Bronco Dino Pty Ltd v Cassowary Coast Regional Council
[2023] QPEC 15
•16 May 2023
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Bronco Dino Pty Ltd & Ors v Cassowary Coast Regional Council & Anor [2023] QPEC 15
PARTIES:
BRONCO DINO PTY LTD
ACN 612 740 280
(first appellant in 199 of 2019)
KERRY ANNE BLACK AND ASHLEY SCOTT BLACK
(second appellant in 199 of 2019)
SEAN ARNOLD
(appellant in 197 of 2019)
v
CASSOWARY COAST REGIONAL COUNCIL
(respondent)
DARALEIGH PTY LTD
ACN 010 883 093
(co-respondent)FILE NO/S: 197 of 2019
199 of 2019DIVISION: Planning and Environment
PROCEEDING: Appeal
ORIGINATING COURT:
Cairns DELIVERED ON: 16 May 2023
DELIVERED AT: Cairns HEARING DATE:
19-21, 23, 26-30 September 2022; 31 October 2022; 1 November 2022
JUDGE:
Fantin DCJ
ORDERS:
The appeals are adjourned to a date to be fixed to enable the parties to prepare conditions of approval that reflect these reasons.
CATCHWORDS:
ENVIRONMENT AND PLANNING – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION FOR QUARRY – where co-respondent seeks to develop a small hard rock quarry on rural land near Innisfail - where land is in Rural zone and designated an Extractive Resource Site – where land has existing development approval for Extraction – where respondent and State approved the development application subject to conditions – where submitters appealed against approval – whether the proposed development would have unacceptable ecological impacts – whether quarry could be operated efficiently – whether sufficient area available –whether development should be refused or approved having regard to ‘relevant matters’
LEGISLATION:
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Integrated Planning Act 1997 (Qld)
Planning Act2016 (Qld) s 5, s 29, s 45, s 59, s 286, s 311 & sch 2
Planning and Environment Court Act2016 (Qld) s 43, s 45, s 46, s 47, s 76
Planning Regulation 2017 (Qld) r 30, r 31 & sch 24
Sustainable Planning Act 2009 (Qld)
Vegetation Management Act 1999 (Qld)CASES: Abeleda v Brisbane City Council (2020) 6 QR 441; [2020] QCA 257
Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793; [2019] QPEC 16
Barro Group Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 235; [2021] QPEC 18
Bell v Brisbane City Council (2018) 230 LGERA 374; [2018] QCA 84
Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2018] QPELR 982; [2018] QCA 75
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987; [2020] QCA 253
Bunnings Building Supplies Pty Ltd v Redland Shire Council & Ors [2000] QPELR 193; [2000] QPEC 1
Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor [2022] QPEC 16
Carbone v Esk Shire Council [2006] QPELR 496; [2006] QPEC 16
Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6
Duncanson & Brittain (Quarries) Pty Ltd v Brisbane City Council & Ors [1986] QPLR 330
Edith Pastoral Company Pty Ltd v Somerset Regional Council & Ors [2022] QPELR 1125; [2021] QPEC 52
Glasshouse Mountains Advancement Network Inc. v Caloundra City Council & Anor [1997] QPELR 438
Isgro Pty Ltd v Gold Coast City Council & Anor [2003] QPELR 414
Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPELR 763; [2018] QPEC 21
Karalee Land Partners Pty Ltd v Ipswich City Council [2014] QPELR 603; [2014] QPEC 34
Kin Kin Community Group Inc. v Sunshine Coast Regional Council & Ors [2011] QPELR 349; [2010] QPEC 144
Lockyer Valley Regional Council v Westlink Pty Ltd & Ors (2011) 185 LGERA 63; [2011] QCA 358
Luke & Ors v Maroochy Shire Council & Watpac Developments Pty Ltd [2003] QPELR 447; [2003] QPEC 5
Mary Valley Community Group Inc. & Anor v Gympie Regional Council & Ors [2018] QPELR 345; [2018] QPEC 58
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2020] QPELR 328; [2019] QPEC 46
Nielsens Quality Gravels Pty Ltd v Brisbane City Council & Ors [2016] QPELR 709; [2016] QPEC 39
SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24
Sellars Holdings Ltd v Pine Rivers Shire Council [1988] QPLR 12; (1987) 30 APA 407
Trinity Park Investments Pty Ltd & Anor v Cairns Regional Council [2022] QCA 261
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309; [2021] QCA 95
Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2015] QPELR 21; [2014] QPEC 47
Wilhelm v Logan City Council & Ors [2021] QPELR 1321; [2020] QCA 273
Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168COUNSEL:
K Wylie for the appellants
A Skoien for the respondent
M Batty with G Webber for the co-respondentSOLICITORS: Holding Redlich for the appellants (199 of 2019)
Miller Bou-Samra Lawyers for the appellant (197 of 2019)
P&E Law for the respondent
MacDonnells Law for the co-respondentTable of Contents
Introduction
The site and locality
History of the application
Proposed development
Existing development approval (Extraction Approval)
Statutory assessment and decision-making framework
Overview of planning scheme
Impacts on ecological values - overview
Strategic Framework
Desired Environmental Outcomes
Shire Wide Measures, Natural Area code
Rural Zone code
Extraction/ Quarry code
SPP 2016
SPP 2017
Regional Plan
Air quality (dust)
Blasting
Noise
Stormwater
Groundwater
Conclusion on ecological impacts
The efficiency of the proposed quarry and whether there is sufficient area for stockpiling, acoustic bunds, and stormwater management
Other relevant matters under s 45(5)(b) of the PA
Need
Support in planning documents
Community expectations
Public interest
Advancing the purpose of the PA
Relevant matters relied upon by Daraleigh and council
Conclusion and orders
Introduction
The Cassowary Coast is an area of outstanding natural beauty and biodiversity. It occupies the coastal plain between Cardwell and Innisfail, with the Great Barrier Reef world heritage area to its east, the rainforest ranges of the Wet Tropics world heritage area to its west, and a patchwork of agricultural land and small towns in between.
These appeals involve a proposal to develop a small basalt quarry on cleared land currently used for grazing, which is designated in the planning scheme for extractive industry use, and over which there is an existing development approval for extraction.
The council approved Daraleigh’s development application. Two submitter appeals were lodged and ordered to be heard together.
Unusually for a quarry appeal, the appellants do not contend that the proposed development should be refused because of unacceptable impacts on residential amenity, visual amenity, traffic, the road network, vegetation clearing, or loss of good quality agricultural land. None of these issues were relied upon as a ground for refusal.
The parties agreed upon a list of the issues in dispute.[1] By closing addresses, the appellants’ case focussed on:[2]
(a)impacts on the ecological function of surrounding areas of ecological value from blasting, noise, dust, and groundwater;
(b)whether the quarry could be operated efficiently (given its relatively small size and the depth of overburden covering the hard rock resource);
(c)whether there is sufficient area for stockpiling, acoustic bunds, and stormwater management (sediment pond and water storage); and
(d)whether acoustic measures to mitigate noise will be effective, and can be practically implemented.
[1]Exhibit 7A (Amended Consolidated List of Issues in Dispute).
[2]Exhibit 7A (Amended Consolidated List of Issues in Dispute) and Appellant’s Outline of Argument in closing addresses.
The appellants also contended that the development should be refused in the exercise of the court’s discretion having regard to ‘relevant matters’ in s 45(5)(b) of the Planning Act2016 (Qld) (‘PA’).
Daraleigh and council maintained that the proposed development should be approved subject to lawful conditions.
Daraleigh did not concede that the proposed development did not comply with any assessment benchmarks, and contended that if it did, any non-compliance could be addressed by the imposition of conditions. It also relied upon relevant matters said to support the approval of the proposed development.
The relevant statutory assessment and decision-making framework is that prescribed by the PA. Daraleigh must establish that the appeals should be dismissed.[3]
[3]Planning and Environment Court Act 2016 (Qld) s 45 (‘PECA’).
