Hymix Australia Pty Ltd v Brisbane City Council
[2014] QPEC 35
•27 June 2014.
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Hymix Australia Pty Ltd v Brisbane City Council & Ors [2014] QPEC 35
PARTIES:
HYMIX AUSTRALIA PTY LTD
(ACN 000 582 221)
(appellant)
v
BRISBANE CITY COUNCIL
(respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT & HERITAGE PROTECTION
(Co-Respondent by Election)
and
CENTRAL SEQ DISTRIBUTOR-RETAILER AUTHORITY (TRADING AS QUEENSLAND URBAN UTILITIES)
(Co-Respondent by Election)
and
MAXJET PTY LTD
(ACN 100 493 892)
(Co-Respondent by Election)
FILE NO/S:
4096 of 2012
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
27 June 2014.
DELIVERED AT:
Brisbane
HEARING DATE:
7-8, 11-14, 20 November 2013, 23-24 January 2014
JUDGE:
Rackemann DCJ
ORDER:
The appeal will be allowed.
CATCHWORDS:
PLANNING AND ENVIRONMENT – Proposal to re-establish the use of an industrial development previously developed within a green space and rural area as exempt development – where exemption had expired – whether undesirable entrenchment – conflict with the planning scheme – sufficiency of grounds – SEQRP regulatory provisions.
COUNSEL:
D Gore and B Cronin (appellant)
T Trotter and J Lyons (respondent)
SOLICITORS:
Hopgood Ganim (appellant)
Brisbane City Legal Practice (respondent)
Table of contents
| Introduction – the Proposal | 4 |
| The Site | 5 |
| Chronology | 6 |
| Issues | 8 |
| The Statutory Regime | 10 |
| Exempt Development | 11 |
| City Plan | 13 |
| Extent of Conflict | 20 |
| City Plan 2014 | 21 |
| Greenspace/Rural Value and the Contribution/Potential Contribution of the Site to those Values and the Impacts of the proposal | 22 |
| Traffic | 34 |
| Grounds to justify approval notwithstanding conflict | 37 |
| Site suitability | 37 |
| Employment | 37 |
| Rehabilitation and other works | 38 |
| Need | 39 |
| Need for pre-cast facility | 40 |
| Need for external deliveries | 51 |
| Conclusion on sufficiency of grounds | 52 |
| South East Queensland Regional Plan | 54 |
| Conclusion | 62 |
Introduction – the Proposal
This applicant appeal is against the decision of the Council to refuse a development application to facilitate the recommencement of a use for a concrete batching plant and pre-cast facility (“the Development Application”). The uses were previously lawfully carried out as exempt development in conjunction with the Airport Link project.
The Development Application sought:
i. a preliminary approval to vary the effect of City Plan;
ii. a development permit for material change of use (Concrete Batching Plant);
iii. a development permit for a material change of use for (Industry - Pre-cast Facility);
iv. a development permit for material change of use for Environmentally Relevant Activities (ERA) and in particular:
(a) ERA 43 (Concrete Batching);
(b) ERA 18 (Boiler making or Engineering) and;
(c) ERA 63 (Sewerage Treatment);
v. a preliminary approval to carry out operational work for Filling or Excavation;
vi. a development permit for operational work for Filling or Excavation; and
vii. a development permit for reconfiguring a lot [1]
[1]Initially proposed to go from 4 lots to 5 but now proposed to be from 4 lots to 2 (T1-14).
The argument focussed on the material change of use for the pre-cast facility and concrete batching plant. Hymix has subsequently sought to make changes to incorporate refinements to how the preliminary approval overriding City Plan would operate.[2] The Council accepted that the proposed changes constitute a “minor change” for the purpose of s. 350 of the Sustainable Planning Act 2009 (SPA). I agree.
[2]See the affidavit of Mr Mark Viney: Ex. 14 and Ex. 39.
The proposal, in its current form, is composed of the following elements:[3]
[3]See the affidavit of Mr Mark Viney: Ex. 14.
(a)a pre-cast facility;
(b)a concrete batching plant that will supply concrete to:
(i)the pre-cast facility; and
(ii)the general market;
(c)a preliminary approval overriding City Plan so that any storage shed/s ancillary to industry (pre-cast facility) not greater than a certain area is code assessable.[4]
There is to be a buffer area to the adjacent waterway and wetland.
[4]See also Ex. 39 and the cross examination of Mr Venn where he further clarified what Hymix was seeking.
The Site
The subject site:
(a)is composed of 4 lots at 250a Bald Hills Road, Bald Hills with an area of some 29.47ha;
(b)is located immediately to the west of the Gympie Arterial Road and Gateway Motorway intersection at Bald Hills;
(c)is adjacent to a waterway that links wetlands of ecological significance.[5] In particular:
[5]Ex. 2E p. 1544: 2nd Ecology & Wetland JER, p. 5, s. C(i).
(i)the Moreton Bay Ramsar Site, being a wetland of international importance;
(ii)the Pine Rivers and Hayes Inlet Wetland, being a nationally important wetland;
(iii)the Tinchi Tamba Wetlands and the Deep Water Bend Reserve, being wetlands designated as Conservation Areas and Natural Heritage Places under City Plan and as areas of High Ecological Significance in the Queensland Coastal Plan; and
(iv)the Hayes Inlet Fish Habitat Area.
(d)is of irregular shape, bounded, to the west and to the south, by the South Pine River, to the north, by an extractive industry site, and to the east, by the Gympie Arterial Road and an asphalt manufacturing business;
(e)is flat to gently sloping, and has been significantly altered in the past due to a history of extraction, screening, concrete batching and casting operations;
(f)has existing, currently disused, facilities;
(g)is within the Brisbane City Council’s local government area, but proximate to the boundary of the local government area of the Moreton Bay Regional Council.
The dominant structure on the site is a very large, 14m high, pre-cast shed with associated mobile cranes, crane tracks and demountable buildings located towards the centre of the site. The shed is roughly square-shaped, with each side exceeding 100m, and the shed occupying about 1.2ha. The concrete batching plant is located nearby to the east. The total operating area for the pre-cast facility and concrete batching plant is 570m long and 370m wide. The pre-cast facility has 3 production lines, with one of the gantry cranes able to operate over a length of about 450m.
Chronology
A brief summary of the history of the site is as follows:
Date
Event
27.02.1979
The Council granted consent for an extractive industry (extraction of sand and gravel and processing materials on the site) for the site
early 1980s
Sand and gravel extraction activities commenced
early 1980s
Hot mix/asphalt plant operations commenced on part of the site (now leased by Fulton Hogan Industries)
24.06.1993
The Council granted consent for a processing plant, hot mix plant and concrete plant for the site (by way of a modification of the 1979 approval)
1993
A concrete batching plant was established on the site
25.02.1997
The Council granted consent for the purpose of extractive industry (extraction of sand and gravel) in place of the 1993 consent
late 1990s
The concrete batching plant and sand and gravel extraction operations ceased
late 1990s to 2008
No operations other than for the asphalt plant
2001-2008
Land under maintenance and rehabilitation works, pursuant to the dredging and screening approval
31.10.2005
The Coordinator General declared the Airport Link project to be a significant project under the State Development & Public Works Organisation Act 1971
31.10.2008
All aspects of development for the construction of the Airport Link project were made exempt development by operation of IPA and the IPR (the provisions of which are set out later)
13.11.2008
Hanson Construction Materials Pty Ltd (a company related to Hymix) was registered as owner of the site
2008
In mid 2008 the land was levelled, including by removal of the top soil. Approximately 92 000 tonnes of fill was placed on the land, approximately 62 000 tonnes (or two thirds) of the total fill came from the Gateway duplication and approach road at Nudgee where the contractor Leighton had a substantial stockpile of clean fill material. Operational works to fill the Land in preparation for the construction of the concrete batching plant and pre-cast facility commenced in late 2008 and was filled by Thiess John Holland using the sub-contractor Egan Plant Hire. The area leased to Hymix was filled by Hymix using overburden from the Wolffdene Quarry.
On or about 14 November 2008 a temporary batching plant was transported from Dysart to the site. The temporary batching plant commenced operation on 15 November 2008 and produced concrete for the purpose of constructing the pre-cast facility and the present concrete batching plant.
January 2009
Construction of the pre-cast facility commenced
21.06.2009
The use of the pre-cast facility commenced
23.06.2011
Hymix made the subject development application to the Council
30.08.2011
The pre-cast facility ceased production following conclusion of the exempt Airport Link Project
21.09.2012
The Council refused the development application
When notified, the application attracted 19 properly made submissions and 24 other submissions. A large proportion of submissions were from the Bald Hills area. The submissions raised a range of issues. A recurring theme in the submissions was that the use of the site for the Airport Link project was temporary. There was one submission in favour of the project.
Issues
Attachment A to the Decision Notice, given on 21 September 2012, contained a lengthy list of grounds for refusal of Hymix’s development application. After the institution of the appeal, on 19 December 2012, the Council not only confirmed reliance on those grounds of refusal, but added some new issues. The issues raised matters of relevance to a range of expert disciplines. Pursuant to the Court’s procedures, a total of 34 joint reports (JER’s) were prepared, spread across the following 12 disciplines-
(a) terrestrial ecology (3 JERs);
(b) aquatic & wetland ecology (5 JERs);
(c) acoustics & air quality (3 JERs);
(d) geotechnical engineering (3 JERs);
(e) groundwater (3 JERs);
(f) hydrology (3 JERs);
(g) water quality (3 JERs);
(h) acid sulphate soils (2 JERs);
(i) traffic (3 JERs);
(j) visual amenity (2 JERs);
(k) need (2 JERs);
(l) town planning (2 JERs).
As a result of the Court’s joint expert meeting process, a large number of disputed issues have been resolved, subject to the imposition of appropriate conditions, should the Court approve the Development Application. The remaining issues relate to town planning, need, traffic and visual amenity. The written submissions for the respondent succinctly summarised them as follows:
“i. whether the Development Application is in conflict with identified provisions of City Plan, the SEQRP and its Regulatory Provisions;
ii. whether there is a traffic safety issue relating to the on-ramps leading on to the Gympie Arterial Road that militates against approval of the component of the Development Application allowing external concrete deliveries;
iii. whether, given the location of the subject site as a prominent gateway to and from Brisbane, the visual impacts of the Development Application are acceptable;
iv. whether there is a need for the Development Application; and
v. as a result of the above matters, whether there are “sufficient grounds” to overcome any established conflicts with City Plan or the SEQRP and its Regulatory Provisions.”
The Council submitted that if (contrary to its submissions otherwise) the Court was minded to approve the Development Application, there should be no external deliveries of concrete from the batching plant. It was common ground that the preliminary approval component should be subject to the following further alteration:
“Altering Level of Assessment
The following development is Code Assessable development
· Any storage shed/sheds ancillary to industry (pre-cast facility only) where
(a)The maximum height of such shed/sheds is not greater than 8.5 metres in height, and
(b)The cumulative maximum Gross Floor Area of such shed/sheds is no more than 1800m² in total, irrespective of the number of code assessable applications that are made pursuant to this provision, and
(c)There is no material adverse impact on the hydraulic situation of the site as at 15 November 2013.
i. Codes which will apply
ii.The following are the applicable codes (as at 1 August 2013 from City Plan):
1. Industrial Amenity and Performance Code;
2. Industrial Design Code; and
3. any secondary code listed within the primary code.”
The Statutory Regime
The appeal:
i. is governed by the relevant provisions of the Sustainable Planning Act (SPA).
ii. was commenced pursuant to s. 461 of the SPA;
iii. is by way of hearing anew;[6] and
iv. must be decided based on the laws applying when the development application was made, although the Court may give way to any new laws or policies the Court considers appropriate.[7]
[6]s 495 of the SPA.
[7]s 495(2)(a) of the SPA.
