Esk Shire Council v Jackson & Ors [2000] QPEC 72

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Esk Shire Council v Jackson & Ors [2000] QPE 072 PARTIES: ESK SHIRE COUNCIL Applicant v JOHN JACKSON First Respondent and WWW GENEBANK PTY LTD Second Respondent and HITEC RESOURCES PTY LTD Third Respondent FILE NO/S: 1062 of 2000 DIVISION: Planning and Environment Court PROCEEDING: Application for Declaratory Relief and Enforcement Orders ORIGINATING COURT: Brisbane DELIVERED ON: 18 August 2000 DELIVERED AT: Brisbane HEARING DATE: 3, 4 and 11 August 2000 JUDGE: ORDER: Judge Robin QC DECLARATIONS MADE AS APPLIED FOR LIKEWISE THE ENFORCEMENT ORDERS SOUGHT, WITH DELAYED EFFECT IN RESPECT OF THE EPA ORDER CATCHWORDS: Council application for declarations and enforcement orders (injunctions) under the IPA and under the EPA – respondents purchased land for which Council in 1992 approved an application for town planning consent for a use of “stockpile gravel – screening gravel” – conditions included “compliance with the facts and circumstances set out in the application” – application identified machinery as “truck, excavator, and loader, screws - all diesel motors” – respondents’ activities included washing gravel and sand – their arguments that washing was “screening”, and that production of washed sand was incidental to and necessarily associated with screening of gravel were rejected – relief granted as sought – discretionary factors going to granting or withholding -- 1 of 32 -- 2 injunctions considered, including alleged hardship, alleged victimisation, respondents’ knowledge of the risks they ran and their own identical complaints regarding the previous operator –enforcement order under the IPA delayed to allow respondents to complete their belated application for the proper licence for their “environmentally relevant activity” Environmental Protection Act 1994 s. 39, s. 194 Environmental Protection Regulation 1998 s. 4 schedule 1, item 22 Integrated Planning Act 1997 s.1.3.5, s. 3.2.1, s.4.1.21, s. 4.1.22(1), s. 4.3.25 Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works (1972) VR 781, 796 Woolongong City Council v Australian Iron & Steel Pty Ltd (1998) 67 LGERA 51 Hubertus Liverpool Rifle Club Ltd v The Commonwealth of Australia (1994) 85 LGERA 37 Environment Protection Authority v Brown and Hatton Rural Pty Ltd (1992) 77 LGRA 383 Norman v The Council of the Shire of Gosford (1974) 132 CLR 83 Shire of Perth v O’Keefe (1963) 110 CLR 529, 535 Boral Resources (Qld) Pty Ltd v Cairns City Council (1996) 91 LGERA 323 Brisbane City Council v Bemcove Pty Ltd (1998) 104 LGERA 1, 3 Warringah Shire Council v Sedevecic (1987) 10 NSWLR 335 Queensland Cement Limited v. United Global Cement Pty Ltd (1999) LGERA 167 Hitec Resources Pty Ltd v NuCrush Pty Ltd (1999) QPELR 145 COUNSEL: Mr S. Ure for the applicant Mr C. Hughes for the respondents SOLICITORS: King & Company for the applicant Gilshenan & Luton for the respondents [1] The applicant Council seeks declarations against the respondents that the use being made of land situated at Staghurst Road, Toogoolawah, being Lot 5 on RP 106044 is unlawful in that: -- 2 of 32 -- 3 (a) the use falls outside the ambit of Town Planning Consent Permit No. 237 issued by the Council in respect of that land; and (b) the use constitutes a Level 1 environmentally relevant activity pursuant to the provisions of the Environmental Protection Act and the required licence has not been granted to the respondents. Enforcement orders are sought: (i) restraining the respondents from using the land for the purposes of sand and gravel processing other than in accordance with Town Planning Consent Permit No. 237; and (ii) requiring them to cease using the land for the environmentally relevant activity until the requisite licence is issued to authorize it. [2] So far as the town planning question is concerned, the application for a declaration comes under s.4.1.21 of the Integrated Planning Act 1997; the court may make “an order about a declaration made under s.4.1.21” under s.4.1.22(1) and may make “enforcement orders” under Division 5 of Part 3 of Chapter 4 of the IPA. Section 4.3.25 is: “Making enforcement order 4.3.25.(1) The court may make an enforcement order if the court is satisfied the offence – (a) has been committed; or (b) will be committed unless restrained. (2) If the court is satisfied the offence has been committed, the court may make an enforcement order whether or not there has been a prosecution for the offence under division 4.” Section 4.3.22(1) shows that an “offence” is a “development offence” which, by virtue of the definition in Schedule 10 includes, among other things, starting -- 3 of 32 -- 4 assessable development without a development permit for the development (s.4.3.1) or using premises “if the use is not a lawful use” (s.4.3.5). [3] For purposes of the Environmental Protection Act 1994, the Court is the Planning and Environment Court. See Schedule 4. Section 194 deals with restraint orders “to remedy or restrain an offence against (the) Act, or a threatened or anticipated offence against (the) Act.” Although there continues to be in this matter uncertainty as to whether it is the Council or the Environmental Protection Agency which bears the principal responsibility (in either event, to be exercised in consultation with the other), the Council’s standing under s. 194(1) was not disputed. [4] The respondents’ direct connection with Lot 5 goes back only to about November 1999, when it was purchased. A central issue in the case is the correct categorization of their activities on it from about March 2000, the months preceding being devoted to getting equipment set up. Those activities very quickly produced complaints to the Council from neighbours who had for years tolerated, without complaint, what the respondents contend were similar activities carried out on Lot 5 by the previous operators there, by the name of Hughes. Noise is one of the general objections, belying the assertion (which the court does not accept) that the present operation is quieter than Hughes’ because some of the equipment is electrically operated, whereas Hughes’ was diesel. Mr Darryl Roland Jackson, of Lot 4, Staghurst Road, summarized his complaints at p. 28 of the transcript: “Noise of the trucks going past the house at 6 a.m. in the morning. There’s dust in the plant, water, (running through my property – coming from the plant) and when the gravel is extracted from the river and brought up to the plant you get the tailgate banging when they unload the trucks down in the plant which echoes up to my house.” -- 4 of 32 -- 5 Mrs Green, who was living at Lot 3, Staghurst Road, has additional concerns over and above ones to do with noise, related to the use by heavy trucks of Staghurst Road and Gregors Creek Road, which is the access to Staghurst Road. She says the road is being cut up and rendered dangerous and has a particular concern regarding the safety of the school bus which her son uses, given the width and condition of the roads and the volume of dump truck traffic associated with operations on Lot 5; that was such that