Bowyer Group Pty Ltd v Cook Shire Council
[2022] QPEC 33
•16 September 2022
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Bowyer Group Pty Ltd v Cook Shire Council & Ors [2022] QPEC 33
PARTIES:
BOWYER GROUP PTY LTD ACN 600 221 976
(appellant)
v
COOK SHIRE COUNCIL
(respondent)
and
KALAN ENTERPRISES ABORIGINAL CORPORATION ABN 62 076 988 535
(co-respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING
(co-respondent by election)
FILE NO:
10 of 2021
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Cairns
DELIVERED ON:
16 September 2022
DELIVERED AT:
Cairns
HEARING DATE:
9-18 May 2022; 25 July 2022.
JUDGE:
Morzone KC DCJ
ORDER:
1. Appeal allowed.
2. The development application is refused.
3. I will hear the parties as to any consequential orders.
CATCHWORDS:
PLANNING AND ENVIRONMENT – Appeal against approval of approval – support of council and chief executive department – whether a demonstrated economic, planning or community need for the proposed development – whether the proposed development result in unacceptable environmental and ecological impacts and, if so, can such impacts can be managed, including with reference to the precautionary principle – whether the proposed development gives effect to the Cape York Regional Plan – whether the proposed development complies with relevant assessment benchmarks – whether, in the event of any non-compliance with the assessment benchmarks, can any such non-compliance can and should be managed by the imposition of reasonable and relevant conditions – whether there relevant matters that favour approval despite any non-compliance with assessment benchmarks.
LEGISLATION:
Planning and Environment Court Act 2016, ss 5(1), 43, 45(5)(a), 45(5)(b), 45(6), s 45(7), 60(3)
Planning Regulation 2017, s 31.CASES:
Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003
All-A-Wah Carapark v Noosa Shire Council [1989] QPLR 155
Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16
Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46
Bell v Brisbane City Council [2018] 230 LGERA 374
Berry v Caboolture Shire Council [2002] QPELR 96
Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193
Caloundra City Council v Pelican Links Pty Ltd [2003] QPEC 52
Clermont Quarries Pty Ltd v Isaac Regional Council [2021] QPELR 65
Cox & Ors v Maroochy Shire Council & Ors [2006] QPELR 628
Cut Price Stores Retailers v Caboolture SC [1984] QPLR 126
Cuthbert v Moreton Bay Regional Council [2016] QPELR 179
Fabcot Pty Ltd v. Cairns Regional Council & Ors [2021] QPELR 40
Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208
Friend v Brisbane City Council [2014] QPELR 24
GFW Gelatine International Ltd v Beaudesert Shire Council [1993] QPLR 342
Harris v Scenic Rim Regional Council [2014] QPELR 324
Indooroopilly Golf Club v BCC [1982] QPLR 13
Intrafield v Redland Shire Council [2001] 116 LGERA 350
Isgro v Gold Coast City Council & Anor [2003] QPELR 414
Jadmont Pty Ltd v Council of the Shire of Miriam Vale [1998] QPELR 351.
Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21
JSFNQ 1 Pty Ltd v Townsville City Council [2021] QPEC 28
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
KPRA v Brisbane City Council (2014) QPEC 64
Lipoma Pty Ltd & Anor v Redland City Council & Anor (2020) QCA 180
Mackay Resource Developments Pty Ltd v Mackay Regional Council [2013] QPEC 57
Mackay Shopping Centre Pty Ltd v Mackay Regional Council (2013) QPELR 661
McBain v Clifton Shire Council [1996] 2 Qd R 493
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Murphy v Moreton Bay Regional Council & Anor [2020] QPEC 10
Navara Back Right Wheel Pty Ltd v. Logan City Council Wilhelm v. Logan City Council [2020] QPELR 899
R v BCC ex parte Read (1986) 2 Qd R 22
Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPEC 26
Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD 58
Scott v Wollongong City Council (1992) 75 LGRA 112
Scurr v Brisbane City Council (1973) 133 CLR 242
TMP Holdings Pty Ltd v Caloundra City Council [2002] QPELR 1
Town Planning v Sunshine Coast Regional Council [2021] QPEC 36
Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 4
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95
United Petroleum Pty Ltd v. Gold Coast City Council & Anor [2018] QPELR 510
Watts & Hughes Properties Pty Ltd v BCC (1998) QPLR 273
Westlink Pty Ltd v Lockyer Valley Regional Council [2013] QPEC 35
Wilhelm v Logan City Council & Ors [2020] QCA 273
Wingate Properties Pty Ltd v Brisbane City Council (2001) QPELR 272
Yamauchi v Jondaryan Shire Council & Ors [1990] QPLR 13COUNSEL:
R Traves KC with N Loos for the Appellant
M Batty with J Bowness for the Respondent
J Houston for the Co-Respondent
J Brien for the Co-Respondent by Election
SOLICITORS:
Miller Bou-Samra Lawyers for the Appellant
King & Company for the Respondent
Colin Biggers & Paisley for the Co-Respondent
Holding Redlich for the Co-Respondent by Election
Summary
The appellant submitter appeals the respondent council’s decision made on 12 February 2020 to approve the co-respondent applicant’s proposal to develop part of a granite outcrop known as ‘Twin Humps’ and surrounding land near Coen for a quarry, processing area and sediment pond, haul and access roads, caretakers’ accommodation and vegetation clearing.
The land is adjacent to the Peninsula Development Road about 25 kilometres from the town of Coen. The application was supported by the relevant referral agencies: the Department of Transport and Main Roads, in respect of access to the Peninsula Development Road; and the Department of Environment and Science, in respect of vegetation clearing.
The land is within the Rural Zone and the application is subject to assessment against the benchmarks of the Cook Shire Planning Scheme, and The Cape York Regional Plan. In the Rural Zone of the scheme, Extractive Industry is impact assessable and Caretaker’s Accommodation is code assessable.
The applicant maintains that the proposed development complies with relevant assessment benchmarks or, to the extent there is any non-compliance, the non-compliance would properly be characterised as minor and managed by conditions. It asserts that there is a strong community need for the proposal as a contributor to the physical wellbeing of the community, and that there is a strong planning need because of its location. It argues that the proposal will provide choice and competition in a market dominated by the appellant’s Archer River quarry. As to potential environmental impacts, the applicant asserts that they will be minimised and mitigated by the location and design, operationally controlled with an environmental management plan, and can be the subject of appropriate conditions. The applicant submits that approval of the proposal will advance the purpose of the Planning Act 2016 (Qld).
The council defends its decision and joins with the applicant in support of the development. The co-respondent by election department supports the decision, in respect of issues relating to ecology and the environment.
On the contrary, the appellant contends for refusal of the proposal in circumstances of little or no economic need and an unknown or unproven community need, and unknown but potentially significant ecological damage. It argues that the proposal is inconsistent with the assessment benchmarks, principally because the ecological investigations underpinning the proposal are so inadequate to know the true impacts, and therefore, what to manage. It also relies upon the dearth of evidence about the claimed monopolistic behaviour, the proposed quarry’s economic viability to effectively compete, and to deliver the claimed community benefit.
The critical questions for determination in the appeal are:
1. Is there any demonstrated economic, planning and/or community need for the proposed development?
2. Will the proposed development result in unacceptable environmental and ecological impacts and, if so, can such impacts be managed, including with reference to the precautionary principle?
3. Does the proposed development give effect to the Cape York Regional Plan?
4. Does the proposed development comply with relevant assessment benchmarks in the Planning Scheme?
5. In the event of any non-compliance with the assessment benchmarks, can and should any such non-compliance be managed by the imposition of reasonable and relevant conditions?
