Boral Resources (Qld) Pty Ltd v Gold Coast City Council
[2017] QPEC 23
•4 May 2017
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2017] QPEC 23
PARTIES:
BORAL RESOURCES (QLD) PTY LTD (ACN 009 671 809)
(appellant)
v
GOLD COAST CITY COUNCIL
(respondent)
FILE NO/S:
3084/2014
DIVISION:
Planning and Environment Court, Brisbane
PROCEEDING:
Hearing of appeal
DELIVERED ON:
4 May 2017
DELIVERED AT:
Brisbane
HEARING DATE:
17 October 2016 – 25 November 2016, 30 January – 3 February 2017 and 22 – 23 February 2017.
JUDGE:
RS Jones DCJ
ORDER:
1. The appeal is dismissed.
2. If necessary I will hear from the parties as to any consequential orders.
CATCHWORDS:
APPEAL AGAINST REFUSAL OF DEVELOPMENT APPLICATION – appeal against a refusal by the respondent of a development permit for a quarry in the Gold Coast hinterland – where proposed development involved development of a large hard rock quarry – where subject land had been identified for quarrying purposes under a number of State planning documents – where subject land declared a key resource area under State planning policies – where at the time the development application was lodged the respondent’s 2003 town planning scheme was in force – where under that planning scheme the subject land was subject to various designations – part Urban Residential Land Use Theme; part Park Living Land Use Theme – part Open Space/Nature Conservation Land Use Theme – where under the relevant Structure Plan Area the subject land located partly in Urban Residential Precinct, part Park Living Precinct and part Open Space/Nature Conservation Precinct – where under respondent’s 2016 planning scheme subject land subject to numerous designations.
WHERE DEVELOPMENT RAISED NUMEROUS ISSUES – traffic – dust – noise – blasting vibration – geology – air quality – traffic – ecological/environmental issues – economic and community need and town planning.
CONFLICT WITH PLANNING SCHEME – where proposed development said to be in conflict with respondent’s planning schemes.
NEED – where evidence that there was a need for subject development – whether that need could be satisfied by existing and/or other quarries sources – whether in circumstances where there was conflict with the planning scheme sufficient grounds existed to warrant approval notwithstanding conflict.
Environmental Protection Act 1994 (Cth)
Environmental Protection and Biodiversity Conservation Act 1999 (Cth)
Integrated Planning Act 1997 (Qld)
Local Government (Planning and Environment) Act 1990 (Qld)
State Development & Public Works Organisation Act 1971 (Qld)
Statutory Instruments Act 1992 (Qld)
Sustainable Planning Act 2009 (Qld)
Water Act 2000 (Qld)
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
Australian Capital Holdings Pty Ltd v Mackay City Council & Ors [2008] QCA 157
Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209
Grosser v Council of the City of Gold Coast [2001] QCA 423
Holts Hill Quarries Pty Ltd v Gold Coast City Council [1999] QPELR 415
Isgro v Gold Coast City Council [2003] QPELR 414
Leda Holdings Pty Ltd v Caboolture Shire Council (2006) QCA 271
Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63
Mackay v Dick (1881) 6 App Cas 251
Meridien AB Pty Ltd v Jackson [2013] QCA 121
Neilsens Quality Gravels Pty Ltd v Brisbane City Council [2006] QPELR 709
Newing v Silcock [2010] QPELR 692
Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [201] QPELR 479
Prime Group Properties Ltd v Caloundra City Council & Ors (1995) QPLR 147
Quinn Villages Pty Ltd v Mulherin (2006) QCA 433
Savage v Cairns Regional Council (2016) 214 LGERA 192
Sellars Holdings Ltd v Pine Rivers Shire Council [1988] QPLR 12
Watts & Hughes Pty Ltd v Brisbane City Council 1998] QPELR 273
Weightman v Gold Coast City Council [2003] 2 Qd R 441
Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273
Yu Feng Pty Ltd v Brisbane City Council (2007) 156 LGERA 399
Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
COUNSEL:
Mr D Gore QC with Mr J Lyons for the appellant
Mr R Litster QC with Mr S Fynes-Clinton for the respondent
SOLICITORS:
Hopgood Ganim for the appellant
McCullough Robertson for the respondent
Index
Introduction and background............................................................................................ 5
The proposal.................................................................................................................... 8
The planning and development history to date.................................................................... 12
The lay witnesses.............................................................................................................. 14
Geology........................................................................................................................... 20
Blasting, air quality and noise............................................................................................. 25
Traffic.............................................................................................................................. 34
Civil engineering................................................................................................................ 38
The white bellied sea eagle and koalas............................................................................... 40
Visual Amenity................................................................................................................. 51
Hydrology, water quality, groundwater and soils................................................................ 61
Terrestrial ecology............................................................................................................ 70
Aquatic ecology................................................................................................................ 74
The Planning documents and conflict................................................................................. 79
Sufficient grounds............................................................................................................. 106
Quarry management............................................................................................ 112
Economic evidence.............................................................................................. 119
Conclusions...................................................................................................................... 126
This proceeding is concerned with an appeal against the respondent’s decision to refuse the appellant’s development application for the establishment of a quarry at Burleigh. For the reasons set out below the orders of the court are:
1. The appeal is dismissed.
2. If necessary I will hear from the parties as to any consequential orders.
The parties to the proceeding
Initially, a number of parties elected to become co-respondents in the proceeding, all of whom were opposed to the proposal. These included Stop the Gold Coast Quarry Association Inc., Mr I Kennedy, Hammercall Pty Ltd and Gwinganna Lifestyle Retreat and Spa Pty Ltd.
Mr Kennedy and Gwinganna Lifestyle Retreat and Spa withdrew as parties. Following other court proceedings which it is not necessary to dwell on here, Hammercall Pty Ltd also withdrew. Following opening addresses by Mr Gore QC for the appellant and Mr Litster QC for the respondent, Mr Knox, the solicitor for Stop the Gold Coast Quarry Association, sought leave for that association to withdraw. After hearing submissions leave was granted.
Location of the site
The subject land is described as lot 105 on SP 144 215 and comprises an area of 216.7 ha. The land is bisected by lot 901 on RP 907 357. Lot 901 is a reserve (fire track) administered by the respondent and runs through the western portion of the land between Tallebudgera creek road and Barden Ridge Road to the west.[1] Of the 216.7 ha, the area of land which would be the subject of actual quarrying and associated infrastructure activities is approximately 65 ha, representing approximately 30 per cent of the land. The balance of the land would be used for buffering purposes and the quarrying activities will not interfere with the reserve contained in lot 901. The land is located west of Palm Beach and west of the Pacific Motorway in the Tallebudgera/Tallebudgera Valley/Reedy Creek area.[2]
[1]See generally Exhibit 1 p 17.
[2]Ibid p 6.
While, broadly speaking, the land is heavily vegetated with regrowth, it has been the subject of significant man-made disturbance including that of illegal four-wheel-drive activity. Not surprisingly, given its location, the land is, to a significant extent, surrounded by residential development. These developments include more conventional lot sized subdivisions at Kingsmore Estate, Stocklands Observatory Estate, Old Burleigh Town and larger rural residential lots in the Tallebudgera Creek area. To the east of the land and the Pacific Motorway is an existing quarry also owned and operated by the appellant, a waste management site and to the north-east an industrial area.[3]
[3]Ibid pp 6, 7, 8 and 11.
The topography varies with levels ranging from RL 10m AHD to RL 150m AHD. The primary frontage is to Old Coach Road which is:
(a) A council-owned arterial road; and
(b) A Key Resource Area (Transport Route).
The secondary frontage is to Tallebudgera Creek Road which is a classified scenic tourist route.
The land is currently vacant but in the past had been subject to a number of historic rural uses including grazing and a nursery. By the early 1970s it had been cleared[4] but is now extensively covered by mature regrowth.[5]
[4]Ibid p 30.
[5]Ibid p 13.
Of particular significance is that the land is traversed by a prominent ridgeline that extends from the Springbrook Range to Burleigh Heads. This ridge is a significant landform feature in the local context. Three secondary ridgelines also transect the land and it is also intersected by a number of waterways and at least two watercourses as defined by the Water Act 2000.
The locality was described by the town planners relied on by the parties, Mr Schneider for the appellant and Mr Buckley for the respondent, in the following terms:[6]
[6]Exhibit 29A Town Planner’s joint expert report (JER) Part 1 at p 13.
“The locality is set amongst vegetated foot hills and the ridges of the hinterland and is characterised by a mosaic of land uses amongst fragmented patches of vegetation and open space.
The mosaic of established land uses in the immediate vicinity of the site comprises:
(a) Urban residential development;
(b) Major residential communities…;
(c) Educational facilities;
(d) Rural residential development;
(e) Small-scale industrial activities;
(f) A convenience-based retail centre together with a number of small-scale retail businesses;
(g) Some areas of rural residential development;
(h) Vacant land; and
(i) Patches of open space.
In addition, at a broader scale, the areas of Reedy Creek, Tallebudgera Valley and West Burleigh are characterised by the presence of:
(a)Pockets of low density residential development amongst patches of open space
(b)Established rural residential areas…;
(c)Rural activities throughout Tallebudgera Valley;
(d)The established industrial area of West Burleigh;
(e)The existing West Burleigh quarry;
(f)The former quarry now used as the Reedy Creek Recycling Centre.
The presence of the Pacific Motorway and related service roads, access ramps and interchanges also affects the character of the locality. …”
I consider that to be, broadly speaking, an accurate description. However, the locality west of the highway has a more residential feel or character than that immediately to the east.
Before preceding further, I should deal with the participation in the joint expert report (JER) preparation by Mr Brown. Mr Brown was the town planner retained by the Stop The Gold Coast Quarry Association, the first co-respondent by election. Notwithstanding the application to withdraw from the proceeding, that association sought to have me receive the town planning evidence of Mr Brown to support the respondent’s opposition to the quarry. After hearing submissions by Mr Gore and Mr Litster I ruled that I would not receive any town planning evidence from Mr Brown and, insofar as the joint town planning reports were concerned they should be read as expressing the opinions and conclusions of Mr Schneider and Mr Buckley only. That is, Mr Brown’s contribution to those reports was ignored, save for where Mr Buckley agreed with and adopted his observations and/or opinions.[7] That approach was agreed to by both Mr Gore and Mr Litster.
[7]T30-78 ll 17-45.
The proposal
Numerous aspects of the proposed development are discussed in detail when addressing the evidence of the expert witnesses relied on by the parties. However, for introductory purposes the following description is sufficient. The disturbance footprint will comprise an area of approximately 65 ha and be surrounded by a vegetated buffer of approximately 152 ha.[8]
[8]Exhibit 1 pp 3 and 15.
The expected life of the quarry is at least 40 years and could extend beyond 60 years depending on demand. The extracted material is hard rock known as meta-greywacke. It is intended that the proposed quarry would replace the existing quarry owned and operated by the appellant which has a current expected operational life of less than 10 years. According to Mr Cooper, general manager of capital projects and project sponsor of Boral Australia,[9] the life of this quarry could be as low as six years.
[9]Exhibit 118, para 32.
Current material available for quarrying at the West Burleigh Quarry is estimated at about 7.5 Mt.[10] While at periods of peak demand (e.g. 2008), extraction may have approached 1.9 Mt p.a., more typically extraction rates were in the order of 1 Mt p.a. to 1.4 Mt p.a.[11] and as low as about 0.96 Mt p.a. in 2015/2016. The proposed quarry envisages 2 Mt p.a. but it was accepted that actual output was very much demand driven.
[10]E.g. Exhibit 6 V7, p 3933.
[11]Exhibit 25, p 60.