she felt unable to continue to exercise her horses on the roads. Indeed, by the time of the hearing, her family had left Lot 3 and moved to Beaudesert, she says, to get away from the respondents’ activities. An attempt was made to imply that the move to Beaudesert occurred because her husband lost his employment with the Council, and now works for the Ipswich City Council. The court accepts her evidence, in particular her contemporaneous written records of truck movements, which, of course, are not continuous, and reflect only periods when she was at home, free and inclined to take the trouble to note down truck movements, and the evidence of Mr D.R. Jackson. Those records establish, inter alia, that the respondents operated in breach of Permit 237 when they worked on 1 May 2000, a public holiday. (The respondents’ evidence suggesting that certain contractors did not work or present invoices for that day, even if correct, does not overcome Mrs Green’s evidence.) [5] The evidence of the first respondent, Mr John Jackson as to the level of the respondents’operations is unsatisfactory. He was only occasionally on site, and had expressed no reliance on records which are presumably available to him. Not only did he speak in generalities; in his approach, he thought it appropriate to describe plant activity in terms of, for example, one and a half days per week, a day being a certain number of hours, so that the total for a week might well represent activity on -- 5 of 32 -- 6 five or more days. One can understand the impression that the neighbours have developed, and the impairment of their amenity, as compared with what it previously was, now that they must live expecting operations on Lot 5 at any time, excepting Sundays. [6] On the evidence before the Court, there has been a marked increase in the degree or extent of activity on Lot 5, and, more specifically, in the relative or proportionate size or extent of activity compared with that of the Hughes era. I do not think that six months or so of complete respite from activity after Hughes ceased operations about September 1999 has made the neighbours’ perceptions unreliable. I have made allowance for some weeks of greater activity in March 2000, when the respondents were getting established; among other things, it was necessary for them to import and place more “clayey” material to establish a firm base for vehicles to move about on. There was conflict in the evidence as to whether that imported material, understood to come from a gravel and sand resource controlled by the respondents at Buraba Creek at Coominya in the Esk Shire, about 50 kilometres away, having a distinctive reddish colour, is also being processed on Lot 5, along with local gravel, whose colour was described as grey. Although the respondents, by Mr Jackson, denied it, the weight of evidence presented by the applicant’s witnesses (which there is no sufficient reason to reject) points to an affirmative answer. [7] The relevance of the matters canvassed in the preceding paragraphs, from [4] on, is limited. It serves to indicate there would be some utility in injunctive relief. The court is not in any position to make findings, because the parties made it clear that the Council was not seeking to establish in these proceedings (although it reserved -- 6 of 32 -- 7 its right to claim in the future) that there had been “a material change in the intensity or scale of the use of the premises", to quote paragraph (c) of the definition of “Material Change of Use” of premises in s.1.3.5 of the Integrated Planning Act 1997. Although I have resorted to synonyms for expressions occurring in the definition, and thereby, perhaps, indicated preliminary views, the court makes no determination relevant to the application of paragraph (c). I would think it highly likely that further evidence would be forthcoming, particularly from the respondents, if the Council or the court ever has to make such a determination. [8] It is clear that, as a matter of law, it is completely irrelevant to make comparisons between the activities of the Hughes venture on Lot 5 and the respondents’. The vital question is what activities on or use of Lot 5 Permit 237 allows. Hughes may have done far less. Hughes may have done more than the permit allowed, in which case the respondents can hardly expect to have any non-compliance with the permit’s limitations on their part excused on the ground that the predecessor operator broke the law and got away with it. It is elementary that the permit “runs with the land” and was in no way personal to the Hughes’. [9] It rather appears that Mr and Mrs Hughes had been operating in some fashion on Lot 5 since the mid 1980’s, processing gravel won from deposits on the adjacent bank of the Brisbane River. Questions appear to have arisen as to the permissibility, from a town planning point of view, of activities they conducted on Lot 5, where gravel was stockpiled and screened. Relevantly, Hughes Gravel on 8 September 1992 applied to the Council for town planning consent for a proposed use of “stockpile gravel – screening gravel”, which was also given as the present use. Both present use and proposed use in the application form referred to -- 7 of 32 -- 8 buildings of a tool shed and shade (for protection of vehicles) and to the machinery used currently and proposed to be used as “truck, excavator, end loader, screener – all diesel motors”; the number of persons engaged in the current use was given as 1- 2, in the proposed use 1 to 3. A covering letter from Neil and Val Hughes stated: “Esk Shire Council P.O. Box 177 Esk 4312 Re Application for Town Planning Consent. Our monthly use of Staghurst Road over the past twelve months has been 12 loads per month. The main purpose for this gravel supply from the Brisbane River, is to supply our own business at Glenore Grove. When we go up to the plant at Staghurst, we usually work up there for the day and then bring a load home. We are not carting in and out all day long. On very few occasions we may do a few loads in one day back to the depot and a customer occasionally calls at the plant to collect stone. We have built our stockpiles of materials all around the screening plant to help cut down on the noise. At present we do not have anyone employed at the plant fulltime. It is usually Neil and one of our employees who work the plant. We would hope if all is to go well with our application with Council and in the future, we may be able to employ a local of the area to run the plant and be available to supply locals with gravel and sand. It is not out intention to take business away from any local business of the same nature. We hope Council will give us a favourable decision re our application and ask if we can have the consent for a longer period of time than the last consent. Yours faithfully Hughes Gravel Neil & Val Hughes per V.M. Hughes” -- 8 of 32 -- 9 With the letter, and also to be regarded as part of the application, in my view, was a plan showing the location of the features mentioned in the letter. This shows the roadway or track by means of which the gravel resource was transported, within Lot 5, from the riverbank, indicated to be some 100 metres away from a gate and shed, beyond which was the screener. [10] The Council’s letter of 1 March 1993 advised the Council’s consent to the application (to which there had been no objection) subject to specified conditions. The conditions were: “1. Compliance with the facts and circumstances set out in the application and with all relevant Council By-laws and policies and the Esk Shire Planning Scheme. 