6. Are there other relevant matters that favour approval despite any non-compliance with assessment benchmarks?
I have considered the evidence and have been aided by a view, and assisted with very detailed written and oral submissions.
I have found a demonstrated economic need for the proposed quarry, which achieves compliance with the assessment benchmarks in this regard. It is not a particularly strong need since the quarry will struggle due to its location to robustly compete in the wider geographical market. Nevertheless, I am satisfied that its capacity to locally supply proximate road and infrastructure sites is real or substantive rather than trivial, immaterial, minor, or insignificant. A commensurate community need will be met by the proposed quarry in terms of choice, localised infrastructure and social benefits flowing from proximate quarry resources, indirect and direct employment, and business opportunities, although the magnitude of community benefits will depend upon the quarry being a successful operation, albeit not for profit or low profit. There is also a sufficient planning need for the proposal but not a strong one.
However, I am not satisfied of compliance with those benchmarks relating to the ecological impacts of the proposal. It seems to me that the necessary quarrying activities in the extraction area, including blasting and processing, will unavoidably remove or substantially modify essential habitat, and generate emissions of noise, dust and vibration impacting the surrounds beyond the immediate extraction area, including connectivity and continuity of water sources. There is insufficient foundational evidence about the assumed permanent resident population of the vulnerable Cape York Rock-wallaby colony on The Twin Humps; the population of individuals and their demographic, the parts of that landscape they utilise, why and when; the location of critical habitat resources, including shelter, forage and water; the seasonal changes and other natural impacts like fire and drought; the number, location or extent of proximate colonies; and the patterns of movement of individual rock-wallabies between different colonies. I am not satisfied that the evidence provides a sufficient factual foundation in support of the ecology opinion dealing with the nature, magnitude, duration and likelihood of potential adverse impacts of the proposed quarry, especially on the vulnerable Cape York Rock-wallaby and its habitat.
That non-compliance cannot, in my view, be managed by the imposition of reasonable and relevant conditions. In particular, the proposed condition regarding a habitat management plan impermissibly defers and delegates a decision of critical ecological impacts of the development, which could significantly alter the proposed quarry in a fundamental way, and so undermine the approval such that it could not be regarded as final. In addition, such a condition will circumvent a development assessment process, including proper public notification, and thereby block the rights of submitters.
I am not satisfied that the contended other relevant matters, most being a repetition of the matters relevant to the benchmarking assessment, are sufficient to outweigh or overcome the non-compliance with the assessment benchmarks in this case.
The proposal does not advance the purpose of the Act and an approval is not in the public interest.
For these reasons, I have decided to allow the appeal and refused the development application. I will receive further submissions on any consequential orders.
Proposed Quarry
The applicant applies for development permits for a material change of use for Extractive Industry and Caretaker’s Accommodation and Operational Work (“Vegetation Clearing”), on land situated on the Peninsula Development Road (“PDR”), near Coen, in central Cape York, described as Lot 7 on SP171860
The proposal includes:
(a)a quarry extraction area occupying 5 ha at the base and lower north-eastern flank of a granite knoll that forms part of a geological formation known as The Twin Humps;
(b)a processing area of about 0.76 ha and sediment pond occupying 0.82 ha. The processing area will contain the stockpiles of crushed rock material, offices, amenities and crib buildings, car parking and truck loading facilities, as well as a water detention basin;
(c)a haul road being 400 m long and 6 m wide and occupying 0.24 ha. This is a private roadway, approximately 0.4 kms long to link the extraction area to the processing area; and
(d)a graded gravel access road being 5,100m long and 7m wide and occupying 3.57 ha to link the processing area to the PDR.
Contoured aerial photography shows the overlay of the proposed quarry relative to the Twin Humps formation. I have been assisted with photographic and diagrammatic evidence of the quarry in relation to the immediate location, surrounding area, the Cook shire and broader Cape York area. I have also had the advantage of a site inspection to aid my understanding of the evidence.
Along the northern and eastern portions of the proposed extraction area the terrain is relatively flat.
The extraction area will occupy approximately 5 ha with extraction initially occurring partly into the lower northeast flank of the hill and partly below the ground at the base of the hill. The rock is to be won initially by the drilling and blasting of the higher ground immediately to the southwest, as the land rises into the plateaued granite knoll. Where practical, the extracted material will be loaded directly by excavator into a mobile modular crushing and screening plant, which will operate from a working platform on the flat terrain at the base of the granite outcrop.
The quarry management requirements include specific management of air quality, noise, blasting, and bund walls.
Three blast-related types of emissions will require particular management by drill and blast design and good practice blasting methods and procedures, being:
(a)ground borne vibration caused by the propagation of the residual energy from the blast through the surrounding strata;
(b)air blast overpressure, or ‘overpressure’ caused by the propagation of the residual energy of the blast through air; and
(c)flyrock, being the unexpected movement of rock around and beyond the immediate local blast zone.
The quarry is expected to typically operate between May and October each year. Blast frequency and size will vary depending on production requirements and ground conditions. It is expected that the proposal will see between one to about five each year, allowing for some smaller blasts in peak demand periods. Blasts will typically range from less than 1,000 tonnes up to 50,000 tonnes, with 30,000 tonne blasts likely more common when the quarry benches are established.
The pit will be a progressively stepped bench, spaced at vertical intervals of 10 metres, with the sloped pit walls of about 45 degrees and inter-related connecting ramps as shown in a conceptual diagram. I have a three-dimensional representation of the quarry pit at the end of the quarry’s life. The uppermost bench will be formed in the southwest of the quarry pit at RL 210AHD. The resource experts estimate the life of the quarry to be 30-50 years.
Rehabilitation is a requirement of both the applicable Environmental Authority 0000779 and Council’s Negotiated Decision Notice. Rehabilitation is the subject of expert consideration.
Land and Locality
The location for the proposal is Lot 7 on SP17180 and has an area of 17,880 hectares. It adjoins Oyala Thumotang National Park to the north and west, and Julla National Park to the east. It is divided by the Peninsula Development Road.
An access road runs off the PDR in a westerly direction for about 5.5 kilometres to a granite knoll known as the Twin Humps. Surrounding the granite knoll is a colluvial sandy plain. The extraction area is planned for the northern and eastern portions of the Twin Humps. The Twin Humps rises to about 90m above the surrounding plain to about 290 AHD. The land surrounding the Twin Humps is generally level and well vegetated with remnant open forest and woodland communities, described by the town planners as “typical of much of the local landscape with a variety of vegetation types within a comprehensive coverage”.[1]
[1]Exhibit 9.1, Town Planning JER, p.8, para [20].
The land does not have any built infrastructure apart from a number of gravel tracks throughout and several dams or watering points. It is covered by diverse remnant open forest and woodland communities that provide habitat for native wildlife. It allows for fauna movement across the land and vegetated connections to a wider landscape. It is currently used for cattle agistment and has never been used for extractive industry. It is crossed by Bourne Creek, which is located to the east of the Twin Humps formation, and three drainage features which flow into Bourne Creek.
There are no urban or sensitive land uses proximate to the proposed quarry. It is situated about two kilometres south of the Coen Airport and about 25 kilometres north of the township of Coen. It has the second largest population centre within the Cook Shire with modest population growth in recent years, increasing from 332 persons in 2011 to 340 in 2016 and 371 persons in 2020. About 80% of the residents are indigenous. The township has two service stations, each containing a small general store and one containing an Australia Post Office service; the Exchange Hotel; the Cape York Aboriginal Australian Academy (prep to year six); Coen Primary Health Care Centre; and a free camping area just outside the town along the Coen River.
