Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors
[2013] QPEC 57
•26 September 2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors [2013] QPEC 57
PARTIES:
MACKAY RESOURCE DEVELOPMENTS PTY LTD (ACN 134 090 903)
(Appellant)
v
MACKAY REGIONAL COUNCIL
(Respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS
(First Co-Respondent by Election)
and
CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION
(Second Co-Respondent by Election)
and
ASSUNTA HEAD, SCOTT HEAD, VANESSA HEAD, DAWN KLIBBE, BRIAN RASMUSSEN, GARY STURDY, CLIFF SUTHERLAND, ALAN THOMSETT, ELIZABETH WEST AND KEVIN WEST
(Co-Respondents by Election)
FILE NO:
975/11
PROCEEDING:
Appeal by developer against refusal of application for a quarry
ORIGINATING COURT:
Brisbane
DELIVERED ON:
26 September 2013
DELIVERED AT:
Brisbane
HEARING DATE:
17-20 June 2013
8-9 August 2013
29 May 2013 - Site inspection
JUDGE:
Robin QC, DCJ
ORDER:
Appeal to be allowed, but adjourned generally to enable suitable development conditions to be worked out.
CATCHWORDS:
Sustainable Planning Act 2009 s 350 – Integrated Planning Act 1997 s 3.5.14(2), s 3.5.30, s 4.1.52(2)(a), s 4.1.52(2)(b) – development application for a new quarry – whether “overriding need” to justify approval insofar as a small area of land mapped Good Quality Agricultural Land (GQAL) was affected – whether mapped GQAL was in fact suitable for agriculture – main issue the haul route – specific outcome under planning scheme extractive industries code required use of sealed roads – local road unsealed, and in some respects unsafe, passing several residences including those of co-respondent submitters, already affected by dust and noise caused by existing quarry traffic on the road – whether alternatives to sealing workable – fairness of conditions requiring developer to contribute more towards road upgrading than its proportionate share of impacts considered
COUNSEL:
D Fahl for the Appellant
C L Hughes QC, A Skoien for the Respondent
J G Lyons for the First Co-Respondent by Election
Self-represented Co-Respondents
D Klibbe, G Sturdy and K West appearing on their own behalf
SOLICITORS:
Kelly Legal for the Appellant
McCullough Robertson for the Respondent
Norton Rose Fullbright for the First Co-Respondent
This appeal is brought against the respondent Council’s refusal of a development application in respect of a material change of use of part of Lot 643 on SP 22481, which consists of 68.21 hectares on the southern side of Barrie Lane, Homebush, about 20 kilometres south of the Mackay CBD, presently used for growing sugar cane on the southern part which extends to Sandy Creek and for pasture; in the past at times the area under cane may have been slightly greater. The proposal is for a hard rock quarry that will remove part of the knoll in the centre of the site, where cane never has been or could be cultivated for reasons of steepness and soil quality; the area impacted will be more extensive by reason of the handling, processing, stockpiling and other activities involved in the winning and distribution of the product. The project is known as Porters Hill Quarry. The site has been used as a “borrow pit” in the past; the appellant’s case is that it was acquired on that basis and that its own and its consultant’s judgment is that it contains resources sufficient in quality and quantity to meet its own requirements (as indicated at [28] below) for hard rock, with capacity over to supply the local market.[1]
[1]Mr Simpkin, representing the appellant in his statement dated 14 June 2013 (Ex-6) refers to the cap on production in early year(s) of 30,000 tonnes and says that “this year” 10,000 tonnes approximately has been carted for Mackay Sugar Limited, the dominant customer.
The Council, supported actively by a few of the group of local residents who became the co-respondents by election, argues that the proposal conflicts with the Planning Scheme for the City of Mackay (2006) and cannot be saved by reliance on asserted “grounds” under s 3.5.14(2)(b) of the Integrated Planning Act 1997 (IPA). The development application was made under IPA on 9 December 2009, 9 days before its replacement by the Sustainable Planning Act 2009 (SPA). It must be assessed under IPA as transitional provisions of the new legislation direct, but the SPA is the source of the relevant test of changes to the proposal which the appellant desires to make in order to meet some of the objections it has faced. Only if the change is “minor” may the appeal proceed on the basis of it. The appellant’s application in that regard succeeds. The changes proposed satisfy the test; they do not make the development substantially different; there has been a sizeable reduction as regards the depth of quarrying proposed with the consequence of limiting the aggregate amount of quarry products that can be won (and, opponents say, made available to the market). The changes overcome concerns expressed about unacceptable impacts on groundwater quality and that surface run-off might have deleterious effects on the cane lands and the creek. I am content to adopt the written submission provided by the appellant’s counsel, Mr Fahl.[2]
[2]
The Extractive Industry Code is the part of the Planning Scheme most relevant to the proposal. To the extent that it provides solutions, the changes to the proposal help achievement of them to be demonstrated. The Code provides:
“9.43 Overall Outcomes for the Extractive Industry Code
(1) The overall outcome is the purpose of the Extractive Industry Code.
(2) The overall outcomes sought for the Extractive Industry Code are the following:
(a) public safety and the amenity of the locality is protected from the impacts of extractive industry such as drilling, blasting and crushing of resources;
(b) extractive industry operations are managed so that environmental impacts are contained within the premises;
(c)the impact of quarry-related traffic flows on the City's transport infrastructure in terms of traffic flows, road capacity and road life is able to be sustained by that infrastructure;
(d) haulage routes connecting extractive industries with the arterial and sub-arterial road network generally avoid existing residential and village areas as well as sensitive environments and are suitably buffered from other incompatible land uses; and
(e) disturbed areas are rehabilitated progressively to achieve a stable landform which is acceptable for future land use.