Access to and from the quarry will be via Old Coach Road which, while a designated haulage route, would require extensive upgrading to accommodate heavy haulage vehicles. The quarry will not be connected to the respondent’s trunk water, sewerage or storm water infrastructure. During the establishment and construction phases the proposed quarry would generate a total of 246 full-time equivalent positions and, once developed and operational, 24 full time equivalent person positions.
In a report prepared by Lambert and Rehbein, the operational processes were described in the following terms:[12]
[12]Exhibit 6 V3, pp B1327-1328.
“Overall, the proposed Gold Coast Quarry’s processing plants and supporting heavy mobile equipment (HME) will comprise:
Mobile crushing plants
…
Fixed plant
…
Mobile fleet
…
There will be a range of equipment on the site for various periods of time. This equipment includes, amongst others, the following:
• Excavators;
• Graders;
• Front-end loaders;
• Bulldozers;
• Compactors;
• Articulated dump trucks;
• Water trucks;
• Haulage trucks; and
• Cranes.
The quarrying process commences with a survey of the rock face and bench to be developed (by drilling and blasting)…
Once the rock has been blasted, fragmented rock will be loaded from the pit floor onto haul trucks, whereas any larger rock fragments (“oversize”) will typically be broken by a rock breaker before loading. The load and haul fleet will generally be operated continuously during the operating hours of the quarry, in order to maintain continuity of supply for processing.
The primary stage of processing involves the use of a jaw crusher and vibratory screens, with crushed product being held in an interim stockpile called a ‘surge pile’. From this stage, material will be conveyed to several downstream stages of crushing and screening equipment. After processing, the material will be conveyed to individual product stockpiles. The processing plant, including primary and secondary crushers (and screening to separate dust and aggregates) will be located within the plant and infrastructure area, near the individual product stockpiles.
The quarry materials are then either loaded directly by front-end loader… from the stockpiles, or via overhead storage bins at the plant… to road haulage trucks. The road haulage trucks then proceed across the weighbridge and through the wheel wash before exiting the site to deliver quarry materials to the market.”
The quarried material would be used to manufacture concrete, asphalt, drainage material, road base, bricks, pavers and other products for use in the building and construction industries. A significant proportion would be used by other Boral assets including the manufacturing of asphalt and concrete. More will be said about these matters when addressing the question of the “need” for the quarry.
The proposal would evolve over four distinct stages: Establishment, Construction, Development and Operation (described in various reports as phases E, C, D and Q). Some of the details associated with the establishment, construction and development phases are set out in the Lambert and Rehbein report but it is unnecessary for the purposes of this proceeding to deal with them in any detail except when dealing with the issues in dispute.[13] Of particular significance though are the phases associated with the actual quarrying operations. Over the likely life of the quarry, approximately 40 to 60 years plus, it will involve a number of benches[14] excavated from at or about natural ground level to a depth of –RL 66M.[15]
[13]Exhibit 6 V3 pp B1330-1340.
[14]Shown conceptually in Exhibit 6 V4 p B2373.
[15]Exhibit 6 V3 p B1339.
The life of the proposed quarry is a function of its estimated approved recoverable resource of 79 Mt.[16] The reference to 79 Mt of “resource” needs to be treated with a degree of caution as it includes some 13 Mt – 14 Mt of overburden,[17] the value of which was very much dependent on market circumstances.
[16]Exhibit 25, p 60.
[17]Exhibit 6, V2, pp 737-741: V3 pp 1338-1340.
Evidence of Mr Norling, the economist relied on by the appellant which I accept, indicates that on average, demand from the quarry would grow from about 1.33 Mt p.a. in 2026 to about 1.5 p.a. in 2031.[18] With projected population growth, output at or about 1.9 Mt p.a. might be reached.[19] His uncontradicted evidence was that, even ignoring any multiplier effects, the value of the resources in 2016 dollar terms was in the order of $1.4 - $1.5 billion, a matter emphasised by Mr Gore in his final submissions.[20]
[18]Exhibit 25, p 4, Table 14: Exhibit 167.
[19]T25-47-48, ll 17-20 per Mr Norling.
[20]T34-62, L 25; see also T26-42 ll 22-27.
The quarrying phases are described as phases Q1, Q2, Q3, Q4 and Q5. For approximately the first 25 years of quarrying they will be significantly screened from view by a series of ridgelines described as R3, J, J4, K and I.[21] However, at or about the 25 to 30 year mark through to the end of the quarry life (phases Q3-Q5) the quarry benches will become more exposed as the ridge lines J and J4 are quarried. A material part of ridges J4 and K will be levelled much earlier during the establishment and construction phases.[22] The significance of this is discussed in more detail below when dealing with the issue of visual amenity.
[21]See Exhibit 1 P9.
[22]E.g. see Exhibit 64, p 2.
During the establishment, development and construction phases work would be conducted on site as follows:
· Access (excluding maintenance) 6.00am to 6.00pm Monday-Saturday
· Construction activities and site works 6.30am to 6.00pm Monday-Saturday
· Sales and dispatch 6.30am to 6.00pm Monday to Saturday
· Mobile crushing and screening 7.00am to 6.00pm Monday to Saturday
· Maintenance 24 hours Monday to Saturday and 8.00am to 6.00pm Sundays
· Blasting 9.00am to 5.00pm Monday to Friday.
During the quarrying phases the operational hours will be:
· Access (general operations) 6.00am to 6.00pm Monday to Saturday
· Extraction 6.30am to 6.00pm Monday to Saturday
· Crushing and screening 6.30am to 6.00pm Monday to Saturday
· Sales and dispatch 6.30am to 6.00pm Monday to Saturday
· Maintenance 24 hours Monday to Saturday and 8.00am to 6.00pm Saturdays
· Blasting 9.00am to 5.00pm Monday to Friday.
Blasting for quarrying purposes (i.e. phases Q1 to the end of Q5) would occur, save perhaps for exceptional circumstances, once a week and at a set time to establish a set routine or pattern for those who might in some way be affected by the blasting.[23] During the establishment and construction phase this blasting would occur as and when required (i.e. irregularly) however the size of the blasts would be materially smaller and of a shorter duration.[24]
[23]T6-33, L 25-37.
[24]T6-25, L 32-45.
The planning and development history to date
The land has been identified as a Key Resource Area (“KRA”) for a long time. Old Coach Road has also been identified as a haulage route. The appellant has already gained a number of approvals relevant to the development of a quarry and, for all intents and purposes, approval from the respondent is the final step in the approval process.
On or about 1 December 2010, the appellant referred the project to the Commonwealth Minister for the Environment for a “Controlled Action” decision under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). On 23 January 2014, the Minister for the Environment issued his approval subject to conditions.[25] The proposed quarry was declared a Significant Project (now called a Coordinated Project) and was the subject of a comprehensive environmental impact assessment between 27 August 2010 and 20 December 2013. On 20 December 2013, the Coordinator-General for the state of Queensland issued his evaluation report recommending that the development proceed subject to conditions.[26]
[25]Exhibit 7, Tab 3.
[26]Exhibit 5, V 8, Tab 13.
On 9 May 2014, the appellant submitted an application for an Environmental Authority for prescribed Environmentally Relevant Activities to the Department of Environment and Heritage Protection (“DEHP”). On 16 July 2014 the DEHP approved the application and issued an Environmental Authority on 16 July 2014 subject to conditions.[27]
[27]Exhibit 8, V 6, Tab 3.
According to the appellant:[28]
“The fact that these other approvals were granted after substantive assessment processes is not determinative… but is a relevant factor and would give the court both comfort and context. This is particularly so given that the outcome of these application processes is that conditions have been imposed to mitigate the effects of the quarry and must be complied with if the quarry project is approved by the court…”
[28]Written submissions, p 5, [8]-[9].
That these approvals exist and the extent of the scrutiny involved is relevant and does provide meaningful support for the proposal. In this context, it is significant that the Coordinator-General (COG) process is not just a relevant consideration that “may” be taken into account, it is a matter “regard” must be had to in the assessment process.[29] In this context, I also accept the submission that, to a very significant extent, the “extrinsic material” works in favour of the proposal. However, as the appellant acknowledged, it is in no way “determinative”.
[29]S 314(3) SPA: s 37(1)(d) State Development Act.
A development permit for a material change of use was lodged with the respondent on 9 May 2014. Thereafter, it engaged a number of independent experts to carry out a review and assessment. The consultants retained addressed matters including visual amenity, development engineering, noise and air quality, traffic and transport, geological and quarry operations, ecological issues, economic need, community need and town planning and social planning. The town planners then retained by the respondent, Buckley Vann, prepared a report for the respondent recommending approval of the quarry project subject to 100 conditions.[30] A relevant officer of the respondent thereafter prepared a report which, among other things, recommended that the development application be approved subject to the conditions proposed in the Buckley Vann report.[31] Notwithstanding that recommendation, on 8 July 2014 the respondent’s City Planning Committee met and recommended that the development application be refused. On 11 July 2014 at a full council meeting, the respondent resolved to refuse the development application.[32] The council’s decision notice set out 12 reasons for refusal.[33] On 11 August 2014 the appellant commenced its appeal.
[30]Exhibit 6 V 7, Tab 4, pp B4981-5358 and B5089-5132: Exhibit 203A, 203B.
[31]Exhibit 6 V 8, Tab 4, pp B4927-4980.
[32]Exhibit 6, V 8, Tab 5, pp B5360-5363.
[33]Exhibit 6, V8, Tab 6, pp B5366-5368.
In their JER the town planners identified 9 “town planning issues in the Appeal”:[34]
[34]Exhibit 29A, Part 1, p 18.
“(a) The planning intent for the site;
(b) Whether the proposed development will have acceptable impacts on the amenity of the local area;
(c) Whether the proposed development will maintain the scenic amenity values, image and form of the city;
(d) Whether the proposed development will have acceptable impacts on the environmental values of the city and the site;
(e) Whether the proposed development will have acceptable traffic impacts;
(f) Whether there is a planning need for the proposed development;
(g) Whether the proposed development is consistent with reasonable community expectations;
(h) Whether the proposed development complies with the relevant planning instruments, draft planning instruments and later planning instruments; and
(i) Whether there are sufficient grounds to justify the approval of the proposed development despite any identified conflict with the relevant planning provision.”
Numerous ecological/environmental issues were raised by other experts relied on by the parties, some of which were closely related to those raised by the town planners, others were not. The extent of the issues in dispute were identified in an 81 page document.[35]
[35]Exhibit 9.
At the time the development permit was applied for the town planning scheme in place was the respondent’s City Plan (CP 2003). At the time of the hearing of the appeal, that plan had been replaced with City Plan 2016 (CP 2016).
The lay witnesses
The appellant and the respondent called a number of non-expert witnesses in support of their respective cases. While those witnesses relied on by the respondent were not required for cross-examination, those of the appellant were. The appellant’s witnesses were Mr Grimwood,[36] Mr Moreton,[37] Mr Donaldson,[38] and Mr Bailey.[39] Each of those witnesses were successful businessmen who had longstanding commercial relationships with the appellant. While the nature of their businesses varied (by way of example the business of Mr Moreton could be described as being quite modest whereas, on the other hand, the operations of Messrs Bailey and Grimwood involved major construction projects, including the construction of seawalls), each of them saw their business relationship with Boral and, in particular, its operations at Burleigh to be an important part of their business. Indeed the evidence of Mr Grimwood was that his company purchased materials from the West Burleigh quarry on virtually a daily basis and, on average, at an expenditure rate of about $70,000 per month. I found all four of these witnesses to be honest, forthright and reliable.
[36]Statement Exhibit 158.
[37]Exhibit 159.
[38]Exhibit 160.
[39]Exhibit 161.
