Fieldray Pty Ltd v Gold Coast City Council

[2007] QPEC 98

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Fieldray Pty Ltd v Gold Coast City Council & Ors [2007] QPEC 098

PARTIES:

FIELDRAY PTY LTD

(Appellant)

v

GOLD COAST CITY COUNCIL & ORS

(Respondent)

and

CHIEF EXECUTIVE OF THE DEPARTMENT OF THE ENVIRONMENTAL PROTECTION AGENCY

and

Andrew Russell

and

Darren Russell

and

Janelle Russell

and

Jeffery Russell

and

Lynette Russell

and

Mervyn Russell

and

Raymond Russell

and

Rita Russell

(Co-respondents)

FILE NO/S:

BD 345 of 2007

DIVISION:

Appellate

PROCEEDING:

Applicant appeal against refusal of development application

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

16 November 2007

DELIVERED AT:

Brisbane

HEARING DATES:

17 – 21 September 2007

JUDGE:

Robin QC DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

Integrated Planning Act 1997 s 3.5.14(2) – Council refused appellant’s application for material change of use for extraction of riverine sand – site good quality agricultural land close to Rocky Point Sugar Mill – other uses constrained by Council’s Planning Scheme and State Planning Policy 1/92 Development and the Conservation of Agricultural Land – Policy did not conflict with State Planning Policy 2 of 2007 Protection of Extractive Resources, as agricultural and current uses of site were consistent with “protection” of the valuable sand resource on the site – insufficient grounds to overcome conflict with Planning Scheme – appellant established demand for the sand and relied on “need”, but alternative resources for meeting need were available

COUNSEL:

Mr D R Gore QC and Mr T Trotter for the appellant 

Mr C L Hughes SC and Mr M Williamson for the respondent

Ms S M Ure for the Russell Family co-respondents

SOLICITORS:

Connor O’Meara for the appellant

King and Company Solicitors for the respondent

DLA Phillips Fox for the Russell Family co-respondents

1. This appeal under s 4.1.27(1) of the Integrated Planning Act 1997 (“IPA) was presented as unusual for featuring what might be seen as a conflict between two State planning policies, No 1 of 1992 Development and the Conservation of Agricultural Land and No 2 of 2007 Protection of Extractive Resources, both of which relate to the appellant developer's site, although its case in the end was that the former Policy on its own provided the proper solution, namely that it yielded to the asserted need for an extensive and valuable sand resource to be made available for exploitation pursuant to the development permit unsuccessfully applied for in late February 2005.

1. The site consists of 88.89 hectares at 557 Norwell Road, Norwell, whose existing use was said in the application to be "cultivation of sugar cane + house", a new use of extractive industry being proposed for 43 hectares.  Although environmentally relevant activity 20 (c) (extracting rock or other material) beyond the relevant threshold, in that "use of plant with capacity in excess of 100,000 tonnes per annum" was proposed, the circumstances are unusual in this being a benign extractive industry: there has been no suggestion of any concern to do with noise, dust, use of public roads or the like.

1. The application found favour with Council officers, who (one may infer) were impressed with Mr Dugald Gray's report entitled "Analysis of Need" (exhibit 2 page 292 ff)) which informed them as follows in the Executive Summary:

"Shortages of fine-medium sand for building and construction purposes in the Gold Coast - Brisbane corridor are occurring now and are expected to become acute over the next five years unless new reserves of fine-medium sand are made available to the marketplace. During this period existing and approved sand resources at Oxley Creek and Jacobs Well will become depleted resulting in further shortages of conveniently located fine-medium sand in the Brisbane, corridor and Gold Coast regions."

1. By a majority vote, the City Planning Committee on 13 February 2007 reached a conclusion different to that of the officers and determined that the application should be refused for the following reasons:

"1.The proposal conflicts with State Planning Policy 1/92 "Good Quality Agricultural Land" and the applicant has failed to demonstrate that the critical mass of the Rocky Point Sugar Mill will not be affected as a result of the proposal.

2.The proposal failed to demonstrate acceptable compliance with Council's adopted Extractive Industry study - "Extractive Industry Resource Evaluation on Jacobs Well Area for Gold Coast City Council April 1996".

1. Reason 2 attracted no support from any expert (or other) witness in the appeal, in that the study referred to never acquired any formal status.  The application falls to be determined under the current Gold Coast Planning Scheme.  For what it is worth, so far as planning for the site is concerned, there is continuity with applicable provisions of the 1995 Albert Shire Scheme in which the strategic plan assigned it to the Agriculture Preferred Dominant Land Use designation, one "intended to protect to good quality agricultural land in accordance with State Planning Policy 1/92 . . . predominantly associated with the Rocky Point Sugar industry . . . intended to be maintained"[1] and located it in the Rural Zone which "6.1.1.1 . . . is intended to protect good quality agricultural land identified as Agriculture . . . consistent with State Planning Policy 1/92." 

Reference to this material serves to cast doubt the appellant's contention that there is some mistake in the replication of its effect in the current planning scheme.

[1] As quoted in the planning experts’ joint statement.

1. That 2003 Planning Scheme adopted by the Council on 6 June 2003 and commencing on 18 August 2003 contains on its very first page (version 1.2) confirmation that the Minister for Local Government and Planning has identified as being appropriately reflected in the planning scheme, among others, State Planning Policy 1/92 - Development and Conservation of Agricultural Land.

1. The cane-sand tension is acknowledged throughout the scheme.  In Part 3 Planning Strategy Division 2 Key Strategies, 7 Natural Resources one finds:

"Natural resources provide the raw materials to construct all the artefacts of modern life, including cities, and to sustain life itself. While many of the natural resources used in Gold Coast City are imported from other areas, the City contains major reserves of important natural resources. These include extractive materials, timber, soils and, the most important of all, water. The proper management of these resources will ensure that the community will continue to benefit from them.

Extractive industry sites are located throughout the City and are indicated on Planning Strategy Map PS-I and Overlay Map 0M23 - Extractive Resources. Reserves such as State Forests and National Parks are indicated on Planning Strategy Map PS-6. The City’s principal drainage catchments are shown on Planning Strategy Map PS-2. Good Quality Agricultural Land is identified on Overlay Map OM2 - Good Quality Agricultural Land."

1. Key Issues 1.1 acknowledges the high economic value of extractive resources and designation of haulage routes on Map PS-1 and Overlay Map OM23. There follows:

" 1.4 Good Quality Agricultural Land          Gold Coast City has a complex distribution of different land and soil types. Some of these are of recognised value for agricultural purposes and, as such, need to be managed and protected for future use. State Planning Policy 1/92 Development and Conservation of Agricultural Land is a major influence in that regard.  Sugar cane growing on the coastal flats in the northern parts of the City represents the principal agricultural activity. This activity, which is supported by the Rocky Point Sugar Mill, requires considerable areas of good quality agricultural land. The alluvial soils of the river valleys and the rich soils of the mountain plateau support small areas of viable agriculture.

Appropriate management of good quality agricultural land requires the maintenance of relatively large land parcels that are precluded from inappropriate development. It is also important that incompatible development is not allowed to encroach close to good quality agricultural land, to the extent that it may compromise tong term agricultural practices. Land management practices should ensure that the productive value of agricultural soils is maintained and, where possible, enhanced."

1. Part 3 Division 3 Land Use Themes is divided into 19 chapters, the introduction informing the reader that the pattern of Land Use Themes for the City of Gold Coast is shown on Planning Strategy Map PS-1, the themes providing a broad indication of the activities and development envisaged for distinct parts of the City in order to achieve the Desired Environmental Outcomes (DEOS) and the intent of the Planning Strategy.  Chapters 4 and 10 commence as follows:

"Chapter 4         AGRICULTURE

This Land Use Theme acknowledges the need to protect land that is presently used and has the capacity for sustainable agricultural activity.

1.0PLANNING INTENT

The principal agricultural activity in the City is sugar cane growing, generally located in the Norwell district in the north east of the City. The Rocky Point Sugar Mill supports this activity, and is vital to retaining the viability of the industry in this location. Cane growing occurs on large parcels of land, generally of at least 20 hectares in area. Within the canelands, there are deposits of sand are of resource significance, as identified on Planning Strategy Map PS-1. This activity is also in this Land Use Theme.

Development in this area will be expected to implement State Planning Policy 1/92 - Development and Conservation of Agricultural Land, and to generally support the viability of the Rocky Point Sugar Mill.  Within this constraint, other agricultural activities may also be possible, together with development that supports and is compatible with the cane growing industry. This may include tourism activities associated with the agricultural use of the land, in addition to the extractive industries mentioned above.

CHAPTER 10 EXTRACTIVE INDUSTRY

This Land Use Theme acknowledges major existing and future opportunities for extractive industry, and the need to protect these important natural resources. The principal objective of this Land Use Theme is therefore to retain the potential of these hard rock and sand resources for extractive industry and to facilitate associated uses where these would not diminish or constrain legitimate extractive industry activity.

1.0PLANNING INTENT

There are significant hard rock and extractive sand resources within the City’s boundaries. Extractive industry products are in strong demand on Gold Coast City, and are a significant investment and employment opportunity for the City. The key locations for these resources are in the Darlington Range and in West Burleigh."