…
Table 9-9 Specific Outcomes and Acceptable and Probable Solutions for the Extractive Industry Code
On-Site Planning
| Specific Outcomes | Acceptable/Probable Solutions |
| Assessable Development | |
| P1 The layout and sequence of activities planned for the extractive industry operation protects public safety and maintains the existing amenity and environmental values of the locality by: (i) minimising haulage distance to a State controlled road and the impact of haulage on the City’s road network; and (ii) minimising land disturbance and vegetation loss; (iii) avoiding disturbance of cultural heritage areas; (iv) utilising natural barriers, staging workings, using progressive rehabilitation, constructing banks and landscape screens to minimise visual impacts; and (v) establishing waste management practices to minimise waste. | S1 No solution specified. |
Management of Operations
| Specific Outcomes | Acceptable/Probable Solutions |
| Assessable Development | |
| P1 Vehicle access to, from and within, the premises: (i) is able to accommodate the type and volume of traffic generated; (ii) does not create or worsen any significant traffic hazard; (iii) does not have adverse effects on the amenity of the locality; and (iv) has a width of between 6 m and 9 m and is located not less than 9 m from any other access to the premises. | S1 No solution specified. |
| P2 The proposed haulage route to the premises: (i) is provided along sealed roads; (ii) uses high order roads (i.e. State controlled roads, arterial roads, sub-arterial roads); and (iii) does not cause heavy vehicle traffic to pass through residential and village areas or other sensitive environments. | S2 No solution provided. |
| P3 Carting of materials associated with extractive industry does not diminish the condition of public roads. | S3 Where impacting on State controlled road infrastructure or Council roads ameliorative works are undertaken to maintain the conditions of the roads; |
| P4 The extractive industry operations include a buffer that effectively mitigates the impacts of noise, dust, vibration and views of the operations from adjoining land and the surrounding locality. | S4.1 Extraction and processing activities are conducted more than 40m from all boundaries11 and: (i) where blasting is used for extraction, 1000m from any sensitive uses; or (ii) where mechanical means are used for extraction and processing, 400m from any sensitive uses. S4.2 A densely vegetated buffer using native species is provided which: (i) has a minimum width of 20m; (ii) is provided to all boundaries of the premises; and (iii) includes any areas of significant existing native vegetation. S4.3 Extraction and processing activities are oriented and sited away from existing dwelling unit on surrounding land. S4.4 Extraction and processing activities are screened from view from any trafficked public roads, residential, business, industrial and special activity areas by: (i) natural topographic features; (ii) method of working the land; and (iii) landscaping. |
| P5 On-site drainage is designed, constructed and maintained to: (i) prevent ponding in excavated areas; (ii) minimise and control erosion; and (iii) prevent pollution of groundwater and surface water. | S5.1 Banks and channels are constructed to divert stormwater runoff away from disturbed areas susceptible to erosion. S5.2 Drainage basins are provided as required to detain stormwater runoff from disturbed areas to allow settlement of sediments. S5.3 Bunding, treatment and disposal provisions are made for industrial wastes. |
| P6 Blasting, crushing, screening and loading is carried out safely so that disturbance to sensitive uses is minimised. | S6.1 Blasting operations are limited to the hours of 9:00 a.m. to 5:00 p.m. Monday to Friday. S6.2 Blasting operations occur no closer than 1000m from a sensitive use or trafficked road. S6.3 Other operations limited to within the hours of 6:00 a.m. to 6:00 p.m. Monday to Saturday. S6.4 No operations are conducted on Sundays or public holidays. S6.5 The premises has signs to warn the public of operations and safety hazards. |
| P7 Operation areas are fenced to prevent unauthorised or accidental public entry. | S7 Security fencing having a minimum height of 1.8m is erected at a safe distance around excavated areas. |
Rehabilitation
| Specific Outcomes | Acceptable/Probable Solutions |
| Assessable Development | |
| P1 Rehabilitation is in accordance with a management plan providing for: (i) progressive/staged rehabilitation works; (ii) clean-up works (including areas of possible soil contamination); (iii) landform and soil profiles which approximate those which were pre-existing on the site; (iv) revegetation using native plant species; (v) monitoring for all aspects of the operations impacting on the environment; and (vi) providing a stable and sustainable land form upon the cessation of operations. | S1 No solution provided. |
| P2 Rehabilitation works undertaken ensure the effective return of disturbed areas and suitable for future land use. | S2 No solution provided. |
| P3 A bond for the performance of rehabilitation works is provided. | S3 No solution provided. |
”
As is typical of “quarry” cases, the identification and impacts of the proposed haul route or haul routes are of huge importance here: cf. Refaka v Scenic Rim Regional Council [2009] QPEC 139; [2010] QPELR 392. They are effectively part and parcel of the use. Theoretically, the appellant could establish a short haul route from the south-east corner of Lot 643 by an easement over adjoining private land across Sandy Creek – which would require bridging the creek – direct to Homebush Road, a State controlled road. There is some irony in the appellant’s “camp”, which incorporates various trading entities and members of the Simpkin family, having been active in securing the closure of a road reserve whose purpose was to ensure that a small parcel of land on the northern side of the creek would not be land‑locked. Some of the circumstances were ventilated in an attempt to embarrass the appellant by reference to assertions to the road authorities that the closure of the road reserve was being sought so that the land liberated could be used for agricultural purposes. Mr West, the appellant’s eastern neighbour, achieved the liberation of his property in reliance on the same provisions. Had the theoretical road eventuated, it may well have lessened the appellant’s haul route problems. They are the real basis of the Council’s argument against the proposal. Although there has been some concentration on P2 above, and will be in these reasons, it is the combined effect of it with the second P1 and the Specific Outcomes generally that the appellant has to confront.
The Council, represented by Mr Hughes QC, effectively conceded that the impacts of what is proposed to be done on the site, appropriately managed, would be acceptable. Operations there will essentially be unseen. The expert evidence from Mr Byers and Mr King that noise and from Mr Welchman and Mr King (the latter engaged by the Council) that dust impacts from operations on the site are well within acceptable standards cannot be rejected. Mr West disputed this, expressing concerns for the health and wellbeing of his household and his impressive stud cattle operation; he questioned the experts’ modelling, but did not present a sufficient basis for the court to disregard their clear views. A ridge-line effectively shields his property from impacts of operations on the site. Mr Hughes was adopting the realistic course at page 11 of the transcript for day 6 in saying:
“I don’t want to rain on the parade of the local residents who may have some slightly different view, but we haven’t wasted too much… time banging on about the actual impacts from the quarry site itself… because, in many respects, it’s not in a particularly obvious location… in fact, probably Kings Quarry’s worse.”
