Fraser & Anor v. Beaudesert Shire Council

[2008] QPEC 21

[2008] QPEC 21

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

No 911 of 2007

MICHAEL WILLIAM FRASER and CHERRYL MARIE FRASER	Appellants
and
BEAUDESERT SHIRE COUNCIL & ORS	Respondent

BRISBANE

..DATE 24/04/2008

JUDGMENT

HIS HONOUR:  This is an applicant appeal against conditions attaching to the council's approval of an application for an extractive industry, namely a sand mine at Mundoolun Connection Road, Boyland on land more particularly described as Lot 58 on Crown Plan W31869 and Lot 74 on Registered Plan 897486 County of Ward, Parish of Logan.

The approval was for a development permit for material change of use for an extractive industry and for environmentally relevant activities.  The approval will authorise sand mining activities extracting up to 350,000 tonnes per annum over the life of the permit.  The sand mine is an existing operation which has historically been operated under an earlier approval and extensions thereof. 

The planning history is summarised in the planning and development committee report, which is Exhibit 11A.  There is no need to dwell on that detail.  In 2003 the council purported to refuse an extension of the earlier approval, prompting the subject application to be made later the same year.  Sand mining has continued to date, notwithstanding.  There is an unresolved appeal and an application for declarations in respect of the council's refusal to renew.  While making no formal admission, counsel for the appellant was prepared for the application to be treated as if it were one to regularise an activity which has been carried on without appropriate approvals. 

The subject site falls within a rural area but has some proximity to an area of rural residential properties.  The subject approval will authorise the sand mining activity to continue for the life the permit, will permit activities to expand into a new part of the site and will also permit extraction at rates higher than previously approved. 

That is set against a background where it would seem that previous operations have not, in all respects, been in conformity with the earlier approval and the council has not, in all respects, been effective in promptly securing compliance.  Past compliance issues are also summarised in the Planning and Development Committee report, the details of which I need not dwell upon. 

It should be acknowledged that neither the recommending officer, nor the parties to this appeal, contend that the non compliance issues should preclude approval of the operation of the sand mine.  These issues do however, underlie residual concerns held by the objectors and in particular by Mr Copely, to ensure that the conditions of approval provide an appropriate and effective mechanism for controlling future operations. 

The sand mine is obviously a significant operation in the context of the locality.  Public notification of the application attracted a relatively large number of submissions and a number of submitters elected to become co-respondents to this appeal.  The matter was the subject of extensive alternative dispute resolution through the Courts' ADR registrar.  This led to a resolution of all issues as between all parties save for one outstanding issue pursued by Mr Copely, the seventh co-respondent.  I note that, at the start of the hearing, the Court was handed a letter from the third, fourth, fifth, sixth and eighth co-respondents.  The letter expressed their appreciation to the Court and in particular to the ADR registrar, for the mediation process which they obviously found both satisfying and effective.

The sole outstanding issue for resolution is the appropriate duration of the approval.  It is common ground that, in this case, it is appropriate to set a limited period for the operation of the permit.  That will, in effect, set the latest date by which the operator of the sand mine will have to obtain another development permit if the operation is to continue.  I agree that is appropriate.

Changes can occur over time, planning strategies and provisions are reviewed and the content of what constitutes appropriate or best practice in management also evolves.  Fixing a maximum duration for the approval provides a mechanism for review in the context of then contemporary provisions and standards, if the use is to continue beyond a certain time.  In setting that appropriate time however, one needs to bear in mind the need for some flexibility, as the town planners pointed out. 

Save for Mr Copely the parties are agreed that 12 years would be an appropriate period.  Mr Copely submits that it should be a shorter period and, in any event, that the approval should not extend beyond 2017. 

