Boral Resources (Qld) Pty Ltd & Anor v Council of the Shire of Albert [1994] QPEC 56

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Application No. 13 of 1994 Before Quirk DCJ [Boral Resources (Qld) P/L & Baral Resources (Tasmania) Ltd. v. Albert S .C.] BETWEEN: BORAL RESOURCES (OLD) PTY. LIMITED and BORAL RESOURCES (TASMANIA) LIMITED - and - COUNCIL OF THE SHIRE OF ALBERT REASONS FOR JUDGMENT Applicants Respondent Judgment delivered: 11 August 1994 Catchwords: Counsel: Solicitors: Hearing Date(s): C. Hughes for the Applicants s. Ure for the Respondent Neil O'Sullivan & Rowell for the Applicants King & Co for the Respondent 5 August 1994 -- 1 of 6 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Application No. 13 of 1994 BETWEEN: BORAL RESOURCES (OLD) PTY. LIMITED and BORAL RESOURCES (TASMANIA} LIMITED COUNCIL OF THE SHIRE OF ALBERT REASONS FOR JUDGMENT - QUIRK D.C.J. Delivered the day of August 1994 Applicants Respondent This matter involves a point of construction brought before the Court pursuant to s. 2. 24 (3) of the Act. The applicant conducts an asphalt plant on land at Stapylton. Because of various commercial pressures, the applicant wishes that the plant operate without any restrictions regarding its hours of activity. Whether this can be done without a further application for the town planning authority's consent is a matter which is in dispute. To understand this dispute it is necessary to look at the matter's history. The subject land is presently included in the Extractive Industry Zone in the Town Planning Scheme. I am informed that in the current Scheme an asphalt plant (a "medium industry" as defined) is a discretionary use. The Extractive Industry zoning of the subject land was first gazetted in 1980 and as part of the arrangements relating to the rezoning, the applicant and the respondent executed a "development agreement" dated 28th November 1979. -- 2 of 6 -- ( 2 Included in that agreement there was a clause which read as follows: "2 .. In ~he event of t~e Governor in Council approving the appl 7cation (for rezoning) the applicant shall carry out, provide and do or cause to be undertaken carried out provided, done the things and works and m~ke or pay th~ payments or contributions offered by the applicant and accepted by the Council set out and specified in the second schedule hereto from the date of the approval of the Governor in Council." In the second schedule, Clause 1 provides: "The applicant shall at all times observe the requirements of the Town Planning Scheme and the By-laws of the Council relating to Extractive Industry as may be amended from time to time." On 10th June 1982, the applicant made an application for town planning consent for use of the subject land as; "raw materials processing plant, concrete plant, asphalt plant and ancillary works". The application was conditionally approved by Council resolution of 26th August 1982. The approval was expressly: "Subject to compliance with the terms and conditions contained within the development agreement previously signed between council and the Readymix Group Limited on 28th November 1979 in connection with Rezoning Application No. 182 .•. ". It is contended by the respondent that this particular condition is the source of the restriction upon the operating hours of the asphalt plant. It will be remembered that Clause 1 of the Second Schedule required the observation, at all times, of "the requirements of the Town Planning Scheme and the By-laws of the Council relating to Extractive Industry as may be amended from time to time". -- 3 of 6 -- 3 Part V of the Town Planning Scheme sets out the "Special requirements in relation to particular development whether or not consent of the Council is required". Clause 21 of Part V deals with; "Extractive Industries and Temporary Quarries". Sub-clause (9) of clause 21 provides: "The following hours of operation of an Extractive Industry, Temporary Quarry or any ancillary use shall be complied with at all times provided that in specific instances of exceptional circumstances the owner or operator may make application to the Shire Engineer for variation of these requirements. Monday-Friday - 6.30 a.m.-5.30 p.m. Saturday and public holidays - 8 a.m.-12 noon. carting extracted or processed material or maintenance of equipment only does not include operation of any other quarry plant or processing equipment. Sunday - nil." It is noted that these restrictions relate only to the operation of "an Extractive Industry, Temporary Quarry or other ancillary use". "Extractive Industry" is defined in the Town Planning Scheme as being: "Any land, building or other structure or any part thereof used or intended for use for the purpose of carrying on an industry involving extraction, storage, loading or cartage of sand, gravel, turf, soil, rock, stone or similar substances from land; the term includes a mine but does not include crushing, screening, washing or other treatment processes, or manufacture of products from such substances, provided that the Council may consent to these ancillary uses subordinate to the Extractive Industry established on the land". The evidence before me indicates that the asphalt plant does not use material 1 on site and is neither an "Extractive Industry" or a use ancillary thereto. Accordingly, sub-clause (9) construed according to the ordinary meaning of its words -- 4 of 6 -- 4 could not be seen as imposing a restriction upon the hours of operation of the asphalt plant. The respondent submitted, however, that by reason of the condition of approval of the asphalt plant refern~d to above, the plant was burdened with restrictions imposed by the Town Planning Scheme and the By-laws of the Council relating to Extractive Industry even if such requirements or by-laws did not (according to their terms) apply to the plant. To put it another way, the respondent's submission was that the condition of approval in some way gave to sub-clause (9) an operation wider than that which would flow from the ordinary meaning of its words. I am unable to accept such a submission. The condition of approval of the asphalt plant required no more than "compliance with the terms and conditions" of the development agreement. The agreement itself required no more than observation of the "requirements of the Town Planning Scheme and the By-laws of the Council relating to Extractive Industry". I might be noted that, at the time of its execution, the development agreement did not appear to contemplate the asphalt plant or its operation and in any event, Clause 2 appears to see the Second Schedule as being concerned with the identification of works to be done etc. and payments or contributions to be made presumably associated with the land's transition to the Extractive Industry Zone. To attribute, in that context, to Clause 1 of the Second Schedule (when, as stated, it calls for no more than the observation of certain identified requirements of the Town Planning Scheme and By-laws) an operation which -- 5 of 6 -- 5 extends in an important way the ambit of those requirements is, in my view, to go too far. It was submitted that certain correspondence passing between the parties suggested that the applicant had accepted that its asphalt plant, by reason-; of the conditions of its approval, were subject to restrictions in relation to hours of operation. However I am here faced with an exercise in construction and, in the circumstances, what others may have made of the provisions to be construed, does not assist me greatly in that task. In the circumstances as they have been presented to me, I construe the relevant provisions of the Town Planning Scheme and of the conditions of approval of the asphalt plant as not restricting the hours of operation of the plant so long as it continues to remain outside the ambit of an "Extractive Industry, Temporary Quarry or any ancillary use" as defined by the Town Planning Scheme. With that qualification, I am prepared to make the declaration sought in paragraph 1 of the application and it is accordingly allowed to that extent. -- 6 of 6 --