The overriding principle of the applicable planning scheme is ecological sustainability. Relevantly, that scheme contains many provisions seeking to protect the unique environmental qualities of its natural areas, while maintaining the predominant role of agriculture, and diversifying the economic sectors.
Notwithstanding the scheme’s emphasis on the protection of ecological systems and environmental qualities, the assessment of the proposed development starts from a position favouring approval, subject to impact assessment, for two reasons.
First, the land on which the development is proposed is designated in the planning scheme as an Extractive Resource Site (‘ERS’). It is one of only seven such sites in the planning scheme area, and the only one which is yet to be developed. A Quarry use (as defined) is impact assessable on the land, but ‘not inconsistent’ because of the ERS designation. A Quarry is an ‘inconsistent’ use everywhere else (without an ERS designation) in the planning scheme area. An inconsistent use is a type of development that is inconsistent with the policy direction of the zone or precinct.[4]
[4]Exhibit 10 (Planning Scheme) p 5 fn 4(e).
Second, the land benefits from an existing development approval for Extraction (including screening and storage) up to 100,000 tonnes per annum, and an Environmental Authority permit for Environmentally Relevant Activities (‘ERAs’) for extracting and screening (‘the Extraction Approval’). The Extraction Approval has not yet been acted upon, but Daraleigh has taken steps and expended funds in preparation to do so. If the development application the subject of this appeal is not approved, Daraleigh intends to act upon the Extraction Approval.
For reasons explained below, the existence of the Extraction Approval is a mandatory consideration in the court’s assessment of the development application and is relevant to expectations about impacts that may reasonably be expected on the site of the proposed quarry.
This Court has observed that geology and feasibility of quarrying are fundamental matters for the assessment of an extractive industry.[5] The primary ordinary meaning of feasible is: capable of being done, effected or accomplished.[6] Daraleigh has established by drilling and investigation that there is a proven resource of quarriable material in the form of a hard rock deposit of high quality basalt on the site. Basalt can be extracted and processed to produce a variety of concrete aggregates, sealing aggregates, road base and ballast for supply to the construction industry. Above the hard rock deposit is a layer - of varying depth - of weathered, or extremely weathered, hard rock (overburden), above which sits a layer of topsoil.
[5]Barro Group Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 235, 238[3] (‘Barro’), citing Sellars Holdings Ltd v Pine Rivers Shire Council [1988] QPLR 12, 16-17 (‘Sellars’).
[6]Macquarie Dictionary, Revised Third Edition.
There is no question that the resource is capable of being extracted, although the appellants raise concerns about the efficiency of the proposed quarry.
It is a characteristic of extractive industry that it can be practically located only where suitable deposits (which can be worked in a viable way) are to be found. The existence of a proven resource, which can be feasibly and viably extracted, is a matter of town planning importance favouring approval.[7] The court has recognised that it is in the community’s interest that a proven deposit of quarryable material of high quality be availed of wherever possible.[8]
[7]Barro, 239[4].
[8]Sellars, 15.
The site and locality
The proposed development is in a rural area in the Cassowary Coast hinterland, about 10 kilometres north-west of Innisfail, on the western side of the Bruce Highway.[9] The area is known for its banana and sugarcane industries, and receives very high rainfall, particularly between January and April.
[9]I had the benefit of a site inspection to assist my understanding of the evidence.
The proposed quarry is located on a large, irregularly shaped parcel of land approximately 217.6 hectares in area (‘the Land’), which is partly cleared and partly vegetated. The cleared areas are used for cattle grazing and plantation forestry. The only improvements are a house and farm outbuildings. The character of the area is rural, and the terrain is undulating.
To the north-west, south and east of the Land are predominantly rural use areas, including for sugarcane and banana farming, forestry plantations, and cattle grazing. The closest houses on neighbouring lots are approximately 800 metres from the site of the proposed quarry.
Adjoining the western boundary of the Land is the Wooroonooran National Park. On the opposite side of the Bruce Highway, a few kilometres away to the north-east is the Eubenangee Swamp National Park, and approximately seven kilometres away is Ella Bay National Park.
The site of the proposed quarry is roughly in the centre of the Land and adjacent to its western boundary (‘the site’). The site is cleared and currently used for cattle grazing. On the basis of Mr Gray’s updated calculations, the quarry footprint has an area of approximately 11 to 12 hectares,[10] with an intended maximum working area of only two hectares at any time. When buffer areas and associated stormwater management are included, the total area is larger.
[10]Exhibit 32 (Supplementary Separate Report of Dugald GRAY) pp 7-8[28]-[31].
The site is on a large plateau and falls generally towards the north and east. One of the consequences of this siting is that (it is accepted) the proposed quarrying operations will not have adverse visual impacts. It can be distinguished from a case where the quarrying occurs on hillslopes or ridges and the impacts are visible offsite.
There are areas of high ecological value near the site. About 100 metres to the west of the quarry footprint is the boundary of Wooroonooran National Park. A vast national park covering most of the Bellenden Ker range, it comprises tens of thousands of hectares of coastal uplands. Immediately north of the site, but within the Land, is a small isolated patch of mapped remnant vegetation, about 13 hectares in area (‘the remnant patch’). To the south-west of the site is another area of mapped remnant vegetation.
The proposed development does not involve any clearing of the remnant vegetation in the remnant patch or other native vegetation. The remnant patch is to be retained and expanded by revegetation. Mature weed species are to be removed.
History of the application
Daraleigh made a superseded planning scheme request under the Sustainable Planning Act 2009 (Qld) (‘SPA’) for the proposed quarry to be assessed and decided under a superseded planning scheme (‘the planning scheme’).
Council approved that request. As a result, the application had to be assessed against the superseded planning scheme rather than the current planning scheme.
Daraleigh then made a superseded planning scheme development application for:
(a)a development permit for a material change of use for a Quarry (as defined) (up to 250,000 tonnes per annum); and
(b)a development permit for a material change of use for an ERA – ERAs 16(2) and (3) extracting and screening.
The application was referred to the Chief Executive as a concurrence agency because it involved ERAs (extraction and screening greater than 100,000 tonnes per annum), State controlled road matters, development impacting State transport infrastructure, and vegetation.
Council and the Chief Executive issued information requests.
The application was impact assessable. It was publicly notified and attracted 136 properly made submissions: 52 objected to the development and 84 supported it.
Both the Chief Executive and council approved the development subject to conditions. Council later issued a negotiated decision notice. Two submitter appeals opposing the approval were lodged and ordered to be heard together. The Chief Executive did not elect to participate in the appeals.
Proposed development
The proposed quarry is intended to operate in accordance with the Operational Plans in Exhibit 53.
The operations would occur in accordance with conditions of approval, various operational plans (including an environmental management plan, a stormwater management plan, a rehabilitation management plan, an overburden management plan and a blast management plan), the concurrence agency conditions in the Amended Concurrence Agency Response, together with the conditions that will apply to the ERA under the Quarry Environmental Authority.[11]
[11]See Item 15 of Volume 2 of the Appeal Book, Exhibit MFI-b (especially at pp 1039-1074).
In broad terms, it is proposed to commence the proposed quarry at the north-west and west end of the site by establishment works to create clean water diversion drains around the site, bund walls for acoustic attenuation purposes, working platforms, sediment ponds, stormwater detention ponds and access ramps for the purposes of commencing extraction, processing and export of overburden and hard rock.
The proposal involves the quarry being progressively developed from west to east by:
(a)stripping and stockpiling the topsoil;
(b)stripping the overburden and using some of it for on-site infrastructure (eg, stormwater bunds) and rehabilitation;
(c)blasting the hard rock deposit to produce workable hard rock;
(d)processing the overburden and hard rock by crushing and screening; and
(e)stockpiling the products made from overburden, hard rock, or a combination of them, for transportation off the site.