2. The use shall not commence until such time as the requirements of the conditions of this consent approval have been carried out to Council’s satisfaction and a Town Planning Consent Permit is issued pursuant to Section 4.13 (12) of the Local Government (Planning and Environment) Act. 3. The applicant shall be responsible for the cost of any alterations necessary to public utility mains or services resulting from the works associated with the conditions of this approval. 4. Any external or security lighting devices to be so positioned and shielded as not to cause any glare nuisance to adjacent landowners and passing motorists. 5. Staff amenities to be provided to the requirements and satisfaction of the Chief Environmental Health Surveyor. 6. The areas on which vehicles will be parked or driven are to be provided with a gravel all weather standard surface constructed and maintained to good engineering standards. 7. The applicant shall construct an access between the road pavement and the property boundary, suitable for the proposed development, to the requirements and satisfaction of the Shire Engineer. -- 9 of 32 -- 10 8. The area on which vehicles will be parked or driven shall be designed such that vehicles may enter and le4ave the premises in a forward gear. 9. All loading and unloading to be carried out on site. 10. The applicant shall maintain a buffer strip of not less than thirty (30) metres between the stockpiles and adjoining properties. 11. No extractive operation is to occur on site without a separate Town Planning Consent Approval by Council. 12. The hours of operation shall be limited to 7.00 a.m. to 5.00 p.m. Monday to Friday and 7.00 a.m. to 3.00 p.m. Saturday (operations shall not be conducted on a Public Holiday or any Sunday). 13. This approval is valid up to and including 31 August 1995 after which time a fresh approval will be required.” In response to Hughes Gravel’s letter in reply of 11 March 1993 regarding conditions 12 and 13, the Council at a meeting said in its letter of 22 March 1993 to have been held on 10 March 1993 resolved to delete Conditions 12 and 13 and substitute: “(12) The hours of operation shall be limited to daylight to sunset Monday to Friday and 7 a.m. to 3 p.m. on Saturday. Furthermore, no operations shall be conducted on a Sunday or public holiday.” [11] In retrospect, it can be seen to have been rather ill advised on the Council’s part to abandon forever the opportunity to review the conduct of operations on Lot 5 by removing the limitation on duration of the consent. With hindsight, it appears the Council may have been ill advised not to limit production by reference to the levels indicated in and current at the time of the letter of 7 September 1992, or to limit the -- 10 of 32 -- 11 gravel that might be screened on Lot 5 to that sourced from the immediately adjacent bank of the river. [12] Gravel is extracted from the watercourse of the Brisbane River pursuant to quarry permits issued by the Queensland Department of Natural Resources. The respondents have permits not only in respect of the resource immediately adjacent to Lot 5, but also in respect of others (which seem to be larger) around the bend of the river towards the bridge at Gregors Creek Road. This, on its own, does not mean that gravel production going through Lot 5 is any greater, but it has certainly meant an increase in heavy vehicle traffic along Gregors Creek Road and Staghurst Road, transporting there material from the riverbank which would otherwise have come across Lot 5 itself. Exhibit 20 was a video taken on 10 March 2000, showing in full the progress of one particular vehicle from the resource near Gregors Creek Road to Lot 5 and back. There were other vehicles obviously engaging in similar activity on the same day, one a massive aggregation because of the attachment of a large “dog” trailer. It seems that most, if not all of this additional traffic may now proceed to Lot 5 by a road on the riverbank. [13] Mr Hughes, for the respondents, put in evidence other permits of a similar kind to Permit 237 issued by the Council at about the same time which included a condition of financial contributions to upkeep of roads. The purpose of the tender was to show that the Council gave deliberate consideration to applications for such permits and by no means granted them unquestioningly, or without reference to the particular circumstances. (See Exhibit 14 (1989) and Exhibit 15 (1990) each of which concerns an application for a proposed use of extractive industry and requires -- 11 of 32 -- 12 compliance “with the facts and circumstances set out in the application”, as does Permit 237.) [14] That the Council did not contemplate the importation of material from remoter sites along the Brisbane River or even further afield does not, of course, mean that it has not granted a town planning consent which allows such activity. What the court must focus on is what Permit 237 permits, which is not to be decided on the basis of whatever Hughes Gravel may have done under it. [15] Mr Hughes, on behalf of the respondents, referred the court to a number of authorities which he submitted bore on the construction of permits such as the present one generally. The first was Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works (1972) VR 781, 796, where Pape J. said: “I think it is plain that in planning cases an over-technical approach should not be adopted in seeking to give a sensible meaning to conditions imposed in permits, for of necessity the condition is to operate in futuro and cannot be so worded as to contain every last detail which human ingenuity might conceive to be desirable ... In Hall & Co v Shoreham-by-Sea Urban District Council (1964) 1 WLR 240, Wilmer LJ at 245 said: ‘I do not think that the words used by a local authority in imposing conditions are to be scrutinized in the same way as the words used by a parliamentary draftsman..’” The context was one requiring Pape J. to decide whether a condition imposed by a planning authority was void for uncertainty or for unreasonableness. [16] In Wollongong City Council v Australian Iron & Steel Pty Ltd (1998) 67 LGERA 51, also referred to by Mr Hughes, declarations were sought that the respondents’ conduct in transporting slag from its steelworks by road was contrary to a condition of the development consent; Holland J. said at 56: -- 12 of 32 -- 13 “The context is all important in cases like the present. We are not dealing with an Act of Parliament. An over-technical approach to the meaning of the language used in conditions attached to a permit and approvals is, as a general rule, not called for.” In the result, the declarations