Boral Resources (Qld) Pty Ltd & Anor v Pine Rivers Shire Council & Ors [1999] QSC 346

) ) ~l~~ State Reporting 5C'it! /346 Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION AMBROSE J No 9516 of 1997 BORAL RESOURCES (QLD) PTY LIMITED (ACN 009 671 809) and CSR LIMITED (ACT 000 001 276) and COUNCIL OF THE SHIRE OF PINE RIVERS and IAN ALBERT RETTKE and ROSINA ANN RETTKE BRISBANE .. DATE 17/11/99 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date :s /179/ '7 '7 First Applicant Second Applicant First Respondent Second Respondent Third Respondent -- 1 of 33 -- 171199 T1/SKH25 M/T 6483/99 (Ambrose J) HIS HONOUR: Yes, I dismiss the application and I will take submissions on the question of costs. I have dealt with that in my reasons. I publish my reasons. MR HUGHES: Your Honour, I had recently been informed that Your Honour wasn't going to deal with the issue of costs, ,I: 10 this morning. HIS HONOUR: That's right, yes. Well, I've simply - it seemed to me that there may be arguments as to the nature of the costs, whether they would be standard or indemnity or full indemnity and it seems to me that I can't really address that question until the reasons were analysed. MR HUGHE.S,: Quite so, Your Honour. 4··~ 20 C HIS HONOUR: So, what I. propose to do is simply reserve the questions of costs. I'd like to dispose of the matter finally as soon as possible and if after counsel have had a Clook at the reasons perhaps we can arrange a time. I will be in judgment next week, so some time next week. It shouldn't take more than half an hour or so. Although it might, there's a lot of law developed over the last few years. :30 <, 30 MR HUGHES: Your Honour is writing judgments next week. HIS HONOUR: Yes. MR HUGHES: One wonders if while we're all here it wouldn't be wise to fix a time next week for any application. Perhaps 9.30 Thursday of next week. It's just while we're all here. HIS HONOUR: Well, I'm not sure; do you think 9.30 would be - do you think half an hour is going to be long enough? MR HUGHES: I don't know as far as Mr Oliver is concerned. I would have thought counsel for those asking for costs, myself and Mr Oliver might produce something to writing. HIS HONOUR: Yes, it occurred to me that it may be that Mr Skoien would - he'd want to analyse the law relating to various matters, the cost of it. It may be that - I mean, I've had:"'Other arguments on questions of indemnity costs as they used to be called which now----- MR HUGHES: Yes. HIS HONOUR: costs on the I have spent I've had but authority,ii on In those days it was solicitor and own client circumstances in which they will be ordered and nearly half a day on some of the applications it occurred to me that there's a lot of it and under our new rules----- 'I' 2 JUDGMENT 50 60 c -- 2 of 33 -- ) ) 171199 T1/SKH25 M/T 6483/99 (Ambrose J) MR HUGHES: I'm having great difficulty hearing Your Honour because of the noise in the back of the Court, I'm sorry. HIS HONOUR: Under our new rules, of course, the names have been changed. Indemnity costs now are the old solicitor and client costs, whereas previously indemnity costs were solicitor and own client costs. MR HUGHES: Yes. 10 HIS HONOUR: And the question is now whether - one of the questions will be whether solicitor and own client costs have survived the new rules and that's something that it seems to me couldn't be adequately debated in just half an hour. MR HUGHES: Well, would Your Honour - my only concern is while we're here to try and fix some sort of a time. '.l(":, HIS HONOUR: Yes. MR HUGHES: I know Mr Oliver is not here. HIS HONOUR: Well, I've got - I will give you any day you like next week. 10 20 MR HUGHES: Subject to Mr Oliver, who's not here and I think will want to argue costs on behalf of the Rettkes, can I nominated 10 a.m. on Thursday of next week and if that's not 30 possible we'll give it to Your Honour's associate. HIS HONOUR: Well, if you can give me some submissions in writing you might simply be able to talk to them and we might get through it in half an hour or so then. MR HUGHES: Yes. HIS HONOUR: Yes, what do you say, Mr Skoien? 40 40 MR SKOIEN: I agree, with respect, with Your Honour in that regard. There might well be a little more to it than just a half an hour. HIS HONOUR: I think so, yes. MR SKOIEN: Not withstanding my learned friend's obvious concern to fix a date and that would of course be a preferable point, apart from Mr Oliver's absence I haven't. brought my diary to Court. HIS HONOUR: What say I just adjourn it to a date to be fixed and you can get together and speak to Mr Oliver. When you've read the judgment you'll have some idea of the issues that must be debated and then you can contact my associate and I'll give you a definite day later today or tomorrow or something like that. 3 JUDGMENT 50 60 -- 3 of 33 -- MR SKOIEN: Perhaps if I can say this, that if all three counsel are aware, as we now are and as Mr Oliver will be, that Your Honour is in judgment writing next week. If the three of us can liaise between ourselves and then perhaps contact Your Honour's associate for a date next week although it would be----- HIS HONOUR: I don't normally readily accede to giving up judgment writing time but this is simply just finishing off the judgments so I'll make an exception in this case. 1': 10 MR SKOIEN: Of course, thank you, Your Honour. HIS HONOUR: Yes, thank you gentlemen. 20 C~ c 30 (' '.(,' :;1,: 50 60 4 JUDGMENT -- 4 of 33 -- ) ) ) ) SUPREME COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: 9516 of 1997 Before Justice Ambrose [Boral Resources (Q) P/L & Anor v Council of the Shire of Pine Rivers & Ors] BETWEEN CATCHWORDS: BORAL RESOURCES (QLD) PTY LIMITED ACN 009 671 809 AND CSR LIMITED ACN 000 001 276 AND COUNCIL OF THE SHIRE OF PINE RIVERS AND IAN ALBERT RETTKE First Applicant Second Applicant First Respondent Second Respondent AND ROSINA ANN RETTKE Third Respondent REASONS FOR JUDGMENT - B.W. AMBROSE J Delivered the 17th day of November 1999 ADMINISTRATIVE LAW JUDICIAL REVIEW LEGISLATION - whether decision by Council to approve subdivision of land was an improper exercise of power under s 20(2)(e) of the Judicial Review Act - whether decision was made in the absence of evidence or other material to justify it - s 20(2)(h) of the Judicial Review Act - whether Council failed to comply with s 5.1(6A) of the Local Government (Planning and Environment) Act in not refusing the subdivision application under cI 3(9) of the Council's Strategic Plan - consideration of what "conflict" means under