Extraction is proposed in seven stages with a multi-bench pit within a defined extraction area, where existing surface levels range from RL73 metres to RL80 metres, with extraction proposed to occur down to approximately RL50 metres.
Crushing and screening is to occur by mobile plant only, in the extraction area. There will be no fixed plant.
Within the extraction area will also be permanent sediment basins and bund walls (for stormwater and erosion and sediment control), internal haulage routes, and stockpiles of processed material. The site facilities (weighbridge, office and carpark) will be outside the extraction area and occupy an area of about 6,200 square metres.
The existing dwelling will be retained and used for the supervisor or manager.
It is proposed to extract a total of approximately 1.2 million tonnes of weathered basalt and overburden, overlying up to 2.9 million tonnes of basalt. The maximum extraction would be 250,000 tonnes per annum. The estimated life of the use could be up to approximately 40 years, depending on the rate of extraction.
Blasting is limited to only eight days per calendar year. Machinery proposed includes front end loaders, excavators, bulldozers and trucks.
The operating hours will be limited to 6am to 6pm Monday to Saturday. The use would not operate on Sundays or public holidays.
The proposal involves four to five full time equivalent employees on site.
Vehicle access would be from Moody Road, which connects the site directly to the west of the Bruce Highway, which connects Innisfail to Cairns in the north.
Daraleigh has agreed to accept the conditions required by council and the concurrence agency, and recommended by experts following the joint expert meeting and report process. Those conditions include: [12]
(a)an updated Stormwater Quality Management Plan to be prepared and submitted with a future Operational Works Application;
(b)conditions requiring compliance with dust and noise control measures;
(c)conditions requiring updated rehabilitation and environmental management plans to be submitted prior to commencement of the use;
(d)a condition requiring an increase to the existing remnant patch buffer to 30 metres wide, and management of the buffer in accordance with recommendations in the ecology joint expert report (‘Ecology JER’), as well as lateral expansion of, and exclusion of cattle from, the remnant patch; and
(e)a condition requiring compliance with the Blast Management Plan annexed to the Separate Report of Mr Heilig (Exhibit 39).
[12]Exhibit 9 (Co-respondent’s List of Proposed Conditions).
Existing development approval (Extraction Approval)
The Land has the benefit of an existing development approval for Extraction (including screening and storage) up to 100,000 tonnes per annum, by a negotiated decision notice issued by council on 14 February 2019 (the Extraction Approval). There is a corresponding Environmental Authority permit issued by the Department of Environment and Protection for:
(a)ERA 16 (2a) – extracting, other than dredging, in a year, up to 100,000 tonnes per annum; and
(b)ERA 16 (3a) – screening up to 100,000 tonnes per annum.
The Extraction Approval remains current until 2025. It covers an area broadly similar (but not identical) to the part of the Land the subject of the proposed development for a quarry.
I accept the evidence of Daraleigh’s director, Mr Dillon, that Daraleigh has undertaken various works and spent approximately $300,000 in preparation to commence operation of the Extraction Approval. I also accept his evidence that if the proposed quarry the subject of this appeal is refused, Daraleigh intends to develop the Land consistently with the Extraction Approval.
The main differences between the existing Extraction Approval and the proposed quarry are that the proposed quarry:[13]
(a)includes blasting (limited to eight days per year);
(b)increases the maximum annual extraction from 100,000 to 250,000 tonnes per annum, along with associated screening, crushing and production of the material; and
(c)involves deeper excavation to extract hard rock and overburden.
[13]Exhibit 14 (JER Town Planning) p 5[1].
The change to include blasting triggers a change in the definition of the proposed land use from Extraction to Quarry (both defined uses in the planning scheme).
Pursuant to s 45(5)(a)(ii) of the PA and r 31(1)(f) of the Planning Regulation2017 (Qld), impact assessment must be carried out having regard to any development approval for, and any lawful use of, the premises (in this case, the Extraction Approval and associated Environmental Authority permit). There is a question as to the weight that should be given to the existing approval.
In Karalee Land Partners Pty Ltd v Ipswich City Council[14] the Court determined that regard to an existing approval should extend to consideration of the implications of that approval for the subject site, including any future impacts of development under that approval.[15] The Court also agreed that the existing approval was relevant to the consideration of impacts, and provided a base line against which the impacts of the proposed development could be assessed.[16]
[14][2014] QPELR 603 (‘Karalee’).
[15]Karalee, 607[12].
[16]Ibid, 619[35].
In Carbone v Esk Shire Council[17] the Court said that in assessing the impacts of the proposal, the relevant comparison was between what may occur under the existing approval on the one hand, and on the other, likely impacts if the proposal were to go ahead (rather than the starting point being no development at all).[18]
[17][2006] QPELR 496 (‘Carbone’).
[18]Carbone, 500[10].
I respectfully agree with that approach.
The appellants contended that the Extraction Approval ought be given little, or no meaningful, weight because it is dated, has not yet been acted upon, and is unlikely to be acted upon.
Although the extraction application was made some years earlier, the associated negotiated decision notice was issued in February 2019 (relatively recently). The approval remains current and does not expire until 2025. The evidence establishes that it will be acted upon if the quarry is not approved, and funds have been expended to that end.
To the extent that some of the experts nominated by the appellants (Mr Reed on quarry management, Mr Buckley on town planning, and Mr Delaney on ecology) gave limited regard or very low weight to the Extraction Approval and its potential impacts, including because it had not yet been acted upon or may not be acted upon in future, that was an incorrect approach. That error affects the weight I give to their evidence, but was not determinative.
The appellants also submitted to the effect that the Extraction Approval was unlikely to be acted upon because (without blasting) it would produce only overburden-derived products of low economic value for which there is less demand, and it may not be economically viable. Matters of private economics (a person’s personal financial circumstances) are not relevant to the decision of the assessment manager. The subject application for a quarry use does not exist in a vacuum. The Extraction Approval is a lawful extant approval that can be acted upon at any time, with consequential impacts. That is clearly a relevant matter to have regard to.
The appellants also submitted that Mr Dillon wrongly believed that the Extraction Approval permitted crushing to occur; that upon its proper construction it did not; and that his mistaken belief was relevant to whether the Extraction Approval would ever be acted upon.
The relevant uses are defined in the planning scheme as follows:
‘extraction’ means the use of premises for removal of sand, gravel, soil, rock, stone or similar material from land or a watercourse.
The use includes the screening, and storage of the material but does not include extraction using blasting which is defined separately – see quarry.
…
‘quarry’ means the use of premises for extraction of gravel, soil, rock, stone or similar material from land or a watercourse using methods that involves blasting.
The use includes the screening, crushing, grinding, milling and storage of the material.
The appellants submitted that crushing would not be permitted under the Extraction Approval because it was not expressly referred to in the definition of ‘extraction’ and was not ‘an ancillary use of the premises’.[19] They submitted that any crushing would not be subservient, or incidental and subordinate, to the excavation of overburden.
[19]PA sch 2, s 6 (definition of ‘use’).
I do not accept this construction. The principles for construction of planning schemes are uncontroversial and it is unnecessary to rehearse them here. The scheme definition of ‘extraction’ is broadly framed and the list of activities included in the defined use is not exhaustive. The only activity expressly excluded is blasting. A limitation should not be read into the definition in the absence of clear words. There is no warrant to do so here. The preferable construction is that the Extraction Approval does not exclude crushing.
I am satisfied on Mr Dillon’s evidence that Daraleigh does intend to act upon the current Extraction Approval if the subject application for a Quarry is refused. Therefore, the likely impacts of the Extraction Approval if acted upon are relevant to my assessment of the impacts of the proposed development.
An assessment of the potential impacts of a development is informed by a range of considerations, including an objective reading of the adopted planning controls to ascertain what, if any, reasonable expectation there should be about the type and intensity of development intended for any given locality. The designation of the site as an ERS in the planning scheme and the Extraction Approval are both relevant to ‘reasonable expectations’ of what may be developed on the site, although they are not determinative.
