(Robertson DCJ - 3 May 2013)
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Planning and environment – merits appeal – regularisation of existing use of commercial extraction of groundwater declared by Court to be unlawful – where issues of impact on groundwater aquifers, noise and traffic safety
Facts: This was an appeal against Council's decision to refuse a development application for a development permit for a material change of use for commercial groundwater extraction on land located at Power Parade, Mount Tamborine.
Groundwater had been extracted from the site since the early 1990s. The development application had been lodged following successful enforcement proceedings by Council, in which the ongoing use was declared unlawful.
The proposed development contemplated three separate components:
- the extraction of water from a sub-artesian source using a single bore;
- the storage of water onsite within two 20,000 litre tanks; and
- the transportation of water off-site.
The extracted water passed through a segmentation filter between the bore and the storage tanks. There was no other processing, treatment or bottling of water proposed to be undertaken onsite.
The quantity of loaded truck movements to transport the water offsite was to be limited to a maximum of 20 per week, restricted to 7.30am to 6.00pm Monday to Friday. Turnaround time for the truck onsite would be approximately 25 minutes.
The water was transported to a factory and plant at Stapylton to be filtered and bottled and distributed for sale throughout Australia. Many millions of dollars had been invested in the enterprise, which employed 23 people.
The development application was impact assessable and there were over 900 adverse submissions received during the public notification period (93 per cent of which used a pro-forma template published in a free newspaper in the area). A number of submitters had elected to join the appeal.
The Department of Transport and Main Roads (DTMR) had been brought into the appeal as a referral agency pursuant to an application to the Court by a number of submitter Co-Respondents (Gillion Pty Ltd v Scenic Rim Regional Council & Ors  QPEC 33).
It was common ground that the site lay within the Tamborine Mountain Zone and the Village Residential Precinct under the Beaudesert Shire Planning Scheme 2007.
The disputed issues revolved around conflict with the planning scheme, particularly that the proposal was an inconsistent land use across the shire and specifically in the Tamborine Mountain Zone, conflict with many provisions from the Desired Environmental Outcomes (DEOs), to the Overall and Specific Outcomes for the Tamborine Mountain Zone Code and with Specific Assessment Criteria for the Village Residential Precinct and conflict with the Commercial Groundwater Extraction Code.
Gillion made submissions concerning an existing lawful use right which it said arose as a result of the Court's decision in the related enforcement proceeding. Gillion argued that the Court had made a finding that the use came within the definition of "Minor Public Utility" in the 1985 Beaudesert Shire Council Town Planning Scheme which was a use for which Council permission was not required. Gillion submissions were based on s. 314(3)(b) of the Sustainable Planning Act (SPA) which required the assessment manager to have regard to "any lawful use of a premises" when deciding a development application. Gillion argued that the finding that it previously had an existing lawful use (although that use had materially increased in intensity and scale) put beyond doubt that the appeal should be allowed.
In the enforcement proceedings, the Court had noted that a material change in the intensity or scale of the use of premises constituted a change of use, or a "material change of use" with the commencement of the Integrated Planning Act 1997 (IPA) on 20 March 1998. Prior to then, an intensification of a lawful use was not a change of use. The Court also noted that the IPA protected existing lawful use rights at its commencement. The commencement of the planning scheme did not affect that protection.
Council argued that Gillion was estopped from reliance upon any alleged pre-existing lawful use right for two reasons. Firstly, because it was not a ground of appeal or referred to in the development application itself, nor was it ever notified as a disputed issue in the appeal. The second reason was that the Court had declared the use to be unlawful and that Gillion's attempt to rely on an existing use right offended the principle of finality embodied in concepts such as res judicata and issue estoppel.
As a result of an agreement between the DTMR and Gillion reached on the eighth day of the adjourned hearing and after all three traffic engineers had given evidence, the areas in dispute on traffic issued had substantially narrowed. The remaining issues in dispute focussed on Power Parade, the intersection of that street with Main Western, traffic engineering issues that might arise as a consequence of the proposed upgrade of the Geissman Road / Eagle Heights intersection at Curtis Falls, and traffic engineering issues to do with safety of the new haul route down Mount Tamborine / Oxenford Road.