Kings Quarry is long-established and has pre-existing use rights. It operates on the other side of Barrie Lane nearly a kilometre east of the site without being subject to any Council control at all. It is considerably larger than the proposal would be. It uses Barrie Lane as its haul route, to connect with Homebush Road. There was evidence suggesting that at times trucks use the western section of Barrie Lane to access the Peak Downs Highway, another State-controlled road where Barrie Lane ends. It seems there are no “sensitive receptors” along that part of Barrie Lane, but the road is less than ideal for use by heavy vehicles, being characterised by a couple of single lane creek crossings at the bottom of steep gullies. The active submitters live along – and the Council’s sympathetic concerns relate to – the eastern part of Barrie Lane. There are no barriers to mitigate the impacts of noise and dust from truck movements for Mr West or the occupants of other residences along Barrie Lane east of his from operations of heavy vehicles, loaded and unloaded, having business at the quarry. Only Mr West is out of the way of the normal haul route for Kings Quarry. One estimate of the additional traffic from the appellant’s proposal is 27 truck movements per day, something like a 14% increase upon current volumes ascribed to the eastern end of Barrie Lane, where there is but some 1.6 kilometres of sealed pavement extending from Homebush Road towards the west. Mr Simpkin asserts, but is not clear that the 27 truck movement estimate relates to the ultimate peak production of the proposal, which is to be achieved in stages in accordance with an agreement the appellant reached with the Main Roads Department for discounted charges by it in the early years on the basis of restricted volumes. Barrie Lane is otherwise unsealed. The site is located about half way along. Barrie Lane abuts the northern boundary of the site, in the west. It turns north-east at the half way point, from which the Wests enjoy the road frontage, to become the site’s northern neighbour as well as its eastern one.
If quarry traffic used the connection to the Peak Downs Highway, which may well be the more convenient or direct route, there would not exist the same community concerns for the so-called sensitive places or receptors, as there are few, if any, nearby residences. (There is no clear evidence about this.) The problem is that the western part of Barrie Lane is even more problematic for traffic safety than the eastern. As mentioned, there are a couple of pronounced dips accommodating low, extremely narrow bridges across watercourses. The Peak Downs Highway intersection shares with the counterpart at Homebush Road serious inadequacies for dealing with turning quarry-related traffic entering or leaving. The Peak Downs Highway requires widening to accommodate a “storage area” for 19 metre articulated vehicles coming from the south wanting to turn into Barrie Lane and to let in such vehicles coming out of Barrie lane intending to travel north. The Homebush Road intersection is too tight for safe operation and requires realignment and some widening.
The first co-respondent by election as a referral agency in light of the proposal’s impacts on the State-controlled road system set conditions which must form part of any development approval, unless challenged in the court, which they have not been. The appellant “bargained (the State authority) down” and obtained a reduction of the $53,231 one-off payment against road maintenance demanded for 10 years use for 100,000 tonnes per annum of Homebush Road (a further application to the Department being required if there was to be any extension) to $47,994 on the basis of maximum tonnages hauled being 30,000 in the first year, then increasing by 20,000 tonnes annually. While maintenance charges may be the same if Peak Downs Highway is used (not contemplated in the Amended Referral Agency’s Response of 8 March 2013), it is clear that there would have been further conditions requiring upgrading of the Peak Downs Highway intersection if that highway were to be used.
A special feature of the traffic aspect is the traffic that the existing Kings Quarry generates; its site is on the northern side of Barrie Land opposite the Sutherland and Head residences on the southern side. Their names are among the list of co-respondents by election. Relevantly, they represent the concerned residents immediately east of the Wests. Kings Quarry, highly visible from Barrie Lane, operates under a historical approval which the court has not seen. Its impacts, including those related to truck movements along Barrie Lane, are far greater than the proposal’s would be. On the evidence truck movements occur to and from both east and west along Barrie Lane. The Council, the court heard, lacks the ability to impose conditions or requirements to ameliorate the traffic situation in Barrie Road, which is already bad, and would suffice to make appropriate of the works the Department requires.
The proposal, it could be said, will simply add, arguably modestly, to impacts already inflicted on the community. That observation in no way assists the appellant. Seeking, as it does, approval of a new development, it must face up to a new, more demanding planning regime that has been put in place. The Council was, and now the court is in a position to impose appropriate development conditions that satisfy the test of relevance and reasonableness in s 3.5.30 of IPA. Use of Barrie Lane as contemplated will make worse an already unsafe situation, unless upgrading is carried out. Referral agency concerns apart, some widening (identified by the experts) and even redesign to improve sightlines on curves and at the quarry entrance are necessary. It is common ground for the experts that there should be sealing for 800 metres or so from the entrance to the east. There is contest about whether there should be additional sealing to improve to that standard the whole of Barrie Lane’s eastern half. Sealing reduces noise and dust impacts. There is a body of expert evidence to the effect that watering of the section which might remain unsealed would be acceptable – watering as necessary.
Whether the choice be additional sealing or watering – and in respect of upgrading that might be required at the intersections of State-controlled roads, the fairness of the appellant having to pay to ameliorate the impacts of Kings Quarry’s operations is obvious, and troubling to me. However, it is established that unfairness as between “developers”, which may arise according to whether they come into the field sooner or later, is not a factor in determining the appropriateness of conditions, even though fairness may be a factor in determining whether a condition fairly and reasonably “relates” to a proposed development and is reasonably required by it: Ajana Park Pty Ltd v Mackay City Council [2009] QCA 404 at [30].
Various planning provisions were referred to, commencing with the overall outcomes for the Mackay Hinterland Locality Code which are sought to be achieved for the relevant location by (2):
“h)rural areas, particularly areas of good quality agricultural land identified in … the Pioneer River & Southern Streams precinct, are protected from the constraining effects of encroaching incompatible (such as urban or rural residential development) or sensitive land uses.
i)non-rural activities in rural areas do not adversely affect the operation of rural uses.
j)existing infrastructure supporting agricultural activities, such as cane tramways and sugar mills is protected from the constraining effects of encroaching incompatible development.
k)development of land for residential, rural residential or village activities is avoided or mitigated when situated along cane tramlines, haul out roads and other related cane support infrastructure so as to protect the operational needs of such infrastructure.
…
t)new development in the Locality is:
(i)in keeping with the role and function of the road network in terms of its scale and intensity;
(ii)in step generally with the planned development of major road transport infrastructure;
…
x)extractive resources (particularly those classified as Key Resource Areas) and associated haul routes are protected from encroachment and incompatible development.”
There is a proposal for Kings Quarry to be a key resource area which has not yet come to fruition. At the moment, there is no such proposal affecting the site.