cI 9(a)(iii) of the Council's Strategic Plan - reference to the use of legal proceedings for collateral advantage Environmental Protection Act 1994 Judicial Review Act 1991 Local Government (Planning and Environment) Act 1990 -- 5 of 33 -- Counsel: Solicitors: ) Hearing Date: ) ) ) Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]1 KB 223 Butler v Simmonds Crowley & Galvin Appeal No 10337 of 1998, 12 November 1999; [1999] QCA475 Grainger v Hill (1838) 132 ER 769 Re Majory [1955] Ch 600 Williams v Spautz (1991-92) 174 CLR 509 Mr AN Skoien for the applicants Mr CL Hughes for the first respondent Mr RR Oliver for the second and third respondents Mr IR Pepper for the applicants Mr RD Forbes, Shire Solicitor for the first respondent Trilby Misso & Co for the second and third respondents 7 & 8 October 1999 -- 6 of 33 -- ) ) ) ) SUPREME COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: 9516 of 1997 Before Justice Ambrose [Boral Resources (Q) P/L & Anor v Council ofthe Shire of Pine Rivers & Ors] BETWEEN BORAL RESOURCES (QLD) PTY LIMITED ACN 009 671 809 AND CSRLIMITED ACN 000 001 276 AND First Applicant Second Applicant COUNCIL OF THE SHIRE OF PINE RIVERS First Respondent AND IAN ALBERT RETTKE Second Respondent AND ROSINA ANN RETTKE Third Respondent REASONS FOR JUDGMENT - B.W. AMBROSE J Delivered the 17th day of November 1999 -- 7 of 33 -- , ) ) ) ) 2 [1] This is an application by Boral Resources (Qld) Pty Limited("Boral") and CSR Limited ("CSR") for judicial review of the decision of Council of the Shire of Pine Rivers ("Pine Rivers") made on 22 September 1997 approving the subdivision of land owned by Ian Albert Rettke and Rosina Ann Rettke ("the Rettkes") in the Local Government area of Pine Rivers. [2] [3] [4] The Rettke's land is located on Dayboro Road, Whiteside within Pine Rivers Local Government area. It is a 19.39 hectare parcel ofland within the Rural Zone. On the same side of Dayboro Road as Rettke's land CSR has a quarry from which granite is mined. The western boundary of the quarry land is located approximately 300 metres along Dayboro Road from the eastern boundary of the Rettke land. It has an area of 110.3 hectares and is separated from the Rettke land by two parcels of "buffer" land owned by CSR which have an area of about 41 hectares. That land is within a "Special Facilities (Buffer Area and Dwelling House) Zone. That land was included within that Zone shortly before the Rettkes made their application. The quarry is at a lower elevation than the Rettke land and is conducted on land within the "Extractive Industry" Zone. Immediately opposite the Rettke land on the other side of Dayboro Road Boral has a quarry site with an area of 136.6 hectares. That land at the material time was within the Rural Zone under the Town Planning Scheme in force. Quarry operations were conducted on it pursuant to planning consent from Pine Rivers. [5] On one of the buffer blocks owned by CSR separating the CSR Quarry site from the Rettke land there is a single unit residence. The other buffer block at the relevant -- 8 of 33 -- ) ) 3 time had no dwelling house on it but CSR has a right to construct and use a dwelling house on it as a pennitted use under its current zoning. [6] At the eastern end of the CSR quarry site and separated from it by a road there appear to be a number of parcels of land upon each of which a dwelling house is or may be erected. Those blocks are closer to that quarry site than is the Rettke land. [7] Similarly there are a number of allotments of land upon each of which a dwelling house may be or is erected separated from the Boral quarry site only by Adsetts Road which fonns part ofthe southern boundary of that quarry site. [8] For many years there has been erected on Rettke's 19.39 hectare parcel of land a dwelling house. Under the Town Planning Scheme such a building may be erected and used on land within the Rural Zone as of right. ) [9] The Rettkes applied to Pine Rivers for approval to subdivide their land into two ) parcels. The smaller to have an area of 3 hectares and the larger to have an area of 16.35 hectares. The existing house on the land would then be located on the 16.35 hectare parcel. The smaller area to be subdivided off would have a frontage to Dayboro Road and would be adjacent to Lot No RP 200877 one of the buffer blocks between the quarry and the Rettke land owned by CSR which has an area of 16.09 hectares. [10] Each buffer block pennits the erection on it of a dwelling house under the Special Facilities Zone in which it is included. The CSR quarry site itself is within the Extractive Industry Zone. Upon the buffer block closest to the quarry itself there -- 9 of 33 -- ) ) 4 exists a single unit dwelling house. The location of that dwelling house would be much closer to the boundary of the CSR quarry block than would be a house erected on the most suitable part of the proposed 3 ha. lot. [II] Quarry operations have been conducted in the CSR quarry area for 20 or 30 years. On the other hand quarry operations have been conducted on the Boral site for about 9 or 10 years. [12] Boral and CSR seek to judicially review the decision of Pine Rivers to approve subdivision of the Rettke land on two bases- (i) An improper exercise of power - s 20(2)(e) of the Judicial Review Act; and (ii) The absence of evidence or other material to justify the making of the decision - s 20(2)(h) of the Act. ) [13] The applicants for judicial review do not assert or contend that the decision of the ) Council to approve the subdivision application was unreasonable within the meaning of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]1 KB 223. [14J The application for subdivision was made on 19 June 1997. Accompanying the application were a town planning and a noise assessment report supporting the application. [15] Previous subdivisional applications for land of which the Rettkes land then formed part had been both approved and rejected on the basis that the quarry operations -- 10 of 33 -- ) ) ) 5 inevitably produce and would continue to produce adverse effects on residential amenity such as noise, dust, heavy traffic etc. The Council and its committee had a detailed history of previous approvals and refusals and the reasons for them. [16] In fact the material supporting the Rettke's application to the Council dealt with each of these side effects of quarry operations and without analyzing the material in detail was to the effect that although there would obviously be some impact on residential amenity