In relation to this issue the Court had the benefit of the opinions of two experienced and independent town planners, namely Mr Ryter, who was called by the appellant and Mr Ovenden, who was called by the respondent.  They produced a joint report which evidences their agreement that 12 years is appropriate for three reasons which may be summarised as follows:

1. That 12 years is consistent with the application documents;

1. That 12 years is otherwise appropriate from a planning perspective, given that the terms of the approval will appropriately address environment impacts and technical issues; and

1. That it is unlikely there will be a significant change of circumstances within that timeframe.

The first of those points is not clear cut.  It is true that the application documents suggested that mining may take 12 years to exhaust the resource in stages 1 and 2, but there are a number of matters which should be noted in that regard.  Firstly, the predicted life of the operation, as stated in the application material, is imprecise.  It is an estimate of how long it will take to extract the anticipated reserves of material for the stage 1 and stage 2 areas, assuming certain extraction rates.  As Mr Copely pointed out, the assumed extraction rates are less than the maximum which is to be permitted.  That is not an unreasonable assumption.  Some variation extraction rates can be expected.  But the ultimate calculation of 12 years is one which is sensitive to the assumptions made both about the extent of the resource and about the annual extraction rates which are achieved.

Secondly, the calculation anticipated a commencement in 2006 with completion by the end of 2017.  That was the basis for Mr Copely's submission that the life of this approval should not, in any event, extend beyond 2017.  It was pointed out, on behalf of the appellant, that the approval has not yet taken effect and so the operation envisaged by it has not commenced.  On the other hand however, as Mr Copely pointed out, sand mining activities have continued in the meantime and the appellant failed to call evidence about the extent to which that mining in the meantime and the delay in the approval has affected earlier predictions. 

In the circumstances, I am not prepared to place much weight (favourably to the appellants) on the 12 year prediction contained in the application material.  On the other hand, I do not consider that 2017 should be adopted purely and simply because it was the anticipated end point at the time of that earlier calculation. 
While the extent of the resource and the anticipated extraction rates and period are relevant, I regard the more weighty consideration, at least in this case, as related to whether the terms of the approval provides an appropriate basis for the operation of the sand mine activity for a period of up to 12 years.  Matters of relevance to that include the nature and situation of the use, the provision made in the terms of the approval for appropriate management and control of the use and its impacts and the relative likelihood of a significant change of circumstances in the meantime such as to render a 12 year period inappropriately long. 

The use in question has not only existed for many years but is a type of use which is typically found in rural areas.  While having some proximity to rural residential properties, it enjoys a not insignificant buffer between those properties and the area to be extracted.  The relevant planning provisions will be discussed shortly, but this is not a use which is inherently inconsistent or conflicting from a planning perspective and is not one which, from a planning perspective, is proposed to be phased out in the near future.  Further, as the town planners attested, a 12 year timeframe for a use of this kind in these circumstances strikes one, at least initially, as being, if anything, somewhat conservatively shorter than long. 

The particular concern of the submitters and, in particular, Mr Copely relates to past non-compliance by the operator and a past failure by the respondent to act as promptly as it could have to achieve compliance.  It should be noted that Mr Copely himself is not someone whose residence is impacted upon by the sand mine.  He lives at a location far removed from the subject site.  Mr Copely, a former councillor, has however, maintained an interest in holding the sand mine and the council to account, although until recently he was unaware of the open standing provisions which permit a person to bring proceedings in this Court for an enforcement order.

This interest by Mr Copely is set against the background of some significant difficulty in the relationship between Mr Fraser, a former mayor of the council, and Mr Copely.  It is unnecessary to go into the detail of that.  Mr Copely is clearly concerned to ensure that the terms of the approval put a "tight rein" on the mine, to promote a greater level of compliance in the future. 

Accepting that approach however, it seems to me that the best way of assuring that objective is not necessarily to adopt a shorter period for the duration of the approval, but to make provision, in the conditions of approval, for appropriate management of the operation and for a mechanism to ensure continuing compliance throughout the life of the permit.  That is what the proposed approval seeks to do.  In that regard, proposed condition 1 requires the use to be undertaken generally in accordance with the site-based management plan and rehabilitation plan, a draft of which is before the Court.  That plan deals with the matters which include noise, dust, water quality, erosion and sediment control, staging and rehabilitation. 

Further, proposed condition 28 requires an independent audit to demonstrate compliance with both the conditions of approval and the management plan.  The audits are to be conducted on a bi-annual basis for the first three years and then on an annual basis.  The audit is to include a certified survey. 

I agree with the second reason given by the town planners in their joint report for supporting the 12 year timeframe.  I also accept the town planners' third reason, that it is improbable that there will be a significant change in circumstances in the meantime likely to reflect adversely on the continuing appropriateness of the use operated in accordance with the proposed conditions. 