were made. [17] The second general principle Mr Hughes derived from Hubertus Liverpool Rifle Club Ltd v The Commonwealth of Australia (1994) 85 LGERA 37 at 46: “The authorities clearly establish that it is legitimate, in construing a development consent, to look at the plans that accompany the application. However, this may be done only where the consent document expressly or inferentially incorporates the terms of the application and only where it is necessary for the purpose of interpreting the consent. For example, where the Council simply approves an application without describing the development, it is permissible to look at the application to determine what it was that the applicant sought to have approved ... It is not legitimate to look at the documents that accompany the application, or even the application itself, to contradict (whether by way of extension or contraction) the scope of a consent stated in clear terms.” - per Wilcox J in a compensation determination. [18] Finally, in Environment Protection Authority v Brown and Hatton Rural Pty Ltd (1992) 77 LGRA 383, Talbot J., in prosecutions, held at 393 that “the licence must be construed in favour of the defendant.” [19] While not questioning the correctness of any of those statements, I would not see them as applying universally; indeed, one of them acknowledges the importance of context. I find it difficult to agree that, where activities conducted under some permit, licence, approval or consent impact adversely on the amenity of neighbours, for example, and the issue of the lawfulness of the use is raised by them, the relevant planning approval should be construed favourably to the person entitled to -- 13 of 32 -- 14 the benefit of it, as any lawyer would expect to happen in a prosecution, for example. [20] For the purposes of this matter, I am content to apply the statements relied on by Mr Hughes as if they applied without qualification. Given the express terms of Condition 1, reference must be made to the application. I think that reference must also be made to the plan, and would expect that a new approval would be sought if the operations were relocated – this has not happened here. [21] It is a difficult question whether the contents of the letter accompanying the application may usefully be relied on by the Council here. It was open to the Council to impose by condition a cap on “production”. However, Norman v The Council of the Shire of Gosford (1974) 132 CLR 83 is high authority for the view that an existing use must be regarded as continuing even though production may increase radically. There it increased more than fifty fold. At 86, Mason J. said: “To my mind the crux of the matter is that at all times after 1st January 1972, as before, the use to which the land was put was the removal of top soil and filling for the purpose of sale. The nature of this use was not altered because there was an expansion in production by reasons of increased demand or because efficient machines were employed in production in place of manual labour or because excavations made in the course of removal assumed the appearance of ‘quarry faces’ whereas before they wore a different aspect.” It may well be that this doctrine has played its part in the Queensland Legislature’s decision to enact that an increase in the intensity or scale of a use may be a “material change of use” of the subject premises. Of course, no issue along these lines is raised here. -- 14 of 32 -- 15 [22] I would be inclined to hold that the letter is incorporated in the application and then in Permit 237 so as to limit the gravel that may be stored and screened to supply from the Brisbane River, and, probably, from the bank adjacent to Lot 5. I am doubtful that the permit allows the bringing on to Lot 5 of gravel for stockpiling and screening by way of Staghurst Road. Independently of those considerations, in my view, the respondents have been doing more than stockpiling gravel and screening gravel, which is all that the permit authorizes. [23] It must be accepted that there is a good deal of flexibility about what is comprehended in a lawful use. A leading statement of this idea is in Kitto J’s reasons in Shire of Perth v O’Keefe (1963) 110 CLR 529, 535: “...but at the outset it is necessary to observe that the ‘existing use’ by-laws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorized by by-law 372, whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree: cf. Marshall v. Nottingham Corporation (1954) 19 L.G.R. (N.S.W.) 232, at p. 236; and for that reason border- line cases will inevitably arise in which opinions will differ.” In that case, a protected existing use of pottery making was held not to permit use of land for purposes of other activities within what became the relevant category of “light industry” in the town planning scheme, although use for pottery making continued to be lawful. -- 15 of 32 -- 16 [24] In the end, whether the respondents are operating unlawfully, because in excess of Permit 237, comes down to whether their activities come within the description of “screening gravel”. The Council claims that not only gravel is being processed, but also sand, and that not only screening is going on, but also “washing”. As it happens, one of the main concerns the Environmental Protection Agency has harboured concerns the management of the significant (these were never quantified, although there was evidence of the water resources available) quantities of water used by the respondents, and more particularly, the management of dirty water used in processing. Ignoring any deleterious impacts there might be on Lot 5, concerns related to the escape of such water onto adjacent private land and into the Brisbane River. When the respondents have orders to meet, stockpiled gravel is picked up by loaders and transferred then to polyurethane screens with apertures of appropriate sizes to permit classification and separation of particles by size. Water is used not just to keep down dust, but to assist in separating the smaller particles (which include not only “sand”, which has a valuable use in the building industry, but also unwanted waste, such as organic material) and to prevent the perforations in the screens from becoming blocked. Mr Gray said that use of small amounts of water (only) may tend to lead to screens being blocked. [25] The Council’s evidence is and its case is that the process described above constitutes washing of gravel. The combined sand, water and unwanted organic matter are conveyed to a large tank, where the sand settles to the bottom and the water, carrying lighter material, flows away at the top to be stored for re-use after a cleaning process occurs in sediment ponds. (As I understood the evidence, there used to be only one “pond” spreading over a large area of Lot 5 and not effectively contained within the site, but other ponds have been created in recent times by the -- 16 of 32 -- 17 respondents in consultation with officers of the Agency, which now regards the water management situation as reasonable.) The sand is removed from the tank by an auger or screw, then conveyed