from time to time it would not be such as to justify refusal of approval of the subdivision sought which if effected and if the 3 ha parcel of land were sold for residential purposes would result in the erection of two dwelling houses on the former 19.39 ha site instead of one. [17] Consideration was given to the conditions upon which quarry operations were permitted to be conducted under the constraints of the Pine Rivers planning permission and as well licences necessarily obtained under the Environmental Protection Act 1994. ) [IS] The Planning Department of Pine Rivers by its Director recommended against the approval of the subdivision sought by the Rettkes. As well Boral and CSR although having no statutory right of objection or appeal under the planning legislation put written submissions supported by expert reports in front of the Council opposing the proposed subdivision essentially on the ground that should another dwelling house be erected anywhere in the vicinity of the quarry sites it would simply add one more family which might object to the effect on residential amenity of the conduct of quarry operations. -- 11 of 33 -- ) ) ) 6 [19] There was of course the obvious debate as to whether if quarry operations were conducted within the constraints imposed by the conditions attached to planning permission and/or the constraints of the licences issued under the Environmental Protection Act any impact on residential amenity would arise such as to justify any objection. [20] The application for subdivisional approval was discussed on many occasions by a committee or committees (comprising members of the Council) whose function it was to make a recommendation to the Council. There was a good deal of debate and a clear conflict in expert opinion - although it is fair to say that the planning experts employed by the Council seem not to have waivered from the view that approval should be refused and the material the applicants placed before the Council supported this view. [21] Eventually the Rettkes were invited to attend a meeting of the committee where their application was to be further discussed. The minutes record their attendance on 7 August 1997 but not what if anything they said. I assume that they may have addressed the Council and advanced matters of fact before it to support their application. There is no evidence of what if anything they said. Presumably living on the parcel of land which they sought to subdivide they would have experience and local knowledge of the effect, if any, on their residential amenity which the conduct of the quarry operations produced. [22] Unfortunately the minutes do not record the discussions if any that took place before the committee on that occasion. They only record its resolutions. -- 12 of 33 -- ) ) 7 [23] In any event, at the meeting held on 7 August 1997 it was resolved that the members of the committee would go out to inspect the Rettke land and the quarry sites before deciding whether or not to recommend approval of the application. The minutes indicate that they did this on 13 August 1997. On the day of the visit only one of the quarries was operating. However members of the Committee on this view did discuss the merits of the subdivision application with the Rettkes. They later considered a further report from an acoustical consultant retained by the Rettkes dated 25 August 1997. [241 Subsequently it was recorded that one or more of the members of the committee [25] wished to be advised on the observable effects should both quarries be operating and presumably producing the maximum adverse effect on residential amenity. I might note that the operation of each quarry is constrained within the hours of 7am and 5.30pm from Monday to Friday and 7 am to 12 noon on Saturday. The material before the committee indicated that "benching" which involves the use of explosives to reduce deposits of solid granite to pieces that may be further crushed did not occur each day. The planning constraints prevent it from occurring more than four times per week Monday to Saturday between lOam and 4 pm. When the benching has taken place very large pieces of granite are reduced in size for transport for subsequent crushing which takes place within the confines of a building which presumably has the effect of reducing both dust and nOise emanating from those quarry operations. -- 13 of 33 -- 8 [26] To the extent that the benching operations create any noise it would be in the middle part of the day and one would think would last for only a relatively short time. [27] Loading of quarry material and transport to and from the quarry for the purpose of its delivery off-site must be effected between 6am and 5.30 pm Monday to Friday and 6 am to 12 noon on Saturday. [28] In any event at the request at least of some of the members of the committee, an officer of the Council paid a second visit to the quarry site and perhaps predictably his report supported the opposition offered by other Council officers to the subdivision. [29] The whole matter was finally debated at a meeting of the Council on 22 September 1997. [30] There was obviously a long debate. Eventually a vote was taken and the Council resolved by six votes to five to approve the subdivision. [31] As far as the record indicates the Council members who voted included those on the committee who themselves had inspected the Rettke land and discussed with the Rettkes matters they thought relevant to the determination of their application to subdivide their land, which included presumably its proximity to the Boral and CSR quarries with a view to determining for themselves the matters in issue between the Rettkes and their planning and acoustical experts and CSR and Boral and their experts and the Council's experts who had made reports relating to generation of -- 14 of 33 -- ) ) ) [32] 9 noise levels etc. To the extent that the Rettkes made oral submissions to support their application for approval to subdivide based upon their local knowledge and appreciation of the effect of quarry operations on the house where they resided, presumably some at least of the committee members also gave weight to that evidence having regard to what they observed on their inspection. How many of the six members of the Council who voted to approve the subdivision were also members of the committee who inspected the Rettke land is not apparent upon the material. One matter that is slightly worrying is the fact that Boral sent a letter dated 28 August 1997 to Pine Rivers