to a depth of 5.49m before layers of clay and basalt boulders, with water located at 15.76m. Three bores were also drilled on 10 October 2018, apparently to investigate potential onsite effluent disposal. They were each drilled to a depth of 3.5m and showed sand entirely present to this depth. Percolation tests undertaken revealed a high rate of percolation.13 The applicant relied upon the evidence of an engineer, Mr Loveday, who stated that: “Due to the high permeability of the upper sand layer, rain falling in the site will infiltrate directly into the sand rather than run across the surface. It will then move downwards until it reaches the clay layer at depth. It is the shape of the clay layer at depth that determines the catchment flowing to the wetland not the surface shape.”14 [12] As noted above, only three bores have recently been drilled on the site. They do not appear to have been drilled for the purpose of understanding the hydrological conditions underlying site. Their positions are shown in Exhibit 1 and only one of them was drilled in the vicinity of the wetland. None of them extended to a depth which would provide any information about the shape of the clay layer which Mr Loveday contends is determinative of the way the water under the site flows. Mr Loveday conceded in cross-examination that he did not know anything about the shape of this clay layer.15 He conceded that if there was a ridge in the clay layer and a new impermeable surface, this could change the point at which the water entered the ground, thus affecting the direction in which water in the site could flow.16 The absence of investigations concerning the hydrology of the site was such that Mr Loveday was also unable to identify the extent to which water entering the ground moves horizontally, either towards or away from the wetland.17 [13] Mr McNeilage, the engineer who gave evidence on behalf of the respondent, was not only critical of the failure of the applicant to adequately investigate the hydrological 12 Affidavit of Anthony Loveday, filed 8 September 2020, exhibit “TL-2”, pp 30-35. 13 Ibid pp 23-28. 14 Ibid at paras 28-29. 15 T1-64, ll 5-6. 16 Ibid, ll 35 – 47. 17 T1-75, ll 5 – 32. -- 5 of 7 -- 5 conditions underlying the site.18 He also asserted that the increase in the permeable and semi-permeable areas proposed as a consequence of the development application could lead to increased evaporation, which would result in less water permeating into the ground and potentially flowing to the adjacent wetland. [14] The applicant submits that it is appropriate to adopt a common sense approach to construing the legislative requirement that “the operational work involves placing structures on the land in a way that diverts water to or from a wetland”.19 Reliance is placed upon the purpose of the PA, set out in very general terms in s 3, which includes economic considerations as well as environmental ones. It is submitted that the only operational works contemplated by the proposed development which are non- permeable are the roadway, and given that it is relatively narrow, any displacement of water as a consequence will be minor. This is in circumstances where the design does not contemplate any water leaving the site, rather, in the case of the non- permeable roadway, it is absorbed into the ground adjacent to the road surface.20 Given the depth of the sand and the absorption qualities of it, it is submitted that there will be no effect of the type necessary to attract the trigger for assessment by the respondent. [15] Conversely, the respondent submits that the applicant has not discharged the onus of establishing that there will be no diversion of water to or from the adjacent wetland, in circumstances where the applicant has not produced evidence of any comprehensive assessment of the groundwater characteristics beneath the site. The respondent also submits that losses from evaporation due to increased impervious areas should be taken into account. However, I am of the view that, on the facts before me, a common sense approach does not justify a consideration of the minimal and indirect consequences of the evaporation of rainwater. Nonetheless, in circumstances where the applicant carries the onus of demonstrating no diversion of water to or from the adjoining wetland and relies upon a thesis that contemplates the unclearly defined subterranean clay layer as pivotal to the direction of water flow, there remains a lack of evidence to support his contention that there will be no diversion of water to or from the wetland. 18 Affidavit of Mr McNielage, para 28. 19 Wall v Douglas Shire Council (2008) 157 LGERA 327 at 341. 20 Affidavit of Mr Loveday, exhibit “TL-2”, p 38. -- 6 of 7 -- 6 Conclusion [16] On the evidence before me, the applicant has not discharged the onus of proving that the operational works contemplated by the proposed development will not divert water to or from the adjacent wetland. [17] Accordingly the application is dismissed. -- 7 of 7 --