Alberton Investments Pty Ltd v Pine Rivers Shire Council [1993] QPEC 92

'_J I .Q. c.::: 4''3>(09~ ~- State Reporting 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.) PLANNING AND ENVIRONMENT COURT ../ JUDGE O I SULLIVAN p & E Appeal 79 of 1993 p & E Appeal 80 of 1993 ALBERTON INVESTMENTS PTY LTD and PINE RIVERS SHIRE COUNCIL BRISBANE .. DATE 14/12/93 JUDGMENT Appellant Respondent 1 o Ji/ h • (07) 217 4160 Facsimile: (07) 227 5532 4th Floor. The Law Courts, George Street, Brisbane. Q. 400 e ep one. - • • -- 1 of 17 -- 141293 T 2/JMK M/T CMS31/93 (O'Sullivan DCJ) HER HONOUR: I publish my reasons. The matter is adjourned until 9.30 a.m. on Friday, 4 February 1994. 2 JUDGMENT 10 20 30 40 " ( 50 60 -- 2 of 17 -- 11 IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P&E Nos. 79 & 80 of 1993 Before O'Sullivan DCJ [Alberton Investments Pty Ltd v Pine Rivers Shire Council] BETWEEN: ALBERTON INVESTMENTS PTY LTD Appellant - and - PINE RIVERS SHIRE COUNCIL Respondent REASONS FOR JUDGMENT - O'SULLIVAN D.C.J. Judgment delivered: Catchwords: Counsel: Solicitors: Hearing Date(s): 14th December 1993 Appeal against conditions - rezoning - buffer - parkland - cost of spillways rehabilitation Mr D. Gore QC with him ETC Howard (Appellant) Mr c. Hughes (Respondent) Trilby Misso & Company (Appellant) Shire Solicitor (Respondent) 25/08/93 -- 3 of 17 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Nos. 79 & 80 of 1993 BETWEEN: ALBERTON INVESTMENTS PTY. LTD. Appellant PINE RIVERS SHIRE COUNCIL Respondent REASONS FOR JUDGMENT O'SULLIVAN D.C.J. Delivered the 14th day of December 1993 This is an Appeal against a number of proposed Conditions on a proposed rezoning of two parcels of land at Johnstone Road, Brendale. One proposed rezoning is from the "Rural" Zone to the "Extractive Industry" Zone, and the other is from the "Rural" Zone, partly to the "General Industry" Zone and partly to the "Extractive Industry" Zone. I propose to deal with these separately. CONDITIONS - GENERAL INDUSTRY ZONE: Condition 1 (ii) - An area of 10% of the subject site shall be set aside for park purposes. Mr Ryter, the Town Planner who gave evidence on behalf of the Respondent, considered that parkland is necessary in general industry areas for open space for use by employees for -- 4 of 17 -- 2 recreational purposes, for visual amenity and for recreational uses which generate noise such as bike tracks. He had undertaken some preliminary work indicating appropriate open space pedestrian linkages. He referred to "requiring some park at the subdivision stage". I find that a condition along the lines of Condition 1(ii) may be appropriate at subdivision stage, but I am not persuaded that it ought to be imposed at rezoning stage. In reaching this view I have considered Hervey Bay Developments Pty Ltd v Council of the City of Hervey Bay (Unreported - Quirk DCJ - 10.8.93) and Transcontinental Development Pty Ltd v Pine Rivers Shire Council (1969) 25 LGRA 7. Condition 3 - Park: This proposed condition, as amended at the hearing, requires park to be dedicated by the applicant at the time of sealing any plan of survey. I refer to my Reasons for Judgment in P & E Application 15 of 1993 delivered 26th August 1993. There is nothing in the evidence at the hearing of this Appeal which changes the findings I made in that matter. I find that this Condition is not relevant or reasonably required by the proposed rezoning. -- 5 of 17 -- 3 I accept that the combination of my finding in p & E Application 1 5 of 1 993, and this finding, will mean that the body of the lake and th e foreshore area of the larger lake will be transferred to the Respondent, but the balance of the same lake will remain in the ownership of the Appellant. Condition 5 - headworks: The parties agreed that this proposed condition would be deleted and replaced by the proposed condition which is Exhibit 23. Condition 6(v) - buffer: This proposed condition requires a buffer fence and landscaped strip of not less than 3 metres along the eastern boundary. Mr Kershaw, the Geologist who gave evidence on behalf of the Appellant, considered that this condition is unreasonable in view of the proposed uses on the "General Industry" zoned land, namely, the manufacture of value added products of raw materials transported from the "Extractive Industry" zoned land. There will be processing plants and gravel works and so forth adjacent to possibly a pipe works. If the condition is imposed, trucks would need to leave the existing gravel works and travel on a public road for 20 metres and then come back onto the "General Industry" zoned land. He contended that although the two parcels of land are in separate zones their activities are really of one type. -- 6 of 17 -- 4 Mr Ryter considered that the buffer is warranted from a town planning viewpoint because it · is appropriate to have some landscaping to soften he general industry use. I accept this evidence. Alternatively, the Appellant contended that any buffer should be located on the "Extractive Industry" zoned land, rather than on the "General Industry" zoned land. Mr Ryter considered that in the "Extractive Industry" Zone what might happen, in 8 years time or 30 years time, is an unknown quantity. He considered that the buffer should be within the 0 General Industry" Zone because there ought to be some edge provided now between the "General Industry" Zone and the "Extractive Industry" Zone. I accept this evidence. I was referred to Clause 77 of the Respondent's Town Planning Scheme which states, inter alia: "Subject