Hymix bears the onus in establishing that the appeal should be allowed.[8]
[8]s 493(1) of the SPA.
The Court must assess the part of the application which seeks to vary the effect of City Plan under s.316 of the SPA and decide it in accordance with s. 327. Otherwise the court must:
i. assess the Development Application in accordance with s. 314 of the SPA; and
ii. decide the Development Application in accordance with ss. 324 and 326 of the SPA.
Pursuant to s. 326(1)(b) of the SPA the Court must not approve the development application if there is a conflict with the relevant planning instruments unless there are “sufficient grounds” to justify the decision despite the conflict.
The term “grounds” is defined in Schedule 3 of the SPA and:
i. means matters of public interest; and
ii. does not include the personal circumstances of an applicant, owner or interested party.
Exempt Development
“Exempt development” is development for which a development permit is not necessary and which need not comply with planning instruments other than a State Planning Regulatory Provision (SPRP).[9] I was informed by counsel that this is the first case to come before this court where the development application intends to allow the recommencement of a use of significant on-site infrastructure which was lawfully erected and used as exempt development.
[9]See s 235 of the SPA.
Under the SPA all development is “exempt development” unless it is made[10]:
[10]See s 231(2) of the SPA.
(a) self-assessable;
(b) development requiring compliance assessment;
(c) assessable development; or
(d) prohibited development.
The above levels of assessment are set either by:
(a) the State pursuant to a regulation[11] or regulatory provision;[12] or
(b) the Council pursuant to its planning scheme by operation of s. 88(2) of the SPA.[13] The Council’s power is however, subject to ss. 232 and 233 of the SPA.
[11]See s 232(1) of the SPA, s. 9 of the SPR and Schedule 3 of the SPR.
[12]See s 21 of the SPA.
[13]See also section 778(1) of the SPA which provides that a planning scheme made under the repealed Integrated Planning Act 1997 that is in force immediately before the commencement of the SPA continues to have effect and is taken to be a planning scheme made under SPA.
Section 232(2) of the SPA provides that a regulation may prescribe development that a planning scheme cannot declare to be self-assessable, to require compliance assessment, or to be assessable or prohibited development. To the extent a planning scheme is inconsistent with a regulation made under s. 232(2) of the Sustainable Planning Regulations (SPA), it is of no effect by operation of s. 233(1) of SPA. Section 10 of SPR provides that development mentioned in schedule 4 of the SPR is prescribed for s 232(2) of SPA.
However, even though the development is exempt from assessment against City Plan there may be components that are still assessable by virtue of the regulations to the SPA specifying a particular level of assessment. By operation of s. 9 and Schedule 3 of the SPR, certain aspects of development are still subject to assessment against certain criteria mentioned in Schedule 5 of the SPR (but not against a planning scheme). For example, although the Airport Link Project was exempt from assessment against City Plan, by virtue of s. 9 and Schedule 3 of the SPR, approval for an Environmentally Relevant Activity for concrete batching was still necessary.[14]
[14]See for example Schedule 3, Table 2 in the SPR. Other approvals such as for operational work for the destruction of marine plants were also necessary: see Ex. 3A p. 721. See also Ex. 2A pp. 70-72.
The current state of the site and the improvements on it (as a result of the facilities constructed to supply the Airport Link Project) are not matters which the Council could control. The development for that purpose was in conflict with the planning scheme (City Plan), but not assessable against it. The Council contends that, now that the exempt project has finished, the continued use of the site, in conflict with the relevant planning instruments, should not be entrenched by approving the subject application. Parallels were drawn with cases[15] concerning lawful non-confirming uses, which acknowledged a general planning theory that such uses tend towards a gradual phasing out, rather than entrenchment. That general approach however, was always a matter for consideration in the exercise of the discretion as to whether to grant or refuse a development application. There was never an inflexible rule that a lawful non-conforming use could not be the recipient of a development approval, although the evident planning strategy in the relevant planning instruments is not lightly put aside. [16]
[15]Fowler v Mackay CC 1976 36 LGRA 376, 377; Cross v Redcliffe CC 1984 QPLR 106, 110; KC Drew Pty Ltd v BCC 1990 QPLR 232, 236; Waanyarra Investments Pty Ltd v Cairns CC 1997 QPELR 49, 51; Zanow v Ipswich CC 2010 QPELR 721, 746
[16]E.g. T Wrafter & Sons Pty Ltd v Brisbane CC [1999] QPELR 400 at 454.
The purpose for which the development was exempt is now concluded. In the absence of a future exempt purpose, the planning scheme needs to be respected, as the appellant has done, by halting operations. There is however, the ability to seek a development approval to allow the recommencement of the use. A development application must be assessed on its merits and may, if appropriate, be approved. That is not to be denied simply because development initially occurred as exempt development.
If, as here, the proposal, the subject of the development application, conflicts with a planning instrument (discussed later) it must be refused unless, relevantly, there are sufficient grounds to approve notwithstanding the conflict. I have approached this matter on that basis. Accordingly, having found conflict, the starting point is that the development application ought be refused and that there must be sufficient grounds demonstrated in order to displace that. That the use was formerly carried out (as exempt development) is not, in and of itself, justification for approval notwithstanding conflict.
That is not to say, however, that the existing construction on the site, and the improvements on it can be ignored. It would not, in my view, be appropriate to approach the matter as if one were considering an application over a vacant pristine site, when it is not. The prior actual performance (including its functionality and its impacts) of the use on the site may be relevant in informing assessment of the suitability of the site and the impact of development. Further, in this case, the fact that the infrastructure exists, its substantial scale, demonstrated capacity to supply critical products to projects of significance and the obvious wastage if it is never used or relocated or, more likely, the additional expense in attempting to relocate it, are matters relating to economic development which are discussed later in the context of need.
City Plan
The applicable planning scheme is Brisbane’s City Plan 2000 (City Plan) under which the site:
i.is within a Rural Area;
ii.is part of a Waterway Corridor (subject to the Waterway Code and the Biodiversity Code) as defined by the Flood Regulations Lines;
iii.is located on floodable land (subject to the Stormwater Management Code);
iv.contains Wetlands (subject to the Biodiversity Code);
v.is adjacent to Conservation and Parkland Areas; and
vi.is within[17] the Green Space (Rural Component) Area.
[17]albeit on the periphery of
The provisions with which conflict is alleged are mainly concerned with the protection of Rural and other Green Space land for its intrinsic value, including its contribution to landscape character and amenity. In particular, conflict is alleged with certain provisions in Chapter 2 and Chapter 3.
The Desired Environmental Outcomes (DEOs) in Chapter 2 include DEO 3.2.2.4 as follows:
“Protect and enhance the scenic landscape and promote the city’s unique subtropical character through:
(a)scenic landscapes – protecting landscapes that enhance amenity and character, of the Brisbane River, other waterways and wetlands, foreshores, Morten Bay and islands, Mount Coot-tha and other forested hills, and rural and semi-rural areas;
(b)views – protecting significant views of important natural and cultural character elements seen from high public use areas, the Brisbane River, and from movement networks,
(c)visual boundaries – establishing and/or maintaining visual boundaries between individual areas and along the major Movement Networks to add to scenic diversity and enhance visual appeal;
(d)visual buffering – buffering or screening to separate visually incompatible land uses;
(e)sympathetic development – buildings, structures and landscaping that complement the surrounding character and style in both urban and rural areas.”
The Elements of the city express the DEOs and measures in a spatial context for the city.[18] The Elements provide a broad expression of how the city’s structure should develop to achieve the DEOs both city wide and specific to the Areas in Chapter 3 of City Plan.[19] The elements of the city include the Brisbane Green Space System.[20]
[18]Ex. 13 p. 72: Chapter 2, p. 13 of City Plan.
[19]Ex. 13 p. 72: Chapter 2, p. 13 of City Plan.
[20]Ex. 13 p. 72: Chapter 2, p. 13 of City Plan.
The Elements of the city comprise the following Area classifications and their components including, relevantly, as follows:[21]
[21]Ex. 13 p. 72: Chapter 2, p. 13 of City Plan.
·Brisbane Green Space System;
·Conservation Area;
·Parkland Area;
·Sport and Recreational Area;
·Environmental Protection Area; and
·Rural Area.
Section 4.1 of City Plan deals with the Brisbane Green Space System and relevantly provides:[22]
“In the past, the demand for land to accommodate the city’s anticipated growth steadily reduced green space. Green space was seen as a holding zone ultimately meant for other uses. Its intrinsic value and contribution to the urban fabric were often ignored. However, green space continued to serve many functions taken for granted as an integral part of the city’s character and liveability such as landscape, recreation, protecting ecological functions, providing for economic growth and defining the edge of the city.”
[22]Ex. 13 p. 72: Chapter 2, p. 13 of City Plan.
City Plan sets out the key challenges for the city’s Green Spaces.[23] The key challenges include ensuring that water catchments, water resources and wetlands are well managed and protected.[24] As City Plan recognises, a careful balance is needed to resolve the competing pressures in today’s economic climate. Once lost, green space is difficult to regain.[25]
[23]Ex. 13 p. 72-73:, Chapter 2, pp. 13-14 of City Plan.
[24]Ex. 13 p. 73: Chapter 2, p. 14 of City Plan.
[25]Ex. 13 p. 73: Chapter 2, p. 14 of City Plan, note difficult but not impossible.
The response to the challenge includes recognising:
“…the importance of looking at the long term and ensuring the potential to meet the green space needs of future generations is not eroded. As a balance to growth, important green space values and functions will be identified, retained and enhanced through the Green Space System.”[26]
[26]Ex. 13 p. 73: Chapter 2, p. 14 of City Plan.
City Plan identifies the following key green space values:
“• biodiversity value – significant stands or important remnants of vegetation community types and areas providing habitat for the City’s flora and fauna, including those areas required for wildlife movement or migration;
• rural, semi-rural/semi-natural and open landscape value – open landscape providing pleasant views along Movement Networks, adding to visual diversity, and allowing for ongoing rural activities;
• recreational value – active and passive recreational opportunities including public open space, formal sporting fields and major recreation complexes;
• natural scenic value – the City’s characteristic landscape including bushland and wetlands, forested ridges and foothills, the Brisbane River and its surrounds; and
• corridor value – providing for wildlife movement and refuges, habitat connectivity, maintenance, regional green space links, enhancement of biodiversity and ecosystem functioning, water quality protection, viability of ecological processes, screening or separation between incompatible activities, drainage/floodway areas with recreation resource potential, and linking lands with open space and recreational value.”
Strategic Plan Map B identifies the site as “Rural, semi-rural/semi-natural and open landscape value.” The area to the east of the highway across to Tinchi Tamba Wetlands is identified as being “Natural scenic value.” Section 4.1.2.2 of City Plan recognises that the Brisbane Green Space System is a range of natural, semi-natural and modified environments in public and private ownership. These lands are broadly categorised as Investigation, Conservation and Recreation, Environmental Protection and Rural components. They are usually linked by green space corridors.[27] Strategic Plan Map C identifies the subject site as part of the Rural component.
[27]Ex. 13 p. 73: Chapter 2, p. 14 of City Plan.
In relation to the Rural component, City Plan relevantly provides:
“Rural components include land that defines the City’s edges, acts as a buffer between incompatible land uses and can provide pleasant vistas along Movement Networks. These components will be retained for the ongoing operation of rural and semi-rural activities and their landscape value will be enhanced where possible. Fragmenting this land has detracted from its landscape and agricultural production values and is no longer considered appropriate. This practice will be discouraged.”
(emphasis in bold is as it appears in City Plan)
Chapter 3 of City Plan deals with the assessment processes that apply generally to development the subject of City Plan and sets out the specific provisions relating to different forms of development within different Areas within Brisbane.