prior to the decision being ultimately made on 22 September 1997 in the following terms: "I refer the aforesaid matter, further to correspondence dated 26 April 1997 from Enviromnental Solutions and Investigations Pty Ltd on our behalf. Boral hereby states its intention to seek Judicial Review in relation to any approval by Pine Rivers Shire Council for the afore described subdivision. This review would be sought on grounds, inter alia, that approval of the said subdivision would be inconsistent with the relevant Planning Scheme and Strategic Plan and that there were not sufficient planning grounds to justify approval. " [33] One might not be surprised if the receipt of a letter in such threatening tones about a fortnight after they had personally inspected the Rettke land and perhaps formed views on the reliability or persuasiveness of expert opinion placed by Boral and CSR before Pine Rivers in opposition to approval may have offended some members of the committee/Council of Pine Shire whose function it was to determine in good faith and to the best of their ability the Rettke application. -- 15 of 33 -- ) 10 [34] The writing of such a letter is consistent with its author's perception that some members of the Council had indicated to others an inclination to support approval of the application at or subsequent to their inspection on 13 August 19997 and/or an awareness of the content of the further report from the acoustical consultant retained by the Rettkes dated 25 August 1997 leading to the realisation that there was some prospect of the Council rejecting the Director's recommendation and approving the subdivision. [35] I raised this question at the hearing in passing but no submissions were addressed by counsel appearing for the parties on that matter. In particular it was not contended on behalf of CSR or Boral that had the committee members been influenced or offended by the tenus in which that letter was written they may have entertained and/or been influenced by "an irrelevant consideration" under s 23(a) of the Judicial Review Act 1991. On one view, of course, the tenus of the letter as far as they are relevant, and disregarding the threat do refer to three planning considerations requiring Council's consideration. Had the Council refused approval of the application, that threat would clearly have been admissible upon an appeal by the Rettkes to the Planning and Environment Court as evidence that the Council had taken into account an irrelevant consideration. [36] As I have indicated it was not contended that the content of the letter from Boral dated 28 August 1997 was "an irrelevant consideration" which the members of the committee had taken into account. It is unnecessary for me then to give consideration to that matter. • -- 16 of 33 -- ) ) 11 [37] The applicants for judicial review really confined their argwnents to an assertion that there was an improper exercise of power under s 20(2)(e) of the Act and that there was no evidence "or other material" to justiJY the decision under s 20(2)(h). [38] I will deal with those assertions in order moving first to that based upon s 20(2)(e). [39] As I understand the case advanced on behalf of the applicants Pine Rivers improperly exercised its power in approving the subdivision because it did not comply with the requirement of s S.1(6A) of the Local Government (Planning and Environment) Act 1990 which provides - "(6A) The local goverrunent must refuse to approve the application if - (a) the application conflicts with any relevant strategic plan or development control plan; and (b) there are not sufficient planning grounds to justify approving the application despite the conflict. " ) [40] The applicants contend that s S.1(6A)(a) required the application in this case of cl 3 of the Strategic Plan which contains the "Statement of Aims, Objectives and ) Implementation" in sub-cl (9) beside the heading "Preferred Extractive Industry Areas" and that the application of those provisions necessitated the refusal of the application as a matter of law. This contention seems remarkably consistent with the terms of the Director's recommendation to Council which was rejected or at least disregarded. [41] Clause 3(9) provides- "(a) Objective -- 17 of 33 -- 12 To ensure that known significant deposits of extractive material in locations considered by Council suitable for extraction are preserved for extraction when required. Implementation (i) Council will support suitable Rezoning or Town Planning Consent applications for extractive industry over lands indicated on the Strategic Plan Map, Development Control Plans or Guidelines for Development as a preferred extractive industry area consistent with the other provisions of this plan. Part B of the Strategic Plan details the preferred areas and the type of material they contain. (ii) Council will only support Rezoning or Town Planning Consent applications for uses other than extractive industry on land in the vicinity of land designated Preferred Extractive Industry on the Strategic Plan if an Environmental Impact Statement is provided indicating that the approved methods of extraction on the extractive industry site can be carried out without affecting the proposed use on the land the subject of the application. Where Council has not approved the method of extraction, Council will require the applicant to prepare an Environmental Impact Statement having regard to the adjacent site being designated preferred extractive industry. (iii) Council will only support development applications in the vicinity of such preferred extractive industry deposits where Council is of the opinion that conflict with likely future extractive industry operations will not occur." [42] I might indicate that the Rettke land and the CSR and Boral quarries (together with buffer zones etc) are all located within a Preferred Extractive Industry Area designated under the Strategic Plan. [43] It is the applicants' contention that the Rettke application to subdivide their land "conflicts with" c1 9(a)(iii) of the Strategic Plan to which I have referred and that "there are not sufficient planning grounds to justify approving the application despite its conflict" within s 5.1 (6A)(b) of the Act. -- 18 of 33 -- ) ) ) 13 [44] The first matter to determine is whether the Rettke application to subdivide does "conflict with" cl 9(a) (iii) of the Strategic Plan. [45] The first problem is to regard the decision to approve the Rettke application to subdivide as "supporting a