Statutory assessment and decision-making framework
There was no dispute about the applicable legislative provisions. Pursuant to the transitional provisions of the PA[20] and the Planning and Environment Court Act 2016 (Qld) (‘PECA’)[21], the appeals are by way of hearing anew,[22] and are to be heard and determined, and the development application is to be assessed, and decided, under the PA and the PECA.[23]. That is the case despite the development application being made under the now repealed SPA,[24] and includes the continuation of its assessment as a development application (superseded planning scheme).[25]
[20]PA ss 286 and 311(4).
[21]PECA s 76.
[22]PECA s 43.
[23]Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPELR 763 (‘Jakel Pty Ltd’).
[24]PA s 311(4); Jakel Pty Ltd, 782[88].
[25]PECA s 46(6); PA ss 29(9) and 286.
The Court must (a) consider the aspect of the appeal relating to the assessment manager’s consideration of the superseded planning scheme in question as if the application had been made under the superseded planning scheme; and (b) in considering the aspect, disregard the planning scheme in force when the application was made.[26]
[26]PECA s 46(6).
The Court stands in the shoes of the assessment manager, and the Court’s decision must be based on its impact assessment of the development application pursuant to s 45(5) of the PA.[27]
[27]PA s 59(3).
The appropriate approach to the statutory assessment and decision-making process is that set out by the Court of Appeal in a number of recent decisions[28] which confirm the approach adopted in earlier decisions of this Court.[29]
[28]Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987; Abeleda v Brisbane City Council (2020) 6 QR 441 (’Abeleda’); Wilhelm v Logan City Council & Ors [2021] QPELR 1321; Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309.
[29] Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2020] QPELR 328.
There is a broad discretion, conferred by s 60(3) of the PA, in relation to deciding a development application that requires impact assessment. It is for the decision-maker to weigh and balance the factors to which consideration may be given.[30] As the Court of Appeal observed in Abeleda v Brisbane City Council,[31] the starting point must generally be that compliance with the planning scheme is afforded 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.[32] The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act when making a decision under s 60(3) of the Act, where the factors that favour approval (or approval subject to conditions) have to be balanced with the factors that favour refusal of the application.[33] 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 to undertake decision-making in a way that advances the purpose of the Act.[34] Non-compliance with an assessment benchmark is not equivalent to a veto of the proposed development.[35]
[30]Abeleda.
[31](2020) 6 QR 441.
[32]Abeleda, 457[42].
[33]Ibid, 458[43].
[34]Ibid.
[35]Ibid, 468[77].
In deciding the appeal, the Court must confirm the council’s decision, change it, or set it aside and make a decision replacing it or returning the matter to the council with directions that the Court considers appropriate.[36]
[36]PECA s 47.
The development application must to be assessed against the superseded planning scheme and the other planning instruments (ie, planning instruments other than local categorising instruments) in force at the time the development application was lodged.[37]
[37]PA ss 45(6) to 45(8), as modified by s 29(9) (transitioned by ss 286 and 311 PA).
The Court may, however, give such weight to subsequent laws and policies that are not a local categorising instrument as the Court considers appropriate.[38]
[38]PA s 45(8).
The appellants rely upon assessment benchmarks in the planning scheme, and provisions of other statutory instruments, namely:
(a)the State Planning Policy 2016 (‘SPP 2016’), in force at the time the development application was properly made;
(b)the Far North Queensland Regional Plan 2009-2031 (‘Regional Plan’), in force at the time the development application was properly made, and current; and
(c)the State Planning Policy 2017 (‘SPP 2017’) (which came into effect after the application was properly made).
The relevant provisions of the SPP 2016 and the Regional Plan apply as assessment benchmarks against which the proposed development is to be assessed.[39]
[39]PA s 45(5)(a)(i), as prescribed by r 30(2)(a) of the Planning Regulation 2017 (Qld) ('Planning Regulation').
The SPP 2017 was not in force when the development application was properly made, but the Court is entitled to give it the weight that it considers appropriate in the circumstances.[40]
[40]PA s 45(8)(a).
The Planning Regulation 2017 (Qld) also relevantly prescribes that impact assessment must be carried out having regard to: any development approval for, and any lawful use of, the premises (in this case, the Extraction Approval and associated Environmental Authority permits); and the common material.[41]
[41]Planning Regulation rr 31(1)(f) and 31(1)(g). ‘Common material’ is defined in sch 24 of the Planning Regulation to mean all of the material about the application that is received before the application is decided, including any properly made submissions about the application.
Overview of planning scheme
In the planning scheme, the Land is in the Rural zone. That zone is divided into two precincts: Rural Use and Rural Conservation. The Land is in the Rural Use precinct, rather than the Rural Conservation precinct.
The Rural Use precinct is predominantly cleared land and includes good quality agricultural land suitable for agricultural use, including cropping and improved pastures as well as more marginal rural land suited to grazing.[42]
[42]Exhibit 10 (Planning Scheme) p 20 s 4.2.
The Rural Conservation precinct (which the Land is not in) includes land that has all or part of the lot containing land suitable for conservation. It includes areas of significant conservation value and land that may require revegetation. [43]
[43]Exhibit 10 (Planning Scheme) p 20 s 4.2.
In addition to its Rural zoning, the Land is one of only seven sites in the planning scheme area designated as an Extractive Resource Site. All six of the other sites designated as ERS are already developed.
A Quarry use is impact assessable (inconsistent) everywhere else in the planning scheme area, except on ERS designated land. That points to a strong planning intent, or expectation, for the Land to be developed for extractive industry, subject to impact assessment against the whole of the planning scheme.
The town planning expert nominated by Daraleigh, Mr Schomburgk, said that the ERS designation indicated that the land use is appropriate from a town planning perspective, without ignoring the need for an impact assessment. He noted that while the ERS designation does not of itself necessitate an approval, the planning scheme makes it clear that this is one of only seven sites where such a land use is anticipated and indeed, actively encouraged.
The town planning expert nominated by council, Ms Taylor, agreed that the ERS designation should be given considerable weight, ‘particularly because of the level of detailed planning strategy that is in place in the planning scheme for rural zoned land, which includes additional Precinct and ERS designations to guide and control development’.[44]
[44]Exhibit 14 (JER Town Planning) p 33[140].
On this issue, I prefer and accept their opinions to those of the town planning expert nominated by the appellants, Mr Buckley, who said that the level of support contained within the planning scheme for an extractive industry on the Land was very low. His evidence about the relevance of the ERS designation was also affected by his adoption of the concerns raised by Mr Delaney (in respect of ecological impacts), Mr Ganly (need) and Mr Reed (quarry operations).
The ERS designation provides a high degree of support for, and a reasonable expectation of, the proposed development, subject always to impact assessment.
The agreed list of issues[45] identifies a number of alleged non-compliances with the planning scheme. Provisions of the Regional Plan and the SPP 2016 (and the SPP 2017) are also relied upon.
[45]Exhibit 7A (Amended Consolidated List of Issues in Dispute).
The instruction in s 45(5)(a)(i) of the PA that impact assessment ‘must be carried out against the assessment benchmarks in a categorising instrument for the development’ does not mean that the Court (as decision-maker) is required, in order to lawfully make a decision, to make express findings about every ‘assessment benchmark’ that might be referred to by the parties,[46] particularly where it is said to be of no application by a party, is at the bottom of a hierarchy of provisions, or is not in dispute on the evidence.
[46]Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168, [16] (Bowskill CJ).
With that qualification, I deal with the issues relied upon by the appellants to warrant refusal of the proposed development. Relevant planning scheme provisions are considered in the context of each issue, only to the extent that it is necessary to do so.