to provisions of Part 7 hereof premises shall not be erected or used for any purpose within the service Industry or General Industry Zone unless the following requirements are met:- (5) Where land in any industrial zone is adjacent to land in any other zone such land shall not be used or buildings shall not be erected unless a buffer, fence and landscaped strip of not less than ten (10) metres in width where adjoining a residential zone and three (3) metres in any other case is provided within the industrially-zoned allotments along the common boundary between the two (2) zones, unless otherwise approved by Council .... " I find that this Clause requires that there be a 3 metre buffer -- 7 of 17 -- 5 within the "General Industry" Zone. However, in any event, Mr Ryter made it plain that he was not relying on Clause 77, but rather on the difference in the nature of the uses in the Zones as justifying the proposed condition on town planning grounds. I find that the proposed Condition is relevant or reasonably required by the proposed rezoning, so long as it does not preclude a gate for ingress and egress between the two parcels of land. Condition 7 - Noise: The only issue concerning this proposed Condition was the point of measurement of the level of noise, the Appellant preferring measurement at the boundary of any other premises, rather than at the property boundaries as stipulated in the proposed Condition. Mr Ryter conceded that both points are used by acoustics experts, and he thought both are acceptable. He agreed that there may be some administrative difficulties arising from the fact that some of the receptors may be located in Brisbane City rather than in the Respondent Shire. The Department of Environment and Heritage Guidelines refer to measurements "within the boundary of affected premises". I find that the proposed Condition is relevant or reasonably required by the proposed rezoning. CONDITIONS "EXTRACTIVE INDUSTRY" ZONE: Condition 3 - park: Clauses (a), (c) and (d) refer to park and clause (b) refers -- 8 of 17 -- 6 to spillways. Clause ( d) defines "completion of extractive operations" referred to in (b) and ( ) C • Clause (a) refers to the transfer free of cost to the Council of the lakes and surrounding areas shown on Figure 19 of Mr Kershaw's report prior to the submission of the applications to the Minister. Clause ( c) refers to transfer to Council on completion of extractive operations of the lakes and surrounding parklands in a suitable state for park preparation. It also refers to the removal of access roads, ramps and other extractive infrastructure not required by Council. Clause (d} states: " For the purpose of determining conditions (b} and (c) above "completion of extractive operations" shall be taken to be twelve (12) years from the date of rezoning. Council may extend this period over some or all of the subject lands should the need arise" With respect to clauses (a) and (c), I refer to my Reasons for Judgment in p & E Application 1 5 of 1993. There is nothing in the evidence at the hearing of this Appeal which changes the findings I made in that matter. I find that these proposed Conditions are not relevant or reasonably required by the proposed rezoning. If clauses (b) and (c) are deleted, it follows that in so far as clause (d) should also be deleted. Clause 3 (b) - Spillways: The proposed clause is as follows: "Two (2) lake to river spillways, and a lake spillway under the realigned Nolan Road, shall be constructed by the applicant. Council will not require the -- 9 of 17 -- 7 immediate construction of these structures provided a bond of $220,000 to cover future construction costs is lodged •. Council reserves the right to require construction of such structures or to construct them at the applicant's cost should they be required for floo~ or water quality control measures. If such require~ents are _not imposed prior to completion of extractive operations construction shall be undertaken at that time". Counsel for the Appellant submitted that the proposed Condition is unlawful as none of the spillways are on land the subject of the rezoning application. Counsel for the Respondent submitted in reply that the lakes to be created require interaction, but more importantly with the river. The lakes require drainage and interaction with the river, and the lakes will be formed by the extraction of sand on the land the subject of the rezoning application. I find that the proposed Condition is not invalid by reason of the spillways not being on land the subject of the rezoning application. Mr Fiedler, an Engineer who gave evidence on behalf of the Appellant, considered that the lake to lake spillway and the downstream river to lake spillway are acceptable as they are for the operation phase of extractive industry. At the end of the extraction works, he computed additional works involving anticipated costs of $10,000 and $25,000-$30,000 respectively. The upstream lake to river channel would involve costs of $25, 000-$30, 000. This is for a grass lined channel with minor protected works. Thus, his total anticipated expenditure for the 3 channels or spillways is $60,000- $70,000. Mr Joy, the Respondent, Engineer contended who that gave evidence on behalf of the Mr Fieldler's calculations were not persuaded that Mr Fieldler's He preferred the system outlined lacking in detail, and he was proposals would be adequate. in the Co-ordinator-General's Report entitled "Pine Rivers Sand -- 10 of 17 -- 8 and Gravel Extraction Study 1977" in which he