development application" within cl 9( a)(iii). The use of the term "support development" would seem more appropriate to consideration of an application to rezone land where the function of a local govemment is merely to apply to the Minister to have the rezoning effected and support that application with a recommendation. However in cl 9(a)(ii) the term seems also to encompass the grant of planning consent. [46] There are apparently authorities in the Planning and Environment Court to suggest that the words "support development applications" in cl 9(a)(iii) include "approve applications to subdivide". Moreover in this case minor road access work is required by Main Roads Department together with a minor dedication of part of the land to be subdivided. It may I suppose be arguable that compliance with those requirements permits this subdivision application to be characterized as a "development application" Having regard to the conclusion to which I have come in any event it is unnecessary for me to decide this application on such a narrow ground and the respondents did not argue this point. For the purpose only of dealing with the issues debated at some length and without deciding that approval of a subdivision does in fact come within in cl 9(a)(iii) I will assume that it does. On that assumption cl 9(a)(iii) would require the Council only to approve a subdivision "in the vicinity of preferred extractive industry deposits" where "Council is of the opinion that conflict with likely future extractive industry operations will not occur." -- 19 of 33 -- ) ) ) 14 [47] On the facts before the Council and its committee in this case obviously the Rettke application to subdivide was made in respect of their rural land "in the vicinity of' the extractive industry deposits on the CSR and Boralland. [48] It is the contention of the applicants however that "conflict" should be construed to mean "any conflict whatever". On the facts of this case it is contended that if the working of the granite deposits on the CSR land and Boralland were to subject the occupier of a house to be constructed on that 3 ha lot of land, to any dust or to any noise, however little and however infrequently experienced then the quarry operations would "conflict with" the residential use and enjoyment of that land. It is said that eventually quarry operations will move closer to the area which the Rettkes seek to subdivide off their land than they are at present - albeit that those operations will move closer to houses already located or which may be located on the CSR land between its quarry operations and the proposed 3 hectare subdivision on the Rettke land. The Boral operations on the material had already reached Dayboro Road opposite the proposed 3 ha lot in June 1997 - vide the Rumble report. [49] In my view "conflict" in cl 9(a)(iii) refers to significant or appreciable conflict. In this case it would refer to a noticeable or appreciable diminution in residential amenity at the likely house site on the 3 ha lot of land to be subdivided off. In the context of 9(a)(ii) the plarming intent is to inhibit rezoning or the grant of planning consent for residential use should as a consequence the extraction of granite from the CSR and Boral quarries not be able to be carried out according to the approved methods of extraction etc without adversely affecting to an appreciable degree that residential use. In my view it is not any theoretically conceivable future effect of -- 20 of 33 -- 15 the conduct of the extractive industry, however slight, which is in contemplation. It is an effect which will impinge upon the likely residential use of the land to a predictably appreciable degree ~ to a degree likely to lead to persuasive pressure being brought to bear to inhibit quarry operations conducted in accord with approved methods of extraction ~ in this case in particular which comply with the conditions imposed by the planning consents and the statutory requirements of the licences given under the Environmental Protection Act 1994. [50] Most importantly in the present case on the assumption that cl 9(a)(iii) does apply to an application for subdivision, the decision of the Council to approve the Rettke application for subdivision is clearly, indeed unarguably, consistent with the majority of its members holding the opinion that the subdivision would not conflict to any appreciable degree with future quarry operations on the CSR and Boral sites. There is no evidence whatever led to suggest that the six members of the Council who resolved to approve the subdivision were of opinion that there would be an appreciable conflict but nevertheless through mere intransigence proceeded to approve the subdivision. [51] One of the very objects one would think of committee members deciding to go out to have the inspection which they did, before as members of the Council they considered the application to subdivide, was to determine for themselves in the light of the conflicting expert evidence and reports etc that had been debated before them whether in their view there would be an appreciable conflict between the use of the 3 ha of subdivided land for a dwelling house and the future viable conduct of the quarries in the vicinity of it. -- 21 of 33 -- 16 [52] In my judgment the evidence called falls far short of demonstrating or for that matter even suggesting that members of the Council determining the Rettke application to subdivide ignored or deliberately disregarded whatever constraint cl 9(a)(iii) imposed upon the Council when they made their determination. [53] In any event under s 5.1(6A)(b) even assuming that they thought that there was or might be at some indefinite time in the future an appreciable conflict the members of the Council must on the evidence be taken to have concluded that there were sufficient planning grounds to justify approval of the subdivision. This after all was one of the very matters drawn to Council's attention by the letter from Boral of 29 August 1999. The area to be subdivided off the Rettke land was 3 hectares. The house site would be in a depression in the land and would be protected by a ridge running from Dayboro Road between that block and the 100 ha CSR quarry site. If the quarry were conducted right to the very edge of the CSR land within the Extractive Industry Zone, the operations would still be 300 metres or more from the closer boundary of the subdivided 3 ha lot and the house site would be perhaps 100 metres from the boundary of the land. As