Impacts on ecological values - overview
The appellants do not submit that the proposed development will have direct adverse impacts on the adjoining remnant vegetation or the national park by virtue of clearing of remnant (or other native) vegetation. The appellants rely upon alleged adverse impacts that are indirect, which are said to be impacts on the ecological function of surrounding areas of ecological value from blasting, noise, dust, and groundwater.
The impacts of the proposed development must be viewed in the context of the likely impacts of the existing Extraction Approval. The ecological experts broadly agreed that the Extraction Approval alone would have impacts on the landform resulting from the removal of the overburden, on the surface and sub-surface hydrology (including by removing the surface material that establishes ephemeral streamflow in the remnant patch, and by capturing stormwater and discharging it into the head of the western gully), and on the remnant patch; and would create a ‘quarry setting’ with associated noise impacts and quarry activity. They also agreed that, when compared with the Extraction Approval, some additional impacts of blasting and increased operational intensity and duration (from the increased maximum extraction) would be expected to arise from approval of the quarry.
The experts differed on the extent of those differences. The evidence of the ecological expert nominated by Daraleigh, Mr Moffit, was that the differences in impacts are unlikely to be significantly greater than those already arising from the Extraction Approval if acted upon. Mr Delaney accepted that the majority of both direct and indirect ecological impacts associated with the current proposal would occur as a result of the Extraction Approval. Notwithstanding that, Mr Delaney proceeded on the basis that all of the ecological impacts arising from the proposed quarry should be attributed to it and considered without reference to the impacts arising under the Extraction Approval. That was an incorrect approach. It affects the weight I give to his evidence, but was not determinative. On this issue, I prefer the evidence of Mr Moffitt to Mr Delaney.
Similarly, Mr Delaney accepted that in assessing the ecological impacts of the proposed development he did not give consideration to the designation of the site as an ERS. That also affects the weight I give to his evidence. The site’s designation as an ERS, one of only several sites where (subject to impact assessment) a Quarry is a consistent use, is relevant in assessing the impacts of the proposed development.
Strategic Framework
The appellants contend that the proposed development does not comply with the part of the Strategic Framework, s 1.2.2, which states:
The overriding principle of the Planning Scheme is the promotion of ecological sustainability. Ecological sustainability is the balance between the protection of ecological processes and natural systems, economic development and the maintenance of the well-being of people and communities. The following strategies will encourage the achievement of ecological sustainability:
· Maintain the predominant role of agriculture, whilst increasing diversity within and between economic sectors.
· Develop tourism in a managed way, founded on the natural and cultural characteristics of the Shire, achieving a role which contributes to the economy, but which has a low impact on the social and physical environment.
· Manage the natural resources of the Shire in such a way to protect and enhance their permanent viability and value for the lasting benefit and enjoyment of future generations, while maintaining economic and social development.
· Preserve and enhance the character of urban, natural and rural areas, including the striking scenic landscape, the relaxed and friendly lifestyle and the strong sense of community identity, which typifies the Shire.
· Foster the efficient, safe and convenient movement of people and goods within the Shire and beyond.
· Plan and manage the Shire in the context of its region and neighbours.
[emphasis added]
It is only the statement of principle highlighted in bold above that the appellants rely upon,[47] and it was not strongly pressed in final submissions.
[47]It was made clear in oral submissions that this was the only part of the provision relied upon.
Daraleigh submits that, properly construed in its context, this statement of principle is not an assessment benchmark.
It is necessary to consider the provision in its context. Part 1 of the planning scheme contains three divisions:
(a)Division 1 – Relationship to Integrated Planning Act 1997 (Qld) (‘IPA’);
(b)Division 2 – Strategic Framework; and
(c)Division 3 – Planning Scheme Structural Elements.
Division 1 is not relevant. Section 1.2.2 sits within Division 2, Strategic Framework.
Division 2, Strategic Framework, begins with s 1.2.1, which states:
(1) This division summarises the overall effect of parts 4, 5 and 6 of the planning scheme on the nature and location of development in the local government area.
(2) This division provides a guide for related decisions of local government, developers, other infrastructure providers and the community generally.
[emphasis added]
Sections 1.2.1 and 1.2.2 are the only provisions in Division 2.
The wording of s 1.2.1, and the structure of Part 1 overall (by separating the Strategic Framework in Division 2 from the Planning Scheme Structural Elements in Division 3), support a construction that s 1.2.2 is part of a summary of other parts of the scheme and provides a guide, but is not itself an assessment benchmark. Specifically, Division 2 provides a summary of Part 4 - Zones, Part 5 – Shire Wide Measures, and Part 6 - Development Codes, which contain various assessment benchmarks.
The next division, Division 3, Planning Scheme Structural Elements, explains how the Shire is divided into seven zones with four shire-wide codes, explains how to determine the level of assessment of development, and explains how the scheme seeks to achieve ‘outcomes’.
Section 1.3.4 footnote 4(d) provides that Impact Assessable development:
… Are types of development that may be consistent with the policy direction of the zone or precinct or have not been considered, and require input from submitters through public notification. … The application is not restricted to assessment against applicable codes but also involves a broader assessment of the environmental effects of the proposal. The planning scheme determines the extent and scope of the assessment …
[emphasis in original]
Section 1.3.7, Planning Scheme Aims to Achieve Outcomes, states:
The planning scheme aims to achieve outcomes that are identified according to the following levels –
(a) desired environmental outcomes;
(b) overall outcomes for zones and shire wide measures, or for the purpose of a code;
(c) specific outcomes for zones, shire wide measures and codes;
(d) probable solutions for a specific outcome, or acceptable solutions for complying with a self-assessable code.
[emphasis added]
That is followed by a flow chart setting out each of those levels. This provision does not refer to the Strategic Framework or s 1.2.2 as part of the outcomes sought to be achieved by the planning scheme. This also supports a construction that s 1.2.2 is not itself an assessment benchmark, but a broad statement of principle.
Section 1.3.9 states:
A probable solution for a specific outcome offers a potential solution for achieving that outcome in whole or in part, but does not limit the assessment manager’s discretion under the IPA to impose conditions on a development approval, nor does it limit the applicant from providing other solutions to the specific outcome.
Section 1.3.10 contains a flow chart described as ‘a guide to assist in following the structure of the planning scheme’. It notes that for impact assessment, ‘[t]he proposed development is assessed against the provisions of the entire planning scheme’. [emphasis added]
In terms of the structure of the zone framework, s 4.1 provides: ‘Each zone/ precinct contains a brief introduction statement providing the background to the zone/ precinct. These sections do not form part of the assessment provisions of the planning scheme for self or code assessable development’.
Reinforcing the statement in s 1.3.10, s 4.1.1 states: ‘All impact assessable development is assessed against the relevant provisions of the entire planning scheme’.
Section 4.1.2 explains the structure of codes:
Each code contains a ‘purpose statement’ which identifies the overall outcome the code seeks to achieve.
Each code consists of two (2) columns:
·Column 1 contains the ‘specific outcomes’ with which code and impact assessable development will be assessed against; and
·Column 2 contains probable and acceptable solutions. Probable solutions provide ways in which a development can achieve the corresponding specific outcome for code assessment. Acceptable solutions are the only way a self assessable development can comply.
[emphasis added]
Returning to the relevant part of s 1.2.2 relied upon by the appellants, properly construed in context, this statement of principle is not itself an assessment benchmark but rather summarises what later parts of the scheme seek to achieve, particularly in considering impacts on ecological values.
Even if I am wrong about that, nothing turns upon it because to the extent that s 1.2.2 may apply as part of a broader assessment against the entire planning scheme, I am satisfied that the proposed development complies with it. That is, the proposed development strikes an appropriate balance between ‘the protection of ecological processes and natural systems, economic development and the maintenance of the well-being of people and communities’. The site is designated for extractive industry and it benefits from an existing approval for extraction. The proposal does not involve clearing any native vegetation, will be conditioned to require revegetation of currently degraded areas, (for reasons explained below) will not have unacceptable impacts on ecological processes, will not adversely impact residential or rural amenity and character, and will facilitate small scale economic development.