Use of the road network is a key and difficult issue for the proposal. The proposed activities should be accounted “rural”, it being accepted that of all zones, Rural is the one where extractive industries are expected. Division 13 (Overall and Specific Outcomes and Probable Unacceptable Solutions for the Rural Zone in the Mackay Hinterland Locality) seek that non-rural activities do not occur (see (2)(c) and P5). It is of interest that the draft of the new planning scheme put out for public consideration in May 2013 has as one of its purposes:
“6.2.16.2(i)(b) Provide opportunities for non-rural uses (extractive resource activities) that are compatible with agriculture, the environment and the landscape character of rural area where they do not compromise the long-term use of the land for rural purposes.”
The purpose to be achieved by overall outcomes including that:
(3)(a)(iii)The zone also accommodates intensive rural activities, extractive industry and other activities requiring a location outside urban areas…”
Indeed, the definition of rural activity in the current planning scheme was, with effect from 2 December 2011 (after the appellant’s development application), “the use of land for agriculture, animal husbandry, aquaculture, extractive industries … or a rural industry.”
In my view, allegations of conflict with (2)(h), (i) and (t) do not bear on the issue of the location of the quarry proper, but are important in relation to haul route issues.
There is no concern arising from the Council’s assertion of conflict with the following provisions from part 6 of the Planning Scheme:
“
| Specific Outcomes | Acceptable/Probable Solutions |
| Assessable Development | |
| P1 The use of land within the Rural Zone for rural purposes is sustainable over the long term by: (i) avoiding fragmentation of agricultural lots; and (ii) using the land according to industry best practice, including: (a) risk reduction for natural hazards such as bushfire, flooding, land slips and soil erosion; (b) the management of weeds and pests; (c) waste reduction and management; (d) ensuring the intensity of use is in keeping with the capacity of the land. | S1 No solution specified. |
| P5 Non-rural activities do not occur on land included in the Rural Zone. | S5 No solution specified. |
”
P1(i) is one of many planning scheme provisions plainly calculated to protect agricultural land and for the security of the sugar industry in particular. The Strategic Framework in Division 2 includes in 1.4:
“(j) Rural Agriculture
Rural agricultural land for sustainable economic purposes has been identified and protected from incompatible land uses.The preferred use of rural agricultural land is agricultural and ancillary rural activities. Other activities may be established on rural agricultural land only in accordance with the principles and requirements of State Planning Policy 1/92, taking into account the overriding need to maintain sufficient areas of agricultural land to ensure the viability of the sugar industry and the mills in the City.
Rural agricultural land and existing infrastructure supporting agricultural activities is protected from the adverse effects of encroaching or adjacent incompatible land uses. This is achieved by the provision of buffers or screens within farms and within nearby development sites, by encouraging non-agricultural activities to be established in locations removed from rural agricultural land, and the effective management of non-agricultural activities to contain and minimise impact on rural agricultural land. The subdivision of rural agricultural land and the expansion of Rural Residential development with in rural areas is not consistent with the scheme’s outcomes.
The establishment of other rural industries which are ancillary to and support the use of rural agricultural land is encouraged in locations which do not result in the unnecessary loss or impose unnecessary constraints upon the use of good quality agricultural land…
(k) Rural Areas
Rural land is developed and used for a wide range of economic activities including extractive industries, forestry, grazing, intensive animal husbandry and water supply development…”
The Council asserted there was conflict with part of (e) Industrial Areas:
“To support the rural economic base of the City, a diverse range of rural industries is encouraged in appropriate locations.
Extractive industries are important to the City’s economic growth and are encouraged in locations which can be adequately buffered from other, incompatible activities. Potential impacts of hard rock extractive industries, such as drilling, blasting and crushing are mitigated to retain the amenity of nearby properties. Potential impacts of extractive industries on landscape character, cultural heritage, drainage systems and habitat and bio-diversity values of the City generally are avoided, or at least mitigated in order to protect and maintain such values.
Haulage routes connecting extractive industries with the arterial and sub-arterial road network are required to avoid existing residential and village areas as well as sensitive environments and be buffered from other incompatible land uses. The impact of quarry-related traffic flows on the City’s transport infrastructure in terms of traffic flows, road capacity and road life is required to be sustained by that infrastructure.”
and also compromise of the achievement of (or conflict with) a number of the Desired Environmental Outcomes in section 3.1(3):
“ (iii) the use of land and resources:
(A)takes into account the direct and indirect, short and long-term, and cumulative consequences of a use; and
(B)has regard for the multiple use and values of land and resources for present and future generations…
(vi)a balance is achieved between the conservation and use of natural resources in order to achieve sustainable economic, social and ecological outcomes…
(c)Economic Development
(i)economic resources such as good quality agricultural land, forests, fisheries, extractive materials, water and land resources are protected from the adverse or limiting effects of proximate, incompatible activity for future ongoing use. Good quality agricultural land is made available for urban uses only with a demonstration of overriding community need. …
(x)A transport network is maintained in functional corridors unconstrained by incompatible or inappropriate activities, servicing the major industries and other major employment and activity centres.
(xi)Rural land:
(A) is protected from incompatible land uses;
(B)is maintained in agricultural use, where possible, in order to ensure the viability of the sugar industry in the City; and
(C)provides opportunities for use for a wide range of economic activities including extractive industries, forestry, grazing, intensive animal husbandry and water supply development.”
I would interpolate that the DEOs are to be read as a whole, each one to be achieved “to the extent practicable having regard to the others”. There is much in them which would tend to support the appellant’s proposal.
However, it has to confront difficulties arising from the Good Quality Agricultural Land Overlay Code (not insuperable, as Mr Hughes in closing submissions realistically conceded[3]: “well, you’d be in conflict. That doesn’t mean you may not ultimately succeed.”) and the Extractive Industry Code, which, as will be seen, probably cannot be appropriately managed without the imposition of conditions that the appellant may find it impossible or impracticable to achieve. The GQAL overlay code contains the following:
[3]See transcript 6-16-18
“8.46 Good Quality Agricultural Land Overlay Code …
(2)The provisions in this division apply to the whole of the local government area for the City of Mackay and is not confined to those areas featured as GQAL on the Overlay map.
8.47Compliance with Good Quality Agricultural land Overlay Code
(1)Compliance with the Good Quality Agricultural Land Overlay Code is achieved when assessable development is consistent with the specific outcomes in Section 8.50 …
8.48Overall outcomes for Good Quality Agricultural Land Overlay Code
(1)The overall outcomes are the purpose of the Good Quality Agricultural Land Overlay Code.