Coen is 380 kilometres northwest of Cooktown and 252 kilometres southeast of Weipa via the PDR. The PDR is the main road transportation link within Cape York Peninsula. It connects the east coast to the town of Weipa as well as a number of remote indigenous communities.
Assessment and decision framework
The appeal is to be heard by way of hearing anew[2] and must be decided by the court standing in the shoes of the assessment manager.[3]
[2]Planning and Environment Court Act 2016, section 43.
[3]Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21 at [93].
The Planning Act 2016 and Planning and Environment Court Act 2018 apply to the appeal. As the development application required impact assessment, the decision of the court pursuant to s 62(3) must be based upon the assessment required by ss 45(5), (6) and (7) pursuant to s 59(3) and done in a way that advances the purpose of the Act.[4] Accordingly, the court:
[4]Planning Act 2016, s 5(1).
(a)must carry out the assessment of the development application:
(i)against the applicable assessment benchmarks in a categorising instrument in effect at the time the development application was properly made;[5] and
(ii)having regard to any matters prescribed by regulation to the extent the assessment manager considers those matters relevant to the development;[6] and
(b)may carry out the assessment of the development application against, or having regard to, any other relevant matter (other than personal circumstances, financial or otherwise);[7] and
(c)may give the weight the court considers appropriate to any amendments to the planning scheme (none are relevant here);[8] and
(d)decide to approve all or part of the application; or to approve all or part of the application but impose development conditions on the approval; or to refuse the application;[9] and
(e)when undertaking this task the court must perform its function in a way that advances the purpose of the Act.[10]
[5]Planning Act 2016, ss 45(5)(a) & 45(6) & Planning Regulation 2017, s 31.
[6]Planning Act 2016, ss 45(5)(a) & 45(6) & Planning Regulation 2017, s 31.
[7]Planning Act 2016, s 45(5)(b).
[8]Planning Act 2016, s 45(7).
[9]Planning Act 2016, s 60(3).
[10]Planning Act 2016, s 5(1).
It seems to me that the use of the phrases “carried out against” and “having regard to” is purposeful. The term “carried out against” connotes a comparative check analysis of the development against some recognised authoritative performance standard, guideline, or other document; whereas “having regard to” connotes regard being had to matters of fact and circumstance.
The expression “another relevant matter” or “relevant matter” is not defined in the Planning Act except as one “other than a person’s personal circumstances, financial or otherwise.”[11] A “relevant matter” ought carry its ordinary meaning to capture a matter that has a bearing upon, or is connected with the assessment of the application other than a person’s personal circumstances, financial or otherwise. An “other relevant matter” may include all relevant matters of positive and negative attributes of the proposed development, including any particular community benefits or detriments that might weigh in favour of or against an approval even where a proposal is or is not consistent with the community expectations.[12] And, the nature and extent of “other relevant matters” may overlap and blend with each other. The legislature have provided three examples for the purposes of s 45(5)(b) being:
(a)a planning need;
(b)the current relevance of the assessment benchmarks in the light of changed circumstances;
(c)whether assessment benchmarks or other prescribed matters were based on material errors.
[11]Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 at [80].
[12]Cf. Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95 at [180]. Contrast, Bell, at [73] & [74].
It is well settled, and relevant here, that regard may be had to the fact of council’s approval and persistence in this appeal as representing the views of the responsible planning authority as to the merits of the proposal.[13]
[13]Lipoma Pty Ltd & Anor v Redland City Council & Anor (2020) QCA 180 at [41]; see also Scurr v Brisbane City Council (1973) 133 CLR 242 at 257; R v Brisbane City Council ex parte Read (1986) 2 Qd R 22 at 28; Wingate Properties Pty Ltd v Brisbane City Council (2001) QPELR 272 at [22]; Mackay Shopping Centre Pty Ltd v Mackay Regional Council (2013) QPELR 661 at [44]; Friend vBrisbane CityCouncil [2014] QPELR 24 at [103]-[104]; KPRA v Brisbane City Council (2014) QPEC 64 at [100]-[104].
Williamson KC DCJ in Ashvan Investments Unit Trust v. Brisbane City Council & Ors,[14] well explained the regime under the Planning Act and found that non-compliance with an assessment benchmark no longer assumes primacy in the exercise of the planning discretion.[15] The pertinent reasons have been well traversed in subsequent cases and do not need repetition here. Subject to recognition that the Planning Act has not changed the characterisation of a planning scheme as the embodiment of the community interest, the Court of Appeal endorsed the more flexible approach in Ashvan.[16]
[14]Ashvan Investments Unit Trust v Brisbane City Council & Ors Ashvan [2019] QPEC 16. See also Murphy v Moreton Bay Regional Council & Anor [2020] QPEC 10; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 at [19] and [22].
[15]Ashvan Investments Unit Trust v Brisbane City Council & OrsAshvan [2019] QPEC 16 at [51], [53], [54], [57], [58], [60], [67]-[69].
[16]Abeleda & Anor v Brisbane City Council (2020) 6 QR 41 at [40], [42], [53]; Cf. Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95 at [180].
In Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors,[17] Brown J (with Philippides and Mullins JJA agreeing) said:
“[180] …The process adopted by a decision-maker may now be one which involves balancing a number of factors to which consideration was permitted under s 45(5) of the Planning Act in making a decision under s 60(3) of the Planning Act where the factors in favour of approval have to be balanced with the factors in favour of refusal of the application. The weight that is given to each factor is a matter for the decision‑maker.”
[17]Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95 at [180].
The following principles can be distilled from the seminal Court of Appeal decision of Abeleda v Brisbane City Council:[18]
[18]Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003.
(a)Section 60 of the Act eliminates the two-part assessment process that involved finding non-compliance and then considering whether there was sufficient grounds to justify an approval, despite the non-compliance.[19]
[19]Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [36].
(b)The change to the assessment and decision-making framework under the Act by eliminating the two-stage test has not altered the fundamental nature of a planning scheme as a reflection of the public interest in the appropriate development of land: Bell, K & K, andRedland City Council v King of Gifts (Qld) Pty Ltd [2020] QCA 41.[20]
[20]Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [37].