The evidence of these witnesses, as is indeed the case concerning the lay witnesses relied on by the respondent, is far from determinative but nonetheless relevant. The evidence of these four gentlemen was also largely unsurprising. The thrust of their evidence, when looked at in total, was that while none of them would go out of business if Boral’s operations in the West Burleigh area ceased, the closure of the existing quarry without a replacement nearby could have a number of negative impacts on their businesses. All of these witnesses readily agreed with Mr Litster’s proposition that their businesses were highly competitive and that in securing future business they would have to, to use Mr Litster’s term, “sharpen their pencils” when quoting for contracts. That may well be so, but I accept the evidence to the effect that the West Burleigh quarry, and therefore most probably the replacement quarry, produces high quality martial, was very competitive in its pricing and, perhaps more importantly, was, depending on the location of the project, a convenient and economical source of quarry product.
While they also readily accepted that alternate quarry sources were available, there seems little room for doubt that any additional haulage costs would be passed onto the end consumer. In this context I note that the evidence of these four witnesses was consistent with evidence given by Mr Gray and Mr Reed, the quarry “management” witnesses relied on by the parties. Their evidence was to the effect that two of the major concerns facing the operation of a successful quarry were haulage distances and the management of overburden.
Not surprisingly, these witnesses were also concerned with the prospect of there being an increase in the cost of purchasing at least some quarry product due to the reduction in competition. In my view, while the evidence of these four gentlemen on this aspect was far from compelling, it was nonetheless consistent with the evidence given by Mr Cooper, Mr Gray and Mr Norling when addressing the question of need.
Turning then to the evidence of the lay witnesses relied on by the respondent,[40] their evidence was unchallenged and raised a number of expected and legitimate concerns. Mr Schneider, the town planner called by the appellant, readily accepted that many of the concerns they voiced were “rational”. In no particular order of importance, their concerns centred around the following issues:
[40]Mr Brown (Exhibit 182), Mr Stahnke (Exhibit 183), Mr Marynycz (Exhibit 184), Mr Laufer (Exhibit 185), Mr Smith (Exhibit 186), Ms Paul (Exhibit 187), Mr Brisbane (Exhibit 188), Mr Macgregor (Exhibit 189), Mr Gishkori (Exhibit 190) and Ms McClenahan (Exhibit 191).
· The physical impacts of quarry operations and, in particular, noise (including blasting), blast vibration, dust and air quality generally.
· The traffic noise and dust problems created by the haulage trucks.
· The added congestion and increased risk of accidents on Old Coach Road caused by the introduction of haulage traffic.
· The inconvenience caused during the upgrading of Old Coach Road under either upgrading option. That is, with a total road closure of up to 3-4 months or keeping Old Coach Road open but with restricted traffic movements for up to 10-11 months.
· The impact on wildlife and, in particular, bird life, koalas and wallabies caused by the removal of vegetation and/or the operation of the quarry.
· Impact on land values.
Only two of these lay witnesses expressly referred to the loss of amenity caused by the quarry being physically visible.[41] That of course does not mean that visibility was of such limited concern as discussed below under the heading “Visual Amenity.”
[41]Exhibit 190 at para [32] and Exhibit 185 at para [11]. Statements of Mr Gishkori and Mr Laufer.
As will become apparent, the impacts on amenity resulting from noise, air quality and blasting vibration are capable of being and will be kept within all the applicable laws, policies and standards. Non-compliance in this regard could of course be fatal to a development application. On the other hand, compliance need not be determinative.
The concept of amenity is a wide and flexible one not necessarily determinable by reference to the evidence of experts alone. In Prime Group Properties Ltd v Caloundra City Council & Ors[42] Skoien SJDC said:
“Amenity
I have decided that, as separate components, no unreasonable adverse impact on the nearby residents in the form of noise, light or unpleasant odours would be caused by this development. But the concept of amenity is far broader than that. In Broad v Brisbane City Council & Anor (1986) 2 Qd R 317 at 326 de Jersey J. said:- ‘There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses but also the resident's subjective perception of his locality. Knowing the use to which a particular site is or may be put may affect one's perception of amenity.’
…
The resident/objectors gave evidence of their actual perception and the fears they held of the effect of the development. Their fears were, I thought, sometimes over-stated, even unlikely. However I accept that the actual perception which the residents claimed to have is genuinely held. That perception is one of residential amenity. Provided that perception can be seen to be reasonably held in an objective sense, it should be given considerable weight.
…
In deciding what are the reasonable perceptions of amenity of the residents I am conscious that I must apply "the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notions not affected by some special sensitivity or eccentricity". See Rio Pioneer Gravel Co. Ltd v Warringa Shire Council (1969) 17 LGRA 153 at 168.”
[42][1995] QPLR 147.
In this case there are a number of significant features in this regard. First, there were some 4,200 adverse submissions made against the proposal, albeit some 3,829 were in a pro forma form instigated by an organized opposition association.[43]
[43]Exhibit 29B p 58, [304].
A number of the submitters based their concerns not just upon fear of what might happen but by reference to actual experience with the existing West Burleigh quarry. Further, unlike the existing quarry that is situated in an area of mixed uses, including industrial uses, the proposed quarry is situated in a, relatively speaking, undisturbed timbered environment surrounded by residential and rural residential subdivisions.[44]
[44]See e.g. Exhibit 1, p 11.
During the course of the cross-examination of Mr Schneider by Mr Litster, after being referred to a number of issues including noise, blasting vibration and traffic, the following exchange took place:[45]
[45]T31-60 ll 26-47 to T31-61 ll 1-16.
“Q: And there will be other persistent reminders of the fact that they have a quarry nearby because, unlike now, there will be up to 480 trucks a day using Old Coach Road and passing through the intersection near the local shopping centre?
A:Yes, there will be quarry trucks on the road.
Q:All of those things, I suggest to you, are indicia of an effect on people’s perception about the place in which they live?
A:They can be, yes.
Q:And knowing the use to which a particular site is or has been put can affect the perception of amenity that a person holds; do you agree with that?
A:It can affect their perception, yes.
Q:Would you go so far as to say that the people expressing concerns about their amenity and opposition to the quarry for that reason are being irrational?
A:No.
Q:One would accept that they are behaving quite rationally. You would accept that?
A:Yes I would accept that it’s quite rational to raise those concerns.
Q:Right. But your perception of the matter is sufficient (sic) has been done by complying with output levels that are set out in the Environmental Policies?
A:Yeah, and I have dealt with the issue of amenity impacts in – in two categories:
(1) The tangible impacts, which would include noise, blasting and air quality, and, yes, I have – I have relied on the demonstration that the development would comply with the regulatory limits, together with the expert advice in this appeal, to conclude that the – the existing level of amenity will only be impacted to an acceptable level. I haven’t relied on the regulatory limits for the intangible components of amenity, of course.
Q:Right. You would accept that amenity is not just about the physical appearance of the surroundings, although it can be just about the physical appearance of the surroundings?
A:Yeah, absolutely. It’s a broad – it’s a broad construct.
Q:And it can include the emotional or sentimental feelings or attachment that people have about a place, yes?
A:Yes, that’s – that’s related to people’s perception of a sense of place and – and – and – and the area that they live, yes.
Q:And the introduction of a quarry of the size that we’re talking about is inconsistent with the reasonably held perceptions of these people; do you not agree?
A:Yes. I – it is inconsistent with the reasonably held expectations, yes.”
It became tolerably clear during the re-examination of Mr Schneider that his last answer would not in any meaningful way be affected by the changes made to CP 2003 in CP 2016.
The “size” of the quarry Mr Litster was referring to was not only a reference to its expected operational life but also to its physical dimensions. In an east-west direction the disturbance footprint, including the quarry pit, the crushing plant, stockpiling areas and workshop etc. is between 1.3 and 1.37 km and in a north-westerly direction, the quarry pit will be in the order of 550 m.
The evidence leaves me in no doubt that notwithstanding being confident that all relevant environmental guidelines and policies would be met by the appellant, the proposed development, if it were to proceed, would still have adverse impacts on the residential amenity of at least some of the residents surrounding the proposed quarry and particularly those more proximate to not only the quarry, but also Old Coach Road. The significance of this will be discussed in more detail when dealing with the evidence of the expert witnesses.
Before turning to the expert witnesses, it is necessary to deal with an aspect of Mr Gore’s oral submissions. On more than one occasion he seemed to categorise as “intangible” potential impacts on amenity caused by certain quarry activities in circumstances where relevant regulations, policies and guidelines were met. That is, in my respectful view, an inaccurate description. That, by way of example, noise and vibration falls within prescribed levels does not mean they are intangible if the noise of a passing truck can be heard and the vibration from a blast felt.
The expert witnesses
During the course of this proceeding evidence was given by 34 expert witnesses addressing the following issues:
(i) Geology
(ii) Blasting
(iii) Air quality
(iv) Noise
(v) Traffic
(vi) Koalas
(vii) Quarry management
(viii) Civil engineering
(ix) Visual amenity
(x) Terrestrial ecology
(xi) Need (economic and community)
(xii) Water hydrology
(xiii) Aquatic ecology
(xiv) Soils and groundwater
(xv) Town planning.
Geology
Each of the parties relied on experts in the field of geology. Dr Shorten, by the appellant, and Mr Major by the respondent. In their JER, Dr Shorten and Mr Major purported to identify 14 “Geology Points”.[46] It is unnecessary to set them out in any detail as in many instances both defer to the other expert witnesses. In particular, those concerned with town planning, economic need and quarry management. Essentially the dispute between Dr Shorten and Mr Major was:[47]
“We disagree on the following specific points:
·Paragraph 1F of the Notice of Appeal; where GS holds that, within the Southern Gold Coast (South of the Nerang river), as defined, the land contains a resource that is both the last known (taken as being already identified within an existing KRA), and largest development (specifically the case for KRA 96), whereas JM holds that there still exists a limitless amount of meta-greywacke; that other larger resources are known in the Southern Gold Coast but not necessarily within a KRA; and that the claim in paragraph 1(f) is therefore exaggerated. We concede the need to defer to other experts, particularly in reference to need and town planning.
Paragraph 6 of the Consolidated Grounds of Refusal; where JM holds that there are sufficient existing and potential sources of meta-greywacke for the Gold Coast City without Extractive Industry lot 105, whereas GS holds that most sources are severely restricted and existing sources have not been shown proven to the same level as the land in question. We agree, however, on the low level of existing proof, and both concede the need to defer to other experts, particularly in reference to Need”.
[46]Exhibit 24, pp 10-18.
[47]Ibid, p 26.
In respect of the first point, it is only necessary to determine whether or not Dr Shorten’s assessment of the size and volume of material available within the subject land is exaggerated. In his court report he states:[48]
“The resources of the proposed Gold Coast Quarry site have been demonstrated to be significant in the geological and structural context of the region. In general, the reassessment of the work of Huntly (2013) and the subsequent additional investigations have served to increase the body of knowledge available for considered development of the proposed Gold Coast Quarry, and to reduce the uncertainties identified in Buckley Vann (2013). The quality of the meta- greywacke is very good and a higher confidence level can now be applied to the extent, quantity and quality of available resource. In the author’s opinion, the fuller understanding now gained of the structural and geotechnical aspects of the proposed GCQ site has the potential to enable a safer, more efficient and cost-effective extraction of resource”.
[48]Exhibit 37, p 8, para 6.1.
Leaving aside the question of whether or not Dr Shorten has the expertise to speak about quarrying safety and the cost-effectiveness of the proposed quarry, I otherwise accept the substance of his evidence. In cross-examination, Mr Major also conceded that the subject land contained a “large mass of greywacke”.[49] And that “as far as an engineering geologist can make our judgment (sic) on the value of certain deposits, it is quite likely that a 40-year-old long quarry provides a significant value, yes”.[50] Mr Major went so far as to agree that from a purely geological point of view there was no reason for refusing the development of the quarry.[51]
[49]T11-7, L 9.
[50]T11-7, ll 13-15.
[51]T11-10, ll 23-24.