Under City Plan, the local government area of Brisbane is divided into 7 different Areas including Green Space Areas.[28]
[28]Ex. 13 p. 91: Chapter 3, p. 3 of City Plan.
There are 5 different Green Space Areas being:[29]
(a)Conservation Area;
(b)Parkland Area;
(c)Sport and Recreation Area;
(d)Environmental Protection Area; and
(e)Rural Area.
[29]Ex. 13 pp. 72, 118-120: Chapter 2 p. 13, Chapter 3, pp. 30-32 of City Plan.
The subject site is within the Rural Area,[30] the intent for which relevantly provides:
“The Rural Area is privately owned land and accommodates residential and rural uses that are respected and reserved provided the DEOs are met.
Some broad hectare, low intensity uses may also be accommodated in this Area where they have low environmental impacts, such as riding schools and camping grounds.
Land is held in larger lots of at least 10ha with larger sizes where sites are excessively steep, i.e. slopes over 1 in 3, or have other significant constraints and limitations. Where land is identified in the SEQ Regional Plan 2005-2026 as being in the Regional Landscape and Rural Production Area, a minimum lot size for subdivision of 100ha applies.”
[30]Ex. 3 p. 128 section 3.5.1
The DEOs for the Rural Area relevantly include:
“…
2. Semi-natural and natural habitats, biodiversity, waterways and natural and rural landscape values are protected and enhanced through appropriate design, construction and operation of developments both in these Areas and on adjacent land.
3. Visual impacts of clearing, building design and construction, material, intensity of use, access ways and other aspects of development are minimised.
…
6. Rural Areas act as a buffer to other lands with biodiversity values in the Green Space System and development takes this into consideration.”
The different areas within City Plan set different levels of assessment for different types of development.[31] The subject development application is impact assessable.[32] By reference to the level of assessment tables impact assessable development may be either deemed to be generally appropriate or generally inappropriate.[33] Generally appropriate impact assessable development is development for which adverse impacts can usually be mitigated.[34] The Development Application in this case is identified as generally inappropriate impact assessable development. For such development city plan provides:
[31]These tables are also subject to the provisions in local plans which may alter the level of assessment.
[32]Ex. 3 p. 23, s. 112.
[33]Ex. 13 p. 94: Chapter 3 p. 6 of City Plan.
[34]Ex. 13 p. 94: Chapter 3 p. 6 of City Plan.
“Other impact assessable development under this heading is not specifically envisaged in the Area. The appropriateness of a proposal in any particular circumstance will be dependent on its location, design and impacts.
In assessing generally inappropriate impact assessable development, or generally appropriate impact assessable development for which there is no specific Code, the proposal will need to demonstrate that:
• the character, location, siting, bulk, scale, shape, size, height, density, design and external appearance of the proposal accords with the reasonable expectations and DEOs for the Area in which the land is classified
• the proposal has a positive impact on the landscape, scenic quality and streetscape of the locality,
• the proposal does not detract from the appearance, environment or amenity of the locality. These effects may relate to issues such as hours of operation, display of goods or release of any contaminant
• the proposal does not generate greater traffic movement or hazard than is reasonably expected in the surrounding locality by reason of:
- on-site and on-street parking
- number or type of vehicle movements
- manner of access to the site
• the capacity of the road system in the locality is suitable for the proposed activity
• the site has a reasonable level of accessibility by all modes of transport, including pedestrian, cyclist, public transport and private vehicular access, that is appropriate to the proposed activity
• an adequate level of utilities and telecommunications infrastructure is available and that nay utility upgrading carried out as a consequence of the proposal is within limits reasonably expected for the Area in which the land is classified
• the shared use of telecommunications infrastructure occurs to minimise disruptions and adverse impacts on amenity, communities and the environment
• noise generated by the proposal is within levels expected for the Area in which the land is classified
• the proposal does not result in unreasonable risk or hazard on site or to adjoining lands
• where the proposal is of a nature or a scale not reasonably expected in the Area in which the land is classified, that sufficient land is dedicated for public open space to offset or mitigate impacts. In particular, buffers should be provided along waterways, wetlands and areas of biodiversity importance
• where the land is included in the Sport and Recreation Area, Community Use Area or Special Purpose Centre (SP1 or SP2) the proposal is not reducing the amount of land available for community facilities or services (such as child care facilities, schools, recreation facilities, community centres)
• the disposal or storage of wastes and other materials will not result in visual blight, environmental degradation or nuisance
• negative community impacts are not generated, including impacts on:
- community identity, cohesion and cultural practices
- community health and wellbeing
- access to community services and facilities required to support need
- personal safety
- housing choice, mix, cost and location
- access to employment and education.”
Insofar as visual landscape and amenity is concerned, the Council also relies on performance criterion 1 of the Industrial Amenity and Performance Code which provides that “the use must be of a scale and intensity that has minimal impacts on the surrounding area.” There is no suggestion of any undue ‘hard’ amenity impacts (such as noise etc.) Visual amenity is discussed later.
Extent of Conflict
It is apparent that an extensive and intensive major industrial use, such as the pre-cast facility (together with a concrete batching plant), does not sit harmoniously with the provisions of the planning scheme, particularly the provisions with respect to the Green Space System and the Rural area. Mr Reynolds (the town planner called by the appellant) declined to acknowledge conflict between the proposal to re-commence the use and the provisions of City Plan, because, in his view, the relevant provisions assume that the land currently has the identified values, when it does not and, in his view, there is no realistic prospect of those values returning.[35] Those may be matters which are relevant in assessing the gravity of the conflict, but I accept that the entrenchment of such an extensive and intensive industrial use within the Green Space System and the Rural area, rather than in an area designated for such industrial uses does involve conflict with the planning provisions. It was submitted, on behalf of the appellant, that the nature of any conflict is historical and the level of conflict low.
[35]He also considered that the application responds favourably to the list of considerations for generally inappropriate development.
It was submitted, on behalf of the appellant, that the majority of the site (i.e. the developed part) does not have the kind of values to which the relevant provisions refer. To the extent it might once have had those values, they were lost years ago. The developed part of the site does not positively contribute to the green space and rural values of the wider area and, so, the gravity of the conflict is at the low end of the spectrum. On the other hand, it was submitted for the Council that, notwithstanding what exists on the land at present, the conflict is significant, particularly having regard to components of the planning scheme which are properly described as “aspirational.” Those matters are discussed later.
City Plan 2014
A new planning scheme (City Plan 2014) has been adopted and is due to come into force within days. It is deserving of weight on the Coty principle.[36]
[36]Taken from Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117.
City Plan 2014 has a “Brisbane City Shape 2031 Land Use Strategic Framework Map” which depicts, various areas throughout the city. The subject site lies within the “greenspace and rural neighbourhoods (within greenspace system)” designation on that map.
Pursuant to City Plan 2014 the greenspace system is however, defined by reference to the Brisbane Greenspace Systems Strategic Framework Map.[37] Consistent with the reality of the situation, that map shows:[38]
[37]Ex 34 paragraph 24.
[38]Exhibit 34 paragraph 25.
(a) the western fringe of the site is within a “conservation and environmental management biodiversity” designation, but;
(b) the majority of the site bears no greenspace designation.
Further, City Plan 2014 gives some recognition to the industrial nature of the amenity in the particular area of which the site forms part. The site falls within an area west of the motorway which is designated as “Industrial Amenity Investigation Area Subcategory”. Pursuant to the Industrial Amenity Overlay Code, new development around existing industrial uses in this subcategory are to be managed having regard to the potential for adverse offsite air quality and noise impacts from existing industry (commonly referred to as reverse amenity impacts).
In these ways, the new City Plan 2014 appears to recognise the reality of the site and its immediate context. It does not however, seek to entrench the industrial development. The subject site is included within the Rural zone under City Plan 2014. The purpose of the Rural zone is similar to the corresponding area in the current City Plan.[39]
[39]Exhibit 34 paragraph 18.
As submitted on behalf of the appellant, in the event the court were inclined to approve the application, there is nothing in City Plan 2014 that would reverse that inclination. At worst for the appellant, there is some preservation of the status quo, subject to the observations made above.
Greenspace/Rural Value and the Contribution/Potential Contribution of the Site to those Values and the Impacts of the Proposal
The site represents a small part of a broader green space area which extends both sides of the Bruce Highway south of the river which separates Brisbane and the Moreton Bay Regional Council area. That part of the area to the west of the Highway (including the subject site) is included in the rural component, while the part to the east is generally in the Conservation and Recreation component.
The joint report of the visual amenity experts (Mr Chenoweth who was called by the appellant and Mr King who was called by the respondent) records that the surrounding area context includes the following (AC refers to Mr Chenoweth, AK refers to Mr King):
“1.15The subject land is bounded to the east by the Gympie Arterial Road and a flyover connecting to the Gateway Motorway, which transitions into the Bruce Highway to the north of the site over North Pine River Bridge.
1.16The Fulton Hogan Bald Hills Asphalt Plant is located adjacent to Gympie Arterial Rd and the Gateway Motorway overpass and shares a common northern, western and southern boundary with the subject site. We are advised that currently the plant is planning to cease operations on site by 31 May 2015 and relocate to an alternative location[40] …
[40]See exhibit 8 attachment K.
1.17To the north, between the subject land and the Pine River is one privately owned allotment … and two leasehold allotments … . These sites were previously subject to sand and gravel extractive industries. We are advised that filling on these sites was deemed to have been excessive, and an enforcement notice was issued by Brisbane City Council on the 27th September 2011 requiring rehabilitation and revegetation in accordance with the approved landscape plans within 24 months. Landscape plans approved by Council in September 2012 indicate that a band 60 metre wide along the riverfront will be revegetated.
1.18The South Pine River forms the western boundary to the subject land, with rural lands located along the floodplain of the River. Further west is a mixture of park land (Bob Akers Sporting Reserve, Norman Reilly Park) and the eastern edges of a suburban Strathpine and Lawnton … Across the floodplain, 750 metres to the west, the Heritage Village residential units form the residential edge at the interface with the adjoining rural land holdings. Sand and gravel extraction occurs at the end of Lawnton Pocket Road (Boral). AC notes that tall Boral structures are visible above the surrounding land, mangroves and the Boral operations are openly visible from elevated residential areas at Castle Hill. AK considers that while the existing Boral plant is visible from some houses and some locations in Acacia Park, it is partially screened by the surrounding mangroves that have been retained surrounding the site…
1.19Previously dredged extensions to South Pine River form the southern boundary with Cantebury Park and Barungwarra Bushland Reserve located to the south of the subject land. These parks are widely used, providing waterfront access and a popular boat ramp. On higher ground between Canterbury Park and the Gympie Arterial Road, the residential estate associated with Rushworth Street and Hills Road is accessed via Feuerriegel Road.
1.20The extensive area of Tinchi Tamba Wetlands Reserve is located to the east and is separated from the subject land by the Gateway (M1) Motorway, overpass and bridge.
1.21Earthworks are currently being undertaken on the land to the south east of the subject land bounded by Gympie Arterial Road, the Gateway Motorway and Wyampa Road. This area has an existing approval for a 76 allotment residential development.
1.22On the northern side of the Pine River and North Pine River, in the Moreton Bay Regional Council local government area, is the residential suburb of Murrumba Downs. Acacia Park, Acacia Riverside Park, a linear riverside park, is connected to the surrounding suburbs by various streets and pedestrian pathways. Elevated above the river, with views out over the river and surrounding areas to the south, it includes pathways, playgrounds, shelters, turf and woodland areas. In the mornings, evenings and weekends, the parkland is widely used by locals and visitors. Houses bound at the northern edge of the park … and the wooded river bank provide scattered views across the river to the existing Hymix shed … , particularly in those areas where trees have been cleared to incorporate overhead lines …, the car park …, pathways and park infrastructure … .
1.23The existing Hymix shed is also visible from some elevated houses at greater distance, for example on Pine River Drive.. .”