to stockpiles where it will dry out, and from which it may be sold. The quality of the raw material is such that the sand may be sold as washed sand meeting the appropriate Standard - and that is what happens. [26] In the respondents’ case, the production of sand is presented as accidental. The evidence is that if the sand were not separated out from the water being recycled, the settling or sediment ponds would very quickly fill with sand. The respondents’ argument was that screening includes both wet and dry screening, the latter of which has not been common for a couple of decades – although the evidence is that the Hughes gravel operation began as a dry screening one. It was said that wet screening is the conventional method of producing a product of the quality demanded by the modern building industry, that dry screening would not produce that quality, and would not have done so in 1993 when the permit was issued. I do not accept the ambiguous statement in paragraph 10 of Mr John Jackson’s affidavit as reliable evidence of when Hughes Gravel started wet screening, and consider the likelihood is that this was not even contemplated, let alone embarked upon at the time of the permit being obtained. As Mr Jackson puts it in paragraph 10: “Hughes was originally screening without water, but soon after he commenced operation in about 1992 he started wet screening. Initially he wet screened through the tray of a truck, but then he obtained a sand screw and started using water in the screening process to “wet screen” or “wash” the product in the way in which Hitec does presently.” -- 17 of 32 -- 18 [27] Mr Ure, for the Council, was able to seize on such statements to argue that the respondents admit they are “washing”. In his letter of 3 July 2000 to the Agency, Mr Jackson wrote: “The stockpiles are themselves either washed sand or washed gravel and contain no contaminants.” Mr Hughes made corresponding charges of inconsistency against Mr Gray, the Council’s “expert” witness, whose descriptions of the processes engaged in by the respondents I prefer to those of Mr John Jackson, Mr Hoffman and Mr Bendall, who were relied on in the respondents’ case. This is so despite Mr Gray’s having to make observations at a distance. [28] The hearing threatened to become bogged down in semantics. Use of the expression “wet screening” (which may be accepted as being comprehended by “screening”) did not solve anything. Wet screening may involve limited use of water to settle dust – I am not persuaded it extends to a washing process, which, it seems to me, is quite distinct from a screening process. The former separates or classifies by means of separation by water (by processes such as washing and particles sinking, floating or dissolving), the latter does it by means of screens. The respondents argued that the process of screening to produce gravel will inevitably produce sand, because gravel is always mixed with sand and organic material (the evidence showed this); therefore, it was said that the production of sand is “incidental to and necessarily associated with” the screening of gravel and part of the use allowed by Permit 237, in light of the definition of use in Schedule 10 of the IPA, even in light of the strict interpretation emphasizing the importance of the word “and” by the Court of Appeal in Boral Resources (Qld) Pty Ltd v Cairns City Council (1996) 91 LGERA 323, where the Court said at 327: -- 18 of 32 -- 19 “It has to be observed that so far as appears, the judge was strongly influenced in his conclusions by the relative percentage volume of larger gravel as part of the overall volume of material extracted. However, he does not appear to have given weight to the fact that the appellant, in dealing with the larger sized gravel by the process that it proposes will include crushing, will not be acting under a compulsion arising from the extraction process itself. To include an additional process of crushing which goes beyond mere extraction, involves a voluntary extension of what the operation would otherwise involve. Alternatives available would be no crushing at all, or removal to crush elsewhere perhaps on some site where gravel crushing may be specifically authorised. There was no evidence that the additional process constituted a use which was unavoidably involved in the authorised operation, or that the operation became uneconomic unless the crushing process was included within it.” The Court of Appeal seemed to consider that its decision might have been applicable in Brisbane City Council v Bemcove Pty Ltd (1998) 104 LGERA 1, 3 – where it also acknowledged the importance of Norman v Gosford Shire Council (supra), (p. 6); in the end, the Brisbane City Council’s appeals against its failure to obtain orders of the kind sought here by the Esk Shire Council failed for reasons to do with the way in which the matter had been litigated, and because the Court of Appeal could not identify any clear question of law. [29] The respondents relied much on Hitec Resources Pty Ltd v NuCrush Pty Ltd (1999) QPELR 145, in which one of them was the applicant in two separate applications seeking declarations that other operators, presumably commercial rivals, were carrying out an activity on land without the necessary consent of the Esk Shire Council. Each of those operators had an approval which permitted the extraction of sand and treatment of it, the questions for the court including whether a “cyclone” (in which material of the kind which goes into the tank on Lot 5 was “processed” by separation out of the sand from silty water) amounted to a “sand sieve”, one of the items of equipment indicated in the operator’s application to the Council as included in the machinery to be used. Skoien SJDC concluded that the addition of -- 19 of 32 -- 20 water to the process did not alter the fact that use of a sieve (industry jargon for which was “screen”) was being used in a customary way in the industry. In my opinion, this case is distinguishable. While there may be a similarity between the listed machinery to be used, of “drag line, rock crusher and sand sieve” and the “truck, excavator, end loader, screener – all diesel motors” in the present case, there is, in my opinion, no equivalence between the approved use of extractive industry in Hitec and that of "stock pile gravel - screening gravel" here. Extractive industry was defined in the town planning scheme as "an industry involving the extraction of sand, gravel ... from land and including when carried out on the land from which any such materials are extracted or in land adjacent thereto, the treatment and storage of such materials and the manufacture of products from such materials." I do not consider a decision in that context that the addition of water to a process involving a sieve or screen does not go beyond authority to use such "machinery" is of assistance here; it does not, in my view, indicate that "screening" equals wet screening, which equals washing. It is interesting to note the conditions in Exhibits 14 and 15 (which appear to be those considered in Hitec): "8. The operation to be conducted so as to not