1. Themes apart, the City is also divided into "domains" in Part 5, the purpose being “to signal (division) into land units with common characteristics, for the purposes of land use and development control.”  There are 18 domains, including Rural (chapter 1) in which the site is located and 12 Extractive Industry.  Intent of the rural domain is set out in Division 2, Chapter 1 and is declared to be “to support the provision of a wide range of rural activities and legitimate rural economic activity

   
    

   . . . ensure that Good Quality Agricultural Land is protected as an important natural resource to be used in a sustainable manner . . . and ensure the retention and expansion of both existing and new rural economic activities".  The table of development for material change of use contains the familiar four columns: exempt, self-assessable, code assessable and impact assessable; whose content commences with agriculture, animal husbandry, “bed and breakfast – bulk garden supplies" and aquaculture respectively.  The omission of extractive industry from any column was said to be a mistake on the basis of some traditional association between the two types of uses and the listing of agriculture as an exempt use in the extractive industry domain in chapter 12; there, even extractive industries are subjected to more onerous controls.  (Interestingly, aquaculture is envisaged as impact assessable, but only "where viable extractive resources have been exhausted".)  Not only the historical aspect mentioned already with reference to the former Albert Planning Scheme is relevant as tending to negative mistake; the court was also referred to the material change of use overlay provisions for the rural domain which require impact assessment for any material change of use involving building work that "would result in a residential dwelling being located within 500 metres of a lot containing an extractive industry operation or resource (hard rock quarrying) or within 200 metres of a lot containing an extractive industry operation or resource (sand and gravel operations), as defined on Overlay Map OM-23 Extractive Resources".

State Planning Policy 1/92

1. This policy states a general aim that the exercise of planning powers should be used to protect "good quality Agricultural land" from developments that lead to its alienation or diminished productivity.  There is no doubt that the proposal would do this, as up to 43 hectares will become two large, deep lakes as sand is removed by dredging.  The policy in 3.2 acknowledges that "some loss of agricultural land to development will . . . be inevitable, not just close to the major towns and cities":

" 3.3 Nevertheless, development without regard to the need for land conservation and the continuing importance of agriculture would be unacceptable. The best and most versatile farming land has a special
importance and should not be built on unless there is an overriding need for the development in terms of public benefit and no other site is suitable for the particular purpose. This land is a valuable resource that should, in general, be protected from irreversible development. In such cases, additional weight needs to be given to the agricultural factor."

1. The respondent Council has done what Part 4 calls for in formulation of its planning scheme.  Residential development is clearly seen as the principal threat to conservation of the State's stock of good quality agricultural land, but 4.6 is of general application:

"Cases will arise where local authorities have to consider development proposals on good quality agricultural land.  In such instances, a "key" principle should be whether an overriding need in terms of benefit to the community can be demonstrated for the development at that particular location."

1. Part 5 notes the existence of ongoing processes of "gathering land resource information on a Statewide basis":

"5.2 However, the detail of this information is generally not appropriate for determining development applications. Local authorities are therefore encouraged to require that applicants undertake land/soil studies where adequate information is lacking. The DPI will provide guidance on the content and standard of these studies. The ’Planning Guidelines for the Identification of Good Quality Agricultural Land" defines ’good quality agricultural land’ and clarifies the roles of both local authorities and the D.P.L in determining the location of these lands."

1. The appellant's contention which its consultants, Mr Gray in particular, have advanced all along is that "overriding need" as referred to in 3.3 and 4.6 exists.

1. Well qualified experts nominated by the appellant, by the respondent Council and by co-respondent members of the Russell family (who pursue cane farming and related activities close to the appellant's site) were agreed that the site comprises good quality agricultural land.  In January 1993, the Department of Primary Industries and the Department of Housing, Local Government and Planning published planning guidelines for the identification of good quality agricultural land (exhibit 7B).  These provide a definition of it as "land which is capable of sustainable use for agriculture, with a reasonable level of inputs, and without causing degradation of land or other natural resources.  In this context, agricultural land is defined as land used for crop or animal production."  Four classes are defined, ranging from class A crop land through class B limited crop land and class C pasture land to class D non-agricultural land.  The guidelines append a list of reports containing resource information of the kind alluded to in the Policy including B A Forster's report entitled "Availability of Suitable Land for Sugar-Cane Growing Rocky Point Sugar Mill Area (1989)".  This is a much more useful report than many others listed, given the relatively detailed mapping scale of 1:50,000.  The Forster report owed much to one prepared 10 years earlier, by G W Holz, "Rocky Point Caneland – a sugar cane land suitability study, DPI Technical Bulletin No 38".

1. The Planning Guidelines are rather more expansive than the Policy itself in respect of assessing planning applications.  4.1 confirms that the policy applies to all areas of good quality agricultural land irrespective of whether farming activity is present:

"4.12 If the subject land is found to be good quality agricultural land, the local authority should refuse the application unless:

·there is an overriding need in community terms of public benefit for the proposal, and the proposal cannot be located on alternative sites of poor agricultural quality;

·or the subject land is located so that farming, either alone or in association with surrounding parcels, is not practicable: for example, a small isolated parcel of land surrounded by urban land uses.

Determining "Overriding Need"

4.13 Determining "an overriding need in terms of public benefit" depends upon the circumstances of the particular proposal. Some obvious cases of "overriding need" which are likely to justify the loss of the agricultural land illustrates the principles.

4.14 State Planning Policy 1/92 cites the example of a tourist development that could provide the opportunity to diversify the economic and employment base of an area and support a growing State industry. A mining proposal is likely to offer similar advantages locally, as well as providing significant export revenue for the State as a whole. Finally, major infrastructure (for example, roads, railways, aerodromes and dams) usually have specific siting/location requirements that might require the loss of some good quality agricultural land.

4.15 These examples should not be regarded as a justification for every proposal involving such developments. Each proposal should still be assessed on its merits to determine the degree of community advantage."

1. The appellant's case sought to undercut the experts' agreement on the basis of their having relied on the 1979 and 1989 reports, rather than conducting independent investigations of their own.  These experts were men who knew what they were doing, whose judgment that the cost of new investigations was not warranted, given the quality of the reports they were content to rely on, ought to be respected.  Their endorsement in my opinion exempts the Holz/Forster reports from the general caveat found in 5.2 of the Policy.  I am unimpressed by suggestions that the Council (or the court) should have required any additional land/soil studies in the circumstances.  There was evidence suggesting that the quality of the site as agricultural land is not uniform, but that was insufficient in the circumstances to require the site or any parts of it to be considered other than good quality agricultural land.  It was shown to have been rather less productive than other canelands supplying the Rocky Point Mill (more so in the last few years), although its record has exceed the State average.  The view was expressed that the site's relatively poor showing may be attributable to management.  I do not consider these matters of significance.  More pertinent may be the site's small and declining role as a supplier to the Mill.  The appellant's principal Mr Laming, who gave evidence, is an accomplished horse trainer, and in a big way.  About half of the site has already been taken out of cane production for the establishment of stables, training tracks and associated facilities.  Severe frost this last winter destroyed part of the crop being grown on the balance of the site by neighbours who farm it under a lease arrangement.  As a percentage of the Mill's crush, the site's share is miniscule, and may well decline further.  There is, of course, no way of forcing freehold owners to produce cane or to do anything else in a positive sense on their land (special cases such as orders for eradication of pests or, perhaps, retention of vegetation excepted).  This is not the point. State Planning Policy 1/92 and the Guidelines make it clear that the test is not whether good quality agricultural land is currently being worked.  I agree with Mr Hughes SC (for the Council) that this is a context in which care has to be taken not to embark on a process of causing "death by a thousand cuts".  Cf Southtip Pty Ltd v Brisbane City Council [2003] QPELR 292 at [30]. He instanced the protection due to water catchments which provide an analogy with the scarce resource of good quality agricultural land.

1. Nothing in the appeal suggested that the Rocky Point Mill has no future.  The Council's assigned reason for refusal of the application (the appeal was instituted as one against a "deemed refusal" before the Council in due course formally purported to advise refusal by it) in terms of  some "critical mass" vital to the Mill's future being approached was not endorsed by any expert who gave evidence.  Mr Woodward's criticism of that concept was directed more at the Council and other material in evidence (such as a CSIRO report using the term) than at other experts.

1. The court should be slow to set itself up as the planning authority for the Gold Coast or to make judgments about the broad planning policy pursued by the Council (and its Albert predecessor) which constrains development other than growing of cane or following other agricultural pursuits in a wide area surrounding the site, which is fairly centrally located to the Mill.  The respect that is to be paid to a local government's strategic planning was underlined in Wenmere Pty Ltd v Maroochy Shire Council [1992] QPLR 24 at 26:

"There was some suggestion that it was relevant to look at the future viability of the sugar industry and to make a comparison between the economic benefit to the community of:

1.           the preservation of the land for the sugar growing and

2.           making the land available for use for industrial purposes

I take the view that such an inquiry belongs more to the realm of strategic planning than to what should concern this Court in dealing with an individual application. 1f and when a point is reached when it is no longer in the interests of the community to protect valuable cane land from urban encroachment it will be for the planning authority to act and to make appropriate amendments to its strategic plan. This Court has recognised many instances the importance of strategic planning and the undesirability of any decision that would conflict with and undermine confidence in the strategic plan .... " (emphasis added)

1. However, restraint is not to be exercised to the point of refusing to consider an application such as the applicant's on its merits.  It is well known that State planning policies are not treated as binding or determinative. In McCosker v Council of the Shire of Emerald [1996] QPELR 114, an appeal was allowed to permit a rural residential subdivision in Emerald; at 116 Judge Quirk said:

"Section 4.4 (3A) of the Local Government (Planning and Environment) Act provides that regard must be had to the provisions of this policy, when the application is being decided. Nonetheless it retains its status as a policy, and, in its own terms, there must be a balance struck between competing considerations. While recognising that the guidelines set out to provide some assistance in determining whether there is an "overriding need" in a particular case, I do not see that concept as meaning more than a position where the community’s interests which are served by the proposal can be seen to outweigh the community’s interests in preserving the land for agricultural use.