With respect to noise, Gillion had mitigated the noise impacts both in Power Parade and on the haul route over the mountain by purchasing a modern forward cab design truck and by enclosing the pump on site. At the hearing, Gillion agreed to a number of other conditions designed to significantly mitigate adverse impacts resulting from noise emissions from the use, including limits on the use of compression braking on the haul route.
Decision: The Court held, in dismissing the appeal, that:
Statutory framework for assessment
- The Court must assess the proposal in accordance with s. 314 of the SPA and decide the appeal in accordance with s. 324. In the context of the appeal the approach to be taken was in accordance with the so-called three stage test mandated by the Court of Appeal in Weightman v Gold Coast City Council  2 Qd R 441.
Existing use rights
- The Court, in the enforcement proceeding, simply did not find that there was a pre-existing lawful use of "Minor Public Utility" as at 30 March 1998 or at the commencement of the planning scheme, because it was unnecessary for it to do so, given the unequivocal evidence of material increase and intensity in scale from 2004 onwards.
- Council's estoppel argument was not accepted. Although it was true that the issue was not a ground of appeal and was not notified as a disputed issue, it was apparent that none of the town planners were surprised by questions put to them in cross-examination and it was difficult to see how Council or any other party was prejudiced by an argument which was first raised by Gillion in the enforcement proceeding. The allegation that Gillion's argument offended finality principles failed because the Court made no concluded finding about the pre-existing use rights. The argument advanced by Gillion did not undermine the finding and the declarations of the Court that the current use was unlawful.
- Gillion's estoppel argument directed at Council also could not succeed.
- There was not enough evidence to say if or when the "Minor Public Utility" use description applied. It followed that there was no pre-existing lawful use right.
- It was highly unlikely that the water being extracted from the Gillion production bore was impacting on the recharge to the headwaters of Franklin Creek.
- The preponderance of expert evidence favoured the opinion that the alternative route envisaged by the DTMR conditions was the most suitable from a traffic engineering safety perspective. The haul route safety concerns could be appropriately conditioned.
- Although noise was not referred to in the definition of "amenity" in the planning scheme, there could be no doubt that noise emissions from a particular use were relevant to assessment of impact on overall amenity.
- An approval could be appropriately conditioned to ensure that the use did not have unacceptable noise impacts.
Categorisation of conflict
- When it was read as a whole, and in a practical and sensible way, it was clear from its planning scheme that Council did not want such a use anywhere in the shire but, in anticipation that such a use may be applied for, it set a high bar by making the use an inconsistent use in all zones and relevantly in the Tamborine Mountain Zone.
- To concentrate too much on assessing the proposal against the Overall Outcomes for the zone and the Specific Intent for the precinct to determine the degree of conflict would be an error as it would offend the principles applicable to the construing of planning schemes and would have the unintended tendency of converting "Inconsistent Development" into "Consistent Development" subject to impact assessment.
The planning scheme provisions
- When an assessment manager is required to assess a proposal to regularise a use, the applicant receives no benefit merely because the use is already in place. However, there is no caveat on the assessment manager considering real evidence of actual impacts up to the time of hearing.
- Having regard to the reasonable expectations of residents, there was an unacceptable impact on amenity and character to the residents of Power Parade who were most directly affected by the truck movements. It was unacceptable impact on amenity in the intangible sense but real impact on character. The conflict was minor if considered in isolation.
Grounds – need
- It was accepted that there was a demand for bottled water.
- While there was some evidence of town planning and community need for the proposal, the need was not significant.
- It was in the public interest that the intersection at Geissman Road and Eagle Heights Road be upgraded.
Absence of unacceptable amenity impacts
- The absence of unacceptable amenity impacts could be regarded as a ground but not a ground that attracted much weight.
- The grounds were not sufficient to overcome what was a significant conflict with the planning scheme.
- The appeal should be dismissed.
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