(c)The absolute terms which McMurdo JA expressed in [67] and [70] of Bell that it is in the public interest that the planning scheme is applied, unless the contrary is demonstrated, are no longer applicable to the exercise of the discretion by the decision-maker under s 60(3) of the Act, as the outcome of the development application is not necessarily determined by the degree of compliance against the assessment benchmarks and the decision-maker is permitted to have regard to other relevant matters, in addition to the mandatory assessment against the assessment benchmarks in the planning scheme. In most instances, where a planning scheme is not affected by changed circumstances of the type referred to in Bell at [68], the decision-maker would give significant weight to the public interest expressed in the planning scheme in undertaking the decision-making under s 60(3) of the Act.[21]
(d)The risk, identified by Sofronoff P (with whom Fraser JA and Flanagan J agreed) in the last sentence of paragraph [48] of K & K - that “the decision- maker will be doing no more than performing a general weighing of factors in order to determine whether, in the decision-maker’s own view, it would or it would not be better to permit a development on the site to go ahead” - should not be treated as anticipating the process of decision-making under s 60(3) of the Act.[22]
(e)The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the planning scheme benchmarks and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.[23]
(f)In view of the departure from the two-part test, it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved. The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the factors in favour of approval (or approval subject to development conditions) have to be balanced with the factors in favour of refusal of the application. The weight given to each of the factors is a matter for the decision-maker in the circumstances, particularly having regard to the purpose of the decision in the context of the Act and the obligation imposed on the decision-maker under s 5(1) of the Act to undertake the decision making in a way that advances the purpose of the Act.[24]
(g)The following statement of Sofronoff P in K & K at [67] does not apply to the decision-making under s 60(3) of the Act:
“It is, in general, against the public interest to approve a development that conflicts with the Planning Scheme. To justify such a development it must be demonstrated that the desired deviation from the Planning Scheme serves the public interest to an extent greater than the maintenance of the status quo.”[25]
(h)The court agreed with the observations of Williamson QC DCJ referred to at [51] of Ashvan to the legislature’s intention in enacting s 60(3) of the Act to dispense with the two part test under s 326(1)(b) of the SPA and observed that “means that non-compliance with assessment benchmarks, which include planning schemes, no longer has assumed primacy in the exercise of the planning discretion” and “the discretion conferred by s 60(3) of the [Act] admits of more flexibility for an assessment manager (or this Court on appeal) to approve an application in the face of non-compliance with a planning document in contrast to its statutory predecessor”.[26]
(i)And, subject to recognition that the Act has not changed the characterisation of a planning scheme as the embodiment of the community interest, the court also agreed with the observations of Williamson QC DCJ at [53]-[54] of Ashvan on the role of non-compliance with a planning scheme in the exercise of the planning discretion under s 60(3) of the Act.[27]
(j)In view of the discretion that is conferred under s 60(3) of the Act, which is not fettered other than by reference to the purpose of the Act and the constraints under s 45 imposed on an impact assessment, the observations by Williamson QC DCJ at [60] of Ashvan are apposite:
“The manner in which the balance between rigidity and flexibility is struck in any given case does not lend itself to a general statement of principle, or precise formulation. The planning discretion, and the inherent balancing exercise, is invariably complicated, and multi- faceted. It is a discretion that is to be exercised based on the assessment carried out under s 45 of the [Act]. It will turn on the facts and circumstances of each case, including the nature and extent of the non-compliances, if any, identified with an assessment benchmark.”[28]
[21]Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [40].
[22]Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [41] - [42].
[23]Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [42].
[24]Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [43].
[25]Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [45].
[26]Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003at [53].
[27]Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003at [54].
[28]Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003at [56].
The more flexible assessment regime promotes synthesis in the impact assessment whereby the decision maker, in advancing the Act’s purpose, “must” carry out the assessment against the planning scheme benchmarks as the embodiment of the community/public interest “having regard to” the matters prescribed by regulation, and it “may” also carry out the assessment against, or having regard to, any “other relevant matter”. Notably, the Court of Appeal in Abeleda[29] adhered to the principle, as unchanged by the Planning Act that the planning scheme remains the embodiment of the public interest albeit with less stricture than McMurdo JA expressed in [67] and [70] of Bell v Brisbane City Council.[30]
[29]Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [40]-[43].
[30]Abeleda & Anor v Brisbane City Council (2020) 6 QR 41 at [53]; Wilhelm v Logan City Council & Ors [2020] QCA 273 at [77]; Cf. Bell v Brisbane City Council [2018] 230 LGERA 374.
In this way the assessment proceeds upon the premise that it is in the public interest that the benchmarks in the planning instrument be applied in each relevant respect, but in doing so the decision maker may cumulatively consider any “other relevant matter”, which may or may not promote the community/public interest embodied in the instrument or demonstrate otherwise. The more important the benchmark, the more likely that non-compliance with it will be determinative[31] subject to the nature and weight of any other relevant matter.
[31] Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 4 at [26]; I.B. Town Planning v Sunshine Coast Regional Council [2021] QPEC 36 at [71]; see also JSFNQ 1 Pty Ltd v Townsville City Council [2021] QPEC 28 at [67].
By virtue of s 5(1) of the Act, the court is obliged to fulfill its function to assess and decide the application in a way that advances the purposes, which includes applying the precautionary principle. Section 5(2)(ii) makes it clear that “advancing the purpose of this Act” includes following ethical decision-making processes that, inter alia, “apply the precautionary principle, namely that the lack of full scientific certainty is not a reason for delaying taking a measure to prevent degradation of the environment if there are threats of serious or irreversible environmental damage”.
The precautionary principle calls for an assessment of the nature and extent of the consequential risks posed by of the various options and the ways and means those risks can be addressed or managed.[32] However, it does not call for a nervous approach or one which is intolerant of any risk under circumstances.[33]
[32]Cf. Cuthbert v Moreton Bay Regional Council [2016] QPELR 179 at [129]; Yamauchi v Jondaryan Shire Council & Ors [1990] QPLR 13 at 460 quoting Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270 at 282; Clermont Quarries Pty Ltd v Isaac Regional Council [2021] QPELR 65 at [12].
[33]Clermont Quarries Pty Ltd v Isaac Regional Council [2021] QPELR 65 at [12].
Is there any demonstrated economic, planning and/or community need for the proposed development?
Consideration of need is relevant for the assessment against the assessment benchmarks, including:
(a)in the Regional Plan – Regional Policy 1; and
(b)in the Planning Scheme – the Strategic Framework in Part 3, including the strategic intent s.3.2 – strategic context; key challenges and the future; the economic wellbeing (s.3.3) – policy context (4), (5), (6) & (7); strategic outcome s.3.3.1(5) to protect existing gravel pits and quarries and contemplates supporting the expansion or establishment of new quarries “where there is a demonstrated need and impacts can be managed”; and specific outcomes 3.3.1.1(4) & (5) to protect identified hard rock quarries and resourced of regional economic significance; the land use patterns (s.3.4) – policy context (2)(g); strategic outcome 3.4.1(1); Strong communities – strategic outcome s.3.7.1(4).
In this context, the applicant also nominates the Extractive Resources Overlay Code, including its purpose s.8.2.5.2(4) and performance outcome PO1 in s.8.2.5.3 and Table 8.5. Whilst perhaps trying to attribute some wider strategic policy intent, those provisions only apply to land on and immediately surrounding existing extractive resource operations. That is not the subject land or the subject proposal.
In any event, the applicant also relies upon need as a relevant matter to have regard to in the exercise of the planning discretion in favour of approval.
The seminal principles that inform and guide an assessment of need are conveniently summarised by Judge Wilson SC (as he then was) in Isgro v Gold Coast City Council,[34] and have been refined in subsequent cases,[35] as follows:
[34]Isgro v Gold Coast City Council [2003] QPELR 414 at [20]-[30].
[35]For example: Abeleda & Anor v. Brisbane City Council & Anor [2021] QPELR 1003 at [51]; Navara Back Right Wheel Pty Ltd v. Logan City Council; Wilhelm v. Logan City Council [2020] QPELR 899 at [297] & [330]; Fabcot Pty Ltd v. Cairns Regional Council & Ors [2021] QPELR 40 at [29] and undisturbed on appeal in Trinity Park Investments Pty Ltd v. Cairns Regional Council & Ors; Dexus Funds Management Limited v. Fabcot Pty Ltd & Ors [2021] QCA 95 at [22], [157] and [159]; McKay v Brisbane City Council [2021] QPEC 42 at [237]; and United Petroleum Pty Ltd v. Gold Coast City Council & Anor [2018] QPELR 510.
