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(Robertson DCJ - 28 November 2014)
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Planning and environment court – originating application – where submitter appellant / applicant seeks declarations in an Originating Application filed in the context of extant submitter appeals by him and Fourth Respondent against a Council decision to approve a development approval for a waste water storage pond for receipt of treated and untreated effluent from CSG operations in region – DEHP was a concurrence agency and had issued its response which included an environmental permit to conduct an Environmentally Relevant Activity subject to conditions
Facts: This was a hearing of three preliminary matters raised in an Originating Application filed by the applicant (Golder) in the context of submitter appeals made by Golder and the fourth respondent (Westrex).
The submitter appeals challenged the Maranoa Regional Council's decision made on 23 November 2013 to approve a development application by the second respondent (We Kando) over land at Carnarvon Road, Euthulla. The development application sought a development permit for a material change of use for High Impact Industry (wastewater storage pond) and a development permit for Environmentally Relevant Activity 56 – Regulated Waste Storage.
The Department of Environment and Heritage Protection was a concurrence agency for the development application. On 22 May 2013 it notified Council and We Kando that it had no requirements relating to the application and provided a permit under the Environmental Protection Act 1994 subject to conditions.
Golder submitted that:
- We Kando had failed to give adequate public notification because the sign placed on the land was not on or within 1,500mm of the road frontage and that the sign was not visible from the Carnarvon Highway;
- Condition 21 of the approval (which required an Environmental Management Plan to be submitted to Council for approval prior to the commencement of the use) lacked finality as it left for later decision an important aspect of the approval which could alter the nature of the use approved; and
- in making its decision to approve the application, Council was led into procedural error by the officer's report, such that the decision was invalid (the "abdicating responsibility" point).
In relation to the "abdicating responsibility" point, Golder and Westrex referred to parts of the officer's report which suggested, among other things, that since the issue of the environmental management of wastewater storage facilities was controlled by an environmental authority approved by the Department, the Council should not refuse the development application on any grounds which were within the scope of the environmental authority.
In considering this issue, the court had regard to sections 3, 4 and 5 of the Sustainable Planning Act 2009 (SPA) which identified that the purpose of the SPA was to "seek to achieve ecological sustainability" and Schedule 3 of the SPA which defined "Impact assessment" as meaning the assessment of "the environmental effects of the proposed development" and "the ways of dealing with the effects".
The Council and We Kando submitted that none of the points had merit and that as the approval had not taken effect, the Court was required to consider the merits of the proposal de novo and that there was therefore no utility in sending it back to the Council to make a fresh decision. Further, it was submitted that if an error had been made, the court had a wide power to deal with the matter under s. 440 of the SPA.
Decision: The Court held:
In relation to the public notification point:
- On a road reserve including a highway that has a speed limit of 100km/h and a larger road reserve than the constructed carriageway, there would always be difficulty, if not impossibility, for parties trying to read the contents of a public notification sign. The evidence showed that the sign was visible.
- A person considering making a legitimate submission would not obtain the precise details of the application from the sign on the land but could be expected to inspect the application proper.
- We Kando had complied with the requirement in relation to placing the public notification sign on, or within, 1,500mm of the road frontage and, on best evidence, the sign was visible from the road.
In relation to the Condition 21 issue:
- When construed as a whole the nature and extent of the approved development was clear and certain.
- When construed in light of all the conditions, Condition 21 did not have the potential to significantly alter the nature of the development, nor did it leave for later decision an important aspect of the development.
In relation to the "abdicating responsibility" point:
- It was well established that a decision maker would fall into procedural error and err in law by failing to take into account a consideration that it was bound to take into account in making the decision, and by taking into account a consideration that was not relevant to the making of the decision.
- It was fundamental that the decision must be made by the decision maker upon whom authority was conferred by the relevant statute. In consequence, it was an error of law for a decision maker to act at the "dictational behest of another" or to give "..no real independent attention to the discretion which was conferred upon him or her, so that exercise of discretion is really the exercise of that discretion by some other person".
- The "environmental effects of the proposed development" and "the ways of dealing with [those] effects" were considerations that the assessment manager was bound to take into account in deciding an impact assessable development application under the SPA. As the assessment manager for the development application, the Council was the sole repository of authority to decide that application but it was obliged to consider the Department's response.
- The clear unequivocal evidence was that only the officer's report was before the Council and the inescapable conclusion was that it formed the basis of the decision. It followed that regard should be had to the whole of the report and the other evidence put on by the Council should be disregarded.
- The Council impermissibly abrogated its duty to properly assess the application to the concurrence agency and therefore its decision was invalid.
- Section 440 did not extend to such a fundamental error and it would be inappropriate to excuse under that provision what was in effect an unlawful decision by the local authority as assessment manager.
- The error made by the Council was so fundamental that the relief sought by Golder should be granted.