Allen v Toowoomba Regional Council & Ors [2011] QPEC 81 [2011] QPELR 756

1 [2011] QPEC 81 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Appeal No 27 of 2011 DAVID JOHN ALLEN Appellant and TOOWOOMBA REGIONAL COUNCIL Respondent and ADMINISTERING AUTHORITY UNDER THE ENVIRONMENTAL PROTECTION ACT 1994 Co-Respondent and DEPARTMENT OF ENVIRONMENT AND Co-Respondent RESOURCE MANAGEMENT and RODERIC ANGUS LOGAN, Co-Respondents DAMIAN WILLIAM McINNERNEY, LEAH COLLEEN McINNERNEY, PETER DAVID MORGAN and OWENA RUTH REIMERS P & E Appeal No 92 of 2010 PETER DAVID MORGAN Appellant and TOOWOOMBA REGIONAL COUNCIL Respondent and CHIEF EXECUTIVE, DEPARTMENT OF Co-Respondent ENVIRONMENT AND RESOURCE MANAGEMENT and CHIEF EXECUTIVE UNDER THE Co-Respondent ENVIRONMENTAL PROTECTION ACT 1994 and DAMIEN WILLIAM McINNERNEY, Co-Respondents LEAH COLLEEN McINNERNEY, GRANT NEWSON, BARRY REIMERS and OWENA RUTH REIMERS -- 1 of 10 -- 2 ORDER 1 10 20 30 40 50 60 P & E Appeal No 559 of 2011 GRANT NEWSON Appellant and TOOWOOMBA REGIONAL COUNCIL Respondent BRISBANE ..DATE 10/06/2011 ORDER CATCHWORDS Council decision to approve expansion of a feedlot leads to a conditions appeal by the developer which submitters elected to join as co-respondents - extensions of time for those submitters to launch their own appeals refused - likewise for an objector whose purported submission was made electronically (his appeal and application to co-respond being rejected) - valid submitter appeal recently commenced by a submitter overlooked by Council in notifying its decision - whether an issue of "competence" of the developer was relevant or should had been raised - early limited disclosure by a government entity co-respondent volunteered to facilitate mediation -- 2 of 10 -- 3 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The orders tidy up a number of matters that have been left hanging in these appeals. They finally give effect to the court's views expressed in published reasons that Mr Newson's submission which it is accepted that he made against a development proposal was not a properly made submission, because, albeit timely, it was not signed, having been sent to the Council by electronic means which that council, unlike a handful of others, perhaps Brisbane only, had embraced: Morgan v Toowoomba Regional Council (No. 2) [2011] QPEC 61. Mr Newson's late appeal and his application to become a co-respondent in any other appeal must fail. The court would not have been justified in exercising any discretion it might have (there is none) to allow extra time and deprive Mr Morgan, the developer of the tactical advantage he has of being able to end the court’s involvement by withdrawing his appeal. Nor should it allow co-respondents by election in it more time to start their own appeals. Most of the time this morning has been devoted to working out whether there is, or ought to be, in any of the appeals, an issue which the McInnerneys and their counsel, Mr Collins provocatively, and maybe offensively to Mr Morgan, described as "competency". -- 3 of 10 -- 4 1 10 20 30 40 50 60 The notion is that on past performance Mr Morgan's management of the feed lot, which is to be expanded under the relevant development approval the subject of the appeals, has been deficient so that he ought to suffer a consequence of his application for development approvals for expansion being refused. Mr Houston representing him objected strongly to the introduction of a new issue along those lines in the process the Court is engaged in today of identifying issues in the continuing appeals. My inclination was to provide for the addition of such an issue but reserving Mr Morgan's right to establish that it was an irrelevant issue, not being a planning matter at all. That may well be the correct analysis. If Mr Morgan in the past has been in breach of conditions, there are procedures available by way of enforcement orders and the like to deal with that. Such matters may be seen as extraneous to the issue of whether any further development approval ought to be granted. Any such approval would run with the land and not be personal to any particular operator. The assumption is that conditions attached to a development approval to ensure that the impact of a use are acceptable, will be complied with. In principle both the Council as assessment manager and the Court in an appeal ought not to be referring to matters that are personal to a particular applicant. Indeed, it's well -- 4 of 10 -- 5 1 10 20 30 40 50 60 known that in many instances the applicant, who may be an agent such as a planner, has no intention of carrying out a development at all. That said, I'm of the view that the record of a particular operation is something that the assessment manager is likely to be looking at, particularly if issues about it are raised. I understood Mr Kevin who represents the Council to be saying as much to the court. I rather think it would be unrealistic of the court in assessing a development application to ignore what might be an excellent record of the operator of a particular venture which is sought to be expanded. The court in my experience often does that in circumstances where a use that is unauthorised or irregular is sought to be regularised by the making of a development application. As one would expect, if the use had been proceeding satisfactorily for a long time, that tends to support the granting of the needed approval. It would be odd if the obverse situation could not be looked at by the court. Although strenuously opposing the identification of a new issue, Mr Houston accepted that matters of this kind would be the subject of evidence, although taking care to protect his client's position by resisting any restrictions on his entitlement to make objections and the like. Ultimately it became unnecessary for the court to make any ruling because Mr and Mrs McInnerney's long document entitled -- 5 of 10 -- 6 1 10 20 30 40 50 60 'Schedule of Conditions Requested' provided by them as co- respondents by election in Mr Morgan’s conditions appeal was accepted to raise the issue on page 31 of 34 which states as follows under a heading 'Competency' that's underlined: "5. The feedlot shall be managed at all times in a competent manner ensuring that it meets all environmental benchmarks and conditions attached to the Feedlot Licence and Development Approval. The owners shall ensure that only approved qualified professionals are employed in