As to whether the land was good quality agricultural land I have the assistance of two appropriately qualified soil scientists. It was beyond dispute that at least half of the subject land is properly described as good quality agricultural land. This area is predominantly in the southern portion of the site. There was a difference of opinion as to how other parts of the land (the 6ADR soils) should be classified. Mr Walker (called by the Appellant) considered that they should be classified as Class C2 (if dry land) and Class B (if irrigated).

Mr Heinder (called by the Respondent) thought that it should be Class B (if dry land) and Class A (if irrigated). I have no doubt that each of these experts did their best to assist the Court but in resolving any conflict between them I lean to the evidence of Mr Walker in that it was supported by the evidence of the practical experiences of those who have attempted to farm the land.

I was particularly impressed by the evidence of Mr Holzwart who did not appear to have any interest in the outcome of this appeal and who was quite uncomplimentary about the land’s qualities in regard to ease of cultivation."

1. To similar effect is Agtec Holdings Pty Ltd v Kilcoy Shire Council [1999] QPELR 208, at 210-11, in a passage relied on by Mr Gore Q.C. also for its acknowledgement that the location of an extractive resource is fixed:

"State Planning Policy 1/92
In respect of the status of agricultural land (in the context of this policy) on the subject site, I had the advantage of evidence from two appropriately qualified experts, Mr Briggs (called by the Appellant) and Mr Walker (by the Respondent). Any differences in their conclusions was confined to whether the relevant land should be classified as Class A or Class B.

Influencing factors related to the ability of soils to retain moisture and nutrient, climate, proximity to rural residential development and the consequences of these matters on crop type and yield. Earlier departmental mapping had indicated that the land fell within Class A, but upon evidently closer examination, officers of the Department had prepared, in draft form, a reclassification which shows the site as Class B

All of this matters little as, primarily, the policy sets out to protect both classes as "good quality agricultural land". But at the same time it must be accepted that it does not amount to an absolute prohibition of development on such land and recognises that, in certain circumstances, development may be permitted.

The policy principles speak of two matters that must be examined. They are whether:

"1.There is an overriding need for the development in terms of public benefit,

and

2.        No other site is suitable for the particular purpose."

In considering this question previously, the Court has observed that what must be looked at is whether the community’s interests, which are served by the proposal, can be seen to outweigh the community's interests in preserving the land for agricultural use (McCosker v. Emerald Shire Council (1996) QP.E.LR. 114 at 116).

In my view, in this case there are two matters of importance. As mentioned, the site has been expertly acknowledged to be an important source of needed "extractive materials deposits" and that the community’s interests would be served by its exploitation. In a sense, its importance could as Mr Challenor (the Appellant’s town planning consultant) commented, be seen to be comparable to that of good quality agricultural land which the policy sets out to protect from forms of development which might hamper its use as such and which are able to be located elsewhere. It goes without saying that no other site would be suitable for the extraction of this particular resource.

Secondly, the proposed use is a temporary form of use of the land as distinct from other forms of development (e.g. Rural Residential development) which, in a practical sense, alienates land permanently from use for primary’ industry. It is true that not all of this land will revert to cultivation or pasture but, as explained in evidence, the area from which material is extracted, will be capable of providing a water reservoir the utility of which is evident from the discussion of the land’s limitations in terms of agricultural use. For these reasons I am satisfied on the evidence that the proposal should not be rejected on the grounds of conflict with State Planning Policy 1/92."

1. In Logan v Burnett Shire Council [1997] QPELR 18, the Council met opposition to its re-zoning good quality agricultural land on its own application for purposes of establishing an administrative centre; at 20-21, it was said:

"While. as stated, regard must be had to the provisions of the policy when an application of this kind is being decided, nonetheless it retains its status as a policy and as the policy indicates in its own terms, there must be a balance struck between competing considerations. As was pointed out in McCosker v. Council of the Shire of Emerald (1996) Q.P.E.L.R. 114 while it is recognised that the guidelines set out to provide some assistance in determining whether there is an "overriding need" in a particular case, that concept should not be seen as meaning more than a position where the community's interests which are served by the proposal can be seen to outweigh the community's interests in preserving the land for agricultural use.

As to the reference in the guidelines to "alternative sites" this would, if interpreted strictly, seem to set a fairly rigorous requirement but in this case there was no suggestion that a ready alternative with the attributes of this site (locational and otherwise) existed.  I do not read these words as requiring the parties and the Court to comb the shire to analyse comparatively all other land in it to show whether this was so.
. . .

I am satisfied that notwithstanding the subject land’s acknowledged status as good quality agricultural land, that the duly elected Local Authority has decided that a public facility of this kind should be located upon it is a matter of considerable importance in the context of public or community interest."

1. In Bundaberg City Council v Burnett Shire Council [2004] QPELR 459, Senior Judge Skoien was called upon to balance the protection of good quality agricultural land against the need for a landfill. He said at 470-471:

"[62] It cannot be said that any of the above provisions absolutely turn their backs on the possibility of non-rural uses in the Rural Protected Areas. The third and fourth paragraphs of s.2.5.1 (which I have listed in para. [57]) concede that an acceptable nonrural use may be found by reference to other provisions in the Strategic Plan. Section 5.l.1 emphasises rural uses. but s.5.1.4 provides for refusal of non-rural uses only "generally". Importantly. s.5.1.9 is a clear provision that in proper circumstances such a use can be permitted and provides the considerations which will apply.  I note the qualification that this occurs in "unforeseen circumstances" when "other suitable land is not available", and the requirement that the particular development will be of "significant benefit to Burnett and its residents".
[63] Mr Hall’s evidence's was that, at least m the current economic climate relating to sugar cane, a farmer could not make a living on the site. It is conceivable that the site could be a useful addition to another cane farm but, despite the active participation in this appeal of cane farming Co-Respondents, no evidence was led about that. Nor was there any evidence of some alternative profitable agricultural production. I am conscious of the onus of proof on this appeal but the lack of any concrete suggestion of economic agricultural use of the land cannot be ignored.
[64] To state the notoriously accepted obvious, the sugar industry in Queensland is in a parlous state and the emphasis now seems to be on reduction of scale, consolidation and possible diversification. To argue that every hectare of cane producing land should be preserved to provide for a resurgence of the halcyon past would be to defy the evidence. That is especially so if the land in question is a small area of moderate quality land at the extreme end of the catchment of the nearest mill.
[65] In a rural Shire like Burnett it is not surprising that the Strategic Plan emphasises the protection of rural land but the statements which make that emphasis cannot, as King Canute is said to have tried to do, prevail over reality. Regrettable as it may be to many, this site is no longer a valuable piece of agricultural land and it is most unlikely that it ever will be again. So a responsible planning authority should consider such alternative uses for it as the provisions of the Strategic Plan permit.
[66] That consideration must take place in an actual, existing context. At this stage Burnett does not need a new landfill; Bundaberg does. In 3.7 years Bundaberg will have nowhere to put its waste and a city in that situation will be unliveable. I reject the suggestion that Bundaberg would be able to make use of an existing landfill in Burnett, at Bargara, for reasons to which I will return.
[67] This reference to need does not introduce a new issue into the appeal. I am not speaking of "need" in the traditional planning sense of something which on balance improves the quality of life of relevant residents (see for example Roosterland v. BCC (1986) A.P.A.D 58 at 60). Actually, it is not really so much a question of need as of community wellbeing, which is an identified issue in this appeal.
[68] The important thing to bear in mind is that if Bundaberg City should become unliveable, the residents of Burnett Shire will suffer greatly. The city and the shire have a symbiotic relationship. Bundaberg City relies on Burnett Shire for much of its economic and social values. Burnett people support Bundaberg’s commerce.  In return Bundaberg provides for Burnett’s residents the huge infrastructure that only a city of Bundaberg’s size can provide: wide-scale shopping, professional services, government offices, schools, hospitals, airport, etc."

1. The balancing exercise was resolved by a different way by his Honour in J R & O M Breadsell & R O Shaw v Bundaberg City Council [2005] QPELR 209. In the conclusion, on which Mr Gore for the appellants placed reliance for the easier test of "need" which he submitted was embraced, his Honour said:

"[37] Of course  in this context "need" which is being considered is not the need so often considered in the former rezoning cases, that is something which on balance would improve the quality of life in a particular area. The "need" in this case is really what used to be called "demand" for suitably zoned land. See Fogg "Land Development Law in Queensland", 1987 Law Book Co, pp 368 it seq; Bundaberg City Council v Burnett Shire Council (2004) Q.P.E.L.R. 4-59 para. [67]."

