Preliminary point – whether referral required to Chief
Executive administering the Transport Infrastructure Act 1994
(Department of Transport and Main Roads) – failure to refer
application to State agency– whether extractive industry use
– whether water extraction from aquifer constituted
extractive industry for the purposes of the Sustainable Planning
Regulation – Court excusal power – ss. 250, 251, 252,
254 and 440 of the Sustainable Planning Act 2009
(SPA) - Transport Infrastructure Act 1994 -
Schedule 11 of the Sustainable Planning Regulation 2009
Facts: This was an application brought by a
number of Co-Respondents to an appeal made by Gillion Pty Ltd
(Gillion) against the decision of Scenic Rim Regional Council
(Council) to refuse its development application for a commercial
groundwater extraction use in Mount Tambourine. The preliminary
point for determination was:
"Whether the development application was required to be
referred to the Chief Executive administering the Transport
Infrastructure Act 1994"
The proposed use was impact assessable under the relevant
planning scheme and fell within the definition of "Commercial
Ground Water Extraction". The planning scheme also separately
defined "Extractive Industry". It was uncontroversial
that under the development application the projected production of
extracted water would be between 23.5 – 29 million litres (or
23.5 – 29 million tonnes) per annum.
Schedule 11 of the SPR identifies the trigger and threshold for
referral in respect of development impacting on State-controlled
roads. Item 22 of Schedule 11 provided:
"Extractive industry (including mineral processing,
refinery and smelter)"
with the relevant threshold being:
"Using machinery having an annual throughput of product
of 10,000 t."
The applicants argued that Schedule 11 of the SPR should not be
read down to make it subordinate to the meaning given to special
activities in the Council's planning scheme. Gillion argued
that the definition of Commercial Ground Water Extraction was
distinct from Extractive Industry and accordingly, there was no
scope for the operation of Schedule 11 of the SPR. The Department
of Transport and Main Roads had also provided a letter stating that
it did not consider itself to be triggered as a referral agency for
the same reasons argued by Gillon.
The Court considered the rules of statutory interpretation to
determine whether the proposed development fell within the purpose
and threshold in Schedule 11.
Decision: The Court held that:
when the words 'extractive' and 'industry' were
given their ordinary meaning and when read in context with the
other relevant provisions of the SPA and the SPR, an
"Extractive Industry" for the purposes of Schedule 11 was
one concerned with the extensive extraction of a natural resource.
Groundwater was a natural resource
the SPR could not be read down so as to make it subordinate to
the provisions in the planning scheme
the proposed development was an "extractive industry"
for the purpose of Schedule 11
there was a failure to comply with the requirement that the
development application be referred to the Department of Transport
and Main Roads
the non-compliance should be excused, however the development
application would have to be referred to the Department of
Transport and Main Roads for its proper consideration.
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