Boral Resources (Qld) Pty Ltd v Bundaberg Regional Council

[2014] QPEC 40

[2014] QPEC 40    

PLANNING AND ENVIRONMENT COURT

JUDGE R S JONES

P & E Appeal No. 46 of 2014

BORAL RESOURCES (QLD) PTY LTD  Applicant

and

BUNDABERG REGIONAL COUNCIL  Respondent

BRISBANE

29 JULY 2014

EX TEMPORE JUDGMENT

HIS HONOUR:   The first thing I will do is order that condition 1.2 of the town planning permit be changed to read as follows:

1. The Originating Application be allowed.
2. The first sentence of condition 1.2 of the Court Order and the town planning consent permit issued by the Respondent to Smith Pre-Mix Quarry dated 22 March 1999 (Permit) be changed to read: “This Permit shall be in force from the date of the Permit to 22 March 2016, provided that extraction of materials from the land to which the permit relates is authorised to continue only until 22 March 2015.  From 23 March 2015 until 22 March 2016, the permitted use shall be limited to sale and stockpiling of extractive materials and completion of rehabilitation of the land as required by condition 6 of this Permit.  From the date of the Permit all other permits or approvals over the site shall cease to have any force or effect.”
3. Pursuant to section 375(1)(a) of SPA, the Applicant is not permitted to undertake blasting activities as part of its extraction.
4. Each party bears its own costs of the Originating Application.

And now I will give some brief reasons for the making of that order and reserve my right to tidy them up before publication. For the sake of convenience, I will refer to this matter as Boral Resources Proprietary Limited and Bundaberg Regional Council (number 2) as this matter has already been before me and reported in Boral Resources QLD and Bundaberg Regional Council [2014] QPEC 32. The proceeding is concerned with an application pursuant to section 369 of the Sustainable Planning Act 2009 seeking approval of a change of a condition concerning the operation period permitted for a well established quarry owned and operated by Boral. The details of the quarry and its location are dealt with in some detail in the judgment already referred to and I do not see any merit in repeating that in great detail other than to observe that the quarry itself involves, among other things, the extraction of material and the processing and stockpiling of that material and, thereafter, the sale and transporting of processed material to various destinations.

The area is located at 373 Back Windermere Road, Innes Park.  Innes Park being a relatively small community located east of the major city of Bundaberg.  It is also close to another smaller residential development known as Coral Cove.  Notwithstanding the address of the quarry, generally speaking, it forms as much a part as the Coral Cove environment as the Innes Park environment.  A brief chronology of the more significant events is as follows:  first, quarrying operations were originally authorised by the respondent’s predecessor following proceedings in this court on 22 March 1999.  Condition 1.2 of the town planning consent permit relevantly then provided:

This permit shall be enforced from the date of the permit to a date fifteen (15) years from that date.  From that date, the permit and all other permits or approvals shall cease to have any force or effect. 

That would have seen operations cease on or about 23 March 2014. Boral, however, made an application pursuant to section 369 of the Act to have the condition changed to read:

This permit shall be enforced from the date of the permit to a date 20 years from that date.  From the date of the permit, all other permits or approvals over the site shall case to have any force or effect.

The consequences of that would have meant that quarrying operations would have continued unabated until 23 March 2019.  To preserve Boral’s rights under the original permit, following an application to this court on 13 March 2014, Judge Rackemann ordered that the permit would continue to have force and effect until:

The date when the planning and environment court finally determines application number 46 of 2014 or earlier order of this court.

Section 367 of the Act deals with permissible changes to a development application which is the relief sought here.  For reasons given in the previous Boral decision, the only live issue to be considered is that under section 367(1)(c), that is, whether the change would be likely in the court’s opinion to cause a person to make a properly made submission objecting to the proposed changed.  In my decision of 6 June 2014, I did not grant the relief sought, however, gave Boral the opportunity to revisit the matter.  The reason for that was that, on the same day as I heard the Boral application, I heard a similar but not identical application by another quarry operator, Holcim Australia Proprietary Limited. 

That matter was reported in Holcim Australia Proprietary Limited and Bundaberg Regional Council 2 [2014] QPEC 29. That case was concerned with a not dissimilar quarry just to the north of Boral. Holcim also sought a five year extension, but under much more limited terms. In Holcim, the development application as initially conditioned would have expired after 15 years on 13 April 2009. Following proceedings in this court, in April 2009, Holcim’s permit was extended through until 12 April 2014. A further two years and eight month extension was sought when this matter came before me on 20 May 2014.