(a)need is a relative concept to be given greater or lesser weight depending on all of the circumstances to be taken into account;[36]
(b)need in planning does not mean pressing need, critical need, widespread desire or connote a pressing urgency, but relates to the well-being of the community;[37]
(c)for community need, a range of qualitative factors are involved such as convenience, accessibility, choice, range, depth, competition, price, service, shopper amenity, etc;[38] A use is needed if its provision, taking all things into account, will improve the physical well-being of the community,[39] or will on balance improve the services and facilities available in the locality;[40] or will improve the ease, comfort, convenience and efficient lifestyle of the community;[41]
(d)a need cannot be a contrived one, but based on the assumption that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met;[42] A need does not have to be particularly strong to be a ‘demonstrable need’, but rather real or substantive (rather than trivial, immaterial, minor, or insignificant) need which is capable of being shown or logically proved.[43]
(e)the question of need is decided from the perspective of the community and not that of an applicant, commercial competitor or those who make adverse submissions;[44]
(f)the impact of a proposed development on existing like businesses is a matter which is to be taken into account adversely to the proposed new facility unless, for example, the extent of competition will cause an overall adverse effect on the extent and adequacy of facilities available to the community;[45]
(g)the provision of competition and choice can be a matter which indicates a need.[46]
(h)a fundamental element of economic need is that the development, if approved, would be financially viable,[47] as distinct from privately profitable. Economic need involves a typically more quantitative assessment as to whether the extent of demand for the proposal is sufficient to support it at a sustainable level.[48]
(i)Planning Need refers to an assessment of the extent to which the proposed development can be accommodated by existing planning provisions. This necessarily involves an assessment of the existence of competitive approvals and the availability of suitably zoned and/or designated lands to accommodate the proposed development.[49]
[36]Intrafield v Redland Shire Council [2001] 116 LGERA 350 at [20].
[37]Watts & Hughes Properties Pty Ltd v Brisbane City Council (1998) QPLR 273 at 275.
[38]Fabcot Pty Ltd v. Cairns Regional Council & Ors [2021] QPELR 40 at [29].
[39]Cut Price Stores Retailers v Caboolture Shire Council [1984] QPLR 126 at [131].
[40]Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD 58 at [60].
[41]Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 at 213; Bunnings Building Supplies Pty Ltd v Redland Shire Council [2000] QPELR 193 at 198C.
[42]Indooroopilly Golf Club v Brisbane City Council [1982] QPELR 13 at 32-35.
[43]United Petroleum Pty Ltd v. Gold Coast City Council &Anor [2018] QPELR 510.
[44]Cf. Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 at [213]; TMP Holdings Pty Ltd v Caloundra City Council [2002] QPELR 1 at [9]; Isgro v Gold Coast City Council & Anor [2003] QPELR 414.
[45]Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, at 687.
[46] Intrafield v Redland Shire Council [2001] 116 LGERA 350.
[47]All-A-Wah Carapark v Noosa Shire Council [1989] QPLR 155, 158.
[48]Fabcot Pty Ltd v. Cairns Regional Council & Ors [2021] QPELR 40 at [29].
[49]Fabcot Pty Ltd v. Cairns Regional Council & Ors [2021] QPELR 40 at [29].
Economic need
The evidence concerned supply and demand of hard rock quarry material, suggested trends regarding gravel pit material, the PDR’s progressive construction and future maintenance, relative quarry location and transportation cost, suggested monopolisation and competition, choice and convenience.
There are four active quarries operating in Cape York, referred to as Archer River, Artemis, Butchers Hill (Lakeland) and Mt Amos. It is common ground that there are sufficient higher quality aggregates and road base materials available from those four existing and active hard rock quarries to well meet present and anticipated future demand without the proposal. Even so, I note there is material imported into the area from time to time.[50]
[50]Mr Gray, T3-10/7-11.
Extensive gravel pit resources exist on Cape York – numbering 347, they vastly outnumber hard rock quarries.
Gravel pits are vital for the maintenance and improvement of unsealed road infrastructure. Section 3.3(6) of the Planning Scheme identifies and describes four gravel pits of significance because of road safety and the economy of Cook Shire being:
(a)Bizant Pit – Located beside the Bizant airstrip in Lakefield National Park. This large gravel pit produces roadbase materials for roads frequently damaged during the wet season yet requiring constant upgrade due to increasing tourist numbers. These resources are very scarce and are critical for road safety and tourism.
(b)Battle Camp Road gravel pits – These gravel deposits are ideal grading for road base, and loam materials are a valuable binding agent used in roads locally and regionally across the Cooktown and Laura regions. It is therefore critical that these gravel pits and nearby resources close to Battle Camp Road are not sterilised by expansion of the Lakefield National Park. There are no known replacement resources in the region and their sterilisation would have significant impacts on road safety, tourism and economic development.
(c)Violet Vale Pit – this strategically located gravel pit is used for maintenance of state-controlled roads by the Department of Transport and Main Roads. This is a rare source of durable hard rock.
(d)Black Pinch Pit – this pit services local roads south of Cooktown and the townships of Helenvale, Rossville and communities further south including Wujal Wujal, Shiptons Flat and Daintree.
(e)Construction sand – access to clean, fine sand is important for the construction industry. Sand is currently extracted in small amounts from a variety of alluvial, riverine and estuarine environments. Access and extraction is often limited by land tenure issues and controlled via permits issued under the Water Act or administered under the Environment Protection Act. New opportunities to access construction sand and improve construction efficiency and viability will be supported.
In a consistent way, the resource quality experts, Mr Spencer and Mr Gray described the nature and utility of gravel pits like this:
(a)gravel pits work surface deposits of differentially weathered rock and indurated soils where available;
(b)they supply weathered rock and soil materials used in bulk, on a campaign basis for council road works, and have lower technical performance requirements and costs than hard rock quarries;
(c)in terms of material properties, hard rock quarries produce much stronger and more durable aggregates and road construction material than gravel pits which typically extract clayey and weathered rock materials to produce products such as embankment materials, road maintenance gravel and Type 4 DTMR road base materials; and
(d)conveniently located gravel pits close to an unsealed road maintenance project, for example, are much more cost-effective if their materials are fit for purpose, compared with procurement from hard rock quarries.
However, Mr Spencer and Mr Gray opined that for both accessibility/environmental and technical (formation/pavement design and serviceability) reasons and constraints, there is a trend of an increased reliance for some road pavement materials to be sourced from hard rock quarries, in preference to “weak” local gravel pit material. In that regard, they anticipate demand for hard rock quarry materials (in some product categories such as road base) will increase over time as gravel pits deplete and where replacement gravel sources are no longer available because of land constraints, land tenure changes, cultural factors, administrative burden in obtaining and maintaining lease agreements, and environmental conflicts. Mr Gray also pointed to the wider availability of hard rock quarry products and cost effectiveness.
Whilst Mr Spencer and Mr Gray opined that this trend was “somewhat evident” in the extractive material procurement data provided by the council, further interrogation of the data revealed temporal anomalies such that the mooted trend was not so evident in the Cook Shire. In their third joint expert report, the resource quality experts tabulated by source (excluding sand) in relation to the Cook Shire, shows increasing volumes of sales from gravel pit over the three financial years from 2019-2022. But they still maintained their thesis, albeit recognising that:[51]
“From our experience in assessing the engineering merits of gravel pit materials, it (is) not surprising that this trend exists: where HRQ materials are available and the purchasing cost is acceptable (eg funding becomes available to meet a higher engineering standard), Councils in our experience will substitute them for gravel pit materials, to improve their roads.”