The visual amenity experts agreed (and I accept), that views towards the site include (to varying degrees) the bridge, areas of sand and gravel extraction, the Hymix shed and the Fulton Hogan Asphalt Plant. They also agreed however, (and I accept) that the attractive open views are dominated by the waterways and the wide flat floodplain with its rural undeveloped character.[41]
[41]JER paragraph 3.9.
Within that broader context, the site has some (limited) influence from a visual and landscape perspective and the industrial appearance of its developed part is discordant with the broader undeveloped character. The site is not, however, itself determinative of the broader character of the area. That broader area will retain its character and green space function, whether the subject application is approved or not. Indeed, the existing development on the site, while extensive, is generally well hidden from most views.
The elevated Gympie Road Arterial Road, and Gateway Arterial Overpass screen the subject land and its infrastructure from residential development to the east and south east, and from the Tinchi Tamba Reserve on the eastern side of the highway.
The residential areas of Bald Hills to the south of the subject land are generally screened by trees in Canterbury Park.[42] Walking and cycling paths in the park and a public boat ramp have views of the subject land, shed and cranes, but this is across the water and through gaps in the fringing vegetation. Recreational bike users, accessing South Pine River from the boat ramp in Barungwarra Bushland Reserve, have views of the existing shed and mobile cranes.
[42]JER paragraph 1.40.
To the west, the closest residential development (Heritage Estate at the end of Grahams Road) is screened by existing river bank vegetation and large trees on the neighbouring farm located adjacent to the estate boundary.[43]
[43]JER paragraph 1.41.
There are views to the subject land, looking south from elevated view points on the north bank of the Pine River and Murrumba Downs. The subject land, shed and other facilities are visible from the south-eastern and south-western sections of Acacia Park from roads parallel to and through the parkland; and from the pedestrian pathway that also runs through this section of the park. The subject site is also visible from the playground area, gazebos and seating areas in this section of the park. A number of two-storey houses located alongside the northern boundary of the south-western section of the park also have views of the shed and facilities through the trees. The river is, however, the closer and more attractive part of those views and, as Mr Chenoweth pointed out, the existing riverbank vegetation is sufficiently dense to provide only filtered views to the Hymix shed, save through a limited number of gaps.[44]
[44]JER paragraphs 1.43, 1.44.
There are also residents on the ridge line at Castle Hill Estate (Murrumba Downs) further to the north-west who have views over the river flats to the shed and other facilities. As Mr Chenoweth noted however, these views are at considerable distance.[45]
[45]JER paragraph 1.42.
The visibility of the site from the Gympie Road Arterial Road and the overpass was the subject of emphasis in the respondent’s case. Indeed the consolidated list of remaining issues in dispute states the landscape and rural amenity issue as follows:
“Landscape and visual amenity: and in particular, given its location as a prominent gateway to and from Brisbane (and its scenic amenity values and the role as an inter-urban break for the purposes of the South East Queensland Regional Plan) whether the visual impacts of the development are acceptable having regard to the above provisions.”
Mr King relied upon the large volume of traffic using this section of road and its proximity to the entry/exit “gateway” between Brisbane and the Moreton Bay Regional Council area as adding to the visual prominence and significance of the site. It should be noted, however, that the site does not, of itself, constitute the gateway. The most significant visual feature at the “gateway” is the river, which is traversed by the bridge. As Mr King pointed out, the “green belt” along the river is also significant. The site forms part of the backdrop, at least to the extent it can be seen but, those entering or leaving Brisbane will see not only the river, but the greening of the rehabilitated east coast gravel site adjacent to the river to the north of the subject site, irrespective of the fate of this site.
The subject site is visible to some, but by no means all, traffic entering or leaving Brisbane. Very little of the site can be seen by those arriving in Brisbane by driving along the southbound lane of the bridge and Gympie Arterial Road. The site will have no significant impact upon the impression as one arrives into Brisbane that way. Further, the view which motorists departing Brisbane by using the northbound lane of Gympie Arterial Road, might otherwise have had is impeded by an embankment associated with the overpass.[46]
[46]T4-13, 14.
The only substantial view is obtained by those who are departing Brisbane having driven west along the Gateway Motorway, using the ramp over the Gympie Arterial overpass. The joint report of visual amenity experts notes[47] that, for those:
“As the vehicle gets to the top of the rise, the roof of the shed and the taller feed bins are visible. As the vehicle turns to the north, the whole of the subject site is visible from the elevated vantage point, in particular the shed and cranes, feed bins and large areas of open hard stand and the Fulton Hogan site… as the vehicle continues down along the ramp, there are views into the site between and over the scattered Acacia trees located along the subject site boundary.”
[47]JER paragraph 1.32.
Mr King regarded this view as the major issue from a visual perspective. These views are, as Mr Chenoweth pointed out,[48] relatively brief, glimpsed while the vehicle is turning (and at least the driver’s attention is focused on the road) and available only from a short elevated section of the overpass, for northbound vehicles only. It is in a location where the view has, for many years, been to areas within an industrial character, including not only the subject site but also the Fulton Hogan Asphalt Plant (although that, it seems, will soon relocate). The “intrusion” of the development on the subject site into the view at this point does not substantially cut across the character of the area more broadly. To the extent it is seen, it is in the context of a small industrial pocket beside the highway.
[48]JER paragraph 1.33.
I take Mr King’s point that, depending upon the traffic, vehicles may be travelling more slowly around this section of the overpass, and their occupants may therefore be exposed to the view of the subject site for a longer period of time, but it remains the fact that the view is available for only a relatively short elevated section.
I also accept that dominant elements of a view can, depending on the circumstances, be significant in terms of the perception of character, even if the exposure to them is relatively brief. In this case however, as already observed, the site is not itself determinative of the overall character of the broader area. As Mr Chenoweth pointed out, those who do experience this view into the site will, after passing it, be presented with a more significant view of the river crossing with its band of vegetation on either side at the “gateway”[49]. I accept Mr Chenoweth’s opinion that that is the more lasting impression.
[49]T4-42.
Moreover, I accept Mr Chenoweth’s description as follows:
“2.3The subject land and existing structures are not prominently visible from external view points, except from recreational boat users in the South Pine River, and parts of parks beside the river. It is quite well concealed from most view points… in terms of ‘movement networks’ which provide rural vistas, …, the structures are visible only from the Gateway Overpass (northbound) and a very fleeting glimpse from the highway southbound.
2.4As seen from the Bruce Highway Bridge over the Pine River, the waterway of the Pine/North Pine Rivers is the dominant visual feature, with attractive water views framed by riparian mangroves and taller forest trees behind. This is also the case with respect to the views from the few residences nearby, and from Acacia Park at the top of the riverbank in Murrumba Downs. While other natural, built and disturbed landscape elements are visible in this area, the river dominates the visual impressions of passing motorists, and is also likely to be the most important feature enjoyed by residents fortunate enough to have river views. This is, in my opinion, an appropriate context for considering views southwards from those residences across the river. While these views include the east coast gravel operations, the Bruce Highway and the Pine River Bridge, and the existing pre-cast concrete plant, such elements are secondary to the main river views.
2.5As seen from the Gateway Arterial Overpass …, northbound motorists have a relatively brief view westwards to the existing asphalt plant, Hymix shed and concrete bin silos. This brief view is, in my opinion, not a significant intrusion into areas of otherwise rural character because the context is that of a small industrial extractive industry pocket beside the highway…”
I acknowledge that the operating asphalt plant is planned to relocate. Although the evidence of the appellant’s State Manager, Mr Venn, is that if Fulton Hogan left the land[50] it is highly probable that Hanson (to which Hymix is related) would seek to establish an asphalt plant. The extractive industry will, in time, come to an end as the resource is exhausted. I nevertheless accept that the subject site does not greatly influence the scenic qualities of green space in this part of the city.
[50]Exhibit 8 paragraph 43, see also attachment K.
None of the above is to dispute the site’s inclusion within the Green Space System or to deny conflict with the provisions of City Plan. It is however, relevant in considering the extent to which a departure from City Plan’s provisions on this site would do violence to the evident planning strategy for the area of which the site forms part. In my view it would not have a significant effect.
To the extent it is visible, the current contribution of the developed part of this disused industrial site to the visual amenity of the area and the green space values is generally negative. Indeed, the written submissions on behalf of the respondent acknowledge that “the existing structures have impacted upon the visual appearance of the landscape and the Council’s landscape and visual amenity aspirations. They have further impacted upon the ability to use the land as an inter-urban break.”[51] Mr Brown, the town planner called by the respondent, acknowledged that use of the site “has been so comprehensively changed that it doesn’t currently exhibit those values”[52]
[51]Respondent’s submissions paragraph 158.
[52]T5-57.
The court is not called upon to decide whether the existing structures ought to have been developed on the subject site. The question is whether they should be permitted to be used into the future, pursuant to the development approval now sought. Mr Brown acknowledged[53] that the conflict of the application with the planning scheme was at the low end of the spectrum, given the current condition of the land. Mr Chenoweth conceded that, if the site were a “greenfields” site, he would not support the proposal from the landscape/visual amenity perspective. For the reasons already stated however, it is inappropriate to approach the assessment of visual amenity impacts on the fictitious assumption that the site is a pristine green space site.
[53]T5-56
The recommencement of the use will not cause the overall visual character of the site to change or result in a new intrusion into the green space area. It will rather allow the recommencement of the use. To the extent the developed parts of the site can be last seen they have and will continue to have, an industrial appearance. Further, it is not proposed to increase the disturbed part of the site, by extending the hardstand area. A further modest ancillary storage shed is contemplated[54] but that will have no significant impact. The recommencement will result in the existing hardstand areas, external to the shed, being used for the storage of pre-cast concrete elements although, as Mr Chenoweth pointed out, the view of those areas is foreshortened by the angle view.[55]
[54]The agreed alterations to the terms of the preliminary approval, is relevant to this.
[55]T4-44, T4-47.
The visual impact of the facility will be reduced by reference to what is to occur both on and beyond the site. It has already been noted that the land to the north is to be the subject of landscaping which will achieve a 60 metre wide band along the riverfront. That planting is to be at a density of 1 tree per 5m2, which would result in the planting of more than 5000 trees. There was some dispute as to the likely height of those trees and their effectiveness in screening the subject site from elevated locations, but it is evident that the landscaping will achieve a significant softening. Mr Chenoweth’s evidence persuaded me that his photo montages provide a reasonable representation.[56] Further, there is proposed to be landscaping as part of the subject development. In addition to landscaping, the visual impact of the structures is to be reduced by use of appropriate colours.
[56]T4-46, 47
The effect of these measures collectively will be a lessening of the visual effect of the proposal (through appropriate colours) and, as the vegetation matures, the filtering of views (although that filtering will be relatively ineffective for the close elevated view from the overpass). The result will be an overall improvement in visual presentation. That is so even having regard to the use of the hard stand areas external to the shed for stockpiling.
Mr King’s opposition to the proposal is influenced by what he saw as the site’s potential to make a more positive contribution to the visual green space values in the future. This dovetails with the respondent’s submission about the importance of the aspirational aspects of the planning scheme provisions and the undesirability of entrenching the use. It was submitted that, whilst those aspirations have been adversely impacted by the exempt development, they have not necessarily been thwarted[57] and:
“…. Notwithstanding that approving the use may result in the imposition of conditions that would mitigate its visual impacts, the appropriate course is to refuse the development application so as not to entrench it in the expectation that at sometime in the future the infrastructure will be removed”. [58]
As Mr Brown acknowledged[59], the entrenchment issue is ultimately about whether it is, in the circumstances, preferable to withhold an approval in the hope that the site will, one day, return to a state where it contributes to the rural and green space values.
[57]Respondent’s submissions para 106.
[58]Respondent’s submissions para 164.
[59]T5-73.