allow any material to pollute a water course, water storage drainage system of land adjacent to the operations or alter the flow of any water course or flood course so as to adversely affect other property". (compare condition 7 in Exhibit 15) "9. All operations including loading, stock piles, plant, haul roads, vehicles and the like shall be located and maintained so that dust, sand, soil or other airborne material does not detrimentally impact on surrounding properties." (compare condition 8 in Exhibit 15). [30] In my opinion, in the respondents’ operations, washing of gravel and/or sand is being carried out in a fashion that cannot reasonably be regarded as coming within the permitted "screening", even on the indulgent approach to interpretation -- 20 of 32 -- 21 indicated by Mr Hughes' authorities. I think that the operations are producing "washed sand", a product more valuable than gravel in current market conditions, and that the process conducted in the tank does represent washing of sand (although not carried out by a cyclone). It may be accepted that close questions are involved in reaching a view about whether production of sand for sale necessarily involves a breach of the permit conditions. The court ought not to favour a conclusion which precluded a gravel producer from turning to profitable account a commercially useful by-product of sand. In this case, I think that the sand produced is more than the waste from gravel production. I find that the respondents are voluntarily engaging in processing activities in respect of the sand which cannot be seen as necessarily part of the gravel enterprise, although they might be incidental to it. [31] The Hitec cases appear to illustrate the competitive nature of this particular area of commerce. Hughes Gravel was not taken to court by Hitec, but on 7 May 1998 Mr John Jackson wrote to the Council; "Consent permit 237 allows for stock piling and screening and gravel only. Since at least 1994, Hughes has been operating an illegal Washing Plant for which he has no permit. He also has no DOE license and it is our belief that he has no approval to cross freehold land. Last year I wrote a letter of complaint concerning the above operation to the Esk Shire Council with a request that it be tabled at a Council meeting. Nothing was done. I contacted a member of the Council on at least two (2) occasions this year with the same complaint and still nothing was done. As late as last week I was told by the Mayor that she thought that Hughes had ceased operations sometime ago, but she is ill-informed, because Council trucks were using material from that site only last month. -- 21 of 32 -- 22 There are at least 10 truck movements per day from that site at the present time. The Plant is definitely still in operation and for your information is for sale. As a sand and gravel operator and rate payer of the Esk Shire, I have spent considerable amounts of money to ensure that I have legal permits and correct approvals to operate my business. I have to ask the question. Is there any reason why I should go to the trouble and expense to ensure I am operating legally, when a operator such as Hughes is allowed to continue without intervention. I am again asking the Council to investigate this operation and issue notice upon them to cease using their illegal Washing Plant immediately." [32] On 13 July 1998 the Council wrote to Hughes Gravel Pty Ltd in what amounted to a show cause notice as to why it should not be issued with an enforcement notice requiring it to cease all activities or remedy the commission of a number of alleged offences. In relation to one only of those, Hughes was advised: "Also on 11 June 1998 Council officers observed possible washing activities. This is contrary to your planning consent permit, which states the use consented to by the Council as being - "Stock Piling and Screening of Gravel" Council therefore believes that it should issue an enforcement notice to you, under the Integrated Planning Act 1997, requiring you to either - (a) to cease the washing activities; or (b) to cease the washing activities and apply for a development permit for material change or use." [33] The Council file indicates that at least one other operator (Plencove Pty Ltd) was interested in knowing whether any further town planning approval would be required for the activity being operated by Hughes, the Council responding that the consent permit was limited in terms of the expressions used in the application. The respondent Hitec wrote to the Council on 4 October 1999, seeking to make the best of its defeat before Judge Skoien, -- 22 of 32 -- 23 "Consent permit 237 states - "Stock piling and screening". The present operator has been using a sand screw for washing sand and gravel as well as screening for many years. In light of the Environment Court's decision regarding ITS and Nu Crush which rules that their permits for screening and stock piling constituted a full Extractive Industry Permit, which included washing and crushing, I would like the Council to clarify the position in this case. Does Consent Permit No 237 on the above property have the Council's approval for washing and crushing?" [34] The Council replied, to advise its view that the decision "cannot be widened to include washing and crushing in the approval. Judge Skoien relied in part on the fact that ITS and NuCrush had applied for and were granted approval for "extractive industry. The approved activities on Lot 5 RP 162044 are there restricted to screening and stock piling, with transport of material ancillary to those activities." [35] In June 1998, the Council prepared a review of "Extractive Industry Compliance", a copy of which is Exhibit 8. As I understood the evidence, this was distributed to participants in the industry. I would assume the present respondents knew of it. The review noted that "differences between operators seeking a competitive edge have resulted in many of the complaints recently received." The respondent Hitec is named in schedules identifying compliance or non-compliance by operators, the permits and licenses held or lacking, and action taken. Consistently with the letter mentioned already, Table II indicates that, in respect of consent 237, Hughes is "possibly washing” on Lot 5, commenting that there is "no approval granted for washing." [36] The foregoing matters show that the respondents well knew they might face proceedings such as the present ones before they became involved as operators on -- 23 of 32 -- 24 Lot 5. They have known for a long time of the possibility that additional town planning approvals might be needed, but have done nothing about seeking them. It seems reasonable to draw an inference that they were fearful of more onerous conditions being imposed. They were perfectly entitled to depart from Hitec's view as set out in the quoted correspondence and to seek to take advantage of the (presumably unwelcome) outcome in the Hitec case. They were free and chose to take the risk that has materialised of the Council (and now the court) taking the view that the activities they wish to conduct on Lot 5 were