had been involved in writing. Mr Joy had not visited the site, and the only work he had done was to compare Mr Fiedler's conclusions against the general design guidelines that were established in the Co- ordinator-General's Report. Based on the Co-ordinator-General's Report Mr Joy estimated spillways' widths of the lakes and, based on gabions and stone pitching, he estimated that total costs would be of the order of $200,000 - $220,000. I consider that Mr Joy has relied on a general approach which may or may not be suitable for this site. He said in evidence that the Report was of a general nature and the authors could not come up with specific configurations for particular lakes - they did not know how the lakes were going to turn out, so they were indicative only. He said in evidence that there is the possibility that subsequent calculations could be done that would indicate a spillway of lesser dimensions or lesser cost could be required. He said in evidence that he would require more detailed calculations of changes in water levels and velocities through the spillways before he could be convinced that a grass lined channel would be adequate. Counsel for the Respondent submitted that in considering the reasonableness of the proposed Condition regard ought to be had to the fact that there is no allowance for inflation in the figure of $220,00 for the proposed bond. Mr Joy considered that Mr Fielder ought to have dealt in much more detail with a number of matters, including what will happen to the lakes during flooding events (both local and in river flooding conditions) likely velocities of water during flood conditions, overflow of water around the edges of the lake into the lake, the likelihood of erosion during flooding and whether the lakes are to be fresh or saltwater. -- 11 of 17 -- 9 I accept that the final configuration of the final lake levels will have a major influence on the final shape of any outlet works of channel works. I accept the evidence of Mr Fiedler that the final layout and water level requirements future operating levels, better technology. of the lakes, both for existing and should be subjected to study using A number of possibilities were canvassed by Counsel for the parties concerning a practical approach to the evidence of Messrs. Fiedler and Joy. Counsel for the Respondent raised the possibility that the applicant may be able to come back at some later stage with an alternative which may well be cheaper, which the Council would consider and if it were satisfied then the bond would be reduced or released. Senior Counsel for the Appellant raised two possibilities: re-formulation of the Condition so as to require the provision of more information to substantiate what form of spillways should be provided before the end of the life of the project. This would leave open the question of the amount of the security. Another possibility he raised is that the Condition be re-formulated by the insertion of words such as "unless the Respondent is satisfied that such works are not necessary". This would leave open the question of whether the appellant has any legal right to challenge the Council's decision as to its satisfaction or otherwise. Another possibility is that the Condition be deleted at this stage, for re-consideration at the consent stage. Counsel for the Appellant drew my attention to Condition 32 in Permit 736 which requires a bond of $30,000 for the construction of spillways during Stage 1. Mr Kershaw gave evidence that this bond has been provided. I find on the evidence that the appropriate design of the spillways cannot be arrived at with any degree of accuracy or certainty until later in the operation when the final -- 12 of 17 -- 10 configuration of the lakes is known with greater certainty. Whether there is sufficient certainty at consent stage can be reviewed at that time. If there is not, then it may be necessary for a broadly-drafted Condition to be inserted to provide for further design detail and calculations to be submitted by the Applicant's experts. These are matters for consideration at the appropriate time. I am satisfied on the evidence before me at this hearing that the proposed Condition is relevant or reasonably required by the proposed rezoning. Counsel for the Appellant further submitted that proposed condition 3 (b) is void on three grounds: First, it is uncertain because it is not possible to identify at this stage what is an appropriate form of construction. Secondly, it is uncertain because the time for construction is not clear. Thirdly, the spillways related to some future use (park) of the land. I accept the first two of these submissions, and find that the proposed condition is invalid by reason of them. On the question of uncertainty, I have obtained some assistance from Television Corporation v Commmonwealth (1963) 109 CLR 70, 71, which was cited with approval in Kilpatrick v Logan City Council ( 1982) QPLR 74,76. Condition 4 (d) - intervals for cross-sections: The proposed condition refers to cross sections at 20 metre intervals for the length of the proposed bund, to be obtained from a field survey by a licensed surveyor. Mr Kershaw considered that 50 metre intervals would be sufficient because of the long straight stretches and the visible, flat -- 13 of 17 -- 11 ground. He considered that the work could be done as part of an operational requirement, and should not require the engagement of a licensed surveyor. The site foreman would be quite capable of doing the work. He explained that the 20 metre