(2)The overall outcomes sought for the Good Quality Agricultural Land Overly Code are to ensure:
(a)good quality agricultural land is conserved for continued agricultural use; …
(d)Agricultural uses are protected from encroachment by incompatible uses.
8.49 Definitions
“Good Quality Agricultural Land” (GQAL) is the area indicated on the Good Quality Agricultural Land Overlay Map as being Good Quality Agricultural Land.8.50Effects of Development on Good Quality Agricultural Land
(1)The specific outcomes and probable and acceptable solutions are as follows: …
P3Development on land as shown on the Good Quality Agricultural Land Overlay Map as GQAL does not result in land taken out of agricultural use unless:
(i)an overriding community need for the development is demonstrated; and
(ii) no alternative sites are available. …
P8Where development likely to result in the establishment of new activities/uses is proposed within 300m of land identified on the Good Quality Agricultural Land Overlay Map as GQAL and is used for agriculture, a buffer to the GQAL is included on the subject site.
Note:The buffer does not contain GQAL.”
No relevant solutions are proposed.[4] The site is indicated, in part, on the Overlay Map as GQAL. It is interesting that in P3(i) and (ii) are expressly made cumulative, a contrast with the proposed replacement provisions (see footnote 4). It is odd to be thinking of an alternative site for an extractive resource in a particular location. I agree with Mr Fahl that if there is conflict here, it is purely technical.
The planning experts (Mr Jewell for the appellant and Mr Schomburgk for the Council) in their first joint report acknowledge that the Council’s mapping showed a crescent of GQAL wrapping around the southern and western parts of the site, in which the proposed extractive industry was partially located. This will not impact on land presently devoted to cane; whether it will impact on land that may at some time in the past have been under cane is obscure. Sugar cane cultivation will be maintained on the southern part of the site and on the western boundary within the mapped area of GQAL (report at 6.5.5), some 19.4728 hectares (approximately 28 percent of the site) being used for agriculture and 7.5527 hectares (11 percent) for the proposed extractive industry, including stockpiling, processing and extraction areas. The balance of the site, it was noted, will be maintained for its current open space and grazing purposes. A supplementary report introduced some refinement of details in the original one.
2.11 says of the intrusion into GQAL as mapped that it “is minor in the context of both the site and its broader region, with approximately 1.833 hectares used for stockpiling and ancillary office/amenities buildings, which is approximately 5.4 per cent of the mapped GQAL on the site (total area of GQAL 33.88 hectares), with a lesser intrusion into the mapped Strategic Cropping Land (SCL) under State Planning Policy 1/12.”
That State Planning Policy commenced on 30 January 2012 after the appellant lodged its development application, indeed, after it was decided. It would be inappropriate to accord this new State Planning Policy any determinative weight counting against the development proposal, but in my view, avoidance of interference with SCL in the 2012 mapping is a favourable feature, reducing concerns about GQAL.
Need
The appeal has focused to a significant extent on need-related issues, appropriately enough. However, the Council, for example at 7.5 – 7.8 of written submissions, presented a case that weight be given to PO1 in Table 9.3.7.3.A, as proposed to the public in May 2013, as requiring need to be shown for an extractive industry in the rural zone. Perhaps unnecessarily, especially as the proposal could well be redesigned to avoid any mapped GQAL, my approach is that “overriding need”, that is not overwhelming or unquestionable need, but simply enough to outweigh the consideration that the relevant acres or hectares will be lost, temporarily or even permanently, should be shown in context of GQAL being protected. That is the only requirement for the appellant to show need – as opposed to opportunity to help its case by demonstrating need.
Mr Gray was the appellant’s expert. He has played a large part in designing (and refining the design of) the proposal. He says that the site contains marketable resources of rock of the quality the appellant or its associates will require for their own use and for sale of surplus and that there is a market for the production.
The Council argued that need is not shown, nor an ability of the proposal to meet the asserted need. It countered with Mr Duane’s economic evidence that the general market is adequately catered for, thanks to the number of large, well-resourced quarries presently operating (perhaps below capacity), a good number operated by the Council itself[5] especially with demand anticipated to slacken in the immediate future, and Mr Huntley’s evidence as a geologist that the extent and quality of the appellant’s resource are highly doubtful in both relative and absolute terms. (“Mr Dugald Gray… has no qualifications either as a geologist or as an economist”: closing submissions 2.20). The court cannot be expected to resolve the issues thus raised. Mr Gray’s experience and expertise in relevant fields, whatever his qualifications, is acknowledged. I have received evidence from him in the past. The Council scored some success against him in attacking the provenance of some of the samples he had got analysed, which may not have come from the site.
[5]It was not suggested against the Council that it was motivated by a desire to reduce competition. The extent, if any, to which its quarries supply outside customers is unknown.
The court would be disinclined to approve an extractive industry, assuming one were applied for, if there were no evidence that a quarry resource existed on the site. This is not the present case. Mr Gray’s evidence satisfies me that there is a resource there. The appellant will not be able to complain that it had not been warned by the Council’s experts, should it turn out that there is nothing worth digging up on its site, or that its hopes of unearthing customers were misplaced. The present case strikes me as one of those where no “disbenefits” threaten should an approval fail to be implemented, as in Westlink Pty Ltd v Lockyer Valley Regional Council [2013] QPEC 35, [17] – [21].
Need may be of relevance in this appeal from the point of view of overcoming any conflict found with the Planning Scheme under s 3.5.14(2) if IPA. It is not even arguable that achievement of the DEOs for the Planning Scheme area would be compromised by a decision to approve for purposes of paragraph (a). The “grounds” whose sufficiency the court has to examine from the standpoint of overcoming conflict with the planning scheme must, by definition in the IPA Schedule 10 Dictionary, be matters of public interest; they do not include the personal circumstances of an applicant, owner or interested party.
Mr Schomburgk criticised the appellant’s proposal as opportunistic, obloquy which I suppose could be cast upon everyone who makes a development application. To the extent that it is suggested that no one but the appellant and associated private interests stand to gain from the proposal, the criticism is useful enough; there would be no “ground”, as defined, based on need. The Council goes so far as to suggest that not even the Simpkin family “need” the proposal, based on their having secure access for years into the future to quarry resources equivalent or superior to those the site offers at a discounted price (intriguingly from a quarry that they used to own and operate). There are other quarries which could supply at going rates.