far as proximity to the Boral quarry land is concerned again the topography would seem to place a ridge and the width of Dayboro Road between the closest part of the Boral land which could be quarried and the likely house site on the land to be subdivided off by the Rettkes which one would think would be 100 metres or so from Dayboro Road. By June 1997 when the Rumble report attached to the application for subdivision was prepared, benching on the Boral Quarry site had "broken through to Dayboro Road such that some drilling and blasting operations are now visible from the subdivision site". The expert opinion on the effect on residential amenity on the proposed lot must have been considered in this context. The effect must have been visible and to -- 22 of 33 -- ) ) ) ) 17 some extent perhaps audible to the members of the committee when they inspected the site on 13 August 1997. [54] One might think that members of the committee would be able to observe the nature of the Rettke land and its fertility and economic viability for rural use. If an extra house were constructed on the Rettke land by virtue of the subdivision the person constructing it would be well aware of its proximity to quarry operations on land in its vicinity. It would not be a case of some person erecting a house there in the expectation of enjoying the undisturbed tranquility of virgin bushland only to be disappointed by the advent of unforeseen quarry operations. Any person building a house there would be aware of the existence of both quarries and that Dayboro Road carried significant heavy traffic to service those two quarry sites in the vicinity of the land. Heavy transport vehicles would obviously cause the same impact on residential amenity to lots many kilometres away from the subject land as no doubt they passed by or near lands occupied and used for residential purposes. On 22 September 1997 Council resolved to impose two further conditions upon the subdivision approval "to include a suitably worded property note for each allotment resulting from the subdivision and that signs to that effect be erected and maintained until the allotments are sold". This is in accord with the recommendation of the Rumble report of June 1997 which was attached to the Rettke application. [55] This review application is not a re-hearing on the question of the planning merits or demerits of the decision to approve the subdivision. Obviously from the content of Council minutes the matter was debatable - and debated. There was absolutely no evidence led to suggest that there were no planning grounds that could be advanced -- 23 of 33 -- 18 to justify the Council decision; in fact such planning grounds were advanced in the expert reports which accompanied the application. Certainly there is no material even to suggest that any additional planning grounds which may have been advanced ~ and indeed probably were in the discussion before the Council - could clearly be "not sufficient" to justify the decision to approve within s 5.1(6A) of the Act. [56] In my view the argument and contentions advanced by the applicants for judicial review based upon s 5.1(6A) and upon cl (9) of the Strategic Plan to which I have referred are so insupportable upon the evidence in this case, that one is led to wonder why they were advanced. [57] The second point for which the applicants contend is that there was "no evidence or other material" within s 20(2)(h) to justify the decision to approve the Rettke subdivision application. As I understood the argument this was really a subsidiary point to the principal one based upon the assertion that the Council must have ignored the constraints said to be imposed by s 5.1(6A) and cl 9(a)(iii) of the Strategic Plan. [58] For the applicants it was contended that a careful perusal of all the minutes of the various meetings at which this matter was considered fails to elicit any positive evidence (apart from that contained in the expert reports attached to the Rettke application to support it) to show that there was evidence considered by the Council or at least available for its consideration which could demonstrate that there had been no breach of the legislative constraint under s5.1(6A) of the Local Government (Plal)ning and Environment Act) 1990. -- 24 of 33 -- 19 [59] In my view on an application of this sort the onus is on the applicants asserting the absence of evidence "or other material" which might justify the making of the decision to prove such absence. There is no onus upon the Rettkes in this case to establish before the Court that there was such evidence available. [60] On the material that was before both the committee which recommended against approval and the Council which approved it there was upon my reading of it an abundance of expert opinion supporting the Rettke application. [61] In addition there were the observations made of the Rettke land and the CSR and Boral quarry sites which the committee members had the opportunity to make on their inspection. [62] As I have indicated the observation of matters relevant to the existence now or in the future of likely appreciable conflict between the extractive industry and residential use of the land to be subdivided off, and whether in any event planning grounds might justify a departure from any constraint imposed under cl 9(a)(iii) of the Strategic Plan, would almost certainly involve members of the Council considering all the expert reports in the context of what had been observed upon inspection and what the Rettkes said in support of their application on 7 and/or 13 August 1997. What the committee observed when they viewed the various land uses and the proposed residential use of the proposed 3 ha lot to be subdivided off the Rettke land would clearly come within the description of "evidence or other material" referred to in s 20(2)(h). Unless at least some of the committee members thOUght that they would benefit from an inspection in determining whether or not to recommend approval of the Rettke application one would wonder why they would -- 25 of 33 -- 20 go to the trouble of together inspecting the land. The fact that there is no evidence led by anybody as to what they did see or might have been able to see and what points they thought were important in assisting them to arrive at a decision on their inspection does not it seems to me assist the applicants at all. The onus is on the applicants to show that there was no evidence or other material to support the decision. In my view