1. Other decisions relied on by the appellant included Sellars Holdings Ltd v Pine River Shire Council [1988] QPLR 12 a successful quarry appeal involving amenity and traffic issues in which Judge Quirk said at 15:

"A considerable amount of time was spent in the appeal examining what was perceived as the issue of "need". Matters which were subjected to what I considered to be inappropriately close and detailed scrutiny included:

1. Identification of market catchment areas for the subject land and competing quarry sites.

2.          Likely population growth within those areas.

3.          Consumption rates (per capita) for quarry products.

4. The extent of resources available at competing quarry and gravel winning sites.

5. The effect that this proposal would have upon the pricing structure of competitors.

Whatever relevance "need" might have in this case (and it should be

noted that it is not a rezoning case) it is an issue that ought to have been looked at, in my view, far more broadly. This is a matter which did not escape Mr Challoner, a town planning consultant who gave evidence for the appellant. What is important is that we have, in this case, a proven deposit of quarryable material of high quality. The weight of opinion expressed by geologists and mining engineers appeared to be that, remembering that it is a characteristic of extractive industry that it can be practically located only where suitable deposits (which can be worked in an economically viable way) are to be found, it is in the community’s interests that such deposits be availed of wherever possible. That pressures exist for the expansion of residential areas into those formerly rural is clear enough. If material can be won to the community’s benefit prior to the creation of unacceptable levels of conflict with residential amenity, so much the better. I say no more in this case than that I am
amply satisfied that the issue of "’need" has been determined in favour of this proposal."

1. In Duncanson & Brittain (Quarries) Pty Ltd v Brisbane City Council [1986] QPLR 330 Row DCJ said at 349:

"The question of public or community need was the subject of evidence given particularly by the town planning witnesses. An appropriate starting point on the question of need recognises that the subject land is one where there exists mineral deposits of a significant economic value.  Such a statement is clearly established in the evidence of Mr. Tresize, and the community value of such a resource does not appear to be a matter on which there is substantial difference between the expert witnesses called in relation to that issue. Mr. Kershaw held the view that the deposit was a valuable community deposit. The supporting information to the 1986 Town Plan describes the resource as a "significant" deposit. Considering the question of need, the Court should take into consideration that valuable natural resources should be protected and made available to the community. Such a view conforms with the Intent of the Extractive industry Zone, where it is said that the zone is intended to provide for adequate protection of mineral deposits of significant economic value. On the evidence I am satisfied that the proposal will benefit the community by rationalisation of potentially adverse effects by the implementation of improvements that will also result in some community benefit. These improvements will include the location of the plant and the quarrying of the resource within a shielded area. The proposed Special Use Zones for the plant area, the access road and the buffer will all provide an improvement resulting in some physical well-being to the community. The evidence of Mr. Cridland that the quarry is able to sell everything that it extracts is clear evidence that there is a demand for such material. The proposed rezoning of the subject land would meet a corresponding community need which exists for the resource. the location of the existing quarry and the limited number of hard rock quarries north of the river is further evidence that some community benefit will be achieved, accepting that a significant aspect of the end product relates to the distance travelled for cartage. I am satisfied on the evidence that there is a potential for community benefit from the proposed rezoning and proposed quarrying activities to allow the existing operations to be more efficient, in order to supply the market place, and for the proposed quarry to be conducted in such a manner as to compete adequately with other quarries, so as to keep the price of the product and the cost of cartage down to a reasonable level for the benefit of the community. The evidence indicates that the existing quarry is used significantly by the public and is not merely one for the internal operations of a company. About 70 percent of the total product of the quarry is used by the public with the remaining 30 per cent being sold to associated activities conducted by the Pioneer group. The evidence further establishes that there is a continuing community need well into the future for quarry material and as it is a natural resource, one cannot choose the location from which it is to be won. 1 am satisfied on the on the evidence that the subject land is well placed to meet the existing and probable continuing future need for quarry material."

1. In CSR Ltd v Caboolture Shire Council [2001] QPELR 398 at 406, Judge Quirk said:

"[73] In the course of evidence there was extensive discussion about available sand resources and the relevant merits of the types of sand that can be won at those locations (in terms of particle size, texture and utility in concrete manufacture and building procedures).  I do not believe it necessary to go into any detail about these matters and findings in respect of areas of conflict in these discussions are not required.
 [74] The need arguments seem to arise in connection with the issue of the "Extractive Resources" symbol in its absence at this location. The point appeared to be that if, as was contended, this absence weighed against the proposal it was not a matter that was overcome by any consideration of public need.

[75] It is true, as has been indicated in other cases (e.g. Theodorou v Redlands Shire Council (1987) Q.P.L.R. 11), that when it is unnecessary to establish need (in a planning sense) to discharge the relevant onus. a demonstration of advantage to the community can, in appropriate circumstances, work to overcome otherwise negative
impacts of a particular proposal. In this appeal no such suggestion was made as part of the Appellant’s case.
[76] As has been said. there is abundant authority for the proposition that the public interest is advanced by the location and winning of valuable mineral resources prior to the advent of other potentially incompatible laud uses. The evidence that this is a regionally significant resource is all one way and also establishes that it is conveniently accessible to the market place. At present the form of  land use in the area is not such as to give rise to any important amenity conflicts.
[77] The south-eastern part of the State is a growing area and continued growth is certainly hoped for. I am satisfied that the availability to the market of this resource would benefit the general community even if it might not be welcomed by commercial competitors."

1. That the present appeal should be determined independently of the likely outcome of other development applications to facilitate similar development is supported by Bower v Brisbane City Council [1990] QPLR 130 at 140 K. See also Mustercliff Pty Ltd v Brisbane City Council [1991] QPLR 111 at 124-25: development applications must be assessed on their own merits; thus the Council’s inclination to approve a large shopping centre development on another site could not be used to demonstrate “need” for further retail facilities in the area.

1. The court was reminded of some other statements regarding the approach to be taken to State planning policies including Norris Clarke & O'Brien Pty Ltd v Brisbane City Council [1996] QPELR 262 at 264:

"It is the substance of a policy rather than its form that is important.  That it is not to say that there is any room for arbitrary or capricious application of a policy.  The planning objectives upon which the policy is founded must always be recognised and, where it is feasible, applied."

This was said in relation to State planning policy 1/95, which dealt with the protection of koalas.  In Titanium Enterprises Pty v Caloundra City Council [2007] QPELR 154, at 160, Judge Wilson referring to the draft of South East Regional Coastal Management Plan said at 160:

"At the highest, these Coastal plans are considered in the same light as State Planning policies and those policies are to be applied with a degree of flexibility, affected by identifying their objective and ensuring, so far as possible, that they are achieved."

The decisions discussed above from paragraph [20] on were relied on by the appellant; they provide helpful guidance.  As these reasons are intended to demonstrate, they do not indicate the appropriate outcome in this appeal.  Here the relevant considerations favour retention of the site for agricultural use much more strongly.

South East Queensland Regional Plan 2005-2006

1. The South East Queensland Regional Plan in the preamble describes its application and effect:

"Application
The Regional Plan is a statutory instrument under the Statutory Instruments Act 1992 and is also a planning instrument under the IPA. It has a direct effect in its own right and indirect effect through the amendment and alignment of local government planning schemes and state plans and policies.
Effect
The Regional Plan has effect on and from the day the making of the plan is published in the Gazette.
The effect of the Regional Plan is established under section 2.5A of the IPA.
For the purpose of the IPA, the Regional Plan is taken to be of state interest.
The Regional Plan represents an agreed Queensland Government position on the future of SEQ.

The Regional Plan is the pre-eminent plan for the SEQ region and takes precedence over all other planning instruments. Under the IPA, the Regional Plan prevails where there is any inconsistency with any other plan, policy or code, including any other planning instrument made under state legislation, that have effect within the SEQ region. The Regional Plan, however, has been prepared to complement, rather than to override other relevant state planning instruments.

Any plans, policies and codes that relate to the SEQ region being prepared or amended by state agencies must reflect and align with
the Regional Plan.

The Regulatory Provisions of the Regional Plan are required to be taken into account in planning and development decision-making
processes, including:

·Queensland Government plans and polices;

·local government planning schemes and

·other plans and policies;

·planning and development process under

·the IPA; and

·development applications made under the Integrated Development Assessment System (IDAS) of the IPA."

1. In Part B Management, one finds:

"An alternative approach

As a community, it is important to ask what sort of future is desired for SEQ. It is also necessary to understand the implications of continuing the current trend of using low-density residential development as the principal means of accommodating future population growth.

The community does not, however, have to accept this future. Alternative strategies can be adopted to better manage growth.

A move towards a more compact urban form with higher densities in select areas which are ready and appropriate for change, could achieve significant benefits.

A more compact urban form would reduce travel demands, thereby reducing energy usage and emission of pollutants. It could also improve levels of accessibility and have fewer detrimental impacts on the region’s environment and natural resources. It would help protect the region's rural production and regional landscape areas from urban encroachment."

1. Desired regional outcome 4 is that regional natural resource and rural production areas are protected, enhanced and used sustainably. 4.2 deals with land, extractive resources, etc:

"Principle

Manage the region’s natural economic resources to sustainably and efficiently meet the needs of existing and future communities.
Policies

4.2.1Identify and protect natural economic resource areas from further fragmentation and inappropriate land use.