The Simpkins require large quantities of rock for use in maintaining for Mackay Sugar Ltd the cane tramways south of the Pioneer River under contractual arrangements which the family have had for a very long time; there is also work carried out at the company’s mill operations. Another contractor looks after the northern tramways. The evidence suggests that the Simpkins supply the requisite quarry material to Mackay Sugar at a profit, that they are paid for hauling it, and again for their work on the tramways and elsewhere. Grasping as the Council and other parties sought to make this appear, it is surely no more than another example of the free market in operation. The Simpkins are not expected to be a charity or public benefactors any more than any other player.
In my opinion there are grounds of public interest served by the proposal, at the least private interests much wider than the appellant’s and its circle’s. Apart from the undeniable benefit of another supplier of quarry products in adding to competition and theoretically keeping prices lower, with no possible downside, in my view, there is the cane tramways factor. This distinctive and useful infrastructure of our sugar towns has historical and cultural significance in my humble opinion; it represents a point of interest for local people and visitors over and above its economic contribution to the sugar growers and millers and, not too indirectly, the community. The growers behind Mackay Sugar would number in the hundreds[6]. In these circumstances, I do not accept the Council’s suggestion that Mackay Sugar represents but one more irrelevant private interest for the purposes of looking for grounds under IPA. Mr Ruhle of Pleystowe Mill reminds us that without the “cane railway network, lots of trucks would be on the road”. He doubts that Mackay Sugar would be able to cope with the additional costs of road transport. He expects it to enjoy a cost advantage if Porters Hill Quarry opens.
[6] See transcript 3-14-19
The Planning Scheme itself has a soft spot for the cane tramways. The Strategic Framework in (b) Major Infrastructure wants “the network of cane tramways throughout the City… protected from the effects of incompatible development.” In Division 6 Overall Outcomes for Mackay Hinterland Locality Code, (2)(j) and (k) deal with the tramways and in Division 13 Overall and Specific Outcomes, etc for the Rural Zone in that Locality, (2)(d) expects that “development on rural zoned land adjacent to cane tramways and sugar mills includes buffers to protect the ongoing operation of that infrastructure” and P2 decrees the specific outcome for assessable development that “the major infrastructure supporting the sugar industry mills, and associated network of tramways and haul-out roads is protected from the effects of encroaching sensitive land uses.”
It is all very well for the Council to say that there are quarries conveniently located that could provide the appellant with its requirement. I accept Mr Simpkin’s evidence that they cannot necessarily be relied on, especially at times of emergency, when there may be a sudden demand for quarry products in large quantity; at those times, he must take a place in the queue, or wait until the outside supplier the Council, Mr Duane, Mr Huntley and others would recommend him to, very likely as a minor customer. This may seem old-fashioned, but I am loath to adopt the line that someone who has on her or his own land a resourse that is used as the basis of her or his business can be denied, other things being equal, the right to access and use it and be compelled to buy from someone else. Why should you buy eggs from the supermarket if you have your own hens? If the enterprise is useful to the public, I think there is support in this vein for the argument for need for the resource to be extracted.
“Other things” are rarely equal. These days the Planning Scheme will determine whether you may exploit or extract your quarry materials. Arguments of public interest, based on need or otherwise, will not necessarily justify your going ahead, if you are in conflict with the planning scheme. Here they clearly outweigh GQAL-related issues. In the process of assessing impacts of the proposal that has to be gone though here, it is established that changes to the proposal render the impacts of activities on the site acceptable; these are impacts to do with dust, noise, ground water and storm water quality, and the like. It is not necessary in the circumstances to detail the various experts’ evidence which was, for the court’s purposes, unchallenged, although Mr West contended that some of them had got things wrong. Table 9.9 of the Planning Scheme, set out in [3] above, indicates the kinds of conditions that may be suitable. Given the history of the development application, a set of development conditions is yet to be worked out.
I agree with Mr Fahl (para 169(a) of his closing submission) that “the need in this instance, while on a small scale, is sufficient, if necessary, to override the use of agricultural land for the purposes of the planning scheme” but not that “in concert with the other factors identified … sufficient to overcome the minor conflict with the planning scheme”; the difficult issue is whether the grounds put forward outweigh traffic concerns arising from the intended use of Barrie Lane.
Mr Jewell proposed IPA “grounds” in the first joint report:
“6.6 Sufficient Grounds to Justify Approval
6.6.1Having regard to the common material provided as part of the development application, and having due regard to the joint experts reports prepared as part of the appeal process in relation to air, noise, and traffic matters, Mr Jewell is of the opinion that the proposed development complies, or can be conditioned to comply, with the relevant provisions of the planning scheme.
6.6.2In the event that there are considered to be elements of the proposed development that conflict with specific provisions of the planning scheme, in Mr Jewell’s opinion there are sufficient grounds to justify approval of the development despite the conflict in consideration of the following:-
a)The proposed development is an appropriate use in the Rural zone, particularly given that
i.the Planning Scheme does not provide for an extractive industry zone; and
ii.subsequent amendments to the planning scheme have included an administrative definition of Rural activities that includes extractive industry;
b)The proposed development could not be appropriately be located elsewhere on land zoned for any other purpose, including industrial zoned land, given the specific locational requirements of an extractive resource use;
c)The proposed development is compatible with its rural setting and will not compromise or inhibit farming operations on the balance of the subject site or surrounding sites;
d)The proposed development will temporarily result in only an insignificant loss of GQAL on the site, with the predominant land use on the site remaining as sugar cane cultivation;
e)The proposed development will not interfere with the safe and efficient operation of the surrounding road network subject to appropriate remedial works as recommended by the relevant experts;
f)The proposed development provides appropriate separation distances and buffering to surrounding residences to mitigate potential amenity impacts; and
g)Any potential environmental and amenity impacts in terms of potential location, design, operation and management of the proposed development in accordance with the findings and recommendations of the relevant experts.
6.6.3.Notwithstanding, Mr Jewell acknowledges (as per paragraph 1.3.4 above) that reports are yet to be received on the matters of site geology and need. As such, although there would appear to be a need for a hard rock quarry in the locality to service the construction industry in a high growth region like Mackay, a final position on this will be informed by the forthcoming reports.