it is clear beyond argument that there was ample evidence and other material constituted by the inspection which may very wen have been capable of justifYing the approval. [63] As I have already indicated this application is not one to re-hear the Rettke application to subdivide as a Planning and Environment Court might re-hear it, if it had jurisdiction to do so. I do not construe s 20(2)(h) in such a way as to involve this Court considering an the "evidence or other material" before the committee making its recommendation and before the Council in making its decision, to determine whether the decision was 'Justified" upon a proper consideration of it. Such an approach would not be warranted even upon a Wednesbury approach. In my view upon its proper construction s 20(2)(h) contemplates the availability of any "evidence or other material" to the Council making the decision capable of supporting that decision - albeit that there may also be much other evidence or material which if accepted may have led the Council to decide the other way. [64] In my judgment on the material in this case it has not been demonstrated that there was "no evidence or other material" which considered by itself, and disregarding other evidence or material which might contradict it, was capable of supporting or "justifying" the Council making the decision to approve the Rettke application for -- 26 of 33 -- 21 subdivision. Indeed upon the only evidence led, it is quite impossible to argue seriously in support of such a proposition. [65] Although the question of the locus standi of the applicants to bring this application was raised when the nature of their "interest" in whether subdivision of the Rettke land should be permitted was discussed, the respondents did not argue this matter with any vigour. [66] On the facts and legal arguments canvassed upon the application it is unnecessary to pursue this matter or to consider the many and conflicting authorities that touch on this point because even if the applicants have a sufficient interest to justify their application I have concluded that they must inevitably fail upon it. [67] What is clear upon consideration of the Local Government (Planning and Environment) Act 1990 is that it gave the applicants no such legal right to object to the granting of the approval sought by the Rettkes as they would have had were the application one for a consent use of or a rezoning of their land. [68] The Rettkes were not obliged to advertise the application which they made for subdivision of their land or to notify in any formal way either applicant of their application. [69] In some fashion however the applicants obviously learnt of the application. Having learnt that the application was made they then placed a great deal of material before Pine Rivers in an attempt to persuade that Council to reject the application. It is unclear on the evidence the statutory basis if any upon which the applicants took -- 27 of 33 -- ) ) ) 22 these steps. Whether they also provided the Rettkes with copies of all the material they sent to Pine Rivers in opposition to their application or whether Pine Rivers did so, did not emerge on the hearing because this point was not pursued. [70] Whether any officers of the applicants were invited as were the Rettkes to address the relevant committee considering their application does not emerge. It would seem on the material that they were not fonnally invited or if they were it was not recorded in the minutes. Perhaps they merely sought to support the recommendation of the Director and other planning officers of Pine Rivers whose attitudes at the time seem to have reflected theirs. [71] As I have indicated it is my VIew that the legal arguments advanced by the applicants upon the hearing of the judicial review were of an extremely theoretical and unpersuasive kind - albeit that they seemed to reproduce the reasons advanced to support the Director's recommendation that the Rettke subdivisional application be refused. ) [72] The threat made by Boral in its letter of 28 August 1997 in my view was designed simply to put pressure of a quite improper kind on members of the Council when deciding the Rettke application. The legal obligation upon members of the Council was to decide the application in a bona fide manner upon all the relevant material available to them taking into account the various planning considerations to which I have already referred. In my view the threat contained in the letter of 28 August 1997 was designed only to lead members of the Council to take into account a completely irrelevant matter when perfonning their statutory obligation - the threatened proceedings against the Council should they approve the application, -- 28 of 33 -- ) ) 23 even if they acted in accord with the legal obligation upon them in arriving at their decision. [73] Although the potential effect of the receipt of such a letter upon members of the Council obliged to determine the Rettke application was raised for discussion, counsel for Boral refrained from making any submissions on it at all. None of the respondents made any submissions as to the effect that ought be given to the sending of such a letter or indeed as to the propriety of writing such a letter to Pine Rivers with a view to applying pressure on it as a decision maker required to exercise in a bona fide and unbiased fashion the statutory discretion imposed upon it by a the Local Government (Planning and Environment) Act. [74] Because the matter was not debated it is unnecessary and inappropriate for me to have regard to all the potential legal consequences of the writing ofthat letter in this case. [75] On the other hand should such a course be or become common upon subdivision ) applications it seems to me that members of Local Govermnents who must regularly make decisions on such applications will regularly be SUbjected to unjustified and unwarranted pressures which will tend to distract them from deciding applications of this sort to the best of their ability in a bona fide and unbiased way upon relevant material before them. Applicants for council approval of subdivision of their land should not be concerned that a successful outcome of their application may nevertheless permit some person or persons, with no statutory right whatever to object to their application or to challenge in the Planning and Enviromnent Court the decision of the Local Govermnent to approve it, might take -- 29 of 33 -- , . ) ) ) ) 24 proceedings against both the