4.2.2Protect the region's Good Quality Agricultural Land and provide for its long term and sustainable agricultural use.

4.2.3Identify and protect extractive and mineral resources for potential future extraction, including the provision of appropriate transport corridors and buffers…

Notes

The distribution and accessibility of the region’s natural resources influences the location of economic activities such as farming, forestry and mining. Many natural resources are limited and some are non-renewable. Overuse or irreversible loss of natural resources could have significant environmental, economic or social implications for the region.  These resources are generally indicated in Map 7.

The majority of the region’s agricultural area is used for beef farming, with some dairy farming located on productive grazing land. The rich alluvial soils along the valleys in the west and south of the region - including the Brisbane, Lockyer, Fassifern and the Albert-Logan valleys - support a vast array of cropping industries. Closer to the coast, horticultural and cropping industries thrive in the Gold Coast, Redlands, Glass House Mountains and Sunshine Coast districts. Protecting lands with agricultural potential is important to maintaining a viable farming industry in SEQ.

The extractive resources of SEQ are dispersed across the region.  Hardrock resource deposits include those at Beerwah, Bracalba, Kholo Creek, Petrie/Narangba, Beenleigh and the Darlington Range.  Sand and gravel resources are found in the alluvial flats of the Pine and Logan rivers and Beachmere.

The Queensland Government has prepared the Draft State Planning Policy for Protection of Extractive Resources.  When finalised, this planning policy will protect the long term availability of extractive resources of state or regional significance.  This will include identifying and protecting key resource areas in local government planning schemes."

1. On Map 7-Rural production and natural resources the site is in an area coloured purple to indicate extractive resources, surrounded by a light green to indicate cropping/horticulture.  Mr Challenor in the planning experts' conclave relied on that arrangement to contend that the site was recognised for extractive resources, rather than as agricultural land.  There is a note on the map to the following effect (which was apparently difficult to decipher in the versions at the conclave):

"The information on this map is not intended for reference to specific parcels of land, and should be treated as indicative only and subject to ongoing refinement.  In some parts of the mapping one layer obscures another, this is not meant to imply any order of importance or priority."

1. The system adopted and explained in the "key" allows no more than one characterisation to any location, whereas other systems, such as cross-hatching using different patterns might enable all of the attributes or values of particular locations to be indicated.  In the circumstances, Mr Challenor cannot maintain his point.

State Planning Policy 2/07

1. The foreshadowed State planning policy for protection of extractive resources which had been long in gestation, was subsequently finalised.  Relevantly, the mapping on Map 7 conforms with that in the Policy, which took effect on 3 September 2007.  The contents of the policy are unsurprising. It commences with an explanatory statement:

"Need to protect extractive resources
Extractive resources include sand, gravel, quarry rock, clay and soil and are used in concrete, asphalt, road bases and a range of other products. They are essential to our way .of life as they are the raw materials for building our homes, hospitals, schools and factories, as well as the supporting infrastructure, such as roads, railways, water supply and sewerage systems.

The main markets for extractive resource products are the urban communities around Queensland experiencing high and sustained population growth. The location of extractive resources is determined by geological conditions and is finite. They need to be accessed where they naturally occur and also be close to their markets. Unfortunately this can result in conflict between extractive industry and other, incompatible land uses, such as residential uses, that have the potential to sterilise the availability of the extractive resource.

Outcome sought by SPP 2/07

SPP 2/07 identifies those extractive resources of State or regional significance where extractive industry development is appropriate in principle, and aims to protect those resources from developments that might prevent or severely constrain current or future extraction when the need for the resource arises,

The Policy identifies the location of such extractive resources as Key Resource Areas (KRAs), each of which contain three elements - a resource/processing area, a separation area and an associated transport route (which also includes a transport route separation area) where such a link is needed from the resource/processing area to a major road or railway. The resource/processing area generally identifies the location of the extractive resource itself. The adjoining separation area identifies the area that may be affected by the residual impacts of existing or future extractive operations in the resource/processing area, and also provides a buffer between those operations and any incompatible uses beyond and adjoining the separation area.

SPP 2/07 seeks to ensure that as far as practicable, development within a resource/processing area, the separation area of a KRA and the associated transport route’s separation area are compatible with existing or furore extractive industry. However SPP 2/07 recognises that there are acceptable circumstances where this outcome might not be achieved, namely where there are existing development commitments or an overriding public interest for another use of the land. SPP 2/07 also recognises that extractive industry development in certain KRAs will need to comply with the requirements of the vegetation management codes under the Vegetation Management Act 1999, particularly where there are State or regional biodiversity values; any adverse impacts on those values should be avoided or mitigated.

As some resources have not yet been fully explored in detail, the resource/processing area boundary may not accurately reflect the workable extractive resource. It is therefore possible that extractive industry developments may occur in the existing separation area. However, extractive industry development should only occur in the separation area where the function of the separation area as a buffer is not compromised."

1. The site falls within KRA 65 (described as the Jacobs Well key resource) in C of five separate resource/processing areas each with its own "separation area" and transport corridor.  A comprises two parts, a smaller one north of the site (and C generally) on the Logan River and a much larger component north east of C.  B is to the east of C and south of B is E.  D lies between C and E.  It is worth noting what is said in the Guidelines about KRA 65 as an indicator of the detail resorted to:  

"LOCAL GOVERNMENT AREA: Gold Coast City
LOCATION:
The resource area is within the extensive estuarine/alluvial plain, and comprises five resources (See map KRA 65, Deposits A to E) extending from the Logan River (Deposit A) to south of the Pimpama River (Deposit E).

EXTRACTIVE RESOURCE: Sand
EXTRACTIVE RESOURCE DESCRIPTION:
The resources consist of mainly fine grained rounded quartzose sand of estuarine and marine origin with an overburden of organic-rich topsoil, clay, sandy clay and loam. Deposit A contains up to 25.5 metres of sand (average 7 metres), with an overburden of 0.9 to 1.2 metres. An Extractive Industry Permit covers the northern portion of this section.  Deposit B contains sand averaging 8 metres thick, with an overburden of 0.6 to 1.1 metres.  Four extractive operations are currently producing sand for concrete aggregate.  Deposit C contains sand ranging from 1 to 11 metres thick (averaging 4.7 metres), with overburden about 1.7 metres thick.  Deposit D contains sand from 2 to 11 metres in thickness, with clayey sand overburden averaging 1.4 metres thick.  Deposit E contains sand 1 to 11 metres thick, with an overburden 0.5 metres thick.

SIGNIFICANCE:
The resource represents the Brisbane to Gold Coast market’s one remaining source of fine sand for concrete and asphalt. It is particularly important as a source of fine natural sand for blending with ’manufactured sand’ produced by fine-crushing of quarry hardrock.

SEPARATION AREA:
The separation area of 200 metres width has been applied around the resource.

TRANSPORT ROUTES:
Deposits A and B access the Stapylton-Jacobs Well Road via Marks Road and Mill Road.  Deposit C would access the Stapylton-Jacobs Well Road via Norwell Road, or the Pacific Motorway via Norwell Road, Pimpama -Jacobs Well Road and Mirambeena Drive. Deposits D and E would access the Pacific Motorway along Mirambeena Drive via the Pimpama-Jacobs Well Road, and Green Meadows Road/Kerkin Roads.

SPECIAL CONSIDERATIONS:
Deposits A and B are adjacent to significant wetlands of State significance under EPA’s Biodiversity Planning Assessment. Deposit A abuts the Logan River and sensitive fish habitats such as the Jumpinpin-Broadwater Fish Habitat Area. A 100 metre buffer has been established between the resource/processing area and the Logan River. Deposit B contains ’of concern’ vegetation under the Vegetation Management Act 1999, and areas having regional biodiversity significance. Localised heath at Jacobs Well is the only known habitat in Queensland of the Swordgrass Brown Butterfly. An area of 'of concern’ vegetation in Area B is covered by pre-existing approvals. Much of the area currently produces sugar cane."

1. The Guideline provides helpful explanations:

"1. THE POLICY GUIDELINE

1.1The State Planning Policy Guideline: Protection of Extractive Resources (the Policy Guideline) provides information and advice on implementing the State Planning Policy: Protection of Extractive Resources (the Policy).

1.2The Policy cites the Policy Guideline as ’extrinsic material’ under the Statutory Instruments Act 1992, giving the Policy Guideline legal status in assisting in the interpretation of the Policy.

2.  POLICY OUTCOME
Need to protect extractive resources

2.1The Policy outcome is to identify those extractive resources of State or regional significance where extractive industry development is appropriate in principle, and protect those resources from developments that might prevent their future extraction.

2.2Extractive resources are deposits of sand, gravel, quarry rock, clay and soil. They are essential to the State and regional economies, and the community, as the primary raw materials for the construction industry. Extractive resources are extracted and processed for use in concrete, road bases, asphalt, rail track ballast, breakwater         construction, drainage materials, mortar and plaster, and a range of other products.

2.3Extractive resources are high volume, low value products, and the economic viability of an extractive resource depends on its proximity to markets and urban areas.  Encroachment by incompatible development can restrict or prevent the extraction, processing and transportation of extractive resources to markets. The amenity of the community surrounding the extractive resource and transport route also needs to be protected from any potential adverse effects of extractive industry.