6.6.4Mr Schomburgk says that there is clear conflict with various provisions of the planning scheme (see above), and that there is no evidence provided to date to demonstrate that there is an overriding community need for the development, or that there are on available alternative sites. I have seen no material to demonstrate that this site has rock of such unique quality that the site needs to be quarried, or that there is a need for the particular material that sits under this site.
6.6.5.As above, I accept that the amenity aspects are likely to be capable of resolution and that the traffic impacts may be able to be mitigated in a physical engineering sense. I have seen nothing to suggest that this particular site and this particular resource is so important that it needs to be extracted, or that the market is not already appropriately provided with such resources.
6.6.6In the absence of that advice, I cannot accept Mr Jewell’s ‘grounds’ are sufficient to overcome the conflict with the planning scheme provisions, and I am unable to comment further at this time.
7Regional Plan and State Planning Policy
7.1The experts agree that the weight to be given to both of these documents is a matter for the Court, noting that they both came into effect after the application had been lodged. We note also that the regulatory provisions of the Regional Plan have since been repealed.
7.2The issues raised by the Amended Grounds of Refusal deal with GQAL and lack of need, matter which are discussed in detail above.”
Reasons set out above lead to my rejecting the notion that there need be anything “unique” or special about the rock on the site; it is enough that it can be won and supplied more cheaply without adverse consequences. Mr Gray has supplied the lacuna referred to in 6.6.3. Mr Fahl relied on Berry v Caboolture Shire Council [2001] QPEC 060; [2002] QPELR 96 as an example of contrary expert views being “not relevant”: see [41]-[44] and para 170 of his outline. In this jurisdiction there is no place for a doctrine of precedent, but it may be noted that in Berry, the applicant was assisted by the Council’s not harbouring any traffic-related concerns. This is a very different case.
Once again, table 9.9 should be referred to, P2 in particular. I do not think that “only” should be read into P2(ii) – compare the first P1(i). As to (i) and (iii) in P2, what is required, in my view, is achievement of the standard of impacts that would be reached if the specific outcomes were actually effected. There was discussion of avoiding sealing of Barrie Lane by watering as required from time to time. It would be difficult to define the times for watering appropriately, even if the rainfall data presented was reliable for the site[7] and there was no doubt as to the appellant’s having access to enough water. I am not persuaded that the proposed watering technique would be workable. On the other hand, if (i) were achieved, I consider that (iii) would be satisfied by that solution. I agree with the Council that the Barrie Lane issues involve safety as well as amenity. I do not accept that the need for the proposal that has been established is of such dimensions as to overcome P(i). Nor do the “absence of adverse impacts” grounds collected by Mr Jewell and apparently made relevant now by the Court of Appeal’s views expressed in the Westlink litigation, suffice. See Lockyer Valley Regional Council v Westlink Pty Ltd (2012) 191 LGERA 452, [22]-[25].
[7]This is relevant to assessing the numver of days when watering might be required; the data is understood tp come from Mackay Airport, closer to the coast.
In my opinion, it should be a condition of the approval that product extracted and removed from the site should be hauled only along sealed roads, this being a standard that Mackay understandably and reasonably expects, at least in a residential area (which the eastern part of Barrie Lane either is or is equivalent to). The effect of this is, and is intended to be that if the eastern end of Barrie Lane is used, that end must be fully sealed; if the western end is to be used, it must be sealed, although I am receptive to the idea of limiting the western sealing requirement to the gullies mentioned, the road around the quarry entrance and other sections giving rise to safety concerns that the court might define, with the assistance of the parties if they cannot reach agreement. It is expected that details such as the appropriate width of sealing would be addressed. I reiterate my unhappiness about imposing such a condition as a matter of fairness vis-à-vis the other users of the road. It is odd to reflect that Mr Simpkin could drive heavy vehicles up and down Barrie Lane at will at present, loaded or unloaded, provided only that they were not taking or intending to take rock from the site. The implications of paragraph 55 of his statement, Exhibit 6, suggesting there may have been an understanding with the Council in 2009 in terms of a $100,000 payment for roadworks in Barrie Lane and an annual contribution of $27,000 thereafter were not gone into. He says it would now be very difficult to meet the cost of roadworks (while indicating acceptance of the Department’s conditions and conditions the court might set). He may not be the only one to think the necessary work “should have been completed years ago” by the Council. His approach, of willingness to contribute to roadworks “in proportion to the impact the quarry will have”, is entirely reasonable. There is no way the court can make an outcome along those lines come true in the real world.
I appreciate that the condition just outlined places the appellant in the Council’s hands. The Council is free to determine what works it will do or permit to be done on its own road. See Wroxall Investments Pty Ltd v Cairns Regional Council [2010] QPEC 92; [2011] QPELR 82 at [31] ff. A favourable determination, so far as allowing the condition to be fulfilled goes, would no doubt be based on expert advice as to what appropriate safety standards call for in this location. Needless to say, the conditions required by Mr Lyons’ client in respect of works at intersections with State-controlled roads used will apply.
In the circumstances, it is not proposed to set any condition that the haul route be to the east from the site. I am not persuaded that such a condition could be relied on to work in practice, any more than was the court in Chuwar Recycling and Land Fiilling Pty Ltd [2008] QPELR 256, [14]-[18]. If one haul route rather than another were to be nominated, amenity concerns would dictate selecting the one to the west; however, safety issues would need to be overcome; they are the genesis of the sealing conditions suggested above; the assumption is that arrangements acceptable to the Council to achieve sealing, east or west, would necessarily have attended to the safety concerns in an appropriate way. The relatively cautious approach of the Council’s traffic expert, Mr Camilleri is the one that should be preferred.
Conclusion
Turning from the central “haul route” issue to the other important one in the appeal, it is of interest that there is a focus on whether development will result in “permanent” impacts on strategic cropping land, the category of terrain now guarded by State Planning Policy 1/12, I think that Mr Jewell is justified in the emphasis he places on the proposal’s not having relevant effects that will be permanent. Given that there is no impact threatened to mapped GQAL currently or at any recent time that can be pointed to being taken out of actual agricultural production, I think that any conflict with the GQAL-related provisions of the Planning Scheme is essentially technical. I agree with Judge Durward in Graham v Mackay Regional Council [2012] QPEC at [121] that mapped GQAL remains GQAL, although it may have been taken out of agricultural use.[8]
[8]It was accepted that, reading the reasons as a whole, the first sentence fails to convey the intended meaning, which would clearly emerge if “mean” were taken as “deny”. His Honour’s reasons are document 27 on the court file 239 of 2010 Graham -v- Mackay Regional Council.