I also accept that Dr Shorten’s investigations had a material impact on the level of certainty that could be attributed to both the quality and the extent of the quarriable material. The borehole data relied on by Dr Shorten was both relevant and informative.[52] In this context I found Mr Major’s criticisms of those investigations not only unpersuasive but also difficult to follow in parts.[53] In circumstances where Mr Reed, the structural geologist and earth scientist relied on by the respondent to address quarry management issues had not carried out any similar or comparable investigation, I also found his criticisms of Dr Shorten’s work in this area unpersuasive. In any event, he deferred to the evidence of Dr Shorten and Mr Major when it came to geological structural matters.[54]
[52]E.g. see Exhibit 37, figures 19 and 20 and Exhibit 91, figures 12 and 13.
[53]T11-12 to 11-13.
[54]RT24-1 - RT24-8.
As to the second area of relevant dispute between these two witnesses, subject to one reservation, I again prefer the evidence of Dr Shorten. The reservation I have is that I conclude that he has overstated things by describing the other relevant resource sources within KRA 67 as being “severely restricted”.
In his report, Mr Major stated the issue in question by reference to paragraph 6 of the Consolidated Grounds of Refusal:[55]
[55]Exhibit 47, para 32.
“…there are sufficient existing and potential sites in the City of Gold Coast from which meta-greywacke can be extracted for the benefit of residents of the Southern parts of the City of Gold Coast (including the Reedy Creek area) without development of Extractive Industry, lot 105”.
He later reported:[56]
[56]Ibid para 38-44.
“The resource processing area for KRA 67 is approximately 13.5 km of which the existing four quarries occupy a total of about 2.3 km².
About 9.9 km² of the resource processing area for KRA 67 is in the Extractive Industry Zone.
The published geological map indicates that greywacke occurs in two main areas within KRA 67 that together cover about 6.4 km². The remaining approximately 7.1 km² is underlain by other rock types, most of which can be considered as hard rock quarry resources, with some alluvial settlements.
The 7.1 km² underlain by rock types other than meta-greywacke is largely within the Extractive Industry Zone, except for an area of approximately 1.5 km² in the South-East of the KRA.
By way of contrast, the proposed quarry site on lot 105 (which is effectively the resource processing area for KRA 96) is 0.65 km² (i.e. 65 Ha).
The significance of these hard rock quarry resources in the Northern Darlington Range has long been recognised as described… the planning policy of the Albert Shire Council was to direct future quarry development to the Northern section of the Shire on the Darlington Range and in the Stapylton areas, and no provision was made for protection of deposits at the Southern end.
The above estimates confirm that the hard rock resources in the as yet un-developed portion of KRA 67 are significantly larger than the hard rock resources identified for KRA 96. These resources include meta-greywacke and other hard rock types”.
There is no doubt that between Beenleigh and Oxenford there are vast volumes of hard rock (meta-greywacke) either being quarried, approved for quarrying or otherwise potentially available for future quarrying. This at least was one area upon which Dr Shorten and Mr Major agreed.[57] By way of some examples of this are the following quarries: Boral (Yatala), Holcim (Beenleigh), Hanson (Wolffdene) and Boral (Ormeau).[58] There are of course significant locational differences, KRA 67 being, broadly speaking, 40 km closer to Brisbane, but the same distance further from the Gold Coast. These locational differences, in the sense of distance, were not relevant to the issues canvassed by Dr Shorten and Mr Major but were relevant considerations for other experts. Their evidence is discussed below.
[57]T9-81, ll 11-28 per Dr Shorten.
[58]E.g. see Exhibit 91, figure 1.
That there are vast volumes of hard rock within the existing and exploited sections of other KRAs is by no means the end of the matter. The evidence of Dr Shorten relevant to this issue was to the effect that his analysis and modelling of the “structural issues” associated with KRA 67, led him to conclude that not all of the resources within or about that KRA might be able to be quarried or, at least, not economically quarried. By way of examples: the northern expansion of the Holcim quarry and the Hanson quarry at Wolffdene.[59] These problems largely being associated with the removal of overburden, and to a more limited extent, the risk that some of the material within KRA 67 may be “sterilised.”
[59]T9-87; T10-9 ll 5-26; T10-11 ll 30-47; T10-19.
The overburden issue raised “cost” and other “impediment” ramifications, according to Dr Shorten, but to use his own words, were not a “showstopper”.[60] Also, as I understand Dr Shorten’s evidence, the extent of the “sterilised” hard rock would be limited to some 5% to 10% of the total “known quarriable material” in the south-west section of one of the quarries.[61]
[60]RT-10 at T10-7 ll 1-13: and described by Mr Reed as a “hassle.”
[61]Ibid T10-7 ll 1-45.
Mr Cooper provided some support for Dr Shorten’s “structural” concerns regarding parts of KRA 67.[62] Of more weight though in this context was the evidence of Mr Gray, a mining engineer relied on by the appellant. He agreed that the structural issues associated with KRA 67 were not “showstoppers” and even went so far as to broadly equate the physical characteristics of KRA 67 with that of KRA 96.[63]
[62]T16-80 ll 24-47; T16-81 ll 1-3.
[63]RT day 24 p 6.
During the course of his cross-examination, Dr Shorten’s modelling concerning sections of KRA 67 and the conclusions he reached based on that modelling were subject to, if not express, then veiled criticism. I reject those criticisms. Dr Shorten’s modelling appeared to be soundly based and was not criticised in any meaningful way by Mr Major. I accept the conclusions reached by him based on his methodology.[64]
[64]See e.g. Exhibit 91 figures 20-25.
By way of summary, the conclusions that I have reached concerning the evidence about geology are:
(i) The meta-greywacke underlying the proposed development is of a good quality, capable of being effectively and economically quarried and its extent is such that it has the potential to provide product for some 40 to 60+ years;
(ii) There are some overburden problems associated with quarrying some of the meta-greywacke within KRA 67 and the other relevant geographical surrounds, but those problems would not prevent the vast majority of identified material being quarried;
(iii) Somewhere in the order of 5% - 10% of the known quarriable material in one of the quarries located in KRA 67 may be physically sterilised;
(iv) There are structural issues associated with KRA 62 that are likely to make future quarrying within it more difficult than those likely to be encountered in quarrying KRA 96;
(v) There are still enormous volumes of quarriable hard rock in KRA 67 and its geological surrounds, including KRA 62.
By way of concluding the expert evidence in this regard, it was noted by both Dr Shorten and Mr Major that their areas of “disagreement” would be likely to be materially influenced by the evidence of experts in other fields. Indeed, in respect of both areas of disagreement, they conceded “the need to defer to other experts, particularly in reference to Need.” Town planning was also considered relevant to the first area of disagreement. The questions of Need and town planning are discussed below in considerable detail. However, for the purposes of this part of the case it is sufficient to note that I agree with Mr Major’s assessment that, absent a genuine need for the material located within KRA 96, it is largely a matter of geological interest rather than constituting a genuine resource.
Acid sulphate and acid rock drainage issues
At the commencement of this proceeding it appeared that the respondent would contend that in the event that the quarry were to proceed, it would result in adverse consequences in respect of acid sulphate soil and/or acid rock drainage. However, following the evidence of Mr Shooter, an environmental scientist and Mr Briese, a hydrologist relied on by the appellant, Mr Litster accepted that on the basis of that evidence those issues were no longer contentious.[65] Accordingly no further discussion about them is required.
[65]T14-81, ll 40-47 to T14-82, ll 1-9.
Blasting, Air Quality and Noise
Quarry blasting raised a number of potential amenity issues; vibration, fly rock, air quality and overpressure/noise.[66] As to a number of those issues, Dr McKenzie, called by the appellant and Dr Heilig for the respondent, agreed on a number of important matters. Consistent with their first JER,[67] in their second JER they reported:[68]
[66]The relationship between overpressure levels and noise is discussed in the court report of Dr Heilig, Exhibit 46, p 2.
[67]Exhibit 17, p 1.
[68]At pp 2, 3 and 4.
“Dr McKenzie and Dr Heilig agree that blast-induced vibrations will be perceptible to some residents surrounding the proposed Development Application, but that the quarry has sufficient scope to ensure full compliance with the proposed vibration and over pressure limits at all existing residents (sic) and all approved lots at all times. Particular note is made of the reference made in the 660th council meeting in June 2013 to anticipate a disruption to classroom activities of a local school during blasting…..
The above considerations, with respect of vibration, over pressure and fly rock impacts, are predicted on the preparation and implementation of an improved Blast Management Plan involving both the quarry operator and an anticipated blasting services provider, in line with previous practices at the company’s West Burleigh Quarry. It is also agreed that the Blast Management Plan, and the expected vibration and over pressure impact contours, should be updated within two years of the commencement of operational blasting activities once sufficient monitoring data are (sic) available to permit such an update and that a five yearly review of the plan by qualified and experienced group or person is appropriate. Prior to any blasting being undertaken on site, the Blast Management Plan should be reviewed by the Council.
Finally, it is agreed that Condition Surveys should include at least two (2) control structures located beyond the impact zone of quarry blasting operations, in order to identify ‘normal wear and tear’ deterioration of residential and commercial structures.”
Under the heading of areas of disagreement Dr McKenzie and Dr Heilig reported:
“There were no areas of disagreement between Drs McKenzie and Heilig in relation to the ability of the company to comply with the proposed impact limits, nor in relation to the liability to safely control fly rock, nor in relation to the requirements of the Blast Management Plan.”
Following a request for further information from the town planners, Dr McKenzie and Dr Heilig prepared a third JER which relevantly provided:[69]
[69]At pp 5 and 6.
“… For the sake of clarity, Drs McKenzie and Heilig agree that:
1. The rate of blasting.
This was defined in the Development Application, and taken in the Blasting Impact Statement to be once per week on average, with the vibration and over-pressure effects lasting for approximately two seconds per event.
2. Changes to the local environment when blasting occurs. Drs McKenzie and Heilig are unclear what is meant by this question…
3. (a) Perceptibility of changes to environment caused by blasting.
Drs McKenzie and Heilig agree that the issue of perceptibility lies outside the brief of the Blasting Impact Study which was focussed on the ability to comply with statutory regulations rather than to attempt to address the nebulas and highly subjective value of personal perception. The experts agree that the statement in section 2.2 of the Blast Impact Statement ‘experience also shows that some people will find any level of perceptible vibration to be bothersome and unacceptable.’
(b) Ability to comply with regulatory limits when blasting.
As stated in the joint expert’s report, Drs McKenzie and Heilig agree that the blasting operations at the proposed quarry will be able to comply with Ecoaccess Guidelines at all times and at all locations within the proposed blasting areas, and that the methodology used in section 7 of the Blasting Impact Statement to arrive at that conclusion is the most appropriate methodology to apply.
4. The nature of the impact in terms of amenity of residential areas.
Drs McKenzie and Heilig agree with the statements in section 2.2 of the Blasting Impact Statement dealing with this topic and further agree as per the Joint Expert’s Report, that the matter of personal amenity is highly variable subjective and outside the scope of the EIS.”
Under the heading areas of disagreement, the doctors concluded:
“There were no areas of disagreement between Drs McKenzie and Heilig in relation to the issues raised by the town planners and listed above.”
Adverse impacts on amenity associated with quarry blasting were also raised in the oral testimony of both witnesses, including the intermittent blasting during the establishment, development, construction and quarrying phases already referred to above. The totality of the evidence concerning blasting leads me to conclude as follows:
1. Adverse impacts on amenity from fly rock are highly unlikely.[70]
2. With appropriate conditions imposed and with appropriate quarry management practices in place, all relevant regulations, policies and guidelines will be met.[71]
3. Notwithstanding that all relevant guidelines and policies would be met, the amenity of some residents living near the quarry would be negatively affected as a consequence of vibration and over pressure/noise caused by blasting.
[70]Exhibit 6 V6, pp 3261-3262; Exhibit 17, p 3.