2.4Under the Integrated Planning Act 1997 a local government, both in plan making and in development assessment, is required to advance the Act’s purpose. This includes, amongst other matters, the sustainable use of non-renewable natural resources such as extractive resources. The Act recognises extractive deposits of economic value as ‘valuable features’, which are a component of the ‘core matters’ the Act requires planning schemes to address."

1. The SPP-2/07 Guideline in 5.8 ff provides guidance as to when incompatible development "could" provide an overriding benefit to justify non-achievement of the policy outcome.  It is noted in 5.10 that "extractive industry does not have flexible location options because the extractive resources are fixed, finite and are limited in occurrence.  Other uses (in particular residential uses) are unlikely to override the long-term availability of an extractive resource because they have more flexible location options."  A similar observation could be made about good quality agricultural land, especially the more scarce cropping land. SPP 2/07 contains nothing to indicate whether (and if so, in what circumstances) other State planning policies, in particular SPP 1/92, may be overridden by it.  There was a suggestion at one stage that the later policy, 2/07 might prevail.  Any such notion should be rejected, in the absence of anything is SPP 2/07 to require acceptance of it.  I can think of no basis on which the importance of retaining cropping land, in particular, would be thought to have diminished as years passed.

1. It was truly said that compliance with both State planning policies is possible, in that pursuit of agricultural purposes in no way impinges on "protection" of extractive resources which, rather than immediate exploitation, is the gravamen of Policy 2/07. The title apart, the outcome sought by SPP 2/07 is to protect resources, as per the explanatory statement set out in paragraph [35].

1. The parties agreed that the South East Regional Plan 2005 - 2026 adds nothing relevant in this appeal and need not be further considered by the court. 

1. Council's planning scheme Map PS1 includes the site in the agricultural theme rather than the extractive industry theme (indicated by purple hatching). It does not include the site in any "extractive resource area" indicated by a purple border.  There are three such areas, corresponding roughly with parts of key resources A, B and D in KRA 65.  Of the overlay maps, calculated to provide useful information relating to special considerations, two have a bearing on the appeal.  OM 2 (indicating a more confined area than the agricultural theme) is first referred to very early in the planning scheme:

"1.4 State Considerations

Four state planning policies which apply to the City of Gold Coast are integrated into this Planning Scheme, as follows:

·1/92 - Development and Conservation of Agricultural Land - to preserve the ongoing viability of good quality agricultural land together with its associated rural economic activities. Relevant provisions have been incorporated in respect of all rural land identified as good quality agricultural land as shown on Overlay Map OM2, including a 20 ha minimum lot size.

·1/02 - Planning and Management of Development in the Vicinity of Certain Airports and Aviation Facilities …

·1/03 - State Planning Policy - Mitigating the Adverse Impacts of Flood, Bushfire and Landslide; and

·2/02 - State Planning Policy - Planning and Managing Development Involving Acid Sulfate Soils."

1. OM23 for present purposes effectively reproduces the KRA 65 map (there are some presently immaterial variations).  In the Domain map, extractive industry covers part of resource D and parts of resource B in KRA 65.  Otherwise, generally, the area is rural.

1. OM23, among other things, makes it clear that the Council as planning authority was aware of resource C.  There is no reason for thinking that its omission from the extractive industry domain (or the omission of resources A, D and E in whole or in part) was anything other than a deliberate planning decision.  There is no reason for thinking that the omission of resource C from extractive industry resource areas in PS1 (or that of resource E, most of resource A and, apparently, some of resource D) was anything other than a deliberate planning decision.  In my opinion, the plain explanation is that a judgment was made as to what resources could and should be exploited during the life of the 2003 Gold Coast planning scheme.  It is unsurprising that, to an extent, the mapping reflects development that was underway already.  Mr Perkins helpfully included in his planning report (exhibit 18) maps from the 1995 Albert Shire Council planning scheme, including an extract from strategic plan map 5 (preferred dominant land uses) which includes only the western part of resource D and the northern part of resource A in extractive industry. The matter of opinion mentioned above was expressly stated in the Albert Scheme, in extracts from paragraphs 1.14 – 1.15 included in exhibit 28:   

“1.3.5 ECONOMIC DEVELOPMENT

1.3.5.1Introduction

The key economic development initiatives are … Rocky Point Cane

Area

….

1.3.5.3 Economic Development Objective 2 – To protect the viability of the Rocky Point Cane Area

Implementation

(i)This objective will be implemented through the implementation of criteria relevant to Agriculture Objective 1 of the strategic plan which seeks to ensure that a significant area of land continues to be available for sugar cane production.

(ii)The canelands and land in the cane area are intended to be preserved for agricultural use, or uses compatible with agriculture. Subdivision or development of agricultural land identified on Regulatory Map 2 – Rocky Point Cane Mill Area will not be favoured so that the viability of the sugar industry is maintained.

….

1.3.5.6 Economic Development Objective 5 – To protect economically valuable extractive resources, for exploitation

Implementation
             ….

(ii).… Sand resources in the Jacobs Well district…. It is intended …. would not be exploited in the life of the Plan…. The possibility of eventually exploiting Jacobs Well sand resources will be protected in the meantime, by designation of the area for Agriculture on Strategic Plan Map 5 and the related provisions of sub-section 1.4.8.

1. The other map reproduced by Mr Perkins is entitled Rocky Point Sugar Mill Cane Area Regulatory map extract, providing two categories - areas critical to the industry and areas significant to the industry - which effectively "says it all".  The site is close to the heart of the former.

1. The conclusion to be drawn from the foregoing discussion is that the applicant's proposal conflicts with the current planning scheme, for purposes of s 3.5.14 of the Integrated Planning Act 1997 (IPA):

"3.5.14 Decision if application requires impact assessment

(1)This section applies to any part of the application requiring impact assessment.

(2)If the application is for development in a planning scheme    area, the assessment manager’s decision must not—

(a) compromise the achievement of the desired  environmental outcomes for the planning scheme area; or
(b) conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict.

(3) If the application is for development outside a planning scheme area, the assessment manager’s decision must       not compromise the achievement of the desired       environmental outcomes for any planning scheme area       that would be materially affected by the development if       the development were approved.

(4) Subsections (2)(a) and (3) do not apply if compromising    the achievement of the desired environmental outcomes       is necessary to further the outcomes of any of the      following if they are not identified in the planning scheme as being appropriately reflected in the planning scheme—

(a) State planning policies, or parts of State planning     policies;

(b) for the planning scheme of a local government in the relevant area for a State planning regulatory provision—the provision;
(c) for the planning scheme of a local government in  designated region—the region’s regional plan.”

1. Indeed, I agree with the Council's submission that the proposal compromises the achievement of desired environmental outcome DEO ECON.5:

"The prudent use of renewable and non-renewable natural resources, having regard to their sustainable management.

5.1 Explanation

The sustainable management of renewable and non-renewable natural resources requires that their harvesting or use have regard to long term needs and that it occurs only where environmental and social impacts can be maintained to an acceptable level. Such resources include good quality agricultural land, materials extracted from the ground (such as rock, sand, soils and gravel), timber and water.
The Planning Scheme can ensure that development proposals, seeking to utilise natural resources, take account of both immediate and long term impacts. . . .

5.2        Planning Objectives to Support DEO Econ.5

Econ. 5.1:to ensure the sustainable use of natural resources,  having regard to the capacity of the resource to continue to meet community needs and the environmental and social consequences of its exploitation.

Econ.5.2:to protect productive agricultural land, significant mineral deposits and extractive resources and other natural resources of economic value from encroachment by incompatible land uses.

. . .
5.3 Planning Measures to Support DEO Econ. 5

This DEO is addressed in the Key Strategies for Natural Resources and Energy Conservation. It is also of significance to many Land Use Themes but particularly those for Open Space/Nature Conservation, Rural/Nature Conservation, Agriculture and Community Infrastructure.

It will be largely achieved through the following provisions:

·Rural, Extractive Industry and Community Purposes Domains;

·Specific Development Codes for Changes to Ground Level and Creation of New Waterbodies, Farm Forestry, Rural Industry and Salvage Yards; and

·Constraint Codes for Dam Catchment Areas, Nature Conservation, Sediment and Erosion Control and Steep Slopes or Unstable Soils."

1. As to the conflict, it exists with the planning intent of the agricultural land use theme whereby greater development in this area will be expected "to implement SPP1/92 . . . to generally support the viability of the Rocky Point Sugar Mill;” it exists with the intent of the rural domain, which makes no mention of extractive industry, an activity apparently not contemplated in the domain, indeed one treated as "undesirable or inappropriate" there.  Mr Ure (for the Russells) drew attention to two provisions in Part 5 Division 1 Chapter 2 Using Domains:

"2.0       Intent Statements in Domains
Each domain contains an intent statement, which sets out the primary
objectives of this Planning Scheme for the land that is included within the particular domain. The intent statement is informed by the Land Use Themes and the City wide Desired Environmental Outcomes (DEOs), which are directly relevant to the areas, included within the domain.

3.0        Scope

Each domain sets out clearly the range of developments that are subject to its planning measures. In most cases, all types of development subject to the Planning Scheme will need to comply with the planning measures of the relevant domain.

. . .

4.6Default Assessment Categories for the Table of Development

4.6.1Material Change of Use

All uses in Section A in the Table of Development may be considered as appropriate for the domain to which the Table of Development applies, subject to each use meeting the relevant assessment criteria.