There is however, no regime in place to achieve that result.[60] The fact that the pre-cast facility was developed as exempt development means that its establishment and use were not subject to conditions requiring site rehabilitation upon cessation of the use. In those circumstances, the site’s likely future would appear to lie in the existing facility either being mothballed, awaiting potential reuse for other exempt development (discussed later) or in some infrastructure being removed[61] for use elsewhere, with the site otherwise left as a derelict industrial site.
[60]The rehabilitation obligations under an earlier approval had been met before commencement of the Airport Link project, when the bond being held by the Council to enforce rehabilitation was returned to the owner (Exhibit 3 paragraph 172(b)). The parties conducted the case on the basis that there is no extant obligation.
[61]Equipment such as the cranes would be expected to be removed if the site were abandoned. The shed could be removed, but I am not satisfied that is likely. The ultimate extent of removal is unknown.
The developed part of the site would not contribute positively to the green space values of the area if the plant were simply mothballed for future re-use for other exempt development. Mr King thought that, if the latter were to occur, there might be some value in a decrepit, rusting industrial site, once it begins to become more “green” as a result of becoming at least partially overgrown. He thought that a “general greening across the site” would start to be seen within a 5 to 10 year period. This scenario is somewhat speculative (relying on the site being abandoned and left undisturbed). Further, as Mr Chenoweth pointed out, such a result is unlikely to achieve a result which is perceived as attractive.[62] In relation to this scenario, Mr Chenoweth said:
“Look, if either Mr King or I, as landscape architects, were given a brief from a public agency, like Brisbane City Council, to make these structures into something attractive as a parkland, we would relish it and we would certainly try to make something with a real wow factor to it, but I do not know that – if it is privately owned facilities just rusting away in a weedy paddock, that most people driving past would appreciate it”.
Further, it would not achieve the particular environmental/ecological rehabilitation (discussed later) which is proposed as part of the subject application.
[62]T4-54.
Accordingly I am satisfied that:
(i) the site has only a modest effect on the visual quality and landscape character in this part of Brisbane;
(ii) the current state of the developed part of the site does not contribute positively to the green space values of the broader area, but the proposal would bring some overall benefit (and no significant adverse impact) from a visual perspective;
(iii) refusal of the proposal will not necessarily, or even probably, lead to the developed part of the site being rehabilitated in a way which makes a significant positive contribution to Green Space values. To refuse the application on that basis would be more an exercise in hope than realistic expectation.
Traffic
The potential traffic issues were examined by experienced traffic engineers (Mr Healey who was called by the appellant and Mr Beard who was called by the respondent). Ultimately, the only remaining approval/refusal issue relates to the use of the concrete batching plant for external sales, resulting in heavy vehicles using the south-bound on-ramp to the motorway.
At 495m, the south-bound on-ramp is significantly deficient in terms of its length. A standard of 1098m is indicated by Austroads. Accordingly, it is unlikely that laden concrete agitator trucks on the onramp could reach more than 60 kph by the time the lane width tapered to 3m. The posted speed limit at that point is 100 kph. Mr Beard considered this unacceptable for reasons which were summarised in the respondent’s submissions as follows:
“(a)Heavy vehicles using the southbound onramp have to give way to through traffic already on the gateway arterial road;
(b)In order to limit the speed differential between the heavy vehicles and the through traffic, the heavy vehicles will have to accelerate as hard as they can to the point of no return;
(c)Even when accelerating as hard as they can, the heavy vehicles will be at a much lower speed than the posted speed limit when merging with the through traffic;
(d)Due to the traffic flow of the through traffic, there will be limited gaps for the heavy vehicles to merge, meaning a heavy vehicle will either have to slam on the brakes at the point of no return and go onto the shoulder of the road or apply the ‘might is right’ approach and try to barge into the through traffic (good traffic engineering does not recognise the notions of ‘might is right’ or ‘barging’);
(e)This will result in a potential conflict situation every time a heavy vehicle uses the onramp, although Mr Beard was of the view that in terms of the traffic hazard, this is not likely to result in fatalities as those in cars are more likely to hit other cars or the side of the road to avoid being hit by the heavy vehicles. This is an unacceptable result nonetheless.”
In seeking to justify the use of the on-ramp by laden concrete agitator trucks, the respondent pointed to the “design domain concept”. This essentially describes the exercise of judgment as to the acceptability of an arrangement which does not meet the standards. In making that judgment regard is had to (amongst other things) evidence of existing operations. It was submitted that given the:
(i) low crash history for the last 20 years[63] (there have been no fatalities, crash rates are relatively low and there has been no accident involving the onramp);
(ii) relatively low number of movements involved;
(iii) lower speed environment which prevails in the 3 hour peak period when the majority of deliveries will be made;
(iv) good visibility, and
(v) the hazard being a risk of property damage rather than fatality.
the court would be satisfied that the potential hazard involves neither a degree of frequency nor an extent of consequence which, viewed together, should cause any alarm.
[63]Crash data is available for the 20 year period from 1 January 1993 (or to 31 December 2010, for incidents not including a fatality or hospitalisation).
It was also pointed out that the DTMR, as concurrence agency, did not oppose the application. As was pointed out on behalf of the respondent however, the department’s most recent correspondence referred to the fact that, to the extent the length of the ramp was in issue in the hearing, the court would have the benefit of the evidence by two appropriately qualified, well-regarded and independent traffic experts to assist it in determining the issue.
In the third joint report of the traffic engineers and in his individual report, Mr Healey relied upon the crash history. His individual report presented a comparative crash rate analysis for the relevant section of the road for the five year period 2006 to 2010 inclusive. It also contained an analysis of concrete deliveries for the external market for the years 2009 to 2011 inclusive.
In his examination in chief however, he acknowledged error. In fact there were no external deliveries of concrete in 2009 or 2010. Deliveries in 2011 were limited to a six month period. As Mr Beard pointed out[64] that lessens (although does not obliterate) the weight that can be placed on the crash history since, save for a very short period of time, there is no evidence of the ramp being used for laden concrete agitator trucks. Such trucks are, of course, particularly slow to accelerate.
[64]T6-55.
It was only in his oral testimony that, for the first time, Mr Healey made something of the fact that, during the morning peak period, the average speed of the through traffic is significantly less than the posted 100kph (in the order of 80 kph), with the consequence that the speed differential between the vehicles on the motorway and the merging agitator trucks would be less, thus providing more time for decision making. As Mr Beard pointed out however[65]:
[65]T6-56, 57.
· the data relates to average speeds (some through traffic will be faster);
· future upgrades to the gateway motorway may lead to the easing of congestion on this part of the road and a consequent increase in the speed of through traffic;
· there will, in any event, be a speed differential (of something of the order of 20 kph);
· the lower speed is a consequence of congestion, so that there will be fewer “gaps” for the agitator trucks to merge into.
Mr Beard acknowledged that the volume of agitator truck movements is low, but pointed out[66]:
“Oh, well, you are talking about it happening 30 times during the peak period every day. I think it’s probably pretty inevitable that sooner or later someone’s going to make a mistake. It’s a relatively low volume. We’re not talking about hundreds or thousands of vehicles a day, but we’re talking about big trucks and we’re talking
about difficult design situations in that we’ve already acknowledged that the speeds are dropping simply because the whole section is congested, so these aren’t simple – simple driving decisions.”
[66]T6-59, 60.
Ultimately, whether the situation is acceptable or unacceptable in traffic engineering terms is a matter of judgment upon which reasonable minds can, and in this case, did, differ. I am satisfied that the use of the on ramp by laden agitator trucks would be at least be undesirable. That is a matter of relevance to be weighed in the ultimate decision as to whether external concrete deliveries should be permitted.
Grounds
The appellant[67] (and Mr Reynolds[68]) relied upon a number of grounds to justify approval notwithstanding acknowledged conflict with the planning scheme. Not all of the matters relied upon are grounds. For example, the fact that DEHP approves of the DTMR does not oppose the application is not, in my view, a ground. The grounds of relevance are discussed below.
[67]Appellant’s submissions paragraph 89.
[68]Exhibit 3 paragraph 211.
Site suitability
The site is suitable for the use (which has successfully operated from this site in the past) without causing undue adverse amenity impacts.[69] As discussed later, suitable sites for these types of facilities are not easily found.
[69]As to the relevance of this see Lockyer Valley Regional Council v Westlink Pty Ltd (2012) 191 LGERA 452 at 464.
Employment
The proposal, operating at capacity, employs up to around 250 people. Demand for projects requiring production at or near capacity is ‘lumpy’. The level of continuous employment is substantially less (as is discussed later).
Rehabilitation and other works
It has already been observed that the proposal is to include screening landscaping and the use of colours to improve the visual presentation of the site. It is also proposed to implement a vegetation rehabilitation programme beyond the operational area of the site and, in particular, at the fringes of the site adjacent to the waterway and wetlands. This would:
·Improve ecological connectivity along the waterway;
·Provide habitat and foraging areas for native terrestrial fauna;
·Improve corridor functionality and movement opportunities for native terrestrial fauna; and
·Provide a buffer between the works precinct of the site and the South Pine River.
The most recent development layout provides for an increased setback to the South Pine River, as recommended by Dr Watson (the ecologist engaged by the Council).
Without that rehabilitation, the land would, as Mr Agnew (the ecologist retained by the appellant) pointed out, likely remain in its un-rehabilitated state, to the detriment of local fauna populations .
The appellant proposes to dedicate part of the land to the Council, however the Council does not wish to be responsible for the land nor can it be forced to accept it. Any approval of the application however could be conditioned so as to make the appellant responsible for the part of the land it seeks to dedicate. In that event there might be no need for a reconfiguration to create a lot for that land.
Water quality in the South Pine River is degraded, significantly impacted by urban development and does not meet relevant water quality objectives. The existing site drainage and treatment train does not currently meet best practice requirements, but it is proposed to implement a storm water management plan, as part of the subject proposal, to address that. In their third joint report, the water quality experts (Mr Bristow who was retained by the appellant and Mr Collins who was retained by the respondent) agreed (and I accept) that:
“11.Subject to relevant and practical approval conditions, detailed designing, implementation and ongoing maintenance, a storm water management system generally as proposed by DB[70] is expected to:
a. Produce a water quality equivalent and better then that measured in the South Pine River during 2012-2013;
b. Meet its environmental permit water quality objectives;
c. Reduce the risk of mobilisation of significant quantities of site surface and stored sediments and sediments traps, basins and ponds during flood inundation events to low and to an acceptable level;
d. Reduce the negative impact risk to the water quality of downstream ecosystems such as the Tinchi Tamba Wetlands to a low and acceptable level.
12.If the site was to be closed and abandoned in its current state, there are likely to be negative impacts on water quality, due to failure of the storm water management system to serve as sheet erosion of exposed hard stand areas through loss of positive management and maintenance of the site.”
[70]DB is a reference to Mr Briston.
The ecologists agreed that the aquatic ecosystem health and biodiversity values in adjacent areas would be maintained and/or enhanced by the proposal and that the proposed development “is considered to contribute to achievement of the relevant[71] Desired Environmental Outcomes of City Plan 2000 and support achievement of relevant objectives in applicable codes.”
[71]i.e. relevant to such values.
Moreover, the landscaping, rehabilitation and other works to be effected pursuant to an approval of the subject application would lead not only to an improvement of the visual appearance of the site, but result in significant improvements form an ecological prospective and guard against the negative impacts upon water quality which would be likely if the site remained closed and abandoned in its current state.
Further, rehabilitation of the whole of the site, in the event that the use were to cease in the future, could be required by a condition.
Need
It was submitted, for the appellant, that there is also a strong or high level of need for the pre-cast facility and also a strong planning need to grant an approval of this application to address that need. Whether that is so was examined by two economists (Mr Leyshon who was retained by the appellant and Mr Norling who was retained by the respondent).