[51]Exhibit 6.5, RQA JER 3 at para. [38].
The applicant submits that such a trend can be found in the Chart Data, where hard rock sales in the Cook Shire relative to sale from gravel pits increased progressively from 13% to 20% with a corresponding decrease in proportional sales from gravel pits from 87% of total sales to 80% of total sales.
It seems to me that the resource and quality experts did their best to extrapolate a trend from the available data. As Mr Gray said in cross-examination:[52]
“The thing is, within the database, within the disclosed information, there’s a lot more information than we summarised. We couldn’t summarise it all. So the – the attachment B2 is a summary, but if you go to the source documents within the database that was disclosed to all the experts, there’s evidence of gravel pits closing 25 down and hard rock quarry materials replacing them.”
[52]T3-19/22-26.
No one has quantified the suggested trend, and Mr Gray conceded that he was unable to do so. He accepted that availability, cost and funding were very significant qualifications on the thesis. Money was crucial – “in the absence of it, we’re stuck with gravel roads for – in perpetuity”. He acknowledged that demand for extracted materials is known to be highly cyclical being dependent on seasonality, weather events, specific road funding and government funding of other civil infrastructure. Similarly, Mr Spencer said that because demand for extractive material in the Cape is highly cyclical, dependent upon seasonality, weather events, specific road funding, and government funding of other infrastructure, it is very difficult to pick a trend in a short time span, such as three years, in respect of extraction of material from gravel pits.
I do not understand Mr Gray and Mr Spencer to be suggesting that gravel pits will be phased out in Cape York, but rather that the trend asserted is towards increased use of hard rock material for road construction, consistent with higher engineering standards. But when the need experts sought information concerning the council’s “historical, current and future policy regarding use of materials from borrow pits”, its response through its solicitors was:[53]
“We are advised that the respondent does not have any written forecasts for quarry products to be used annually for the next 5 years. Quarry product use is directly related to funding programs, weather events and maintenance requirements. These projects are typically identified, scheduled and allocated on an annual basis and completed within a 12 month period. Projects and their locations are unknown until funding programs are released by the relevant authorities or the impact of weather events and maintenance requirements are realised.”
[53]Exhibit 15.
It seems to me that whilst the mooted trend can be observed in other areas of Queensland as suggested by the resource experts, it is not supported by a factually credible basis for the Cook Shire local government area itself. It seems the trend is more in the nature of an ideal of higher engineering standards using extrapolated data from disparate experience, rather than persuasive opinion evidence founded on credible, factual and quantifiable data. I am not persuaded that the council has changed its purchasing preferences or sales such as to permit inferential finding of some trend away from gravel pits to hard rock quarries.
Quarry resources are mainly required for the PDR. The Planning Scheme describes:
“Its extreme seasonality, with cyclones and monsoon rains regularly affecting road access to parts of the Shire for up to five months of the year.”[54]
[54]Section 3.2 (Strategic Intent), Strategic Context (2)(h), Ex.3, at p.9.
Reliable access will necessitate the PDR’s progressive construction, sealing and ongoing maintenance and re-construction. The original Cape York Region Package and Stage Two have been significant contributors to demand for road construction materials since approximately mid-2014.[55] It is anticipated that the sealing of the PDR will be completed by about 2030.[56] The average rate of paving of the PDR represents 68% of the average total Cape York hard rock quarry production in the last three years. The experts differed slightly, in the order of about 15%, as to ongoing demand after completion of the PDR sealing - Mr Norling reported 265,000 tonnes yearly by 2041 compared to Mr Ganly’s reported 200,000 tonnes yearly. However, during his evidence, Mr Norling moderated his assessment of ongoing demand to as low as 150,000 tonnes per year if funds are not dedicated to the sealing of the many other unsealed roads on the Cape after 2030. Mr Ganly characterised his estimate as a “reasonable high-water mark”. Of course, other relatively significant roads are subject of funding under the existing packages. Demand in any event will continue to be subject of fluctuations and spikes as described by Mr Norling at paragraph 113 of the Need second joint expert report and Mr Ganly at paragraph 96 referencing Rio Tinto’s Amrun mine project. Fluctuations are also described by the resource quality experts in RQA second joint expert report.
[55]Need JER2, Ex.7.2, p.13, para 42.
[56]Ex.7.2, p.26, paras 113 and 116.
There is no dispute that the proposed quarry has suitable material for the PDR and other suitable projects. The testing and subsequent analysis during the joint reporting process confirmed the rock was hard, strong and durable and suitable as an aggregate and road-base material. But there is a tyranny of distance commensurate with delivery cost. Mr Gray said, “there’s got to be a quarry from there close enough to make it worth the while and there’s got to be the money available”.[57] He explained that constraints of cost and availability meant that there had to be a quarry within 50-100 km.
[57]T3-21/29-30.
Mr Ganly graphically identified the road paving status at different sections along the PDR. The unpaved sections are numerated. He tabled the distances from existing quarries, and the proposed quarry, from those numbered unsealed sections. While there are many intervals of unsealed sections along the PDR, by mid-2024, two sections covering 42km will be closer to the proposed quarry than other operating quarries, and one of them is almost as close to the Archer River quarry.
As to the other unsealed sections, Mr Ganly concludes that the cost of supply from the proposed quarry will be significantly higher than from the other more proximate quarries. He also opined that gravel pits currently supply about 80% of the hard rock requirements in Cape York. This is consistent with his view, which I accept, that gravel pit material is an economic substitute for the more distant hard rock quarry materials. This economical opinion is consistent with that of the resource and quality experts. Mr Gray explained how gravel pits located conveniently close to unsealed roads are much more cost effective if their materials are fit for purpose in an engineering sense, compared with material procured from hard rock quarries of higher strength and durability. According to Mr Spencer, material used from the side of the road without processing, just a strip, push and load out operation, could cost in the order of $5 per tonne. And likewise, Mr Gray opined that the cost may be between $5 and $6 per tonne for gravel pit material where crushing or screening was not necessary.
I agree with the appellant’s analysis that the evidence bears out the following, which I accept:
(a)A geographic location for a quarry closer to markets is highly advantageous given the choice of quarry location is frequently considerably constrained because of geology planning and land use constraints. Where a quarry has an advantage over competitors such geographic advantage provides it with a principal competitive advantage given the high relative cost of transport of aggregates by road (Spencer, Gray).
(b)Quarries tend to adopt gate pricing in a “barometric” way and set prices that closely reflect both: market conditions; and the competitive price for their products delivered to the customer (point of use); and the nature and form of pricing that occurs is that producer prices change, moving up and down with market conditions and following the competitive price, particularly when bidding for major contracts and tenders (such as State and local government infrastructure projects).[58] (Spencer, Gray)
(c)High-volume low-cost products are particularly sensitive to transportation costs and proximity is certainly a principal and major advantage from the perspective of the end user (Gray). And the linear market by virtue of the spine-like PRD presents additional problems for establishing quarries without the advantage of proximity (Gray).
(d)Mr Ganly identified that the “the biggest differentiation is how far you have to cart the material”.[59] According to his evidence, the distance and commensurate costs are by far the most significant factors in terms location and supply characteristics of quarries in the northern part of Cape York. He concluded that the distance penalty remains “severe” in the order of $30.
(e)In respect of the PDR north of Archer River and south of Artemis, Archer River and Artemis have significant locational advantage over the proposed Coen Quarry (Spencer).
(f)The average ex bin price of hard rock quarry material is in the order of $30 per tonne (Ganly).