in breach of the permit conditions. As to the contentious town planning issue, in my view, the court ought to make the declaration sought. [37] As to the Environmental Protection Act issue, assuming that the declaratory power exists, I take it to be common ground that a case has been shown for a declaration. [38] What concerns the respondents more is whether any enforcement order or injunction is issued by the court. Such orders are discretionary: there is no "right" to such an order enjoyed by a successful applicant for a declaration. The parties seemed content to accept the New South Wales Court of Appeal decision in Warringah Shire Council v. Sedevecic (1987) 10 NSWLR 335 as indicating useful guidelines for a court determining whether or not to exercise its discretion to grant an injunction once a breach of town planning law is established. See the judgment of Kirby P. at 539 - 41, where 9 guidelines are set out. At 342, his Honour noted that the discretion to withhold an injunction is part of planning law, describing it as "a fulcrum - as it were, of that planning law, designed to introduce into it the protection, in reserve, of a salutary discretion". -- 24 of 32 -- 25 [39] Although, during the hearing, I expressed an interest in being referred to local examples of the exercise or non-exercise of the discretionary power to grant an injunction, in the light of having been given only a decision of my own, Queensland Cement Limited v. United Global Cement Pty Ltd (1999) LGERA 167, I was referred to no other cases. There is no point in my repeating the review there undertaken of Sedevecic and other authorities; which does not seem to require revision here, and should be regarded as incorporated in these reasons. I granted enforcement orders, notwithstanding that the first second and third respondents were taking steps to obtain the town planning approvals they needed. Although I allowed a brief period of grace to permit the disposal of stock piled cement, those respondents' pleas of financial or economic hardship did not otherwise tell against the making of enforcement orders. [40] The present respondents, by Mr John Jackson, have made claims of facing similar hardship, but with no particularity. There was talk of the respondents being closed down or forced out of business, but the evidence is clear that Lot 5 does not represent their only activity. The court was given no detail of any jeopardy to the livelihoods of employees. No "hardship" which would dissuade the court from acting has been shown. [41] Mr. John Jackson spoke much about his feeling of being victimised, so far as proceedings have been taken against him and his companies, but not (he says) against others who are doing the same things. Quite apart from his failure to establish anything of the kind, it seems to me that enforcement proceedings of the present kind will never get anywhere if the court does not make a start somewhere, -- 25 of 32 -- 26 but holds its hand until persuaded that all offenders in similar case are being taken to court as well. [42] The orders sought in relation to the town planning aspect ought not put the respondents out of business, in any event, or even require the cessation of all activities on Lot 5, being limited to orders restraining the respondents from acting in excess of permit 237. Consistently with authorities such as Norman and Bemcove, also Hitec, there would be nothing to prevent the respondents from using the improved technology represented by their electrically operated equipment; it would not be right to regard the permit as limited to the diesel equipment identified in the Hughes application. [43] It is difficult to identify factors that would count in favour of withholding an enforcement order on the town planning aspect. The respondents have been alive to the issues for well over 2 years and have knowingly become involved with Lot 5 with a good idea of the risks they faced. Their activities appear to me on the evidence adduced to represent a considerable intensification of those of their predecessor, which Mr Jackson was willing to characterise, for the respondents' own purposes, as exceeding the permit. The Council's application was filed in the court on 16 March 2000, so even since that date, the respondents have had 5 months to regularise the status of their activities from a town planning perspective. [44] The respondents’ counsel, Mr Hughes was critical of the Council for changing its ground, as to whether it complained of "washing", for example, and in respect of its belated embracing of the Environmental Protection Act issues, which, indeed, rather came to be placed at the forefront of the attack on the respondents. I do not -- 26 of 32 -- 27 think anything turns on this, particularly as there has been genuine uncertainty as between the Council and the Environmental Protection Agency as to which ought to take the leading role in a regime which will involve consultation and cooperation under both of the relevant statutes. [45] The Agency has been taking an active interest since 20 March 2000 when Mr Kane, a witness and author of Exhibit 2, and Mr Anderson, a senior inspector, visited Lot 5. The respondent Hitec applied to the Agency on 25 May 2000, pursuant to section 45 of the EPA that application dated 5 days earlier, for a license to conduct certain environmentally relevant activities including "screening and washing etc. materials" on Lot 5 - along with other sites included in an "omnibus" application. In Exhibit 2 Mr Kane says - "9. ...."A" is a copy of facsimiled correspondence from the Environmental Protection Agency to John Jackson and Hitec Resources Pty Ltd dated 3 July 2000, which also contains the Environmental Protection Order issued to Hitec Resources Pty Ltd,. John Jackson and Hitec Resources Pty Ltd were advised in this facsimiled correspondence that the section 45 application currently before the Environmental Protection Agency is appropriate for the dredging operations but not for the screening and washing operations. A section 60G application under the Environmental Protection Act and a section 3.2.1 application under the Integrated Planning Act is required to conduct the screening operations on the subject site. Mr Jackson was advised this in the facsimile dated 3 July 2000 to contact the Esk Shire Council in the first instance to make these new applications. 12. To date, John Jackson and Hitec Resources Pty Ltd have not lodged with the Agency any section 60G application for a licence to conduct the environmentally relevant activity, item 22 screening of materials and washing etc. John Jackson has previously been advised that it is an offence under section 39 of the Environmental Protection (Act) 1994 to carry out an environmentally relevant activity without such a licence. I believe that John Jackson and Hitec Resources Pty Ltd do have a current valid application for a licence before the Environmental Protection Agency which relates to three sand and gravel dredging sites within the Brisbane River but do not have a valid application for item 22 screening." -- 27 of 32 -- 28 [46] At the hearing an estimate was given that it might take about a months for the respondents to obtain the licence they require. Even if there has been no valid application to date, the Agency's investigative activities already conducted will facilitate processing. As noted, the respondents have already taken steps which appear to deal with the Agency's concerns in respect of management of water. [47] It is convenient to set out Mr Ure's written summary of argument upon what he called the EPA question, "4. Section 4 of the Environmental Protection Regulation 1998 provides:- "Án activity mentioned in schedule 1 column 2 is an environmentally relevant activity of the level set out opposite the activity in schedule 1, column 2." 