[71]E.g. s 440ZB of the Environmental Protection Act 1994 (“EPA”); Reg 61 of E.P. Regulations: Ecoaccess Guidelines, Exhibit 68: Refer also to evidence of Dr Heilig at T6-60, T6-61, ll 1-25.
As to the first of these matters, I accept Dr Heilig’s evidence that some close by residents might find the vibration caused by blasting to be “bothersome and unacceptable.”[72] However, this impact on amenity has to be considered in context. It will only be likely to affect a relatively small number of residents with controlled blasting[73] and only for very short periods of time,[74] once a week for the life of the quarry when quarrying operations commence. There was no suggestion that the level of vibration would be likely to have a negative impact on health or property. As I understand the evidence, vibration will not be an issue during the establishment and development phases because of the low level of charge that would be used.
[72]T6-63 ll 29-30.
[73]Exhibit 65, P 7 “conclusions: Exhibit 46, Plates A & B: T6-19, ll 22-40.
[74]T6-15, ll 17-27: T6-17, ll 10-46.
Turning to the issue of noise, Dr Heilig reported:[75]
“Conventionally, in blast impact assessment, the audible noise level from the blast may be considered as less significant than the vibration impacts. Nevertheless, at the closest properties, noise from blasts at the proposed Boral quarry is unlikely to have reduced to an inaudible level. Residents are therefore expected to hear the blast.”
[75]Exhibit 46, ll 1-3.
Noise was also a matter addressed by engineers relied on by the parties. Mr Brown for the appellant and Mr King for the respondent. Both of these witnesses, in addition to addressing noise associated with the quarry per se also addressed the issue of traffic noise along the haulage route section of Old Coach Road.
In their first substantive JER, Mr King and Mr Brown reported that there were no areas of disagreement between them[76] and that with appropriate conditions, measures and policies put in place “the proposed quarry is predicted to comply with the noise limits as applied by Mr Brown…”[77] That prediction included the noise associated with the use of Old Coach Road. Mr King however, went on to report:[78]
“Mr King considers that an appropriate Noise Management Plan for future site operations needs to be prepared at the time of detail design and prior to commencement of site operations including establishment and construction works. The Noise Management Plan should provide detailed guidance to the operators on noise mitigation requirements for all considerations and should be updated regularly throughout the life of operations to ensure appropriate direction is provided in complying with appropriate noise limits. Mr King considers that summaries of the Construction Noise Management Plan and Environmental Noise Management Plan in appendix L of Mr Brown’s report number 08-033-EIS, ROI provide a suitable basis for the preparation of the Noise Management Plan. Mr King recommends that the Noise Management Plan include the requirement for compliance with noise monitoring at regular intervals to inform the operators as to the effectiveness of noise control measures and to assist in managing noise from site operations. Given the requirements for adaptable noise control measures during the various quarry phases, Mr King considers that regular noise monitoring is warranted rather than more contemporary noise monitoring required on the basis of complaints. The Noise Management Plan should include a schedule of methodology for regular noise monitoring of quarry operations.”
[76]Exhibit 15, p 20.
[77]At p 19, paras 22-26.
[78]At p 20.
Mr Brown, on behalf of the appellant, agreed to a noise management plan of the type advocated for by Mr King. Following an “Information Request” from the town planners asking for details of the existing amenity and how that amenity may be negatively impacted during the various phases of the quarry development and operation, including haulage traffic noise,[79] Mr King and Mr Brown responded:[80]
“The noise experts are of the view that the level of noise from the establishment phases and operational phases of the quarry can be controlled so that compliance with the acoustic quality objective of Schedule 1 of the background creep criteria of clause 10 of Environmental Protection (Noise) Policy 2008 will be achieved. In these circumstances, the acoustical amenity of the community will be adequately protected.
Finally, the noise experts wish to note that consideration based solely on the audibility or perceptibility of environmental noise is not the appropriate test when determining the acceptability or otherwise of environmental noise emission. Rather, due regard has to be given to regulatory noise standards, i.e. numerical criteria.”
[79]At p 30.
[80]At p 32, paras 10 and 11.
In respect of three specific questions posed by the town planners, Mr King and Brown reported further:[81]
[81]At pp 33-34.
“Q: In the expert’s respective expertise, will the change to the amenity/environment comply with the acceptable regulatory limits in the event the proposed extractive industry is approved?
A: Yes.
Mr King agrees that on the basis of the reporting prepared by Mr Brown for the Development Application and the Joint Expert Noise Report (July 2016) compliance is predicted to be achieved with regulatory limits on the basis of implementation and continued use of specific noise mitigation measures.
Q:In the expert’s respective opinion, what is the nature of the impact on the amenity of nearby residential areas?
A:Mr Brown, none. Because the level of noise from the operation of the quarry can be controlled so that compliance with the relevant noise limits can be achieved at all times…
Mr King states that there will be a noticeable change in the acoustic environment at surrounding areas, at times, as when perceptible but within compliance limits noise from the quarry activities can vary over time including high impact, high level, short duration noise events which (sic) will can (sic) be out of character with the existing acoustic environment. Residents along Old Coach Road will experience noise from quarry road haulage trucks which will be audible at times and due to the increase in frequency of heavy vehicle traffic, a noticeable change in noise character of heavy vehicles will result at times.
Mr King further identifies that the noise experts agreed in the Joint Report (July 2016) that the proposed quarry is predicted to comply with the noise limits as adopted. On the basis that the level of noise from the operation of the quarry can be controlled so that it is in compliance with the relevant noise level limits can be achieved at all times, adverse acoustic amenity impact shall not result at nearby residential areas.” (Emphasis added).
In circumstances where there is no basis for concluding that the appellant will not comply with all regulatory requirements and adopt an appropriate noise management plan, there could be no basis for refusing the application on the basis of noise per se. That however, in my view, is not the end of the matter, because, notwithstanding that all appropriate regulatory requirements will be met, any adverse impacts associated with noise have to be considered in the light of all the negative impacts on amenity that might flow from the development and operation of the quarry. This is not a case that can be resolved by looking at each issue in isolation and where compliance on a “one-by-one” basis is met, concluding that there would be no reason to warrant refusal.
In this context, in re-examination, Mr King was asked the following questions by Mr Fynes-Clinton, junior counsel for the respondent: [82]
“Q: Mr King, you were just asked in the last couple of questions, dealing with Old Coach Road, about the change in noise levels, and you gave some evidence about the change in character. Can you – are you able to put some descriptive flesh on the difference in character between the quarry traffic and the existing traffic?
A:Certainly. So in respect of the residences along the southern part of Old Coach Road, prior to reaching the quarry land, Your Honour, which are more removed from the Pacific Motorway, current daily traffic flows on Old Coach Road have a heavy vehicle percentage of about- if I remember rightly, 1.7, 1.8 per cent. With the quarry operating, the heaving vehicle percentage will increase significantly, up to potentially 40 truck movements per hour depending upon the traffic engineer’s advice. The noise of a truck or a laden truck going past is certainly quite different to a typical motor vehicle. The increase in the number of trucks is compared to less than 2 per cent of the daily traffic, will change what people perceive if they were outdoors necessarily, and aware of the traffic on the road. So more trucks, more noise of a different character, or a more – an increase in the frequency of occurrences to what occurs now. That would be the perceived change if people are outdoors and aware of what’s going on, on the road.” (Emphasis added).
[82]T4-8, ll 1-18.
The discussion concerning air quality is similar to that concerning noise. That is, after identifying the air quality concerns raised by the respondent,[83] Mr Welchman for the appellant and Mr King for the respondent, reported:[84]
[83]Exhibit 16, p 5.
[84]At pp 19 and 20.
“The experts agree that the Coordinator-General’s Stated Conditions (if followed) are adequate to ensure that adverse impacts on air quality will not occur.
The experts agree that EHP’s EA Conditions (if followed) are adequate to ensure that adverse impacts on air quality will not occur.
No additional conditions are necessary.
Overall comments
The experts are satisfied that the proposed development adequately addresses potential impacts on air quality. The experts agree that if the Gold Coast Quarry is conducted in accordance with the commitments made by the appellant in the EIS and in accordance with the Imposed Conditions issued by the Coordinator-General and the EA Conditions issued by EHP, the development will manage and mitigate unacceptable levels of air quality (especially dust) in surrounding residential areas in accordance with the Performance Criteria PC 19 and PC 20 of the Emerging Communities Domain Code.
The experts agree that the proposed development provides acceptable buffer separation differences from adjacent residential areas, such that amenity of those areas will be protected. This conclusion is on the basis of the proposed quarry design and air quality control measures.
Areas of disagreement
There are no areas of disagreement.”
In response to a number of specific questions raised by the town planners in respect of impacts on amenity,[85] Mr Welchman and Mr King, under the heading “Areas of Agreement” reported:[86]
[85]At p 25, para 3.1.
[86]At paras 4.25, 4.28, 4.30, 4.32 and 4.34 (pp 29-30).
“The perceptibility of the change in the level of an air pollutant is not a metric that is conventionally used to determine the appropriateness or otherwise of a development. The appropriateness is determined by whether compliance with the air quality objectors can be achieved…
...even if the increase is perceptible, the air quality experts agree that it will not be possible for an individual to differentiate deposited dust that may be generated from the development from that which may be generated by other activities in the region…
Visibility of dust is not a metric that is conventionally used to determine the appropriateness or otherwise of a development. The experts agree that there is no way to quantify the visibility of dust within a dispersion modelling assessment. The air quality experts agree that the development is unlikely to cause dust that is visible within and close to residential properties. The air quality experts agree that it is possible that from certain vantage points looking towards the development and under certain light conditions, dust may be visible in the vicinity of quarrying activities. The experts agree that such occurrences would have no consequences from an air quality perspective…
…the air quality experts agree that the Gold Coast quarry can be operated in a manner that minimises dust emissions and does not cause an adverse impact on air quality at sensitive receptors on the basis that predicted dust levels comply with statutory air quality standards…
The air quality experts agree that the development can be managed and operated so as not to adversely impact amenity. The air quality experts agree that the development is likely to increase dust levels at times.
Areas of disagreement
There are no areas of disagreement.”
There is again no reason that would suggest that the appellant would not comply with all conditions imposed by relevant authorities. However, as stated in respect of “noise”, compliance with “statutory air quality standards” is not necessarily the end of the matter. The entirety of the evidence concerning air quality has to be considered in assessing the potential negative impacts on amenity. The evidence of Mr King was[87] that the amenity of the community both in respect of noise and air quality would be, with the imposition of appropriate conditions, adequately protected at all times.
[87]T4-3, ll 36-47 to T4-4, ll 1-7.
Unlike the situation concerning the potential impact of noise on urban amenity, Mr King had no such reservations in respect of air quality.[88]
[88]T4-4, ll 1-7.
Unlike air quality however, the issue of noise needs some further consideration when addressing the evidence of the town planners. The proposed noise barrier (120m long and 6m high) adjacent to part of the Observatory Estate to the west[89] will be addressed below when dealing with the “visual impact” aspects of the case.
[89]Exhibit 16, p 26.
Before dealing with the issue of traffic, it is necessary to deal with the potential for dust to be a nuisance to some residents within “sensitive areas”. That is, depending on location and the weather, particularly wind direction, the amount of dust that might be deposited on some residences might be measurable. In this context though, I accept the evidence of Mr Welchman to the effect that dust as any form of nuisance would be limited to those residents “very close to the quarry.”[90] From time to time though, dust from the quarry would be noticeable to a broader section of the close by residents: as Mr Litster put it, as a reminder that they lived near a quarry that was not there before.
[90]T3-98, L 45 – T3-99, ll 1-17.
Traffic
The disputed traffic issues (other than noise) were initially identified in various documents,[91] but were “summarised” by the traffic engineers, Mr McClurg for the appellant and Mr Beard for the respondent, in their first JER:[92]
[91]E.g. Exhibit 9, pp 38 – 39.