management roles to ensure this occurs. Ongoing training shall be available and compulsory for all staff to ensure that all employees are aware of the operator's obligations under the Environmental Protection Act and any conditions attached to the feedlot's development approval. Management and employees shall demonstrate competency in the operation of all machinery and feedlot procedures necessary to achieve compliance. There have been numerous documented incidents of effluent spills and offensive odours emanating from the existing feedlot under the current management." That appears to be sufficient to bring into the issues what's sought to be raised which might well be ventilated when the court considers the necessity and likely effectiveness of proposed conditions. Also in respect of issues in repeal, Mrs McInnerney was concerned at the exclusion of issues raised in paragraphs 2 and 4 of Mr Allen's recently commenced submitter appeal, which -- 6 of 10 -- 1-7 ORDER 1 10 20 30 40 50 60 is in time in the events that happened. Mr Allen was agreeable to that exclusion happening himself. One of the paragraphs dealt with the effect of the approval on property values in the area. Although of great moment to property owners, that has never been accepted as a planning consideration. The other excluded ground concerns whether the whole decision making process in the Council miscarried, and miscarried to such an extent that it might have to be gone through again. This has to do with concern that submissions were overlooked by the Council. Fears that Ms Allen's and Mr Logan's submissions in particular were not taken into account were fed by their having been excluded from the list of those formally notified of the Council's decision. In the past Mr Kevin has filed affidavit material providing evidence that the submissions were in fact available for consideration and considered, and that the only omission occurred in respect of notification of those two submitters by the Council. The court set a deadline of 6th of June 2011 for raising of that particular issue by any party (and this was expressly extended to include Mr Newson) desiring to raise that submission, the clear intention being that if no one put a hand up by that date, the issue, clearly a crucial one from Mr Morgan's point of view, was forever removed from the appeals. No one expressed any interest in raising the point by filing -- 7 of 10 -- 1-8 ORDER 1 10 20 30 40 50 60 documents as the court's direction required. Nor has anything in that regard since the deadline was passed One other interesting feature of today was Ms Hussey's volunteering as representative of the Administering Authority under the Environmental Protection Act 1994 - that's the title in appeal 27 of 2011, it’s the Chief Executive under the Environmental Protection Act 1994 in appeal 92 of 2010 - to make early disclosure to all the parties of a particular file which Mr Collins was particularly anxious that he and his clients see before the mediation which has been directed to occur in Toowoomba on or before the 5th of August. That's an unusual provision as acknowledged in the court's order by the recording of an undertaking. The order doesn't, as many directions do, set a timetable for general disclosure. The mediation exercise may define continuing issues, and consolidate all of them in a single list which will facilitate disclosure when the time comes. Mr Houston had understandable misgivings about premature limited disclosure but Mr Collins succeeded in attracting the offer of the undertaking which I think the court could appropriately accept. Ms Hussey informed the court of her understanding that her client's approach did have regard to what has been called the competency issue in what I understood to be a second enquiry rather separate from the planning assessment that a Local Government makes. She confirmed that she was doing no more -- 8 of 10 -- 1-9 ORDER 1 10 20 30 40 50 60 that assisting the court by making observations regarding general procedure and that she suggested nothing whatever adverse to Mr Morgan. MR HOUSTON: Your Honour, could I just mention a matter briefly. Could I hand up a copy of the notice of appeal by Mr Allen? HIS HONOUR: What I wanted to say about Mr Allen's appeal is that Mr Logan who, like Mr Allen, was overlooked when advice of the Council decision was sent out, has elected to become a co-respondent in Mr Allen's submitter appeal, and continue his opposition to the proposal in that way. The Reimers and McInnerneys have similarly elected it seems. For the moment this seems an acceptable way of proceeding, and there are certainly precedents for it. See Bridge v Redland Shire Council [2007] QPELR 548. That situation does create potential difficulties for the conduct of an appeal and from the developer's point of view, places him in a rather invidious position of being jammed between submitters left and right. But it remains to be seen whether anything could or should be done where there are likely to be very similar interests propounded and pursued separately by multiple parties. Yes, Mr Houston? MR HOUSTON: Could I take your Honour to paragraph 4 firstly, your Honour will see that that was one of the conditions that we potentially left out. If one goes to 2, my understanding is that your Honour addressed 2(a) in your reasons. 2(b) was excluded for the separate reason that this was a hearing de novo and it refers to the granting of approval. The respondent failed to have regard to those things. In fairness to Mr Allen, it raises some matters, health and safety, -- 9 of 10 -- 1-10 ORDER 1 10 20 30 40 50 60 business activities and other amenities which may not be picked up in 1, 3 or 5. We have no objection to, despite the fact that it's rather inelegantly worded and subject to a right to seek further particulars, we have no objection to that being included in the order. So 2(b) could be added to order 27. HIS HONOUR: For the assistance of the SRB I'd appreciate this exchange being transcribed as part of the order. The transcript is otherwise going to be produced anyway. So I will amend the order in 27. MR HOUSTON: Paragraph 3 is the issue. HIS HONOUR: So it says 1, 2(b), 3 and 5? MR HOUSTON: Yes, your Honour. And we'll deal with that in due course as I said, subject to particulars but more likely we'll deal with it at the conference at the ADR registrar so we properly understand what the concerns are. ---- -- 10 of 10 --