Any use not listed in Section A of the Table of Development, should be considered as undesirable or inappropriate in the domain to which the Table of Development applies."

1. As to the suggestion in the appellant's case that omission of extractive industry from the Table of Assessment was an error or a mistake, it is difficult to identify from other provisions of the planning scheme that something has gone wrong.  The irreversible destruction of good quality agricultural land that is likely to be produced by any extractive industry (and certain to be produced here) runs counter to the intent of the rural domain.  Although in general terms the possibility of extractive industry there, or in the agricultural land use is identified, the site does not enjoy the recognition which is accorded others having extractive industry potential.  Further, in the former Albert Shire Council planning scheme, extractive industry was equally unwelcome on the site.  See exhibit 3, para [4.2.4].

1. The conflict with SPP1/92, subject to its being "overridden", in its own terms, is gross. State planning policies are among the material that may require consideration in an impact assessment process, of the kind required here, pursuant to s 3.5.5 of the Integrated Planning Act:[2]

   [2]"(1)     This section applies to any part of the application requiring impact assessment.

Need

1. Much of the evidence in the case was devoted to the issue of need for the proposed development.  Mr Laming, the applicant's principal, gave evidence of the quality of the product, access to which will enable him to continue in an industry in which he (trading through a different company) has acquired an excellent reputation, and a loyal, satisfied clientele by operations in Resource area B.  The resource there is depleting.  By happenstance, during the appeal, Mr Jones, another experienced operator in the industry, volunteered (and was allowed by the court) to give evidence.  The demand for the resource, its high quality and favourable location in south east Queensland may be taken as established.  What is contentious is whether other resources are available to meet the need indicated by the demand.  As at this time, apart from the appellant (or its associate's) existing sand operation, which will continue for up to two years, the following observations in the Council's written submissions are borne out by the evidence:

"Against the background that existing sources of natural sand will likely be depleted in about 2017, both experts[3] agreed that the community will continue to source fine-medium sand from the following resources (assuming the application is refused):

[3]i.e. Mr Kershaw and Mr Gray

·Moreton Bay is a source of significant volumes of sand for at least the next 20 years and beyond;

·Beachmere/Ningi is a significant sand resource with in excess of 20 years of supply;

·sources found at the Tweed River in Northern New South Wales are also a relevant source of material - the life of that resource is likely to exceed 15 years;

·Stradbroke Island is a source of fine-medium sand, although it is recognised that the sand is a by-product of a mining operation;

·Meldale is a source of fine-medium sand for the community and will remain so for the next 20 years."

The above list was proffered to overcome any assertion that, for purposes of overriding need to alienate good quality agricultural land in SPP1/92, there must be "no other site suitable for the particular purpose" (Policy Principle PLE No 1).

1. The Moreton Bay resource is enormous and, on the basis of the evidence before the court, available for extraction at the generous rates now approved by the Environmental Protection Authority without giving rise to environmental issues on the basis of general access being made available within the year (in contrast with a more restrictive situation to date).  Other resources that might be mentioned include the uncertain ones from digging out excavations on building sites and resources somewhat further afield.  Transportation costs are a consideration, but the level at which they are tolerated is indicated by the appellant's customer base extending as far south as Ballina.  Apropos more modest local resources, the  Council submitted:

"With respect to the question other sites suitable for the particular purpose there are two obviously viable alternatives which arise on the evidence.  Those alternatives are the sites which are the subject of developments applications before the Council:

(a)Pimpama Sands (Select Venue Systems Pty Ltd); and

(b)Marks Road (Genesis Sands Pty Ltd).

It is clear that each application seeks approval to extract a resource which:

(a) is significant in size (and, as Mr Gray conceded, comparable in size);

(b) has similar depositional environments to the site, in particular, the Pimpama Sand site is very similar to the subject land;

(c) can be used for (subject to treatment and processing) exactly the same applications as the sand on the site; and

(d)do not appear to be constrained by the good quality agricultural land issue in the same way as the site (see the unchallenged evidence of Mr Thompson, Exhibit 12, Table 1, page 4 and page 2, 3rd and 4th paragraphs)."

1. The Council’s expert in these matters, Mr Kershaw, in cross-examination found himself taxed with the accusation of a surfeit of enthusiasm in a need analysis supplied to Council with a development application in similar fashion to Mr Gray on behalf of the appellant:

"If we could go to page 44 to begin with, section 3.2.2 dealt with the need for the proposal the subject of the Genesis Sands application, and. it said in the fourth paragraph, "Traditional sand resources in the region have been located in streams and adjacent, to streams. These sources in the main have been depleted.":  Is that still accurate?-- As a general statement, yes.

"There is a need for the inventory of available sand to be replenished."?-- Yes.

"A shortfall in the existing proven sand inventory has been identified. Is that still true? Is that still true, Mr Kershaw?-- In general terms, yes.

"And the existing sand operations will not be able to meet community requirements for the region in about 2009." Is that still true?-- No, I wouldn’t say that’s true.

Why is it not true?-- Well, I’ve just said, it’s up to 2017 now.

Well, why does this report say 2009?-- Well, I guess we didn’t take into account some of the resources that are available, either - particular in relation to - since this report was written, which was written - it’s actually dated the 7th of June, but there was a hiatus. It was actually written in 2005 and then nothing happened for about eight months in that the - there was issues at Clutha Creek and Mundoolun in terms of approvals and those issues have since been resolved. I think the last to be resolved was Mundoolun where the Council issued the approval at the end of 2006." (Transcript p 314)

1. It is inappropriate, and invidious for the court, to become involved in this appeal in passing on the merits of pending development applications made by third parties.  The context is not one in which there need be fears that if multiple applications succeed fine-medium sand will be in oversupply.  I take it that the Council was not intending to indicate any predisposition in favour of "rival" development applications as a reason for refusing the appellant's.  Mr Gore, for the appellant, disavowed that any attempt was being made to argue that the Select Venue Systems or Genesis Sands applications would or should be refused; he argued that the point of comparison favourable to his client was that its application was ready for finalisation in the court, and accordingly did not confront the uncertainties that affected the others. In the market, it is accepted that riverine sand has some special attractions, particularly as "brickie's loam", an application in which it is not only an ideal product, but one cheaper than the alternatives.  This represents one of the factors (certainly not a determining one) in the exercise of seeking "overriding need" for the purposes of SPP1/92.

1. The appellant's surprise witness, Mr Jones, general manager (sales and marketing) of Karreman Quarries told the court:

". . .

Over the past 20 years the reserves of wash pit sand have diminished rapidly, to the stage where in my view we are about to have a significant shortage of this material available to meet the market demands. On top of this, South East Queensland is embarking upon a major infrastructure program never before envisaged possible, based on my experience in the industry.

For the last 10 years, or so, there has been comparatively little government spending on infrastructure in South East Queensland. That has all now changed. With the Government’s commitment to upgrading major roads (including the Gateway, the Centenary Highway, amongst others) the continuing development at the Port of Brisbane, and the recently announced development of the airport the demand for quarry material, concrete and washed fine sands is the most significant in living memory.

. . .

It’s predicted that within the trade area of Karreman Quarries alone, 8 major infrastructure projects over the next 5 years would require an extra 52 million tonnes of quarry material in addition to our normal market needs. This is unheard of in the history of the industry.

In my view, this demand will require quarry and sand plant operations to at least double their production outputs in an attempt to supply aggregate road base and sand products to meet government infrastructure construction programs alone. However, many existing suppliers are subject to production limits in their approvals.

The need for washed pit sand production will become more critical over the next 2 years as Main Roads have changed their pavement design to a thicker asphalt pavement. This alone will increase the requirements for sand and other quarry products by up to 800%. This is a major problem and will present even greater shortages and uncertainty."

1. Mr Ure, for the Russells, challenged the assertion about Main Roads in particular, and Mr Jones' assertion that the community faces an unprecedented  demand for sand that cannot be satisfied if applications like the present are not pursued, by seeking to demonstrate in cross-examination that the concreting over of south eastern Queensland has been with us for some time:

". . . I’m just going to suggest to you some major infrastructure and commercial projects since 1998. The Port of Brisbane Motorway, Stage 1? -- Yep.

The Pacific Motorway?-- Yes.

The largest concrete undertaking Main Roads has ever performed?-- Correct.

The Inner Northern Busway?-- Yes.

South-eastern Busway?-- Yes.

The widening of the Bruce Highway north of Pine River?-- Yes.

The Princess Alexandra Hospital upgrade?-- Yes.

Royal Brisbane Hospital upgrade?-- Yes.

Museum of Modern Art at South Bank?-- Yes.

Some commercial buildings, Riparian Plaza, 53 levels?-- Mmm.

Aurora Tower, Brisbane CBD, 69 levels, new BCC Administration
Building, Brisbane CBD, 38 levels, correct?-- That’s correct.

Casino Towers, George Street, 30 levels?-- Right.

Festival Towers, 41 levels and Charlotte Towers 44 levels.  I suggest to you there have been significant major infrastructure and commercial projects in south-east Queensland since 19987-- And they’ve been there since 1970."