Local Government and the applicants by way of judicial review seeking an order for costs not merely against the council said to have acted so as to give a ground of review under s 20, 21 or 23 of the Judicial Review Act 1991 but also against the applicants should they seek to retain the benefit of the approvaL Such a course could have only the most serious effect on the willingness of the owners of land to exercise their statutory right to apply for approval of a subdivision of their land. It is clearly not the legislative intent of the Local Government (Planning and Environment) Act that applicants for subdivision should be subject to the potential expense involved in meeting objector appeals to which applicants for planning consent and for rezoning are subject. [76] It is unnecessary to analyze matters of legal principle touching upon the legal effect [77] of threats made by a person to institute proceedings for the predominant purpose of obtaining some collateral advantage. I will do no more than refer to Williams v Spautz (1991-92) 174 CLR at 509. That was a case which considered whether the laying of informations against persons to achieve a collateral advantage to the person laying them in other proceedings that he then had pending, amounted to an abuse of process of the court which might properly be stayed. In the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ at 528 after analyzing Grainger v Hill (1838) 132 ER 769 which considered whether legal proceedings taken in the circumstances of that case could amount to "an improper act" their Honours observed - "The statements that there must be a use of the proceedings are equivocal because the commencement of the proceedings may be described as a "use" of them, even if no attempt be made thereafter to take advantage of them for such a purpose as would constitute an abuse of process. Especially is this so when the party commencing -- 30 of 33 -- 25 the proceedings has previously threatened that, unless the other party complies with some improper demand the first party has made, such as payment of an alleged debt, criminal proceedings will be commenced and prosecuted to a conviction. In such a case, the very commencement of the proceedings amounts to use of them for an . " Improper purpose . A little further on their Honours referred to an observation of Lord Evershed in Re Majory [1955] Ch 600 at 623-4- "That court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused." [78] It is clear from other observations in the judgment that the "purpose" there referred to means "predominant purpose". [79] At 530-532 their Honours continued- "Although the primary judge did not express his findings in terms that the use of the proceedings was for an improper purpose, the findings are so expressed as to make it clear that Dr Spautz threatened to use the proceedings for an improper purpose and that his commencement and maintenance of the proceedings were, in pursuance of that purpose undertaken predominantly to that end. There was therefore a relevant use of the proceedings for an . " Improper purpose . Williams v Spautz was recently considered by the Court of Appeal in Butler v Simmonds Crowley & Galvin (unreported - delivered 12 November 1999) and particularly at p 10-14. [80] On the facts of the present case it is clear that it is contrary to the legislative intent of the relevant Planning legislation that persons who wish to object to the approval of a subdivision application should have any procedural right formally to object to -- 31 of 33 -- , . ) ) [SI] ) 26 it and to appeal to the Plarming and Environment Court should approval be granted. In my judgment the basis upon which this application for judicial review was argued on behalf of the applicants makes it clear that it was never intended to canvas the plarming merits and demerits of the application for subdivisional approval. Of course those merits and demerits could not at law be canvassed in the absence of reliance on the Wednesbury principle. Unsurprisingly in the light of the wealth of evidence supporting the grant of approval no attempt was made upon the proceedings to take this course. The applicants relied solely upon the matters to which I have referred. As I have indicated, in my view those matters were for the reasons I have stated unarguable, or if arguable, so faintly so as to be almost unarguable on the only evidence that was adduced by the applicants. One might be forgiven for suspecting the existence of a collateral purpose or purposes in the applicants opposing the subdivision of the Rettke land quite different and distinct from the prospect of dust and noise from quarry operations, conducted within the relevant plarming and environmental constraints, at some indefinable time in the future interfering with those operations by reason of complaint of persons who might then be living in a dwelling house on the proposed 3 ha lot resulting from the subdivision. However this was not a matter investigated or argued upon this judicial review proceedings. Having regard to the way the application was argued it is unnecessary, indeed impossible to do more than speculate on the nature of possible collateral purposes, if any, which may have motivated the institution of this application. If such a predominant collateral purpose or purposes did motivate the pressure brought to bear on members of the Council by Boral's letter to achieve a refusal of the Rettke application one might infer that the brining of this judicial review application was itself so motivated. -- 32 of 33 -- J 27 [82] Quite apart from considerations of the law relating to the tort of collateral abuse, upon the whole of the evidence in this case the prospects of the applicants' success upon this application were so minimal that I infer that the institution of the proceedings was really designed merely to carry out the threat made in Boral's letter of 28 August 1997 - the planning grounds asserted in that letter being merely a summary of those with which the Director sought to support his recommendation to the Council - which of course was rejected - but which were relied upon to support this application. [83] I dismiss the application. [84] I will take submissions on the question of costs and as to whether any order made should be for standard or indemnity costs or "full" indemnity costs (in the sense of "solicitor and own client" costs recoverable in appropriate circumstances under the superseded Rules of the Supreme Court of Queensland). -- 33 of 33 --