(g)The cartage cost is about $30 per tonne per kilometre (Gray, Spencer). That results in a cost differential of $11 per tonne extra cartage northbound from the proposed quarry at the intersection of the PDR and Quarry Road compared to the Archer River quarry. The cartage when travelling south of the Artemis quarry would be $78 per tonne per kilometre being an extra $48 per tonne compared to the Artemis quarry.
[58]Ex.6.3, p.51, paras 152-153.
[59]Ganly, T4-77/38.
Apart from transport costs, there are also other market conditions at play that may impact a preferred quarries’ capacity to supply at the desired rate, including: coinciding orders; weather and road conditions, haulage truck availability and haulage production capabilities; and time constraints and construction deadlines imposed by funding bodies.[60]
[60]RQA JER2, para. 56(f), (g) & (h).
Even so, in the second need joint expert report, Mr Ganly opined that there was a low level of economic need. However, this was moderated in the course of his oral evidence. He said that there are no evident issues of supply during periods of peak demand and asserted that there was no economic need for the proposed quarry. In contrast, Mr Norling reported the economic need as moderate to strong. However, under cross-examination he could not point to any evidence in respect of inadequate supply from existing quarries at times of peak demand. He had no hard evidence of untimely supply or disaffection by end users in terms of the particular job, manner or time of supply.
The applicant argues that the proposed quarry will introduce choice and competition in an otherwise monopolised market in the northern part of the Cook Shire. The council also invites the court to determine there is a need on the basis of the additional choice, convenience and competition to a monopoly.
The applicant refers to the Macquarie Dictionary (2022 online) for the definitions: of monopoly as meaning “exclusive control of a commodity or service in a particular market, or a control that makes possible the manipulation of prices”; and of competition as meaning “the act of competing; rivalry … the rivalry between two or more business enterprises to secure the patronage of prospective buyers.” It points to the locations alone as evidencing that Archer River has a “position of market dominance, effectively a monopoly” in the northern part of the Cook Shire. It is argued that the proposed quarry would provide choice for customers (i.e. to choose between suppliers) and inevitably provide competition and avoid a monopoly (with the possibility of manipulation of prices) and the introduction of choice and competition is in the community interest.
The applicant also relies upon Mr Norling’s promotion for competition amidst his concern about the further entrenched monopoly of the appellant as a result of its recent approval for increased extraction, and a greater need for choice and competition in the market. Mr Norling identified ways in which monopolistic behaviour can negatively impact consumers in ways well beyond pricing. However, there is no evidence of such characteristic monopolistic behaviour, such as price gouging by the appellant; or by way of a lower range of products; or by reference to the quality of the product; or poor reliability or timing delays.
In my view, it is too simplistic to characterise a monopoly or lack of competition by reference to the appellant’s location. The appellant is competing in a hard rock and gravel materials market, which is geographically limited and defined by the PDR. But the appellant is not the only quarry in the market supplying Cape York, in which there is ample supply to meet demand. Even if the market was more narrowly confined to the “northern part of the Cook Shire”, the proposed quarry faces severe locational disadvantages in terms of distance and delivery costs, as discussed above. As Mr Ganly said about the proposition that the proposed quarry would significantly improve the level of competition:
“Well, that would only be the case if it was going to be a quarry which operated at a relatively high volume and that would only be the case if it would be a quarry that, in my opinion, could be competing within a marketplace that was big enough for it to make a successful entry and, in my opinion, given the cost impact of having to travel past other existing quarries in the vast majority of cases, that just simply isn’t going to result.”
I accept Mr Ganly’s evidence on the point. It seems to me that the proposed quarry will not be a viable competitor in any event with insurmountable delivery costs and relatively very low level of extraction. The extent of any local employment opportunities will also depend on its viability to sustain employment, and even if it could do so, it would likely result in a loss of some jobs or otherwise leach jobs from other quarries, including residents of Coen. Further, operational work could be confined to 7 months of the year, and employment will be reduced to caretaker and maintenance workers during the wet season. Mr Norling quantified the depletion as “zero to one” workers in the wet season.[61] Even Mr Norling’s evidence evolved over time from his initial opinion of a “moderate to strong level of economic need”[62] to describing it as “modest”[63] being “above low and less than moderate”[64], and acknowledging “… is relatively weak from the economic demand or economic need perspective…”.[65] The extent of, and prospect of, reduced demand for the proposed quarry is unlikely to support it at a commercially sustainable level to provide any realistic choice, convenience or competition in a broader market already with ample supply. The proposed quarry will struggle to compete in the wider geographical market where more proximate existing quarries are ready and able to provide a more economical supply.
[61]Norling, T4-12/30-32.
[62]Need JER 2, Ex. 7.2, page 27, paragraph 121.
[63]Transcript 3-55, line 25-27.
[64]Transcript 3-55, line 25-27.
[65]Transcript 3-55, lines 32-34.
Mr Giles was not contradicted or challenged in relation to these benchmarks.[92] I am satisfied that the proposal can be conditioned to comply with AO5.1. Erosion control, sediment basins, stormwater management devices have been addressed by Mr Giles. Containment suppression of dust and sand to prevent escape onto public roads or adjoining premises, has been addressed in the report of Mr Gray. There would be progressive rehabilitation of the extraction area and conditions that can be imposed to provide for rehabilitation within practical limits. I am satisfied of compliance with these benchmarks.
Whether any such non-compliance can and should be managed by the imposition of reasonable and relevant conditions?
[92]Exhibit 11.
This issue is particularly poignant in relation to non-compliance with the assessment benchmarks under the planning scheme flowing from my negative findings about management of the ecological impacts.
The applicant accepts the recommendations of the ecology experts for the preparation and approval of a Habitat Management Plan prior to the commencement of the use,[93] and relies upon the evidence of Mr Caneris and Mr Tucker in respect of the timing and the way it might be recorded as an overview of identified outcomes. The applicant also accepts the recommendation for preparation and implementation of a “Post Extractive Industry Cape York Rock-wallaby Habitat Restoration Plan”.[94] This is also consistent with Condition PSL 005(s) on EA 0000779,[95] the proposed Council Condition 20 requiring a rehabilitation plan and measures supported by Mr Gray.
[93]Ex.8.2, pp. 84-85, paras B1-17.
[94]Ex.8.2, p.85, para B18.
[95]Ex.1, Vol. 1, tab 10, p.338.
The council and department join with the applicant in this approach.
The proposed condition includes detail on the contents of the future Habitat Management Plan such that it can be accepted that the following positive ecological outcomes would occur from the proposal:
(a)a weed and pest species management plan; and
(b)a monitoring plan which would assist in gaining greater knowledge about the Twin Humps Cape York Rock-wallaby population and could assist in understanding the response of rock-wallabies to development generally.
The proposed conditions also require measures to manage the impacts arising from the proposed development, including by:
(a)a fauna spotter/catcher being present during vegetation removal and preparation works to check habitats and ensure appropriate treatment of animals;
(b)strict controls on operations including “no go” areas to restrict disturbance and access to those areas absolutely necessary for the construction and operation of the quarry in accordance with other conditions of approval;
(c)habitat restoration requirements;
(d)a monitoring program to assess the impact management performance indicators; and
(e)an annual review of the habitat management plan by an ecologist.