The need for the concrete batching plant is related to the need for the pre-cast facility. There is, it was accepted, an operational imperative for a concrete batching plant to be located on the site immediately adjacent to the pre-cast facility, in order to supply it. The need for external deliveries from the concrete batching plant is a distinct issue.
Need for the pre-cast facility
The facility on the subject site is designed to supply concrete and pre-cast components to medium to large infrastructure projects in general and road projects in particular. The facility is the largest such plant in Queensland. It contains three parallel production alleys. This permits the plant to be used for the simultaneous production of a range of different product lines, including super T concrete girders up to 36 metres in length, deck units, arc tunnel linings, wall panels and sundry pre-cast panels.
South east Queensland is in the midst of an ongoing process of upgrading existing road and rail infrastructure as well as the construction of a wide range of other infrastructure to meet the needs of an emerging population. This creates a demand for pre-stressed pre-cast elements for significant projects. That demand is inherently ‘lumpy’, in that it is strong when a major project is underway, but may be non-existent at other times. From a general economic and community planning perspective, however, it is preferable to preserve the existing infrastructure to meet the strong demand when it arises[72]
[72]T3-73, 74 T2-55,56.
In their second joint report the economists agreed (and I accept) that “there is a significant and strong need for a major pre-cast facility capable of producing very large concrete products over the long term to the south east Queensland market”.
Pre-cast facilities are few in number. At the time of the second joint report a pre-cast facility was being constructed by Humes (a competitor) at Blackstone. That will lead to the closing of its Eagle Farm facility. Mr Norling was, at that point, unable to be definitive about the level of economic and community need for a further pre-cast facility within Brisbane until the intended operation of the Humes facility became clearer. His view, at that time, was that if the extent of overlapping of the product ranges is small then he would agree that the need for a pre-cast facility to operate in Brisbane is strong. If the extent of an overlapping range however was great then, in his view, the need would be minor to modest.
After completing the second joint report, but before the hearing, Mr Norling had a telephone discussion with Mr Jagger, the Ipswich project director at Humes. Mr Jagger advised him that the pre-cast facility at Blackstone would have the operational capacity to produce all of the product capable of being produced on the subject site save for prestressed concrete elements, although he added that, with additional investment, the Blackstone facility could produce prestressed concrete elements. Mr Norling therefore concluded that the level of economical and community need for a facility within Brisbane was modest.
In Mr Norling’s testimony however, it emerged that, of the various products produced at the subject facility, Mr Norling had assumed (based on his discussion with Mr Jagger) that it was only the super T concrete girders that were a prestressed item which the Blackstone facility would be unable to produce, and this product represented less than 4% of the total number of units produced. However, Mr Ireland (an engineer with the John Holland Group), who has not only been the initial pre-cast manager for the Airport Link project, but was also employed previously by Humes for 26 years, gave evidence that there were three prestressed items in the list of products used at the subject site and that about 60% of the products (by weight) were prestressed elements. Mr Jagger was not called by the respondent. Mr Norling modified his opinion of the level of economic and community need for a facility within Brisbane to between modest and strong, and probably towards the stronger end.[73]
[73]T 3-44, 45.
There are further aspects of the public and community need for the subject facility. As the economists agreed in their second joint economic report (and I accept), the market would be advantaged by the introduction of a second major facility and by its location to the north of the Brisbane River, since existing facilities are concentrated in the western corridor. Mr Norling considers the subject site is a good locational site to service projects north of the Brisbane River.[74]
[74]T3-33
Humes operates a large pre-cast facility in Rockhampton and, with its new facility at Blackstone, it will operate the two largest pre-cast facilities in Queensland and the largest in south east Queensland. That would, as Mr Norling acknowledged,[75] give Humes a market power which “obviously increases the need for competition, and so it provides another reason for supporting an approval of the proposal.”
[75]T3-54, 55.
On that basis it would appear that the public or community need for a facility capable of producing the range of product that the proposal can and operated by a competitor to Humes is strong, with an advantage to that facility being provided north of the Brisbane River.
The next question is whether there is a planning need for the subject approval in order to provide for that need. Often that will involve examining whether the planning scheme makes adequate provision for the establishment for the needed facility elsewhere. There are a large number of industrial sites located in South East Queensland, including a number on the northern side of Brisbane.
Locating a facility, such as is proposed, is not as simple as identifying just any area of appropriately zoned land. As the economist pointed out in their second joint report, there are a long list of operational requirements for such a use (apart from the availability and economic feasibility of the site) including:
· a large site – 15 – 20 hectares (depending on configuration);
· an ability to operate extended hours (to 10.00pm);
· compatible adjoining land uses (not residential within the sound envelope);
· co-location of concrete batching plant and pre-cast facility;
· direct access to designated heavy haulage roads (identified in Queensland as B-double multi combination works) and reasonable access to arterial roads;
· a location which requires minimal movement through residential urban areas;
· proximity to Port of Brisbane;
· a flat site;
· reasonable proximity to major infrastructure projects.
In the second joint report the economist agreed that there are industrial sites which, at least theoretically, could satisfy all or most of the operational criteria. This led Mr Norling to the view that the level of planning need was less than the public or community need for the facility. On this basis he put the level of planning need at “modest”.[76]
[76]T3-45,46, this was revised up from “minor” following the evidence faced with a small overlap between the products which would be offered by the proposal compared with those offered at the Blackstone facility
There is no certainty that an appropriate alternative site could be found. A range of possible locations was examined in the evidence. All were found to have difficulties or limitations of one kind or another. None could affirmatively be said to match the subject site. In that regard:
(a) the 6 sites in the Bald Hills region referred to in chapter 7 of the second joint report had constraints in relation to topography, size, proximity to residential development, availability, or lack of proximity to a motorway[77]
[77]Leyshon ex.9 pp.14-17, Reynolds ex.3 para 146(d); appendix F (ex.3 pp.96-97); T4-56/42 to T4-57/2 Norling T3-57/1 to T3-62/24.
(b) for industrial precincts in the urban footprint, only the sites at Australia Trade Coast lie to the north of the Brisbane River; one of these sites was definitely ruled out, and there were problems with the others[78]
(c) the other industrial precincts located within the urban footprint (Yatala, Swanbank, Ebenezer, Bromelton) shared the disadvantage of being located south of the Brisbane River; Swanbank had the potential disadvantage of being close to the Humes facility at Blackstone; there were constraints of different types identified for these precincts[79]
[78]Leyshon need JER no 2 p.17 Reynolds ex.3 appendix F pp.94-96; ex.30; T4-58/37 to T4-59/4 Norling T3-67/14 to T3-70/16
[79]Reynolds T4-58/37 to T4-59/4, Leyshon T2-89/15-18; T2-90/20-32; T2-91/15 to T2-92/3, Norling T3-27/12-19; T3-70/18 to T3-73/6
It is both impractical and undesirable for the court, in the context of the consideration of a single planning application, to carry out an extensive analysis of all possible alternative sites. Whilst a suitable appropriately zoned site might exist, the evidence demonstrates that the identification of such a site is not an easy task. The proven suitability of the subject site can be seen against that background.
Approval of the subject application would also permit the public or community need for the facility to be realised in a way which is economically efficient, by the re-use of substantial and expensive on site infrastructure. That was one of the matters relied on by Mr Leyshon in identifying what he considered to be a high level of planning need.
It emerged that Mr Norling’s view about the strength of the planning need did not take economic efficiency into account. He acknowledged the relevance of economic efficiency from an economic perspective and was supportive of such efficiencies being realised.[80] He expressed the view that both the applicant and the community would be better off with the re-use of an existing facility than if a new site had to be found. Taking this economic efficiency aspect into account, Mr Norling accepted that the level of need for the approval is strong.[81]
[80]T3-48
[81]T3-50, T3-52,53
On that basis, it appeared, at the conclusion of the economists’ evidence, there was agreement, that there is a strong need, both in public or community sense and in a planning sense. Two things emerged from the respondent’s submissions.
First it was submitted, on behalf of the respondent, that although economic efficiency is relevant, [82] very little weight should be given to it and that Mr Norling unnecessarily upgraded his estimate of need on that basis. It was submitted that:
[82]T7-9.
“180. …
(a)There is simply no evidence of any present demand for the products that the land was specifically set up to produce, and as Mr Venn’s evidence made clear, the land has not been used since the end of the Airport Link project to produce any products by operation of the exemptions available in City Plan as schedule 5 of the SPR; and
(b)There is simply no evidence that any savings brought about by not having to build a precast facility for each future project will result in that saving being passed onto the community. In fact it is just as likely that any such saving would be used to increase the profit margin from Hymix.
181.It is also relevant to observe in relation to the purported 250 fulltime equivalent jobs to be created by the development application that employment is likely to depend on the major infrastructure projects announced by the government (and which is likely to be exempt from assessment against City Plan). In those circumstances employment is likely to peak and drop as and when there is a need generated by major infrastructure of projects irrespective of approval of this development application. On this basis, it is appropriate to include that any permanent activity would be external deliveries, which would involve much lower employment opportunities”.
In that regard however:
·The fact that the site has not been used for another exempt development since the Airport Link project does not undermine the economic efficiency argument. There is, as Mr Leyshon pointed out,[83] likely to be a need for products of the kind which can be manufactured from the infrastructure on the subject site in the future and it is economically efficient to allow that need to be met by the use of the existing infrastructure.
[83]T2-56.
·The level of employment will lower between contracts for major projects however, as Mr Ireland pointed out, the approval of the subject proposal will enable the appellant to compete in the general precast market (including for non stressed items) between those major projects and to maintain its core staff.
·I accept that care must be taken in considering the economic efficiency argument so that it does not become a matter of allowing the recommencement of the use simply to suit the convenience and economic position of the applicant. It is matters of public interest which are important. While there can be no precision about the extent to which the benefits of economic efficiency will pass onto the community, it is obviously in the community’s interest to ensure, by appropriate planning decisions, that an efficient and competitive market is created from which the community is likely to benefit. As Mr Leyshon attested:[84]
[84]T2-55.
“Your Honour, if you stand back and look at it in a broader economic perspective and outside the somewhat more narrow interests of Humes or Thiess John Holland or people like that, it’s not economically efficient to simply – every time you need to undertake a major project, to say well, we’ll build a plant capable of producing this and we’ll just build it into the job. While I can accept that’s what happens, I don’t think that’s an economically rational or efficient way of proceeding, particularly if you’ve got existing facilities sitting there capable of meeting those needs. I heard what Mr Ireland said and I accept that’s what happens in the industry. But from an economic perspective, I don’t see that as a rational, efficient or, if I might say so, even sustainable way of proceeding over the longer term.”
Further, when questioned about this, Mr Ireland gave the following evidence in cross-examination:[85]
[85]T8-20,21.
“So whoever’s buying any of the products from this plant will not, in ordinary commercial understandings, get the benefit of the reuse of this plant on the site, will they? --- They will in that if there is a need for that type of volume again you don’t have to go out and spend $20 million to rebuilt that facility.
To put to coarsely, I suppose what I am suggesting to you…?.. the market – the market will always be what the market is.
Exactly? … if there’s another competitor in the market you will get a better price in the market.
Yes?.. if there’s a cost advantage you will use that cost advantage.
No thank you? … and those – and um – sorry. I’m still trying to answer the question.
No. That’s perfectly – you take as long as you take? ... – – – From a construction – yeah. From a construction company’s point of view, we look at every endeavour that we can to minimise our costs at a time of tender. So we will find what our minimum cost is to do something. Then we talk about margin and risk.
Yes? – – – Now, if we – if we beat our opposition because we’re smarter, or have done a better job of finding a way to reducing our costs, and we leave a lot of money on the table well, that’s just – that’s how life is.
Yes? – – – You get on with life and do the job. But we will always drive the tender to the minimum cost, and then look at the other risks associated with it.