[92]Exhibit 23, pp 6-7.
(i) The site access arrangement, in respect of traffic safety and operations on Old Coach Road, particularly including any limitation on the usage of Old Coach Road to that part of the route north of the site access but quarry haul vehicles;
(ii) Changes to the site access arrangement, if and when the Bermuda Street Extension is constructed;
(iii) The ability to upgrade Old Coach Road, within the existing road reservation, between the site and Kingsmore Boulevard to ensure satisfactory traffic safety and traffic operations;
(iv) Upgrading the intersection of Old Coach Road at Kingsmore Boulevard and that the system of roads, intersections and ramps which make up the Reedy Creek Road Interchange… with the Pacific Motorway to offset any adverse impacts of development generated traffic on traffic safety and traffic operations within this traffic system;
(v) Responsibility for the cost of the required site access works;
(vi) Responsibility for the cost of the required Old Coach Roadwork upgrading works;
(vii) Responsibility for the cost of any required intersection upgrading works within the subject site and the system of roads, intersections and ramps which make up the Reedy Creek Interchange… with the Pacific Motorway;
(viii) The ability to define reasonable and relevant conditions required to ameliorate any adverse impacts of the development generated traffic and offset any adverse impacts on traffic safety and traffic operations, particularly recognising that the future Bermuda Street Extension might reasonably necessitate significant and extensive, changes to already completed works.
Road design and cost issues were also identified by the traffic engineers. These matters will be addressed below when dealing with the evidence of the civil engineers, Mr Gould for the appellant and Mr McAnany for the respondent.
In their fifth JER, the traffic engineers narrowed down their issues in dispute. Mr McClurg and Mr Beard agreed that the issues identified in subparagraphs (i), (ii), (v), (vii) and (viii) would probably be able to be addressed by the imposition of appropriate conditions of approval.[93] As to the financial burden of the cost of upgrading Old Coach Road to an appropriate physical or structural standard to act as a haulage road,[94] it is now accepted that Boral would bear those costs.[95]
[93]Exhibit 23, pp 46-50; also Exhibit 45, pp 9-11.
[94]Traffic issue (vi), at para 82.
[95]T8-64 –T8-66, ll 1-27.
Turning then to the remaining issues in dispute. While I have a considerable amount of sympathy for the approach advocated for by Mr Beard, namely that quarry haulage truck traffic be directed via the proposed Bermuda Street Extension, it is not an option reasonably open on the evidence. Unfortunately, the state of the evidence is that, notwithstanding that the existing West Burleigh quarry will continue to operate for the next 6-10 years, there is no evidence to indicate that the intended Bermuda Street Intersection roadworks would be approved, let alone commenced or completed by that time.[96] Further, even accepting that some temporary arrangement could be put in place prior to the ultimate planned intersection (which is complex and will be enormously expensive), the extent and cost of those works would likely render any condition requiring such works to be completed by the appellant, to be manifestly unreasonable.
[96]T9-57, ll 10-47.
As to the remaining issues, Mr Beard took it upon himself to resolve his concerns about the speed of the northbound haulage traffic[97] by designing an “acceleration/auxiliary lane.”[98] Indeed it would not be unreasonable to say that Mr Beard played a significant role in solving a number of the traffic planning issues the proposed development might cause. Mr Beard made it quite clear that his strongly preferred option was the use of the future Bermuda Street Extension but, in the event that that option was not accepted by the court, while the proposed roadworks for Old Coach Road would result in an “undesirable but acceptable” outcome, traffic issues would, subject to the imposition of appropriate conditions, no longer be a reason for refusing the application. In this context, during the cross-examination, the following exchange took place between Mr Gore and Mr Beard:[99]
[97]Traffic issue (iii), at para 82.
[98]Exhibit 89: T9-60, ll 34-40.
[99]T9-60, ll 34-47, T9-61, ll 1-12.
“Mr Gore:To that area?
Mr Beard:It’s actually a 60 metre wide road reserve, Mr Gore, so, you know, it’s probably – I was satisfied that you could fit it in if you wanted to anyway.
Mr Gore:Yes, okay. And so, just so it’s clear, your evidence is that if a – an auxiliary lane, of the kind that you’ve shown in this figure, was part of the upgrade, then your concern about this speed issue for the northbound laden trucks related to safety issues would disappear?
Mr Beard:It would.
Mr Gore:And is it also your evidence that, with the disappearance of that issue, there is no ground for refusal if His Honour were minded to opt for the upgraded Old Coach Road as the means of access rather than delaying the Bermuda Street extension?
Mr Beard:It’s probably not quite as clear-cut as that, Mr Gore, in that, in my opinion, if His Honour formed the view that the Bermuda Street extension was going to happen at some reasonable time, there would still be very, very good engineering reasons to go for that alternative instead. But if you, for example, were considering this in the context that the Bermuda Street extension didn’t exist and would never exist, then, as far as I’m concerned, I’m sure the answer that you want to hear is that this would no longer be a reason to refuse the use of Old Coach Road.
Mr Gore:Yeah. So you would – you’ve pointed out that there are aspects that you think are undesirable but not unacceptable?
Mr Beard:Yes.
Mr Gore:To the extent that those aspects exist, absent any Bermuda Street extension, you would regard the entire – that entire proposal as acceptable?
Mr Beard:It – it wouldn’t – there’d no longer be any basis on which to refuse it, yes. It would be – it would have to be in the undesirable but acceptable category.”
While traffic issues might not of themselves be sufficient to warrant refusal, that again is not the end of the matter. The “undesirable” traffic outcomes referred to by Mr Beard are significant and need to be considered when deciding whether, when all relevant matters are taken into account, approval of the proposed development would be an acceptable or unacceptable community outcome.
In addition to the traffic noise issue identified above, there is also the potential for congestion at some intersections, particularly during the carrying out of the upgrading of Old Coach Road. Of particular significance in this regard is that Old Coach Road could be effectively closed for months resulting in significant re-routing of traffic[100] with adverse impacts on convenience and traffic congestion.
[100]See Exhibit 36, pp 8 and 10 per Mr McClurg and Exhibit 45, p 22 per Mr Beard.
In Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council[293] Robertson DCJ, in dealing with a quarry case, said:
“The question of whether a need is shown to exist is to be decided from the perspective of the community and not that of an appellant, or even objectors. A community consists of more than just particular members of it. The concept of planning need does not mean pressing or critical or urgent need or widespread desire or anything of that nature.”
[293][2014] QPELR 479 at [245].
In Yu Feng Pty Ltd v Brisbane City Council[294] the Court of Appeal, when concerned with a large shopping centre, said:
“[Overwhelming need] is not on its face prescriptive. It is more in the nature of a ‘motherhood’ statement and what will constitute an ‘overwhelming need’ will vary enormously. There would almost be an infinite variety of facts which could impact upon the decision whether or not there was an ‘overwhelming need’ for a proposal under consideration.”
[294](2007) 156 LGERA 399 at [26].
“Need”, in the town planning sense does not require a pressing critical or even a widespread need or desire. In Watts & Hughes Properties Pty Ltd v Brisbane City Council[295] it was observed:
“…need does not connote a pressing urgency but relates to the wellbeing of the community. A use would be needed if it would, on balance improve the services and facilities available in a locality”.
[295][1998] QPELR 273 at 275.
In Isgro v Gold Coast City Council[296] Wilson SC DCJ (as he then was) after citing with approval the above passage from Watts & Hughes Properties went on to say:
“Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community… there is a latent unsatisfied demand which is either not being met at all or is not being adequately met…”
[296][2003] QPELR 414 at paras [21] & [26].
While it can be readily accepted that there could be a wide range of levels of need that might warrant approval despite conflict, it is uncontroversial that the greater the conflict the higher the level of need that must be established to justify approval. In this case, the level of conflict is of a higher order.
Before going on to consider in more detail the evidence of the economists and the “quarry management” experts, I should deal with two preliminary matters raised by the appellant. The first of these matters is the criticism of the respondent’s use of unapproved potential resource deposits in attempting to rebut the need case. Particular reference was made to another quarry case decided by Robertson DCJ, Neilsens Quality Gravels Pty Ltd v Brisbane City Council.[297] In Neilsens, his Honour observed:[298]
[297][2016] QPELR 709: see also Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [2014] QPELR 479 at [268].
[298]At [211].
“I think Council’s submission to the effect that the designation of the site in KRA 60 by SPP02/07 ‘merely protects the land from encroachment by inappropriate development and preserves access to it’, understates the importance of this fact in the assessment process. It goes further in its terms, but does not ‘guarantee’ an approval which will be subject to impact assessment against the relevant planning scheme provisions.”
His Honour also observed:[299]
“In my view, nothing much turns on this because the reliance upon unapproved sites in relation to availability of like resources is at best speculative, and, in any event, Council’s economic need expert… accepted that there is a significant difference in considering need, between approved resources for extraction, and simply the presence of resources in the ground, and that if one wants to properly evaluate need, the relevant test is approved sites and not unapproved sites; including unapproved sites in a KRA. That approach is consistent with the approach I took in Parklands Blue; which was not criticised on appeal…”
[299]At [153].
I have no doubt that in the context of that case his Honour’s observations were correct. However I, with respect, do not take his Honour to be saying that in every instance reference to an unapproved KRA would invite impermissible speculation. Each case will turn on its own facts and, depending on the evidence, it may well be established that an existing KRA, even though unapproved for extraction at the time, is nonetheless a relevant consideration in determining whether or not another quarry in the vicinity is needed.
The second preliminary matter raised by the appellant was to the effect that the conduct of the respondent was inconsistent with that of a “model litigant” and involved a course of conduct that ought be discouraged. In this context it was submitted:[300]
“If the approach of seeking disclosure from commercial competitors to defeat a need case based upon matters including the ‘future plans’ of non-party competitors was to become the norm in this court (in either quarry cases or litigation more generally) it would result in a number of undesirable outcomes including putting parties to greater expense and increasing the length of trials.
Both outcomes would be contrary to Rule 4 of the Planning and Environment Court Rules 2010, which seeks to facilitate the just and expeditious resolution of the real issues in a proceeding at a minimum of expense by avoiding and, inter alia, undue delay and expense…”
[300]Appellant’s written submissions at paras 733-734.
Unwarranted disclosure and indeed unnecessary requests for further and better particulars etc. must be discouraged. It wastes time, money and valuable court time. That said, there will always be cases where disclosure, including non-party disclosure, is necessary to ensure justice is done between the parties. In my view, while I express no final view about it, whilst the non-party disclosure may have been more limited than it was, some was necessary not only for the “quarry management” experts but also for the economists. It is difficult to see how the respondent could have met any need case advanced by the appellant without some detailed knowledge about the availability of hard rock from other sources within reasonable proximity to the Gold Coast and, in particular, the Southern Gold Coast area. That some of the quarries and/or potential quarries might lie outside the respondent’s local government area is not really to the point.
Quarry management
Mr Gray was retained by the appellant and Mr Reed for the respondent. In the initial approval process, Mr Gray had been engaged by the respondent and had recommended approval of the development subject to conditions. Both Mr Gray and Mr Reed primarily focused upon providing insights and details concerning the capacities and capabilities of other hard rock quarries that might potentially fill any supply void that might be created in the event that the subject application did not proceed. That information was then utilised by the economists called by each of the parties to address the question of need.
For the reasons already given under the heading of “geology”, I am satisfied that the subject land contains high quality hard rock which could be efficiently won to meet demand well into the foreseeable future. It would also make a significant contribution to employment opportunities in the Southern Gold Coast area, particularly during the establishment and construction phases.