The appellant contends that such a course invites the court to surrender its role in deciding the application and leaves the ultimate question of whether the proposed development ought to happen, and in what form, up to the council. The appellant argues that the proposed condition offends against the finality principle because: the effect of leaving the investigation for later is that an approval that would be significantly different from the development for which the application was made;[96] or a condition which impermissibly leaves for later decision an important aspect of the development and the decision on that aspect in the future could alter the development in a fundamental way.[97]
[96]Harris v Scenic Rim Regional Council [2014] QPELR 324 at [229], Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737, Scott v Wollongong City Council (1992) 75 LGRA 112 at 118.
[97]McBain v Clifton Shire Council [1996] 2 Qd R 493 at 496-7, Caloundra City Council v Pelican Links Pty Ltd [2003] QPEC 52 at [51].
The council submits that at the development assessment stage, it is relevant that all impacts are “potential” and can never be exacted with certainty, until the land is developed. It is submitted that this is why the court has long resisted the attractions of avoiding responsibility for allowing a proposal which has been demonstrated to have some risk unless handled appropriately.[98] As to the characterisation of a “threat of serious or irreversible environmental damage”, reliance is placed on Telstra Corporation Ltd v Hornsby Shire Council[99] and the non-exhaustive factors that may be considered when determining whether the first element has been satisfied, namely:
(a)the spatial scale of the threat;
(b)the magnitude of possible impacts;
(c)the perceived value of the threatened environment;
(d)the temporal scale of possible impacts, in terms of both the timing and the longevity (or persistence) of the impacts;
(e)the complexity and connectivity of the possible impacts;
(f)the manageability of possible impacts, having regard to the availability of means and the acceptability of means;
(g)the level of public concern, and rationality of scientific or other evidentiary basis for the public concern; and
(h)the reversibility of the possible impacts and, if reversible, the time frame for reversing the impacts, and the difficulty and expense of reversing the impacts.
[98]Clermont Quarries Pty Ltd v Isaac Regional Council [2021] QPELR 65 at [12]; GFW Gelatine International Ltd v Beaudesert Shire Council [1993] QPLR 342 at 353.
[99]Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256 at 269.
In my view the submissions fail to recognise that the nature of the non-compliance results from a failure to establish the foundational facts with sufficient degree of certainty to identify and understand the potential impacts and whether the impacts can be managed to avoid threats of serious or irreversible environmental damage. The ecology experts all agreed that the proposed quarry will result in the identified adverse ecological impacts including impacts on the vulnerable Cape York Rock-wallaby and its essential habitat. And, I accept Mr Delaney’s assessment that:
(a)The proposed quarry will have adverse impacts on matters of environmental significance as discussed in sections 3.2 to 3.5 of the second ecology joint expert report;
(b)There is a substantial lack of scientific certainty concerning the likely significance of adverse impacts of the proposed quarry and the likely effectiveness of proposed impact monitoring and mitigation strategies, including uncertainty that is caused by the limitations of the ecological surveys and assessments undertaken to inform the proposal, referring to the first ecology joint expert report; and
(c)There is a risk that the direct, indirect and cumulative impacts of the proposed quarry on some matters of environmental significance, particularly the Cape York Rock-wallaby, will be both serious and irreversible.
In Ecology JER1, Ex 8.1, p12 (4)(b), Mr Delaney said:
“A properly informed and formulated P. coenensis Impact Assessment and Management Plan is reasonably required to form a basis for:
(a) assessing whether or not the impacts of the proposed development on P. coenensis could be mitigated to acceptable levels; and
(b) the imposition of associated conditions, if it was determined that the proposed development should be approved.”
Again, I agree with his opinion. It is regrettable that a well-informed ecological impact assessment was never done, and that has resulted in an inadequate basis for assessing whether the impacts can be managed and form a proper basis for any conditions. The applicant, council and department in effect propose a condition subsequent to remedy this fundamental deficiency in the evidence by first identifying the impacts, then measuring them, and then making an evaluative assessment as to their management. In that way, it seems to me that the condition leaves for later decision critical ecological impacts of the development, which could significantly alter the proposed quarry in a fundamental way, and it will so undermine the approval such that it could not be regarded as final. In addition, such a condition would operate to circumvent an approval assessment process, including proper public notification, and thereby block the rights of submitters.[100]
[100] Cox & Ors v Maroochy Shire Council & Ors [2006] QPELR 628 at [93] – [95].
It seems to me that those matters of assessment are properly for the development approval process and ought not be deferred and delegated to the council by way of a conditional process. The latter will perpetuate the delay of taking a measure to prevent degradation of the environment in circumstances of threats of serious or irreversible environmental damage. In my view the proposed condition offends the precautionary principle and finality principle and is invalid.
Are there relevant matters that favour approval despite any non-compliance with assessment benchmarks?
The council relies upon the Other Relevant Matters as relevant to the assessment under s 45(5) of the Planning Act dated 16 April 2021, and maintains that:
(a)The proposed development enjoys support from the State Assessment and Referral Agency (the referral agency for the relevant development application) and consistent with the proposed limits for intended activities, the proposed operator holds an environmental authority (EA0000779) for the following environmentally relevant activities:
(i)ERA 16(2) Threshold (a) - Extracting, other than by dredging, in a year, 5,000 tonnes to 100,000 tonnes;
(ii)ERA 16(3), Threshold (a)- Screening in a year, 5,000 tonnes to 100,000 tonnes.
(b)There is a need for the proposed development.
(c)The proposed development is well located to provide increased choice, convenience, competition and employment opportunities in the region.
(d)Approval of the proposed development is in the public interest.
The applicant joins with the council’s submissions, and relies upon the following additional relevant matters:
(a)The proposed development advances the purposes of the Planning Act 2016.
(b)The proposed development will not result in any significant, detrimental, or unacceptable:
(i)environmental impacts, including with respect to flora and fauna;
(ii)amenity impacts.
(c)The proposed development will be designed, constructed, and operated to meet environmental obligations in accordance with Environmental Authority EA0000779.
(d)The proposed development can be conditioned to comply with any measures which may be necessary to avoid, mitigate or manage any potential impacts on the environment or the community. Any non-compliance with an applicable assessment benchmark can be addressed through the imposition of lawful conditions.
The department advances the following relevant matters:
(a)The common material for the development application; and
(b)The State Development Assessment Provisions (version 2.6).
The appellant contends that none of these “other relevant matters” are sufficient to outweigh or overcome the non-compliance with the assessment benchmarks in this case.
For the reasons discussed under the topic, I accept that there is an economic, community and planning need for the proposed quarry, limited to a localised market involving proximate applications. In that sense it is well located to provide increased choice, convenience, competition and employment opportunities associated with the local community.
Like the support of the Council, it is positive that the proposed quarry has the support of State Assessment Referral Agency. The authority EA 0000779 was issued by the Department of Environment and Heritage Protection on or about 20 April 2017. It identifies legislative requirements to be complied with and imposes conditions. The proposed quarry will be constructed and designed accordingly and the operation to be managed in accordance with written procedures through an Environmental Management Plan.
It seems to me that the ecological evidence in relation to the essential habitat of the vulnerable Cape York Rock-wallaby lacks sufficient scientific certainty. I do not accept that it has been shown that the proposed quarry will not result in any significant, detrimental or unacceptable environmental impacts. In my view, on the current state of the evidence and the risk of threats of serious or irreversible environmental damage, I do not accept that the proposal can be conditioned to comply with any measures which may be necessary to avoid, mitigate or manage any potential impacts on the environment or the community.
For these reasons, the proposal does not advance the purpose of the Act and approval of the proposed development is not in the public interest.
Conclusion
For these reasons, I will allow the appeal and refuse the development application.
I will hear from the parties about any consequential orders consistent with this decision.
Judge DP Morzone KC
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