In Holcim, I granted the relief sought but subject to strict conditions which Holcim itself proposed.  These conditions required all extractive industries to cease by 30 November 2014.  Thereafter, that is, until 31 December 2016, the use of the site was limited to the more passive activities of stockpiling and site rehabilitation.  That can be immediately contrasted with the original Boral application which, on its face, sought to permit unabated quarrying activities to continue for a further five years.  In granting the relief in Holcim, I had particular regard to the following matters:  all quarrying operations were to cease effectively after six months, that is, by 30 November 2014;  no blasting was to occur during that period;  processing of material was at a location removed from existing in future residential development and was, at least in part, screened from existing stockpiles.  The rehabilitation of the site, including removal of stockpiles, was in the public interest, notwithstanding any result and economic advantage as to Holcim. 

From paragraph 27 of the Holcim decision, there was also town planning, acoustic engineering and air quality evidence to the effect that the practices adopted by Holcim minimised nuisances to the surrounding areas.  And, in addition, by reference to paragraph 29, I considered it relevant that any potential submitter would have been aware that if the relief sought in this court was refused, the matter would go back before the council and would be likely to be supported by the respondent council, even if only to a limited extent. 

After considering my reasons in Boral, it filed an amended application which sought orders in the terms I made above.  In response to Boral’s amended application, the council’s position was that in the event that I were to grant the relief sought, it generally supported that approach.  Mr Hackett, the manager of resources, planning and development of Boral, deposed to a number of matters in his affidavit and, in particular, that approximately 20 per cent of the remaining high quality material could be won from the quarry without the use of blasting techniques; that approximately 80 per cent of the remaining high quality material did require blasting in order to be extracted;  and that blasting was not required to allow the remaining low-quality material to be extracted. 

Boral decided that it no longer wished to pursue the extraction of the high quality material that required blasting.  That, in my view, is a significant matter in that it brought the application now made by Boral broadly in line with that made by Holcim, at least in that regard, namely, that any surrounding residents would be unlikely to be concerned by any nuisances caused by blasting.  Mr Hackett also deposed to the fact that once material had been extracted, Boral would require a further 12 months to sell and transport the extracted and processed material and complete the rehabilitation of the site as required under the town planning permit.  Mr Hackett also deposed to the fact that there would be no changes to the location of the quarry pits on the site and no new areas of disturbance. 

There would be no expansion of intensification of quarrying activities and there would be no change to the quarrying techniques and operations on the site other than the cessation of blasting.  No changes to plant and equipment.  No physical changes to the land, that is, the land’s visual appearances would not be altered in any way, subject, of course, to any consequential rehabilitation.  And there would be no changes to access arrangements or any other material matters associated with the operation of the quarry. 

The differences between the original application and the relief sought is immediately apparent and significant.  The more aggressive, if I can put it that way, part of the quarrying operations will cease some 12 months from the date of the application and eight months from now and, thereafter, all other operations will cease by 22 March 2016. 

As I have said, no blasting will take place on the site and, from 22 March 2015 to 22 March 2016, operations will be limited to the more passive operations of stockpiling, sale of material, transporting of material and site rehabilitation.  As I indicated in Holcim, it would be in the public interest to have the site rehabilitated, including the removal of stockpiles, as quickly as is practicable.  And, as far as the more proximate residents are concerned, to have all quarrying operations ceased as soon as possible. 

Any informed potential submitter would, in my view, be greatly comforted by the limited operations and certainty provided by the now proposed condition.  He would also be alert to the fact that if this relief were refused, Boral would, by necessity, have to make an application to the respondent counsel to permit quarrying to continue, even if only limited to site rehabilitation.   Any submitter would also be aware that when this matter originally came before the court, the council, who would be the authority required to consider any further application made by Boral, was, supportive of the original application made which would have seen quarrying continued unabated until 20 March 2019. 

It is also relevant, in my view, that Boral’s practices in respect of minimising nuisance emanating from the quarry will continue in operation.  In the first Boral matter, I observed that I was satisfied that Boral adopted best practices in trying to achieve that outcome.  On balance, for the reason given, I consider the proposed changed to the effect of development application is not one which would provoke a properly made negative submission and, accordingly, order that the relief sought be granted.

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