interval requirement, and the use of a licensed surveyor, had been inserted in the proposed Conditions for consistency with earlier Permits. He conceded that intervals of 20 to 40 metres would be of the right order, and said there would not be a great deal of difference between 40 and 50 metre intervals. He considered that leaving it to someone on the site would not guarantee accuracy, and maintained that a licensed surveyor, or a registered surveyor, should be required, as is the case with the earlier Permits. I find that a Condition which provided for 50 metre intervals, and for the work to be done by a registered or licensed surveyor, would be relevant or reasonably required by the proposed rezoning. Condition 4 (i) - hours of operation: The Appellant sought, notwithstanding the failure to make this clear in the EIS, hours consistent with those provided for in the earlier Permits, namely 6 a.m. north of Nolan Road and 7 a.m. south of Nolan Road. Mr Ryter considered that this was not inappropriate. I find that a relevant or reasonably required Condition would provide for these commencement times. Condition 4(k) - explosives: 11 shall not use explosives in the operations". The permittee The Appellant sought to amend this proposed Condition, by adding the words "No use of explosives without the written approval of -- 14 of 17 -- 12 the Shire Engineer". There was no mention of explosi· ves • thin e Application and accompanying EIS. I was not convinced by the reasons advanced by Mr Kershaw as to the necessity for this addition to the proposed condition. The use of explosives is specifically precluded by the earlier Permits. I consider that the proposed Condition is relevant or reasonably required by the proposed rezoning. Proposed Rehabilitation Condition: The Respondent submitted that an alternative to transfer of land to the Respondent was a Rehabilitation Condition, to be imposed at permit stage, along the lines of Exhibit 24, which is as follows: "Prior to the issue of any Town Planning Consent Permit permitting the operation of an extractive industry on the land to be rezoned, the applicant shall provide: (i) a detailed plan and report prepared by suitably qualified persons specifying the post-extraction rehabilitation of the site to the satisfaction of the Shire Planner; and (ii) detailed costings of the proposed rehabilitation works and lodge a bank guarantee to the value of the required works. The bond amount shall be reviewed by Council every five (5) years to ensure the outstanding cost of rehabilitation works are secured". Counsel for the Respondent submitted that a Condition such as this is warranted if the parkland Conditions are held to be invalid. The EIS included a discussion of rehabilitation. At page 26, it states that a detailed landscape plan for the proposed workings -- 15 of 17 -- 13 will be submitted w1.· th the f th ur er consent application for Extractive Industry. Figures 20 and 21 show rehabilitation for the Nolan Road site and Scouts Crossing Road site respectively. Condition 1 of the proposed rezoning to the "Extractive Industry" Zone is as follows: "The development of the site and subsequent rehabilitation shall be generally in accordance with the report prepared by David Kershaw dated 13 February 1991, submitted with the application unless varied by any condition of this approval". Senior Counsel for the Appellant: (i) there is already security in the form of dedication of part of the land and in the bond required by Condition 32 of Permit 736; (ii) as Exhibit 24 is a new Condition, much better evidence than has been presented by either side ought to be presented before it is imposed; (iii) the proposed Condition adds nothing because in its terms it has application at consent stage, not rezoning stage. I accept submissions ( i) and (iii). As the matter is more appropriately addressed at consent stage, it is unnecessary for me to address submission (ii). 3. CONDITIONS FOR "EXTRACTIVE INDUSTRY" ZONED LAND: Condition 2 - road widening: This proposed Condition provides for Nolan Road to be widened by 3.0 metres along the entire frontage of Lot 2 on RP 36132. Clause 63 (h) of Division 13 of Part 7 of the Respondent's Town Planning Scheme prohibits extractive industry within 20 metres of the alignment of a road. Mr Ryter explained that Fermi t 7 36 required a realignment of Nolan Road, and the purpose of proposed Condition 2 was to -- 16 of 17 -- 14 provide for consistency with this. The proposed Condition was to ensure that extractive industries on the land north and south of Nolan Road should not compromise the potential of that road link in the future. I agree with the submission of Senior Counsel for the Appellant that the Condition should be re-formulated so that it makes this clear: indeed Mr Ryter seemed to more or less concede this. If this is done, then the proposed Condition, as re-formulated, may be relevant or reasonably required by the proposed rezoning. Condition 3 - Park: The same considerations apply as those I have already discussed in the context of the other rezoning Application. I find that the proposed Condition is not relevant or reasonably required by the proposed rezoning. Condition 4 (b) : This proposed Condition was abandoned by the Respondent during the hearing. Condition 4 (j) - noise measurement: The same considerations apply as those I have earlier discussed in the context of the other rezoning Application. I find that the proposed Condition is relevant or reasonably required by the proposed rezoning. -- 17 of 17 --