5. In schedule 1 item 22 is as follows:- Environmentally relevant activity Level Annual licence fee $ 22. Screening etc. materials - screening, washing, crushing, ... using plant or equipment having a design capacity of - (a) more than 50 t but less than 5,000 t per year 2 Nil (b) 5,000 t or more, but less than 1000,000 t per year 1 3,690.00 (c) 100,000 t or more per year 1 4,880.00 6. It is not in contest that the subject plant has a design capacity of between 200,000 and 300,000 tonnes per year. 7. As such the use is an environmentally relevant activity level 1. -- 28 of 32 -- 29 8. It is not in contest that no licence has issued to the respondents to carry out the activity. 9. Section 39 of the Environmental Protection Act 1994 provides:- "Á person must not carry out a level 1 environmentally relevant activity without a licence or a level 1 approval." 10. Mr Jackson does not challenge the fact that the Third Respondent is carrying out an environmentally relevant activity level 1 without the requisite licence. 11. The declaration sought should be made. 12. There is no reason why the injunction requiring the cessation of the activity until such time as the relevant licence is in place should not be made." [48] I am in agreement with the foregoing, except for the last proposition, which Mr Ure supported by asserting the following factors were relevant:- "(i) The restraint sought is not in its nature the enforcement of a private right rather it is the enforcement of a public duty imposed by an Act of parliament. (ii) The applicant here is the local authority not merely a private citizen. Its interests are deemed to be protective and beneficial not private or pecuniary. (iii) The statute which is being breached is one which is directed towards the protection of the environment. There already has been an escape of sediment which had the potential to cause environmental harm from the subject land and it appears that significant noise nuisance is being generated. The anticipated licence would be conditional upon measures being taken to ensure no environmental harm would be occasioned and to lessen impacts on amenity. (iv) The respondent Mr John Jackson was fully aware that it was an offence to carry out an environmentally relevant activity without a licence. The letters from the Environmental Protection Agency to Hitec of 22 June 2000 and of 3 July 2000 (items "A" "C" and "F" in Exhibit 2) make it perfectly clear that operating the activity without a licence is an offence. In the earlier letter Mr Jackson is advised to "cease carrying out any environmental activities at the above places or at any other places prior to the issue of environmental authorities to those activities." The respondents acted in flagrant disregard of the requirement to obtain a licence. -- 29 of 32 -- 30 (v) It is not to the point that at the time the legislation first came into effect some moratorium or grace period existed. Mr Jackson was advised by the authority that no moratoriums existed and he should cease carrying out the activity. He declined to do so. (vi) The court may well come to the conclusion that Mr Jackson was less than forthright with the authority with respect to the volume of material which could be processed by the plant. He told Mr Kane at their first meeting that it would be less than 500 tonnes. The application that he made for a licence was for an item 22(b) licence ie. between 5000 tonnes and 100,000 tonnes per annum. It is abundantly clear that the design capacity is greatly in excess of this. (vi) There is no evidence of hardship which would cause the court to decline relief" [49] The respondents may have been dilatory in their application; they may have been trying to put off the "evil day" when substantial licence fees would become payable and to limit the amount of those fees. The likelihood is that production on Lot 5 will be well within 5,000 tonnes; one can appreciate Mr Jackson's bridling at having to pay a licence fee set by reference to a maximum capacity of the equipment which is unlikely ever to be reached. (On the other hand, given the relatively isolated locations of sites such as Lot 5 and the problems inherent in any attempt to officially monitor actual production, the rationale for setting fees by reference to capacity seems obvious.) The respondents apparently designed the system of production and the various machinery components incorporated, there may have been doubts as to the design capacity; in the end, it is clear that item an 22(c) licence is required. [50] While it is difficult for a court to condone the respondents' unenthusiastic approach to obligations under the EPA, it seems to me justifiable to take an understanding attitude towards those (particularly those operating at a relatively small scale) who -- 30 of 32 -- 31 might face genuine commercial disadvantage if they carry out their obligations in an exemplary, or more expensive fashion, if competitors are not reciprocating. As to the fees, from the prospective licensee's point of view, they may seem disproportionate to the production levels intended to be achieved. [51] The respondents being well on the way towards obtaining the requisite EPA licence(s), and the environmental damage which is threatened by continued operations at the likely level in the circumstances now existing (which include the injunction or enforcement order under the IPA) being modest, I think there is no necessity to make an enforcement order under the EPA having immediate effect. [52] Mr Hughes submitted that no order should be made under the IPA, as his client’s operation would very soon be regulated under the EPA, and more stringently. In the short term this will not happen. In any event, there seems no good reason for the court to override the Legislature’s determination that there should be twin systems of regulation, both to be enforced.. The EPA came late into the picture. No one can say it will stay in the picture. [53] For the foregoing reasons, the declarations applied for, (a) and (b), ought to be made, likewise the enforcement orders sought, with immediate effect as to (i) and with effect from 11 September 2000 as to (ii). There will be liberty to apply. I am willing to hear the parties as to more detailed orders which might be made – for example clarifying that order (i), whose implications may not be clear, is intended to preclude washing of sand and gravel. -- 31 of 32 -- 32 -- 32 of 32 --