Yes. But what I’m getting at is this. If you would otherwise put in a tender price of $20 million for a job – if that would be what you would otherwise do, you won’t put in a tender price of 16 million or 15, or some lesser amount, because of – you have the benefit of using this existing plant – – – If we were using the existing plant, and the market was telling us $20 and we could do it for 16, we would put 16 in.”
I am satisfied that the economic efficiency in this case is not simply about convenience or private economics for the appellant (which are not relevant grounds), but is likely to lead to a public or community benefit in the public interest.
Secondly, in the course of submissions, the respondent contended that no town planning approval is necessary to meet the need, for reasons which were not considered by the economists. In particular, it was submitted that the large pre-stressed components such as super T’s and bridge girders are likely to be required for major projects which would likely be exempt development either by reason of schedule 4 of the SPR (in its present form or as amended in the future) or under City Plan. On that basis it was submitted that, the major component of need for the proposal can be met virtually anywhere on a project by project basis, the infrastructure here can be used in situ or relocated if necessary and that the ability of the site to supply future products pursuant to the many and wide types of development exempt from assessment against the planning scheme is a factor which weighs strongly against entrenching this inappropriate use.
In the course of oral argument I questioned whether this undermined the basis of the evidence of the economists, and whether that was an issue that might affect their views about need. On 13 December 2013, leave was granted for the appellant to re-open its case in respect of those questions.
The current range of SPR exemptions include item 7(a) as follows:
“All aspects of development –
(a)for the maintenance, repair, augmentation, upgrading, duplication or widening of state controlled road infrastructure.”
A relevant City Plan exemption is as follows:
“Development involving the construction, maintenance or operation of roads and bus ways, and things associated with the roads and bus ways by or on behalf of or under contract with Brisbane City Council or the Queensland Government.
Things associated with roads and bus ways includes but is not limited to:· Activities undertaken for road construction;
· Traffic signs and controls;
· Depots;
· Road access works;
· Road construction site buildings;
· Draining works;
· Ventilation facilities, including exhaust fans and outlets;
· Rest area facilities and landscaping;
· Parking areas;
· Public transport infrastructure;
· Control buildings;
· Toll plazas.”
On the resumed hearing further evidence was given by Mr Ireland, Mr Leyshon and Mr Norling. In his supplementary report of evidence, Mr Norling stated that the greatest need, in relation to the pre-cast facility, related to its supply of pre-stressed items of the kind not supplied by Humes at Blackstone. In his view it is difficult to envisage that there will be many occasions when the demand for large volumes of pre-stressed items would not qualify for an exemption and so the vast majority of the pre-stressed items can be supplied by the subject pre-cast facility pursuant to one of the many exemptions available to it. While, in his view, there is still a level of need for an approval to legalise a pre-cast facility, he again revised his assessment of the level of economic and community need to modest and his assessment of planning need to modest, if economic efficiency factors are considered, or minor if not.
There are a number of difficulties associated with relying upon exemptions as a satisfactory means of meeting the identified need. A difficulty upon which the appellant relied is the asserted room for argument about the extent of the exemptions and consequent scope for uncertainty as to whether they can properly be relied upon for supply to particular projects or parts of projects. This led to a debate between the appellant and the respondent as to whether the exemptions are to be interpreted liberally or narrowly. It is unnecessary for me to reach a concluded view on that however, because, for the reasons which follow, I am satisfied that, in the context of this case, reliance upon exemptions, on a case by case basis, is a significantly inferior way of providing for the satisfaction of the identified need, compared to granting a development approval.
A threshold difficulty is that it cannot be assumed that the site will continue to be used, from time to time, on a project by project basis, pursuant to exemptions. While Mr Ireland thought that the appellant would likely seek to utilise the existing site pursuant to an exemption, if there were an exempt project on the horizon, Mr Leyshon doubted whether a commercial operator would be prepared to keep the site mothballed indefinitely in the hope of further major projects. If the site were abandoned then economic efficiency would be adversely affected, to the public or community detriment.
Further, (and assuming the site is not abandoned) restricting use to as and when contracts are obtained, for the supply of particular exempt projects, is also inefficient. It has already been observed that the nature of the business is such that the demand for high volumes of the larger pre-stressed items is somewhat “lumpy” and unpredictable. Reliance on rolling exemptions would involve leaving the plant idle for significant periods between major projects (as has been the case with the subject site since it completed the Airport Link project). Consequently there would be significant start up costs and decommissioning costs (including the identification, training and ultimate laying off of staff) associated with each project.
An approval will not see the site being used continuously at its full capacity. There will be relative lulls between major projects and so there will be some “ramping up” and “ramping down” costs however, as Mr Island pointed out, an approval will enable the appellant to produce a complete range of pre-cast and pre-stressed products with the exception of concrete pipes smaller than 2100mm in dimension. This will enable the appellant to compete in different parts of the pre-cast business outside civil engineering (e.g. the building market). In doing so it will be able to keep its core staff of highly skilled people.[86] Further with an ongoing operation, the plant will be regularly maintained and recertified, rather than being commissioned and decommissioned by job by job basis. The recurring costs of ramping up production from time to time in the context of a continuous operation would be less than for a plant that was completely shut down between major projects.[87]
[86]T8-6, 7.
[87]T8-16, 17.
Not only does an approval allow for continuing operation between major projects to facilitate economic efficiency, it also creates an on-going competitor in the pre-cast market. Further, the location of that competitor on the subject site in Brisbane’s north is, as Mr Norling conceded[88] a “significant positive” given that the location of present competition for pre-cast product (both pre-stressed and non pre-stressed) is concentrated in the western corridor.
[88]T8-36.
In my view, Mr Norling placed insufficient weight on the matters which indicate that planning approval is a far more satisfactory way of meeting the need in the circumstances, than depending on being able to fulfil contracts, on a project by project basis in reliance upon exempt development provisions.
I am satisfied that there is a strong public or community need and at least a significant planning need that supports the proposal for recommencing use of the pre-cast concrete facility, together with concrete batching plant, insofar as it supplies the pre-cast facility.
Need for external deliveries
The position in relation to external deliveries from the concrete batching plant is different.
The economists agree that there is a significant on-going demand for pre-mixed concrete within 20 kilometres of the subject site. The plant on the subject site is well located to supply proximate growth areas, which reduces transport and delivery times. That market is however, currently being serviced by existing batching plants. To the extent that there is a need for additional concrete batching facilities, the evidence does not establish any lack of appropriately zoned land upon which another plant could be established. Concrete batching plants do not have the same level of operational requirements and constraints that apply to a major pre-cast facility.
Of importance to the case for permitting external concrete deliveries is the fact that if the application is otherwise successful, a batching plant will be on the subject site in any event in order to service the pre-cast facility. In that context, Mr Leyshon thought it “illogical to support the operation of a concrete batching plant on the subject site but not to allow it to service external markets.” He saw economic benefits in permitting the facility to utilise its capacity to a greater extent by serving the external market as well as the proposed pre-cast facility.
While Mr Norling concluded in the joint report, there is no economic community or planning need for the proposed concrete batching plant to locate on the subject site in order to service external markets. He did concede, in cross examination that:
“Based on that concept, if you have an existing plant servicing market A and that plant has the abilities to service, in this case, market B, and providing there are no other external consequences and impacts which others can deal with, then yes, as part of economic – well, I call it economic rationalism… but its also economic efficiency, then from that prospective, the plant should be allowed to service market B, provided those other external factors don’t cause untoward impacts.”
Whilst, on a conventional analysis, there does not appear to be any real planning need to provide an approval to facilitate a further concrete batching plant for it to service the external market, on the subject site, and while I would not give economic efficiency arguments as much weight as in the case of the use of the much more substantial infrastructure of the pre-cast facility, there is sense (absent other considerations), as Mr Norling acknowledged, in allowing the batching plant to serve that market if it is otherwise operating. That consideration needs to be balanced however, with any adverse impacts and, in this case, with the undesirable traffic situation discussed earlier.
Conclusion on sufficiency of grounds
The grounds discussed above are, I accept, sufficient to warrant approval of the pre-cast facility and associated concrete batching plant (at least for the purposes of supplying the pre-cast facility) notwithstanding conflict with the planning scheme.[89] Whilst the conflict is not merely technical, it should be seen in light of the following:
(i) the site is not determinative of the character of the broader area. Its influence on what the planning scheme seeks to achieve in the broader green space area in this part of Brisbane, from a landscape and visual perspective, is modest given that it is relatively well hidden from most views.
(ii) the majority of the site has, by reason of past development, lost whatever positive contribution it might otherwise have made to the visual values of the Green Space System.
(iii) there is no regime in place for the rehabilitation of the disturbed parts of the site and the prospect of the site naturally returning to a state where it makes a significant positive contribution is speculative and unlikley.
(iv) the proposal, which involves the recommencement of the use of existing infrastructure, will not change the industrial character of the developed parts of the subject site.
(v) landscaping and use of colours will, in conjunction with rehabilitation to occur on the adjoining site to the north, lessen the visual impact of industrial development on site.
[89]The sufficiency of grounds to justify an approval notwithstanding conflict relates to conflict with a “relevant instrument.” That expression is defined in s. 326(2) to exclude a State Planning Regulatory Provision. In this case the consolidated list of remaining issues in dispute refers to the South East Queensland Regional Plan, but only to its regulatory provisions. The statutory provisions relating to those provisions is discussed later. I would have however, concluded that the grounds are strong enough to warrant approval notwithstanding conflict with the SEQRP.
Further, approval will lead to enforceable obligations upon the appellant (and any successor in title) to:
· carry out rehabilitation to achieve sufficient improvements from an ecological perspective; and
· implement a stormwater management plan which will improve stormwater management on the subject site, achieve appropriate objectives and obviate risks of detrimental impact associated with leaving the site in its abandoned state.
A condition could also be attached requiring rehabilitation of the site in the event that the use ceases.
I appreciate that the council had no control over (and is less than pleased about) development which occurred on the land as exempt development. The fact of that development must however, be accepted. The proposal, appropriately conditioned, will bring benefits from landscape/visual and ecological perspectives. While the council would prefer to see the use “phased out” to create an opportunity for natural rehabilitation in a way which might further green space objectives, there is no regime in place for that to occur. Whether the site would, in the absence of an approval, be abandoned for all time (as opposed to used, from time to time, for other exempt development) is uncertain. Further, even if it were abandoned and became, to some extent overgrown, that would neither be likely to produce an attractive result nor would it achieve the ecological rehabilitation and the improvements to the stormwater regime which are proposed as part of the subject development. I am also satisfied that the proposal is supported by a strong public or community need and at least a significant planning need.
Ultimately I consider that the public interest lies in granting the approval, rather than in refusing it in the hope of the site one day making a significant positive contribution to rural/green space value and economic benefits being realised in other ways (including by depending upon exempt development provisions). Leaving to one side external concrete deliveries, I am satisfied that there are sufficient grounds to approve the application notwithstanding the conflict with the planning scheme.
Insofar as external deliveries are concerned, there is not, on a traditional analysis, a strong planning need to provide an approval at the subject site to facilitate the establishment of a concrete batching plant to service the external market. There is however, I acknowledge, sense in allowing a facility which will already be operating for the purposes of the pre-cast facility to also service the external market. That must however, be balanced with the undesirable traffic arrangements for agitated trucks using the on ramp to the motorway. Ultimately, I consider, that the balance lies in favour of refusing the external deliveries component, so as to obviate the undesirable traffic consequence.
South East Queensland Regional Plan
The South East Queensland Regional Plan (SEQRP) is the pre-eminent planning document for the South East Queensland region and takes precedence over all other planning instruments. It incorporates all of the local government area of Brisbane.