Desired Environmental Outcomes
The appellants submit that the proposed development does not comply with three provisions in the Desired Environmental Outcomes (‘DEOs’):
(a)s 3.1.1 paras [2] and [4];[48] and
(b)s 3.1.2 para [6].
[48]Paragraph [3] of s 3.1.1 identified at para [1(b)(i)] of Exhibit 7A (Amended Consolidated List of Issues in Dispute) was abandoned in oral submissions.
The DEOs relate to the whole of the Shire: s 3.1. These outcomes ‘assist in achieving ecological sustainability, which is the purpose of the IPA’. They are grouped into three broad headings: Ecological and Natural Systems, Economic Development, and Community Wellbeing. Only the first two are relevant.
DEO s 3.1.1, Ecological and Natural Systems, relevantly provides:
2. The ecological systems, environmental qualities and scenic landscape values are protected and enhanced through:
·Retention, expansion and rehabilitation of a viable shire-wide network of habitat and corridors;
…
·Identifying land uses that are sympathetic to and do not adversely impact on the protection of ecological values and processes (terrestrial and aquatic).
…
4. The quality of the waters in the Shire is maintained or enhanced through best practice management of catchment areas.
[emphasis added]
With respect to DEO s 3.1.1(2) above, the appellants only rely upon the ecological systems and environmental qualities, not scenic landscape values.
DEO s 3.1.1(2) is in two parts.
The first dot point seeks to protect and enhance the ecological systems and environmental qualities through ‘[r]etention, expansion and rehabilitation of a viable shire-wide network of habitat and corridors’.
The quarry footprint is unusual insofar as it is almost entirely cleared land. Both ecological experts agreed that a quarry occupying a cleared footprint may still give rise to adverse impacts on adjoining ecological areas. I accept Mr Moffitt’s evidence that a cleared footprint is nonetheless a very favourable starting point for a quarry development. The proposed development will have no direct impact on remnant vegetation, mapped habitat, or a viable shire-wide corridor on the Land.
The supplementary ecological assessment report prepared by Mr Moffitt summarised the condition of the site. The quarry footprint is almost entirely devoid of native woody vegetation and is dominated by exotic pasture grasses. Areas between the quarry footprint and the remnant patch support scattered planted cabinet timber trees, exotic species and some native species. The southern edge of the remnant patch supports the greatest load and diversity of weed species, which likely reflects the area’s use as a cattle camp. Cattle have caused groundcover disturbance in this area. A detailed botanical survey was undertaken of the remnant patch, which failed to locate conservation significant flora species. One conservation significant frog species was recorded in the remnant patch (which is also found in the national park), and there is potential for other conservation significant fauna species.
No clearing of native vegetation in the remnant patch is proposed. Much of the surrounding land supporting lowland rainforest has already been cleared for agriculture, and approval of the quarry would cause no further direct loss of the relevant vegetation community represented in the remnant patch. The northern edge of the quarry footprint has been realigned to allow the planted cabinet timber trees to be retained as a buffer to the southern edge of the remnant patch. There will be no alienation of habitat because surrounding land is generally cleared and habitat corridors to (and past) the remnant patch will be maintained. The buffer between the quarry footprint and the remnant patch to the north originally proposed has been increased to 30 metres. In addition, the remnant patch will be expanded and rehabilitated by planting, with the result that the proposed development will decrease, rather than increase, habitat fragmentation. The replanting will also enhance the functionality of the local habitat connection to the west of the quarry footprint. In this respect, the proposed development achieves an improved ecological outcome to that under the Extraction Approval.
The quarry footprint (and all surrounding agricultural land) is included in broadscale mapping of a large ‘State-wide terrestrial and riparian buffer corridor’ (the Eubenangee corridor) which links Ella Bay National Park to the east, Eubenangee Swamp National Park to the north-east, and Wooroonooran National Park in the north-west. Although the site is within this mapped Eubenangee corridor, it is not in areas of identified importance, including the continuum of mapped habitat Mr Moffitt describes as the ‘core connection’. The site is located towards the southern edge of the mapped corridor, in a fragmented landscape.
The Southern Cassowary is an endangered species. There are no formal records of cassowaries occurring on the site or within a few kilometres of it, but cassowaries occur in the region, predominantly in the national parks and vegetated areas. The Eubenangee Swamp National Park and Ella Bay National Park are separated from Wooroonooran National Park and the site by cleared land used for agricultural purposes, and also by the Bruce Highway. The national park boundaries are not contiguous with each other. There are small patches of remnant vegetation between the national parks which function as corridor connections. I accept Mr Moffit’s opinion about the importance of the ‘central core’ part of the mapped corridor, which is almost entirely comprised of remnant vegetation in conservation estate. He said that the entirety of this low-lying continuum of national park and reserve land connecting Wooroonooran National Park and Eubenangee Swamp National Park is identified as Essential Habitat for the Southern Cassowary and it creates a substantial and robust corridor between these conservation areas for that species. The importance of that existing core connection for cassowaries is also reflected in the mapping in the National Recovery Plan for Southern Cassowary, which identifies the potential corridor for restoration as the core connection further north. Mr Delaney agreed. I accept that the northern part of the corridor already functions as the ‘central core connection’ to facilitate local fauna movement. This is contrasted with the much more fragmented habitat occurring further south.
The Land is about four kilometres to the south-east of that ‘central core connection’ of the mapped corridor and is separated from it by cleared fragmented land used for agriculture. That is, the site of the proposed quarry is disconnected from that central core connection and does not function as part of it. The proposed development would not have any direct or indirect impact on that central core connection.
Mr Delaney acknowledged that the area identified by Mr Moffitt as the ‘central core connection’ in the mapped corridor will be used by cassowaries under most conditions. But he also said that the subject site is an important part of a ‘flood free’ part of the corridor to the south of the existing ‘central core’ connection, linking coastal and hinterland areas. He opined that this ‘flood free’ part of the corridor would operate to link the national parks in a location further south. Such a connection would require fauna movements across the Bruce Highway and agricultural land in an area south of the primary ‘central core’ connection identified by Mr Moffitt.
I do not accept Mr Delaney’s opinion on this issue because I am satisfied that the connection described by him is not likely, practicable, or viable. I accept Mr Moffitt’s evidence, based on site specific investigation, that there is no significant potential for the safe or desirable movement of cassowaries across the Bruce Highway in the areas identified by Mr Delaney, particularly because of the undulating nature of the highway, creating steep cuttings and batters that form impediments and areas of entrapment. The experts agreed that the highway creates a significant physical barrier to fauna movement. I accept Mr Moffitt’s evidence that while the construction of a fauna land bridge or overpass over a cutting in the area proposed by Mr Delaney is theoretically possible, it would be an expensive piece of infrastructure, there are no plans by the Department of Transport and Main Roads for one in that location, and it would lack justification given the poor habitat connectivity. The southern ‘flood free’ corridor proposed by Mr Delaney would require cassowaries to traverse significant areas of cleared land under cultivation for cropping, including sugarcane. Accepting that cassowaries may move through the landscape notwithstanding gaps in forest cover, I prefer Mr Moffitt’s evidence that the land identified by Mr Delaney is unlikely to function effectively as a corridor because it is not vegetated and does not provide the cover and habitat resources to act as a corridor, in contrast to the wide continuum of vegetated land further north which provides the ‘core connection’. I am satisfied that the existing ‘core connection’ in the corridor to the north provides a robust, well-defined and safer movement pathway compared to Mr Delaney’s proposed corridor further south, which is not clearly defined and is subject to significant barriers and hazards. That finding is supported by the fact that the proposed ‘flood free’ corridor Mr Delaney refers to is not specifically identified in relevant strategic planning documents (such as the National Recovery Plan for Southern Cassowary, the planning scheme, or the Regional Plan), and the site is not identified as a Strategic Rehabilitation Area in the Regional Plan.