In addition to contributing to the JER process, Mr Gray and Mr Reed also prepared individual court reports. Mr Gray’s report is Exhibit 38 in redacted form and Exhibit CC in un-redacted form. Mr Reed’s individual court report is Exhibit 63 in redacted form and Exhibit CE in un-redacted form. The un-redacted exhibits contain sensitive commercial information not only of the appellant but also of commercial competitors. Mr Gray’s opinion about the proposal is neatly summarised in his court report:[301]
“I am of the opinion that the subject site (KRA 96) is a standout resource to provide continuity of supply (when West Burleigh quarry closes) of high quality greywacke quarry products into the Gold Coast and Northern New South Wales region because of its:
(a) source of rock quality;
[301]Exhibit 38 paras 69-71.
(b) size of recoverable resources; and
(c) favourable geographic location in Southern Gold Coast City close to Pacific Motorway in an urbanised region soon to be depleted of local hard rock alternatives.
To the best of my knowledge no other undeveloped available hard rock deposits in the central and Southern Gold Coast City regions or in the Tweed district are known to possess these attributes of fortuitous geology and geography.
From a supply site perspective, I am of the opinion that in the absence of locally available suitable alternatives, there exists a community need in Gold Coast City and the Far Northern NSW region, for the development of the Reedy Creek greywacke quarry.
It is submitted that evidence of the quarry management experts confirms the public interest and benefits that would occur through approval of the quarry project and does not provide any basis upon which to refuse the quarry project.”
Mr Gray’s evidence was not seriously shaken in cross-examination.
While clearly not as enthusiastic about the proposal as Mr Gray, the evidence of Mr Reed was to the effect that he could see some benefit in the project proceeding at least insofar as it had the potential to provide good quality material. During his cross-examination by Mr Gore, the following exchange took place between myself and Mr Reed:[302]
[302]T25-11 ll 11-23.
“Q: So are you saying that this site fails to meet the commercial, technical or environmental criteria or fails to meet all three or does it meet all three but there’s another reason why it shouldn’t go ahead?
A:No. I don’t think it’s up to me to comment on whether or not it meets the environmental criteria.
Q:Alright. Well, let’s look at the commercial… and technical criteria.
A:Yes.
Q:Does it tick those boxes?
A:Yes.
Q:Yes it does?
A:Technically I think it’s – the rock is good. The – the – the modelling and the work that’s been done by groundwork on the – on the quarry planning etc. etc., is of a fairly high order. I do question the distance between the back high wall and I think it’s the Bardon Ridge Road houses. I thought that was incredibly close, but that aside, so I think it would be probably – I’d probably tick it on those boxes.”
That exchange continued:[303]
[303]T25-12 ll 5-46.
“Q: Look, remember the – and this goes back to the exchange that you and I had yesterday. Remember I was expressing some difficulty in understanding your relationship between supply and demand?
A:Yes.
Q:Does it come down to this: that you don’t dispute that when the West Burleigh quarry closes there will be a demand for hard rock in the south Gold Coast area?
A:No, there will be a demands – there will be a demand for hard rock in the south Gold Coast area, yes.
Q:Right. But your proposition as I understand it is that there’s no need for this quarry because the supply could come from those quarries predominantly located in the KRA67 area?
A:Your Honour, to a large extent it already does.
Q:Well, no---?
A:Yes.
Q:But is that right, that the quarry – if the quarry – the subject quarry doesn’t go ahead the supply of the southern Gold Coast market would be met by – I know you’ve mentioned some south of the border, but predominantly by those quarries KRA67, Holcim Boral, Yatala Boral, Ormeau, Fulton and the Hogan quarries?
A:Oxenford and Nerang, yes.
Q:Yes. So am I right so far?
A:Yes, your Honour. Yes, you are.
Q:Well, that brings me back then to the very first question that – the very – one of the very first answers you gave; in quarrying the two big ticket items are overburden and transport. Put overburden to one side?
A:Yes.
Q:There’s a 40 kilometre distance between KRA67 and West Burleigh?
A:Yes.
Q:So I’m struggling with that tension between that answer you gave very early in the piece and---?
A:No, I understand, your Honour, and that’s why I say through my report you’d need quantitative analysis. It’s for this reason: 60 per cent or more of – let’s start again. Less than 35 per cent of West Burleigh’s current sales go into the south and central Gold Coast, right. So that means that the other 55 per cent is transported predominantly to concrete plants further away. So that transport advantage obviously doesn’t attach to those tonnes. If you look at the 35 or 31 to 35, depending whether you take five year or seven year average, 31 to 35 per cent that’s sold into the south and central Gold Coast, greater than 60 per cent of that is then reloaded. It’s either covered in bitumen that’s asphalt and reloaded or it goes through Gold Coast City Council and it’s transported elsewhere within the Gold Coast. So I say that only about 18 per cent maximum of what comes out of West Burleigh has a transport advantage into the local area. Okay. Do want me to go through the---”
Following that exchange, Mr Gore continued:[304]
[304]T25-13 ll 9-29.
“Q: Mr Reed, you gave me the impression in some of those exchanges that it’s not your position that this application should be refused; you could see merit in it?
A:Uh-huh.
Q:You’re simply giving some evidence to assist his Honour to make that decision. Is that a fair summary of your position?
…
Q:Is that a fair summary of your position?
A:Could you just repeat it exactly then, please?
Q:It’s not your position… that this application should be refused. You recognise that that’s entirely a matter for his Honour?
A:That’s for the court, yes.
Q:And you can see merit from a technical perspective in the proposal?
A:Yes.
Q:You therefore simply give evidence about some supply and supply and demand issues for his Honour to take into account in deciding whether to approve or refuse?
A:That’s correct with the caveat that the supply issues are just as I mentioned from A to X on page 5 of my – of my report.”
The reference to the “caveats” concerning “supply issues” identified by Mr Reed are, when read objectively, not caveats at all. They really provide a summary of what Mr Reed considered to be the “major supply related issues.”[305] Under the heading “conclusions”, Mr Reed stated:[306]
[305]Exhibit 63 p 5.
[306]Exhibit 63 p 20.
“Areas of general agreement between myself and Mr Gray are summarised at Table 1 and can be further summarised as follows:
(i) There are currently 9 hard rock quarries operated by five major construction materials companies within GCC.
(ii) Between them these quarries have in excess of 635* million tonnes of approved resources with substantial, currently un-approved, additional hard rock resources under and/or adjacent to approved extraction footprints.
*Agreement subject to Mr Gray accepting resource figures presented in non-party disclosures – the figure agreed in JER1 was 533M +5%.
(iii) Of these nine quarries, six will remain as long term suppliers of quarry products after about 2025 when remaining services of hard rock will be exhausted at the West Burleigh, Yatala and Stonemaster quarries.
(iv) Existing GCC quarries have produced and sold between 5.6M and 10.4M (average 7.75M) tpa of processed hard rock products during the period 2000-2016.
(v) Approximately half of these sales (averaging say 3.86Mtpa) have been made and delivered to GCC markets with the balance exported to NNSW and [predominantly] into other areas of SSEQ, ie, outside of GCC.
(vi) NNSW currently has at least four (and DR says six) established quarries, with currently approved resources of about 30Mt, supplying into regional markets which consume 1.2M to 1.3M tpa. However Mr Gray and myself differ on quarry numbers and relevancy.
(vii) SSEQ (excluding GCC) currently has 8 established quarries (with approved resources of about 300Mt) producing and selling 3.8M to 8.3M tpa. DR adds that recent approval has been granted to five quarry operators to increase production by five to six million tpa. Once again, Mr Gray and myself disagree about relevancy.”
Following discussion involving the use of commercially sensitive material, Mr Reed reached the following conclusions:[307]
“Assuming Boral upgrade their Ormeau quarry to produce 2Mtpa (as per the 2012 development approval), there will be no specific GCC community need for the proposed Reedy Creek quarry. Existing/remaining GCC quarries will have ample production capacity to meet local and regional demand for product.
It is difficult to see the community need or financial justification for the 2Mtpa quarry proposed for the site.” (Emphasis added).
[307]Ibid p 22.
The fundamental difference between the evidence of Messrs Gray and Reed is that Mr Gray considers there is community need/benefit in the proposal proceeding and Mr Reed does not, on the basis that there is sufficient supply capacity in existing operating and/or potential quarry capacity.
The respondent’s position in this context was stated in the following terms:[308]
“The council’s position is that the City has extensive approved reserves of hard rock that are able to, and do, produce hard rock, substantially in excess of demand within the City. Having regard to the focus of the evidence (cf Exhibit 9 p 107), the Council’s position is that none of the City of Gold Coast and Southeast Queensland (as limited) and Northern New South Wales (as limited) are undersupplied with hard rock and to the extent that some demand for the hard rock might be established, it does not justify a hard rock quarry on (the subject land).
If the council’s position is correct, there cannot be a strong need for the project.
It follows that consideration should be directed to the productive capacity of the City’s approved reserves; whether they produce hard rock substantially in excess of demand within the City; and whether there is an undersupply within the City, Southeast Queensland (as limited) and Northern New South Wales (as limited).
…
The court can be comfortably satisfied that the City has extensive approved reserves of hard rock that are able to, and do, produce hard rock, substantially in excess of demand within the City and that none of the City of Gold Coast and Southeast Queensland (as limited) and Northern New South Wales (as limited) are undersupplied with hard rock.”
[308]Written submissions paras 526-528 and 555.
The reference to geographical areas being “as limited” is a description of the agreed supply or catchment area for the proposed quarry which extends into the north-eastern corner of New South Wales.[309]
[309]See Exhibit 26 at pp 12 and 13 and Exhibit 64 at pp 14, 22 and 23.
Finally, in respect of this evidence, while both Mr Gray and Mr Reed expressed opinions about both the supply of and demand for hard rock, they were clearly of the opinion that the issue of the level of need, in the sense of community/economic need, was a matter to be addressed by the economists, and that their evidence was more concerned with the “supply side” of the equation.[310]
[310]See e.g. Exhibit 25, p 12, para 11; p48, paras 150-151 per Mr Gray, and p 49, para 160 per Mr Reed.
The economic evidence
Mr Norling was retained by the appellant to address the issue of community/economic need and Mr Duane by the respondent. Apart from participating in the JER process, both Mr Norling and Mr Duane produced individual court reports. Mr Norling Exhibits 39 and CD and Mr Duane Exhibits 64 and CF. As was the case with the quarry management experts, the un-redacted exhibits contained commercially sensitive information.
The evidence of the lay witnesses, who gave evidence on behalf of the appellant, together with that of the economists, leaves me satisfied that there is a need for the proposal. In that sense, there is a “ground” in support of approval. It would maintain the competitive status quo and the efficient supply of high quality material from a location convenient to the southern end of the Gold Coast. However, as identified above, in the case of conflict with a planning scheme there must be “sufficient grounds to justify the decision despite the conflict.” The determination of this contest requires an abstract form of a cost benefit analysis, made all the more difficult because on one side of the scales is the economic benefit to the community and on the other, the less tangible benefits associated with maintaining biodiversity and amenity. In this context the relevant “community” is wider than the inhabitants of the Gold Coast local government area. For there to be sufficient grounds in this context, the enquiry need not be confined to only those positive aspects, flowing from a proposal, that occur within the subject local government area.
In his conclusions expressed in the JER process, Mr Norling stated that there was a “strong level of community, economic and planning need…” for the proposal. He then went on to say why. At the risk of repetition, they could be summarised as:[311]
[311]Exhibit 26 pp 49-50.
· It would provide an essential product to the community.
· Given the high volume low value nature of the product, location is particularly important given the sensitivity of transport costs.
· Any increase in transport costs would be likely passed onto end users which, in turn, would have negative cost ramifications to the wider community.
· It is but one of only two Gold Coast resources assessed as being of State significance.
· There is a diminishing supply of available hard rock resources to conveniently and economically service the Gold Coast at Tweed Shire.