1. Not to be outdone, Mr Trotter in re-examination added fuel to the fears of some that sand may run out by reference to the M1 Busway, Mt Lindesay Highway, the Ipswich Road bypass, Ipswich Road Upgrade Safelink, a Horizon Allianz job at Darra and Springfield involving a new four lane road and two rail tracks ("it'll eventually go out to Ripley, near Amberley") new berths or "walls" at the Port of Brisbane, and so on.   For Mr Jones "the scary part is that we haven't got all these big jobs underway yet."

1. The site's possible contribution towards satisfying the massive demand for sand will be relatively miniscule.  It would appear to me its relative contribution to maintaining the stock of good agricultural land in the Rocky Point Mill area is relatively greater.  The appellant is far from persuading the court of any overriding need for this good quality agricultural land to be taken out of the stock permanently and made over to another use.  There was nothing to suggest that if the appellant’s sand is not extracted now there would be impediments in the way of its being extracted in the future.

Has the site value as GQAL?

1. Something might be said regarding the report of the conclave of experts, Mr Carberry, Mr Thompson and Mr Walker.  Their report concluded:

"Results of the Field Inspections

1.Of the 10 sites excavated to between 1.1 and 1.5 m (locations shown in Attachment B), Sites 5, 9 and 10 were Humic Gley soils. Site 3 and 4 were better drained variants of the humic grey soil with some podzolic characteristics and are consistent with the Holz description of IIw2. Sites 1 and 2 fall within the unit IVw4s3, but the conclave agrees that these are best classified Class 2w as per the Forster mapping. All of these sites are Agricultural Land Class A and hence fit GQAL criteria.

2.Site 6 is a peaty humic grey soil exhibiting very poor internal drainage. The site lies close to the unit mapped by Holz as IIIw3, however the conclave agrees that the soil is better classified as being either within the IVw4s3 (agricultural land class B) units that adjoins this area or as unsuited non arable lands. The conclave agrees that this area is Agricultural Land Class C and hence not GQAL.

3.Sites 7 and 8 are humic greys of similar characteristics to the sites 5, 9, 10. They are close to an area mapped by Holz as IVw4s3. Dredged material from the adjoining drain has been top dressed in these locations and the soils would require substantive amendments as a result. The conclave agrees that these areas are as mapped by Holz in terms of land suitability and hence would be Agricultural Land Class B and thus GQAL.

4.The field inspection verifies that the majority of the area is GQAL."

1. Mr Carberry, who signed the above on 30 July 2007, appeared to undercut it in his subsequent report to the court, dated 6 September 2007:

"RESULTS

·The Conclave of Experts agreed that the results of the previous work by Holz and Forster are of sufficient accuracy and detail to provide a solid indication of the Good Quality Agricultural Land (GQAL) status of the site. The work of Forster is based on the work of Holz, however differences in the mapping are a result of drainage being installed within the study area and Forster therefore reducing the wetness limitations associated with the area.

·The Conclave of Experts agreed that the majority of the site (as generally delineated by Forster as Class 2 land) is GQAL Class A (Crop land - land that is suitable for current and potential crops with limitations to production which range from none to moderate levels) or GQAL Class B (Limited crop land - land that is marginal for current and potential crops due to severe limitations; and suitable for pasture & Engineering and/or agronomic improvements may be required before the land is considered suitable for cropping) as generally delineated by Holz as IVw4s3. There is also a small area of GQAL Class C (Pasture land - land that is suitable only for improved or native pastures due to limitations which preclude continuous cultivation for crop production; but some areas may tolerate a short period of-ground disturbance for pasture establishment). Class C land is not classified as Good Quality Agricultural Land.

·There were no disagreements between the Experts.

STUDY LIMITATIONS

·As mentioned previously, this assessment was undertaken in accordance with the Planning Guidelines: The Identification of Good Quality Agricultural Land.  This assessment therefore does not assess the economic viability of the agricultural production or ecosystem services associated with the land."

“Grounds” propounded to overcome “conflict”

1. It is appropriate to record the list of grounds offered by the appellants to justify a decision to approve its development application despite conflict with the planning scheme:

". . .  (a)  resources in 3 of the 4 sites in the EI domain are depleted;
(b)  resources in 3 of the 4 sites on map PSI are depleted;
(c)  the remaining site (Marks road) has smaller resources (4 mt) than the subject (5.2 mt), is a different type of sand, and is insufficient by itself to satisfy the regional demand;
(d) there is a distinct need for the resource;
(e)  the proposal will ensure the continuation of a well established business which is conveniently located, competitive and available as an additional choice;
(f) the loss of any cane productivity from this site will not have a noticeable impact on the local sugar industry;
(g) the site is shown on -  

·  SEQRP map 7

·  SPP2/07(KRA65)

(h) there is no adverse environmental impact (this being an extractive industry case)."

1. The foregoing points are well made, but in the circumstances lack sufficient weight.  There is no occasion here to embark on consideration of whether all of the foregoing are "planning grounds", an expression not found in s 3.5.14, which did appear in its predecessor.  There is authority that absence of adverse impacts is not a planning ground, although there may be something to be said for Mr Gore's submission that a benign extractive industry whose product is in demand is asserting a legitimate ground. Indeed, it is supported by Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA at [37]. In principle, I think (e) should be regarded as a ground. Why should not the continuation on a new site of a successful employment-generating enterprise no longer able to operate at its established location constitute a ground favouring an appropriate development proposal to be considered in the balance if there is conflict within a provision like s 3.5.14 (2) (6)? The Gold Coast Planning Scheme’s DEOs unsurprisingly include the following:

1.0 DEO ECON.1
The provision of an efficient land use pattern that is conducive to business activity, and attractive for new business opportunities, particularly those that complement existing or emerging business activity and those that offer opportunities for sustainable new businesses which diversify the existing economic base of the city.

1.1 Explanation
…. The Planning Scheme is able to complement the City’s Economic Development Strategy by facilitating the provision of a supportive land use structure that encourages appropriate businesses to locate and grow.

1.2 Planning Objectives to Support DEO Econ.1
….
Econ.1.2: to provide opportunities for the expansion of existing businesses and the establishment of new businesses in the following industry groups which have been identified as having significant growth prospects: ….

·    extractive industry (including innovation in the production of aggregates such as manufactured sand).

2.0 DEO ECON.2
Enhanced employment and investment opportunities…”

In my assessment, the grounds based on need are weak here in all the circumstances and those referring to the recognition of the resource on the site (a resource which is on the site and can be extracted only from the site) is also weak, in that refusal of the application and restriction of the site to uses currently available is completely consistent with protection of the resource for possible exploitation.

1. Ground (f) is an "absence of adverse impact" proposition. It is not enough to demonstrate a below-average production of cane on the site, even the diversion of a good part of it in the last couple of years to equine activities.  The site has clear potential for use to grow cane for supply to the Mill.  This is so notwithstanding that, on its own, it may not represent an economic proposition.  It can be (indeed, it has been) farmed in association with other land in the district.

1. The mutual dependence of the Mill and its suppliers is patent.  The planning arrangements to protect the continued operations of the Mill are at once a security for local landowners who wish the local sugar industry to endure, whether they are currently producing cane or not, and a severe constraint upon those landowners who might be inclined to turn their properties to profitable account by other uses.  Essentially, agricultural uses by way of cropping are limited to sugar cane.  Production of alternatives such as tomatoes or zucchinis would require irrigation, which is not presently available. 

1. The implications of the deliberate strategic planning choice made for the Norwell-Jacobs Creek area are profound for local landowners - and would at all times have been obvious. Extraction of the known sand resources has been specifically contemplated as serving the public interest, and as a possible use, indeed one to be encouraged in designated locations, while, in other locations, exploitation of the resource within the life of the 2003 planning scheme has not been envisaged. It is impossible, in my opinion, to characterise the arrangements as mistaken. The sand resource not earmarked for immediate use is in no way destroyed or imperilled; it will be available if and when proposals to extract it result in a development approval in future. In my view, there is conflict between the proposal propounded in the application and the planning scheme. It is a legitimate question for the court whether in this appeal, the development application ought be approved. By section 2.1.23(2), under IPA no uses are prohibited[4].  In the end, however, the appellant bearing the onus in these matters, it is not shown that any “overriding need” exists for purposes of SPP1/92 or that there are sufficient grounds to justify approval of the proposal despite the conflict. Further, the above discussion reveals the proposal compromises the achievement of a DEO in a manner unacceptable as the circumstances relating to the Mill stand.

   [4]According to the Explanatory Memorandum quoted in Fogg, Meurling & Hodgetts, Planning and Development in Queensland 2145, the approach is to maintain a “market responsive land development system”.

1. The appeal should be dismissed, and the application refused.

(2) If the application is for development in a planning scheme area, the assessment manager must carry out the impact assessment having regard to the following—

(a) the common material;
(b) the planning scheme and any other relevant local planning instruments;
(c) if they are not identified in the planning scheme as being appropriately reflected in the planning scheme—

(i) State planning policies, or parts of State planning policies; 53 and
(ii) for the planning scheme of a local government in the relevant area for a State planning regulatory provision—the provision; and
(iii) for the planning scheme of a local government in a designated region—the region’s regional plan;

(d) any development approval for, and any lawful use of, premises the subject of the application or adjacent premises;

(e) if the assessment manager is not a local government—the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the assessment manager and    that are relevant to the application;

(f) the matters prescribed under a regulation (to the extent they apply to a particular proposal).

(3) …”