I am satisfied that the approval of the development would not cause any meaningful disruption in cassowary movements between the relevant national parks, or have any unacceptable impact on a viable shire-wide network of habitat and corridors.
All mapped habitat and corridors will be retained. In addition, the existing habitat and corridors are to be expanded and rehabilitated by regeneration and replanting, in accordance with the recommendations of the ecological experts and the conditions Daraleigh has agreed to accept.
The phrase ‘protect and enhance’ in DEO s 3.1.1(2) must be read in context and bearing in mind that when any development occurs some amenity impairment will generally result.[49] The remnant patch to the north of the proposed quarry footprint is currently isolated from other remnant vegetation and degraded by weed incursion and grazing cattle. I am satisfied that the fencing, replanting, and rehabilitation proposed as part of the development will protect, enhance, and result in a net improvement to, the ecological systems and environmental qualities of that area.
[49]Lockyer Valley Regional Council v Westlink Pty Ltd & Ors (2011) 185 LGERA 63, 73[20], citing Glasshouse Mountains Advancement Network Inc. v Caloundra City Council & Anor [1997] QPELR 438, 440-441; Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2018] QPELR 982.
The ecological experts agree that if the proposed quarry is approved there should be a condition requiring replanting and rehabilitation, but they disagree on the extent of the area so required.
Mr Moffitt said there was a fragmented local habitat connection to the west of the proposed quarry. He said that enlarging the remnant patch in a northerly and westerly direction would significantly enhance the functionality of that local habitat connection, and significantly strengthen existing fauna movement pathways. To achieve that, he recommended revegetation of about 16.7 hectares of the riparian corridor to the north and west of the remnant patch to improve corridor function.
Mr Delaney agreed with Mr Moffit’s recommendation, but also recommended revegetation of two additional areas: about 5.97 hectares to the west of the quarry footprint (‘Additional Area A’); and about 29.6 hectares to the north-east of the remnant patch (‘Additional Area B’).
In response to this, Mr Moffitt saw merit in adopting, and was prepared to support, revegetation of Mr Delaney’s Additional Area A (with reconfiguring of existing cattle fencing to improve east-west movement), but he did not support revegetation of Mr Delaney’s Additional Area B.
The principles pertaining to an assessment of need were recently summarised by the Court of Appeal in Yorkeys Knob BP Pty Ltd v Cairns Regional Council:[68]
As the authorities make clear, the assessment of “need” in this context is a flexible process, informed by the principles discussed in cases like Isgro v Gold Coast City Council [2003] QPELR 414…but not constrained by those principles as though they were a “checklist” that must be ticked off by a decision-maker in every case. As the court said in Intrafield Pty Ltd v Redland Shire Council (2001) LGERA 350 at [20], “need is a relative concept to be given greater or lesser weight depending on all of the circumstances which the planning authority was to take into account.”
[Footnotes omitted]
[68][2022] QCA 168, [30].
A useful summary of those principles was set out by Wilson SC DCJ (as his Honour then was) in Isgro Pty Ltd v Gold Coast City Council & Anor[69] at paras [20] to [26]. The following principles taken from that summary are relevant, namely:
(a)a use is needed if it would, on balance, improve the services and facilities available in a locality;
(b)need, in planning terms, does not mean pressing or critical need, or even a widespread desire;
(c)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;
(d)providing competition and choice can be a matter which provides for a need, in a relevant sense; [and]
(e)need is a relative concept to be given greater or lesser weight depending on all of the circumstances.[70]
[69][2003] QPELR 414 (‘Isgro’).
[70]Isgro, 417-9[20]-[26].
I adopt the following summary from the Co-respondent’s Written Submissions[71] of the principles which can be discerned from cases involving quarries, that are relevant to an assessment of need for extractive resource uses:
(a)the establishment of a proven resource which can (from a geological perspective) be feasibly and viably extracted is a matter of town planning importance favouring approval,[72] because it is in the community’s interest that a proven deposit of quarriable material of high quality be availed of wherever possible;[73]
(b)employment benefits arising from employment of members of the region are relevant to the assessment of need for a quarry;[74]
(c)assisting in meeting local demand for hard rock and introducing competition and choice are matters supporting a finding of need for a proposed quarry;[75]
(d)in fact, provision of competition in a market where there is none has been treated by the court as representing the fulfilment of a town planning need;[76]
(e)ready access of the proposed quarry operator to plant and equipment (including transport vehicles) would be likely to result in economic benefits, in particular keeping transport costs down,[77] as will proximity of the proven resources to target markets (which is a matter of town planning importance);[78]
(f)the bar for establishing need should not be set too high when the use involves a necessary of life, such as quarry products;[79] and
(g)quarry materials are high volume, low-cost materials that need to be extracted and ideally processed as close as possible to the communities that use them.[80]
[71]Exhibit 1 (Co-respondent’s Written Opening) [147].
[72]Barro, 238-9[3]-[4], citing Sellars, 16-17. The same approach should be adopted here.
[73]Barro, 239[4], citing Duncanson & Brittain (Quarries) Pty Ltd v Brisbane City Council & Ors [1986] QPLR 330, 349-50.
[74]Mary Valley Community Group Inc. & Anor v Gympie Regional Council & Ors [2018] QPELR 345, 369[82] (‘Mary Valley’).
[75]Mary Valley, 372[99].
[76]Edith Pastoral Company Pty Ltd v Somerset Regional Council & Ors [2022] QPELR 1125, 1176[262] (‘Edith Pastoral’), citing Bunnings Building Supplies Pty Ltd v Redland Shire Council & Ors [2000] QPELR 193, 197[21].
[77]Marry Valley, 372[99].
[78]Barro, 239[6].
[79]Edith Pastoral, 1175[260], citing Luke & Ors v Maroochy Shire Council & Watpac Developments PtyLtd [2003] QPELR 447, 455[35].
[80]Nielsens, 768[241].
In Barro Group Pty Ltd v Sunshine Coast Regional Council,[81] a quarry appeal, Williamson KC DCJ observed:
Whilst the issue of need is relevant to the community interest test, I am unable to accept this particular case called for a detailed examination of economic need in the manner contended by Council. A broader analysis was called for, which examined the proven locally significant resource against the background of the planning scheme. In that context, the proven resource is acknowledged, along with its importance, in a town planning sense, to the community.
Once the resource is considered in this context, coupled with the recognised community benefits that flow to the community from its extraction … it is not difficult to conclude a need has been comfortably demonstrated in favour of the proposed development ….
Those observations are apt here.
[81][2022] QPELR 235, 272[185]-[186].
The planning scheme’s ERS designation of the site as a proven extractive resource is the starting point for a demonstration of the need for the proposed development. In that context, much of the evidence of the economic need experts was devoted to examination of matters of detail which were, in my view, unnecessary.
The need experts agreed in the JER that quarry materials within Far North Queensland and the Cassowary Coast play a critical role for the construction industry, and are necessary to support the population increase that Far North Queensland has experienced, and is expected to continue to experience in the next 20 to 30 years.
The evidence of the need expert nominated by Daraleigh, Mr Duane, was that there would be no ‘disbenefit’ to the community arising from the proposed quarry. In his opinion, the proposed quarry would increase competition, choice, and convenience in the existing market, and that its approval would increase (albeit to a small degree) diversification of the economy.