The town planning documents are consistent in their recognition of the importance of this resource and the importance of protecting it from encroachment of incompatible development which might adversely affect the ability to utilise the resource.  In that regard, the application was made under the Transitional Planning Scheme.  Under that planning scheme the subject land was included within the Rural zone within which extractive industries were either permitted development (where they were carried out by the council) or permissible development (as in this case).  The Strategic Plan, Map 7, shows the location of known significant extractive resources of which the subject is one.  Clauses 3.5.1 and 3.5.9 of the Strategic Plan acknowledged the importance of such industries and the need for their protection.  Subsequent documents have confirmed this intent. 

The 2007 town planning scheme contains a number of Desired Environmental Outcomes relating to economic development.  They include that development:  

"Protects and maximises the availability of regionally and locally significant extractive and mineral resources in areas appropriate for such development and avoids conflicts with their extraction, processing and transportation." 

The Strategic Framework in the 2007 planning scheme includes a Vision of strategic issues.  These include broad strategies for the shire which include the following: 

"14 - extractive and mineral resources and their haul routes are not compromised or constrained by incompatible development.  15 - appropriate buffer areas to existing and proposed extractive resources and their haul routes are provided." 

Under the current town planning scheme the land is included within the countryside precinct of the rural zone.  Within that precinct an extractive industry is a form of consistent development. 

The subject land is identified as an Extractive/Mineral Resource and Key Resource Area with a corresponding buffer on the Development Constraints Overlay Map.  The Development Constraints Overlay Code includes Overall Outcome 6, which provides that: 

"The exploitation of regionally and local significant extractive/mineral resource deposits is protected from the encroachment of development which may compromise the ability to extract, process and transport the resource material."

Specific Outcomes for Extractive/Mineral Resources Areas are set out in SO15 to 25 and contain a number which seek to protect the resources whilst ensuring that adverse impacts are mitigated.  This planning at a local level is consistent with the planning at a State level. 

The site falls within the Regional Landscape and Rural Production area under the Southeast Queensland Regional Plan.  Activities which are contemplated in that area include activities relating to accessing natural resources.  The regional plan includes a number of principles and policies.  Policy 4.2.3 is to: 

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

More recently, at a State Government level, State Planning Policy 2 of 2007 has come into effect.  The outcome sought by that policy is as follows: 

"The 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 or severely constrain current or future extraction when the need for the resource arises."

In so far as the identification of the resource is concerned, Key Resource Areas are set out in annexure 2 to the policy.  The subject operation is specifically provided for in annexure 2 as Key Resource Area number 95.  The guidelines to the State Planning Policy contain a description of this KRA and its significance in the following terms: 

"The resource is likely to be sufficient to over 50 years of supply.  The resource is of regional significance and would be able to meet a large proportion of supply requirements in the markets on Brisbane's southside and the Gold Coast.  It is one of only a few supply sites south of Brisbane." 

It should be noted that the 50 years of supply relates to the resource as a whole, not necessarily just to that which is to be found in the stages sought to be authorised by this approval.

It can be seen from that brief review of the planning provisions, that the planning, at both a local and a state level, recognises the importance of the resource and the importance of protecting it from encroachment from incompatible uses in the future which would have an adverse impact upon the ability to exploit that resource.  It would seem unlikely, given that consistent planning approach, that there would be a significant change of circumstances in the near term or, indeed, within a period which would render the 12 year timeframe inappropriate. 
On balance I am of the view that the 12 year period is appropriate.  The terms of the approval provide an appropriate regime for the acceptable operation of the use and for determining ongoing compliance.  The use is one which is generally appropriate in its context.  The 12 year period is not excessive for a use of this kind in these circumstances and it would appear unlikely that there will be a significant change of circumstances in the near future which would render the 12 year period inappropriate.  Accordingly I propose to adopt the 12 year period. 

...

HIS HONOUR:  Therefore on page 4 I will just cross out by hand - I will take out the word "generally".

MR COCHRANE:  Yes, so it reads "being undertaken in accordance with".

HIS HONOUR:  I have crossed through the word "generally".  Subject to that change, then, is everybody content that this draft order now reflects all the appropriate changes and my reasons for judgment today?  Okay.  Well in that case I will make an order as per amended draft, initialled by me and placed with the papers.

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