Under the SEQRP the Urban Footprint sets the context to achieving a pattern of development that is consistent with the strategic directions and regional policies set out in the SEQRP. The subject site falls outside the Urban Footprint under the SEQRP, which incorporates, amongst other things, industrial development. The land, instead, within the Regional Landscape and Rural Production Area (RLRPA) which has, amongst other things, regional landscape and non-urban values, is to be protected from inappropriate development, particularly urban or rural residential development that includes land that forms strategic and reasonably significant inter-urban breaks. The regulatory provisions apply to this area and restrict urban development.
The SPA requires the assessment manager (and, on appeal, the court) to assess the application against the regulatory provisions.[90] Further, the assessment manager’s decision must not be inconsistent with a SPRP.[91]
[90] See s 3.1.4(2)(a)
[91] See s 324(3)
What is inconsistent with the particular regulatory provision is identified by reference to that document. The subject regulatory provision provides, in part, as follows:
“Development is only contrary to, or inconsistent with, these state planning regulatory provisions to the extent the development is identified in column 2 of Table 3A.”[92]
[92] See s 6.1 of SEQRP
There is a footnote after the word “inconsistent” which references s 324 of the then Sustainable Planning Bill 2009.
Column 2 of Table 3A identifies subdivisions which may not occur. The subject application is not inconsistent by reason of the reconfiguration of a lot component. The material change of use falls under Table 2E. The development is therefore not inconsistent with the regulatory provision for the purposes of s 324(3) of the SPA.
The regulatory provisions contain relevant assessment criteria in column 2 of Table 2(E). It was alleged conflict with the relevant criteria which was relied upon, in the consolidated list of remaining issues in dispute, as the issue in relation to conflict with the SEQRP. It is common ground, that a failure to meet a criteria is not fatal. It is simply a matter to which regard must be had under s 314(2) of the SPA.
The relevant assessment criteria is as follows:
| Column1 Material change of use not requiring referral agency assessment | Column 2 Material change of use requiring referral agency assessment and impact assessment |
| 1. A material change of use for an industrial and commercial purpose having a gfa of no more than 750m2 on premises where- (a) any incidental retail activity on the premises is no more than 50m2; and (b) any associate outdoor area on the premises is no more than 1500m2. 2. A material change of use for a service station having a gfa of no more than 1000m2 on the premises where any- (a) incidental retail activity on the premises is no more than 250m2 (b) associated outdoor area on the premises is no more than 2000m2. | A material change of use not identified in Column 1 must comply with the following assessment criteria- (a) the locational requirements or environmental impacts of the development necessitate its location outside the Urban Footprint; (b) there is an overriding need for the development in the public interest. (emphasis added) |
The concept of “overriding need” in criterion (b) of Column 2 is dealt with in schedule 3 as follows:
“Schedule 3 – How to determine overriding need for the development in the public interest
To determine an overriding need for the development in the public interest an application must establish –(a)the overall social, economic and environmental benefits of the material change of use weight against –
(i)any detrimental impact upon the natural values of the site; and
(ii)conflicts with the desired regional outcomes of the SEQ Regional Plan, especially in relation to promoting the consolidation of development within the Urban Footprint and preventing land fragmentation in the Regional Landscape and Rural Production Area; and
(b)that the community would experience significant adverse economic, social or environmental impacts if the material change of use proposal were not to proceed.
This may require an assessment to determine if the material change of use could reasonably be located in the Urban Footprint.
The following do not establish an overriding need in the public interest-(a)activities with relatively few locational requirements such as residential development and shopping centres; or
(b)interests in or options over the site; or
(c)the site’s availability or ownership.”
While, at first blush, criterion (a) and criterion (b) appear to be separate criteria, schedule 3 reveals an extent of overlap because it provides:
(a) that a determination of overriding need “may require an assessment to determine if the material change of use could reasonably be located in the urban footprint” as which would seem more relevant to criterion (a) than (b). It suggests that the expression “necessitate” in criterion (a) should, in context, be subject to the touchstone of reasonableness.
(b) The provision that overriding need in the public interest is not a established by “activities with relatively few locational requirements such as residential development and shopping centres” again appears more relevant to criterion (a) than criterion (b).
Counsel for the respondent conceded that there is some force in the submission that “necessitate” needs to be moderated[93] and that it should be approached in a practical and reasonable way.[94] It was submitted that “necessitates” in this context, means practically necessary, rather than either absolute necessity on the one hand or a mere preference on the other.[95] I accept that.
[93]T7-33.
[94]T7-34.
[95]T7-38, 39.
The Council’s reliance on the SEQRP and the regulatory provisions was somewhat belated. It was not raised in the lengthy reasons for refusal attached to the decision notice. It seems to have been prompted by the preliminary view which Mr Norling gave to the Council when he was first engaged in about March or April 2013 that “the need was a fairly strong argument, a strong positive… but … I couldn’t see how the application could pass the overriding need test in the (regulatory provisions)”[96].
[96]T 3-76.
Whether the proposal complies with the regulatory provisions was the subject of assessment by the Department of State Development, Infrastructure and Planning, as a concurrence agency. By an amended concurrence agency response, it indicated satisfaction that there was compliance. The person who was responsible for that response was Mr Coutts, the executive director of planning services within the department. Mr Coutts is a professional planner with more than 30 years experience and was called to give evidence under subpoena.
Insofar as criteria (a) is concerned, Mr Coutts’ experience suggested to him that it will be extremely difficult to find a suitable site within the urban fabric. The investigation by the consultants Parsons Brinkerhoff tended to confirm his view that the available parcels of land were few and apparently constrained (even leaving to one side the question of whether they were procurable). He saw a development of this kind as one in which “really stretched one’s ability to plan sensibly for them in any urban area”. He concluded that the nature of the development and its size indicate that “on any sensible assessment” available sites “are few and far between”.
He also considered the overriding need test. Insofar as impact upon the natural values of the site are concerned, Mr Coutts observed that, while land along the Pine River included some areas that were quite intact, this site “stood out as one that natural values were basically no longer present” that it didn’t play a strong role insofar as the Desired Environmental Outcomes of the SEQ regional plan are concerned. In relation to promoting consolidation development within the urban footprint from Mr Coutts observed that the site, whilst beyond the urban footprint, was surrounded by it. Insofar as preventing land fragmentation in the RLRPA is concerned, Mr Coutts was mindful that the developed part of the site did not represent the characteristics which the RLRPA designation was intended to exhibit. It is not one of the “pristine bits of the region that we love”.
Insofar as the adverse consequence were the material change of use not to proceed, Mr Coutts was mindful that the use facilitates has, in the past, been highly productive and significant contributor. In his view there would be significant disadvantage if were not able to continue to operate. He was also mindful of the intention to carry out rehabilitation.
The appellant, and its witnesses, urged a similar approach and conclusion. Insofar as criterion (a) is concerned, it was submitted that:
(a) from an operational perspective, the use has very demanding locational requirements;
(b) the facilities are large scale operations, with obvious potential to have environmental impacts of a tangible nature (e.g. noise, dust, odour, traffic, amenity impacts, storm water run off impacts) and some less tangible impacts (e.g. visual amenity) which would make it difficult to locate within the urban fabric; and
(c) given the support of the economic evidence for a location north of the Brisbane River, no site has been identified which is available and suitable, and the alternative sites discussed were either affirmatively ruled out or subject to constraints.
Insofar as overriding need for development in the public interest, it was submitted that:
(a) There is no detrimental impact upon the natural values of the site and, indeed the conditions of approval will lead to improvements;
(b) There is no material conflict with any Desired Regional Outcome of the SEQRP. It does not involve fragmentation in the RLRPA (since the site is already developed and the number of lots is being reduced) and does not prejudice consolidation of development within the urban footprint which effectively surrounds the site (making it, effectively, a form of infill development). Whilst not in the Urban Footprint, the proposal involves the efficient use of land and infrastructure, which is part of DRO 8.[97]
[97]Ex 13, page 20, Norling T3-78.
(c) The developed part of the site does not exhibit the values of the RLRPA area;
(d) There are important environmental benefits to the MCU, which would be lost if it were not granted;
(e) There are significant economic benefits of the MCU (identified earlier);
(f) The community will experience a significant adverse economic impact, if the proposal were not to proceed, because it would lose the benefit of the largest prestressed manufacturing facility in Australia, one of the largest pre-cast facilities in Australia, and the largest existing pre-cast facility in Queensland. The projects that it can supply include projects of State significance making the facility itself of such significance from and economic perspective, given its proven capacity to produce high volume, high quality concrete elements for such projects. It would also lose the other benefits (including the provision of competition in the pre-cast, more generally, and the benefits of economic efficiency) discussed earlier.
The respondent, on the other hand, emphasised the obviously high hurdle posed by the assessment criteria. While acknowledging that the custodian of the SEQRP had formed the view that the test for development outside the urban footprint had been satisfied, it was submitted that Mr Coutts (and, indeed, Mr Reynolds and the appellant) had misdirected itself in reaching that conclusion. It was submitted that the court should draw a distinction between “locational” requirements and operational requirements or site constraints. It was submitted that unlike quarries, water extraction industries or marinas, pre-cast facilities do not necessarily need to be at any particular location. They can be located wherever a site which meets the operational requirements can be found. Accordingly, the operational requirements referred to in the evidence do not justify a conclusion that the use has “locational requirements” which necessitate its location outside the urban footprint. Further, whilst such uses have obvious impacts which would have to be considered in identifying a site within the urban footprint, it had not been demonstrated that the impacts in this case would “necessitate” (reasonably or otherwise) its location outside the urban footprint.
In support of its construction of “locational requirements” the respondent pointed to the notes to section 9.3 of the SEQ regional plan which provides, in part, as follows:
“High impact and large scale transport, manufacturing logistics industries often have specific site and location requirements. These include… certain industrial activities also require spatial separation concerns to the land uses, such as residential areas. This is also relevant for activities with possible offsite impacts or those which operate outside normal business hours.”
It was submitted that the distinction between “site” and “location” requirements in this passage supports the view that the former is not contemplated by the expression “locational requirements” in criterion (a).
It is arguable that the respondent’s construction is too constrained and that provision has more to do with whether (as is stated in schedule 3) the material change of use can reasonably be located in the urban footprint, rather than with fine distinctions between “site” and “location” requirements. It is unnecessary for me to reach a concluded view about that however because, I would not, in any event, treat a failure to meet the assessment criteria in the regulatory provisions as fatal in this case.
While the designation of the land as within the RLRPA designation is accepted, it remains the case that, for similar reasons discussed in the context of the green space area designation under City Plan, that the developed part of the subject site does not exhibit the desired values of the RLRPA, that the departure from what is intended on this site (which is proximate to the Urban Footprint) would not do violence to the intentions for the RLRPA in this area more broadly and that the subject proposal will, with the landscaping, rehabilitation and other works proposed, increase the values of the land, particularly beyond the developed part. There are economic benefits and efficiencies and environmental improvements to be gained from the proposal including an improvement to the natural values on part of the site and those significant benefits would be imperilled were the proposal not to proceed. The site is proven to be suitable for a use which is at least practically difficult to locate while, on the respondent’s construction, that does not amount to a “locational requirement” necessitating its location outside the urban footprint, it should be remembered that we are dealing with an unusual circumstance. The court is not concerned with a question as to whether a facility should be allowed to be located, for the first time, on a site within the RLRPA. Rather, the question is whether a development which already exists in that area should be allowed to be reused in circumstances where, to do so, would bring the benefits discussed earlier (including economic efficiencies which relate to the use of this particular site, beyond the Urban Footprint) and increase, rather than reduce, the site’s contribution to the values of the RLRPA.
Conclusion
The appellant has discharge the onus. The application will be approved save for the external delivery of concrete. I will hear from the parties in relation to conditions of approval, the terms of the preliminary approval and whether the reconfiguration is to be pursued in the event that the Council does not accept the dedication of part of the site.
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