By way of broad overview, the economic experts agreed that there were four operating quarries plus gravel pits within the relevant study area, and that their estimated combined total production appears to meet market demand from a quantitative perspective. However, Mr Duane’s evidence was to the effect that the quantitative economic analysis does not reveal the full picture in respect of how the market is operating. Pricing trends are also relevant. There is only one quarry in the northern part of the study area (where the proposed development is located). It has increased prices across a range of different products substantially since 2020. Mr Duane said that the distances between the north and south sectors of the study area currently limit the competitiveness of quarries in each sector to serve the other sector, with quarries in the southern sector being at a cost disadvantage when servicing the northern sector (in which the proposed quarry is located). He said the proposed quarry offers security of supply in the Innisfail market when demand for quarrying products throughout Cairns more broadly will have increased demand for their products. Mr Duane’s evidence was that the proposed quarry would provide a number of benefits to the community, including transport cost savings to the population within 50 kilometres of it, and adding to local employment.
The need expert nominated by council, Mr Norling, was of the view that a moderate economic need exists for the proposed quarry due in large measure to the variability of demand on the Cassowary Coast, and for competitive reasons.
The need expert nominated by the appellants, Mr Ganly, opined that there was an insufficient level of economic and community need for the quarry. He said that it would not contribute to economic development in the Shire nor expand the Shire’s economic base. On these issues, I prefer the evidence of Mr Duane and Mr Norling.
Even the appellant’s quarry management expert, Mr Reed, accepted that hard rock can be a valuable community resource, it can be used to deliver valuable infrastructure and services, and the extraction of hard rock can be in the community interest. Mr Reed agreed that at the time the Quarry Management JER was prepared, the price for aggregates at the Pioneer quarry was high, and that there had been meaningful increases to prices across all of their quarry products in the period from 2018 to 2020.
This evidence was supported by lay witnesses. Mr Nucifora and Mr Finch gave evidence of a need from locally operating businesses for quarry products. They said the current market is unable to deliver those products satisfactorily. Mr Finch’s company, in particular, complained of not being able to secure products from the Pioneer quarry in Innisfail due to the level of demand and pricing issues.
The appellants submitted that the need for the proposed development was limited at best and was not sufficient to outweigh non-compliance with assessment benchmarks.
For reasons explained above, I have found that the proposed quarry complies with the relevant assessment benchmarks.
I am satisfied that a need (albeit modest) for the proposed quarry has been established and that it is unnecessary to descend into further analysis of the economics of the proposal.
To the extent there is a need for the proposed quarry, that is a matter that also favours its approval.
Support in planning documents
With respect to (b) in the appellants’ ‘relevant matters’, alleged lack of support in the applicable planning documents for the proposed development on the Land, I have already found that there is clear support for the proposed development in the planning documents. The planning documents demonstrate a clear intention for the Land to be used for extraction or quarrying purposes, in light of the ERS designation.
Community expectations
With respect to (c) in the appellants’ ‘relevant matters’, the proposed development does not reflect or advance reasonable community expectations for the Land, this is not an assessment benchmark. It is raised here as a relevant matter. It requires an assessment of whether the quarry proposed by this development application would be within reasonable community expectations. Put another way, whether a quarry of the kind proposed in this development application would exceed reasonable community expectations.
The expectations, to be reasonable, must be assessed in light of all the planning provisions applying to the Land.[82] The planning scheme may be regarded as a prima facie expression of what will constitute, in the public interest, the appropriate development of the Land.[83] The body of material in the form of submissions following public notification and any evidence given at the hearing by residents may also be regarded as a direct expression of the expectations.[84] In addition, properly made submissions formed part of the common material,[85] and the assessment is required to be carried out having regard to them.[86]
[82]See, eg, Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2015] QPELR 21, 34[95].
[83]Bell v Brisbane City Council (2018) 230 LGERA 374, 391[66]; cited in Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46] (‘Developmental Watch Inc.’)
[84]Development Watch Inc., [46].
[85]Planning Regulation r 31(1)(g) and sch 24.
[86]PA s 45(5).
The issues raised in the properly made submissions were summarised in Attachment C to the Town Planning JER. A majority of those who made submissions supported the proposed development. Issues raised in objecting submissions related, in general terms, to the same issues raised by the appellants, primarily environmental impacts.
The community’s expectations tended in favour of approval, having regard to the submissions made during the public notification stage.
On balance, there should be a reasonable community expectation that the Land may be developed for the proposed quarry use. That expectation is derived primarily from a combination of the site’s ERS designation, its zoning, the absence of any express discouragement for such a use on the land, and the existing Extraction Approval (which remains current and could be acted upon at any time). In addition, there is nothing about scale or impacts of the proposed development on this site, involving a small quarry on only a relatively small part of a large rural parcel of land well separated from potentially incompatible uses, with extraction limited to 250,000 tonnes per annum and blasting limited to eight days per annum, which would be beyond reasonable community expectations.
Public interest
With respect to (d) in the appellants’ ‘relevant matters’, I am satisfied that approval of the proposed development will not adversely affect the public interest.
Impacts on Eubenangee Corridor, national park and ecological qualities
With respect to (e), (g) and (h) in the appellants’ ‘relevant matters’, I have already found that the proposed development will not result in unacceptable adverse impacts on the Eubenangee Corridor, the use of the national park and its habitat values, or the ecological qualities of the Land and its potential future rehabilitation. Approval of the proposed development will achieve some rehabilitation of the Land which would not otherwise occur absent the approval, and which would not occur if the Extraction Approval is acted upon.
Advancing the purpose of the PA
With respect to (f) in the appellants’ ‘relevant matters’, the contention is that approval of the proposed development will not advance the purpose of the PA particularly having regard to, and taking into account, the short and long term effects of the proposed development at a local and State level. The contention is so broad as to be almost meaningless. I have considered the purpose of the PA in light of the evidence and am comfortably satisfied that this assertion is not made out. Approval of the proposed development will not result in harm, locally nor on a State wide basis.
Relevant matters relied upon by Daraleigh and council
Daraleigh identified a number of matters said to warrant approval of the development application. They are set out in paragraph [266] of its written submissions and in the issues in dispute.[87] They include: the existence of a planning, community, or economic need for the development; that it is in an appropriate location that would not result in unacceptable impacts; the existing Extraction Approval and Environmental Authority; that any non-compliance with assessment benchmarks (which is not admitted) can be adequately addressed by the imposition of conditions and does not warrant refusal of the development; the absence of adverse amenity impacts; that the development is consistent with reasonable community expectations; the development demonstrates an overall community benefit; and approval will advance the purpose of the PA. I accept that each of the above matters relied upon are made out, and that those matters support approval.
[87]Exhibit 7A (Amended Consolidated List of Issues in Dispute) [8].
I also accept council’s concluding submissions that the proposed quarry:
(a)is desirable and appropriate development that seeks to win valuable resources, that is, valuable to both the developer and the general community;
(b)is appropriately located on rural land that is within the Rural Use Precinct of the Rural Zone of the Planning Scheme, with potential extractive industry use recognised by the ERS designation;
(c)is appropriately located within the Regional Landscape and Rural Production Area of the Regional Plan;
(d)is appropriately located on a site that has the benefits and impacts of the existing Extraction Approval;
(e)is appropriately located such that it effectively avoids many of the significant impacts that can accompany development of its type (such as traffic, visual amenity, or landscape character impacts);
(f)is development that appropriately minimises significant adverse impacts (including avoidance of significant adverse impacts on surrounding sensitive uses, the environment, and ecology);
(g)is located on a site with sufficient area and suitable topography to enable appropriate design and management of operations to efficiently win the natural resource while implementing measures to avoid or minimise adverse impacts; and
(h)appropriately manages the balance between competing desired planning outcomes reflected in the Planning Scheme (as well as the State planning instruments) – that is, between the intent for use of Rural land for agricultural purposes and the intent to gain and use valuable natural resources located on, or under, such land - while avoiding or minimising significant amenity, character, environmental, or ecological impacts.
Conclusion and orders
Daraleigh has discharged the onus. In due course, the appeals will be dismissed and the development approved subject to conditions.
The appeals are adjourned to a date to a date to be fixed to enable the parties to prepare conditions of approval that reflect these reasons.
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