· Approval of the development would allow the appellant to maintain its annual operating capacity and geographical presence which would be of a community benefit.
· Should the proposal not proceed, competition would reduce, introducing the risk of higher prices being passed on to an industry dominated by a smaller number of operators.
· Demand for extractive material in Southeast Queensland generally is projected to continue to increase and that is particularly so in the subject local government area.
· The proposal would benefit the local and regional economies, particularly by extending the life of an existing long-established business, supporting the continued employment of 24 full-time employees on site (and even more during the establishment and development phases).
As to the town planning evidence, while not sharing the same level of support for the proposal as Mr Schneider, it is clear that Mr Buckley also saw not only a community benefit in exploiting a non-renewable resource but the potential for a community dis-benefit arising in the event that the resource was rendered unrecoverable.[312] A clear example of how this could occur would be through ill-considered town planning decisions. The evidence of all the witnesses concerned with quarry management, economics and town planning considered it to be in the community interest not to have this SKRA effectively sterilised by inappropriate future planning.
[312]T32-50.
I accept the positive community outcomes identified by Mr Norling, as set out above, would be likely to occur. On this topic the case was made a particularly difficult one to decide because there were many aspects of Mr Duane’s evidence that were no less convincing. It is clear from a number of exchanges that occurred during his cross-examination that he saw a number of positive outcomes that might occur if the proposal went ahead. During his cross-examination, the following exchange took place:[313]
“Q:Mr Duane, although the exercise might be a difficult one to carry out, the thrust of your evidence is that there can be no doubt that it would be a positive outcome, in the sense that an approval of this application would involve a saving in transport costs?
A:Most likely for that central and southern sector, yes. At the high level. It just depends on what happens with the product that might have been redirected from Ormeau, but I am happy to concede for that central southern sector there would be transport advantages.
Q:Well, can we perhaps shorten things this way. From an economic perspective you cannot point to any negative aspect of an approval in (sic) this application. You can only point to positive aspects, and it’s the degree of the public benefit that we may have a debate about.
A:That would be right.”
[313]T26-61 L 35 – T26-62 L 15.
Mr Duane’s evidence was, like that of Messrs Norling, Schneider and Buckley, to the effect that it was an important planning outcome that, at the very least, this significant resource should be preserved to permit future exploitation.[314]
[314]E.g. T26-59 L 45 – T26-60 L 20.
In his court report Mr Duane stated:[315]
[315]Exhibit 64, p 3, paras 7.1-7.3.
“The key issue in dispute in relation to the subject quarry is best described as follows:
(a) Gold Coast quarries have capacity to produce and supply around 10 million tonnes of hard rock quarrying product annually;
(b) the Gold Coast market is projected to demand approximately 4.3 million tonnes of hard rock material currently, growing to 6 million tonnes over the period to 2031; and
(c) there are enough quarries on the Gold Coast to service the Gold Coast market over time and still allow 4 million tonnes to be directed elsewhere.
There is no need for the subject quarry to service the hard rock demands of the Gold Coast on this basis.
The question then becomes, is further hard rock quarrying material produced on the Gold Coast required to service areas outside the Gold Coast on an ongoing basis…”
In the appellant’s written submissions it was contended that Mr Duane’s analysis was flawed because he limited “the question to the need for the quarry to service the hard rock demands of the Gold Coast.” It was said that this was a careful choice of language.[316] To an extent, Mr Duane seemed to concede that he had so limited his analysis.[317] Had he done so it would have been a mistake. The subject resource is a state key resource intended for the benefit of all Queensland, but at a more practical level for Southeast Queensland. However, on balance it seems tolerably clear to me that when viewed in context, Mr Duane, like Mr Norling, considered the question of supply and demand beyond the local government boundaries of the respondent.[318]
[316]Appellant’s written submissions at para 789.
[317]E.g. T26-57 ll 15-40.
[318]T26-59 ll 4-42.
During the JER process, agreement was reached in respect of a number of matters including:[319]
[319]Exhibit 39, pp 5-6.
· The appellant is a highly vertically integrated corporation with extensive presence in Southeast Queensland and on the Gold Coast where it operates three quarries, an asphalt plant and five premix concrete batching plants.
· The appellant’s Northern Gold Coast quarries (Yatala and Ormeau) primarily service the greater Brisbane area (88%), with its West Burleigh quarry primarily servicing the Gold Coast market (76%) Northern NSW (18%) and greater Brisbane (6%).
· The Gold Coast City is the dominant producer of quarry material in Southeast Queensland generating almost 40% of total production. Its annual production has recently ranged from 7.4Mt to 12.1Mt.
· Approximately 55% of the Gold Coast City’s production of quarry material is exported to other regions, mainly Brisbane and Logan resulting in production exceeding demand by a factor of about two.
· There are 9 operating quarries within the respondent’s local government area, having a collective resource capacity of about 530Mt and an annual production range of 7-10Mt. Three of these quarries are expected to cease operations within the next 10 years, reducing the annual production range to 5.4 - 7.5Mt. Two of the three quarries to close are operated by the appellant.
· Annual demand for quarry material on the Gold Coast is projected to increase from 5.1Mt currently to 7.0Mt in 2031.
· There has been a trend for hard rock quarries to generate an increase in proportion of quarry materials.
· If approved and operating, the proposal would achieve production levels of at least 1.0Mt per annum over its first 10 years of operation.
According to Mr Norling:[320]
“…approval of the proposed expansion would therefore provide savings to the community through the provision of a lower cost product and in avoiding the negative impacts that trucking of alternative product from further afield would have on the community. Extraction of the proposed Gold Coast Quarry resource would provide cost savings to the construction industry of about $270m, based upon the following assumptions:…”
[320]Exhibit 26, p 44, para 170.
For the reasons expressed by Mr Duane,[321] I consider Mr Norling’s evidence on this matter to be, with all due respect, something of a best guess but nonetheless a well-informed one dealing with a very complex issue. As Mr Norling himself effectively acknowledged, one could make any number of assumptions that might affect the final outcome but, according to him, the $270m estimate was “in the order of magnitude” that might be expected.[322] It emerged during cross-examination that bringing into account quarries in Northern New South Wales, which ought to be done, those cost savings might have had to be reduced by about 10% to 20%. However, after further consideration Mr Norling thought the adjustment would be less than 10%.[323]
[321]Ibid p 45 para 172.
[322]T26-7 ll 14-22.
[323]T26-45 ll 20-37.
According to Mr Duane the figure of $270m was speculative and would be an “absolute maximum.”[324] Given the number of variables involved including the competitive nature of the industry and the degree of vertical integration involved in the appellant’s corporate structure,[325] Mr Duane may well be correct. However, for the purpose of the exercise I will adopt Mr Norling’s figure adjusted by 10%. That is $243 million in current day dollar terms.[326]
[324]T26-53 ll 16-37.
[325]In the Gold Coast region the appellant’s quarries supply an asphalt plant, 5 concrete batching plants and a concrete batching plant at Chinderah, Northern New South Wales.
[326]T26-41 L 33.
As I understand the evidence, those savings would be spread over the life of the quarry. If 40 years, that would result in a saving of about $6m p.a. and if 60 years, then just under $4m p.a. It also needs to be borne in mind that any associated economic costs may not be permanent in the sense that those savings may be recovered, at least in part, in the event that the resource was quarried sometime in the future.
In any event, while these cost savings are a relevant consideration, they are in no way determinative.
Having regard to the totality of the evidence concerning existing and approved quarry capacity, it seems tolerably clear that there is more than sufficient capacity to meet any demand for hard rock within the respondent’s local government area into the foreseeable future, albeit with costs ramifications. I have reached this conclusion without bringing into account as yet unapproved resources.
The evidence also satisfies me that up until at or about 2031, there will be sufficient capacity to supply not only the Gold Coast City area but also the existing Southeast Queensland and Northern New South Wales markets. The operating quarries within the Gold Coast City area have a collective resource capacity of about 530Mt with an annual production range of between 7-10Mt. The lower end of that range currently exceeds the existing demand for hard rock in the Gold Coast City area (5.1Mt) and the upper end of that range materially exceeds the projected demand of 7.0Mt in 2031. It is true that between now and at or about 2026 three of those quarries will cease operations, reducing annual production to between 5.4 – 7.5Mt.[327] The lower end of that range falls below the projected 2031 demand and, at the upper end, is only marginally above the 2031 demand. However, this has to be seen in the context of Mr Reed’s evidence that when existing and approved extractive industry are looked at together, “between them these quarries have in excess of 635 million tonnes of approved resources…”[328] It is clear that provided sufficient resources exist quarry operators will ramp up output to match demand.
[327]See Exhibit 26 at para [88] and Table 10 at p 34.
[328]Exhibit 63, p 20, para 113(ii).
According to Mr Gray, Mr Reed’s assessment of 635Mt was “within the realms of reasonableness.”[329]
[329]T22-22, ll 35-46.
During the course of Mr Duane’s cross-examination, the following exchanges took place:[330]
[330]T26-67 ll 15-18.
“Q: It’s going to have a real benefit. It’s a significant resource that’s going to be there for a long time?
A:That resource would be there for a long time if it was approved, so yes, it would add to the supply in the market over a period of time. This is 2031, so yes, post-2031, if that’s what was – if nothing else was approved by that time, having another quarry approved at any level would have some benefit, yes.”
And then later:[331]
“Q:It’s a resource that should be protected: it’s vulnerable, being so close to the Gold Coast, as we know so?
A:I suppose the best way to summarise it, your Honour, is what I’m saying is, from a supply and demand assessment, there’s no need for this over the period we’ve looked at to 2031, 2040, 2050, there might be a need, a greater need, and it might be a more pressing need for this sort of resource. So from an economist’s point of view, would you protect that if it can be extracted in a manner which would be economic, yes you would.”
[331]T26-68 ll 8-19.
The quarry management and economic evidence has led me to conclude that it is more likely than not that the earliest that there might be a supply issue, and therefore a more pressing need for an additional hard rock quarry, would be at or about 2031, but more likely at or about 2040.
In this context, while Mr Norling identified a number of community benefits that would flow from the proposal if approved, and a number of negatives if it was not, at no stage did I understand him to be saying the proposed quarry was necessary to meet or remedy an undersupply situation.
The evidence of the “quarry management” experts and the economists leads me to reach the following conclusions:
(i) there is a need for the quarry in the sense that it would ensure a continuation of supply of good quality hard rock material in the Southern Gold Coast area;
(ii) in the event that the proposal did not proceed there is a realistic risk of competition reducing with consequential price increases, and there will be additional costs to the community of in the order of $240 million over the life of the quarry;
(iii) notwithstanding the above, approved resources located within the respondent’s local government area would be sufficient to meet demand within that area for decades and meet demand within the wider Southeast Queensland region and Northern New South Wales for at least another 15 years; and
(iv) it is in the interest of the broader Southeast Queensland community that this key resource be protected to ensure its availability for exploitation when appropriate.
Conclusions
The evidence presented during the course of this proceeding establishes three fundamental things. First, the subject land contains a significant volume of a resource of State significance. Second, there is a level of current need for the proposal to the extent identified above. Third, the proposal is in material conflict with important objects and outcomes of the respondent’s planning scheme, particularly in respect of the protection of the biodiversity value of the site and its surrounds, the green ridgeline backdrop and urban amenity.
I found this case to be quite a difficult one to decide but, on balance, I have come to the conclusion that I am not satisfied that there are sufficient grounds to justify approval. In that context I agree with the submission made by Mr Litster to the effect that, under the relevant planning regime, the balance currently favours refusal of the application. That said, there can be no doubt based on the evidence of all of the relevant experts that this significant resource should be protected for future exploitation when appropriate.
For the reasons given the appeal must be dismissed.
Orders
1. The appeal is dismissed.
2. If necessary, I will hear from the parties as to any consequential orders.
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