In Graham, the appellant failed to show “overriding community need” for his development in its proposed location. I approach this appeal on the basis that the present appellant is required to demonstrate such a need, making the issue of need an important one in the appeal upon which the appellant must prevail unless its appeal is to be dismissed. As has been seen, need becomes relevant also in respect of the conflict with P2 in the Extractive Industry Code.
Relevant to the nature and extent of “need” to be established in the GQAL context is the minor nature of interference with mapped GQAL and also the evidence of Mr McClurg, which I accept. It casts doubt on the reliability of the mapping if one is interested in identifying land that in truth would merit the description “good quality agricultural land”, usable as such, rather than having no more than the character of being designated by a colour or a number on a map. Leave was given to the appellant to adduce evidence from Mr McClurg very late, the appellant presumably becoming concerned that the GQAL issue had been left to the planners. The Council made criticisms, which were not directed at Mr McClurg’s expertise, but, rather, at the limited nature of his brief and inquiries to support his opinion that the small area threatened by the proposal was class D according to 1993 GQAL guidelines, thus being of no agricultural value. I accept his evidence that, assuming the mapping is accurate, as to which he raises severe doubt as to whether the GQAL designation is not superimposed on the site too far to the east, the terrain affected by the proposal which may be mapped GQAL does not deserve that description. That opinion of Mr McClurg is corroborated by Mr Ruhle’s, again the impression of a man of long and wide practical experience in the general locality in examining areas that are suitable for growing cane and areas that are not. Mr McClurg confirms that the extractive industry site is not potential strategic cropping land for purposes of State Planning Policy 1/12; one factor here is steepness of terrain. As Mr Fahl pointed out, the case is nothing like Glenella Estates Pty Ltd v Mackay Regional Council [2010] QPEC 132, where some 50 hectares of undoubted good quality agricultural land actually under sugar would have been lost to urban development.
In the draft Planning Scheme, which may never come into effect, or into effect in its present form, the table equivalent to the present table 9.9 begins:
“Table 9.3.7.3.A – Extractive industry code – assessable development
| Performance outcomes | Acceptable outcomes |
| For self-assessable and assessable development | |
| Need | |
| PO1 The extractive industry fulfils a demonstrated need for the resource in development projects in the region. | AO1.1 (a) the type of resource to be extracted and the nature of its use in development projects in the region; and (b) the amount of the resource required for development projects in the region; and (c) that the resource cannot be sourced from existing Key Resource Area quarries and other existing extractive industries in the region.” |
It would not be justified, in my view, to apply the idea of establishing need for purposes of the proposed Extractive industry code for the appellant’s application. Weight may be accorded to it by reference to the “Coty” principle or IPA s 4.1.52(2)(a). However, my view is that in no practical way in all the circumstances does the proposal cut across achievement of the proposed PO1. It does conflict in a practical way with the existing P2. Absence of negative impacts alone, according to the Court of Appeal in Westlink, “will not amount to sufficient grounds to outweigh a conflict with the planning scheme” ([25]). That is why the appellant here has to establish a need, which it does, but not strongly enough to justify an approval which fails to prevent the conflict from being realised.
The appeal should be allowed, but for the moment adjourned generally to enable the appellant and the Council to work out a suitable conditions package to include requirements of the first co-respondent by election (Main Roads), of course. The practice seems to be that the third co-respondents by election (the local residents), whose commitment to their cause and reasoned, economical presentation of their case should be acknowledged here, would participate only by invitation. No final order will be made without their having an opportunity to submit to the court against its endorsement of any agreement reached by the other parties for purposes of identifying the terms of the final approval.
“Changed Development Plan
30.Exhibit 25 consists the plans of development in respect of which the appellant now seeks approval. The original application plan (and also the plan put on public display) are respectively reproduced at pages 8 and 9 of Exhibit 5.
31.Mr Gray, a quarry consultant called by the appellant, caused and supervised the preparation of the amended plans. He also explained the nature of the changes, being generally responsive to matters that emerged from the joint experts’ meeting and reporting process.
32.Essentially, the amended plans:
(a)provide a greater level of detail of the intended extractive area, benching and location of plant, stockpile and works areas;
(b)show the location of water drainage paths, treatment dams or storage;
(c)show the location of the required acoustic barrier;
(d)show the location of amenity bunds and vegetation buffers;
(e)permit the quarry pit and works area in greater detail;
(f)show intended bench heights.
33.The definition of ‘minor change’ is s 350 of SPA is now applied to that expression as used in s 4.1.52(2)(b) of IPA.
34.In Auspacific Engineers Pty Ltd v Scenic Rim Regional Council [2011] QPELR 161, your Honour cited with approval the observations of Rackemann DCJ in Heritage Properties v Redland City Council [2010] QPELR 510 at 511 as to how the Statutory Guideline should be applied, noting the limitations of the language in the Guideline and the examples that it provides.
35.The question of whether a minor change is involved does not appear to be agitated by any of the other parties to this appeal. Notwithstanding, it is a matter for the Court to determine. In this respect:
(a)the general location and footprint of the proposed quarry is the same, albeit that the processing plant has been moved to the west of its original location. The consequence of this is, in the opinion of Mr Byers, the appellant’s acoustic expert, of little moment.
(b)the proposed reduction rate and other operational characteristics remain the same;
(c)the road access remains unaltered, but for minor internal changes;
(d)the layout has been adjusted to bring it in general alignment with the boundaries of the ‘trigger’ area for the purposes of State Planning Policy 1/12;
(e)no additional referral agency involvement is necessitated by the changes.
36.The Court would be satisfied that the changes do not, on any basis, result in a substantially different development, within the meaning of s 350 of SPA and the appeal can proceed to be determined on this basis.”
“Criteria for assessable development
Table 8.2.6.3A – Good quality agricultural land overlay – assessable development.
Performance outcomes Acceptable outcomes For assessable development Uses PO1
Development does not fragment, alienate, result in the loss of or diminish the intended productive capacity of good quality agricultural land, unless:(a) an overriding community need for the development is demonstrated;
(b) no alternate sites (not on good quality agricultural land) are available.
AO1.1
The overlays accommodate the following uses and uses that are ancillary, support or complement good quality agricultural land:
(a) animal husbandry; and
(b) cropping; and
(c) dwelling house; and(d) intensive animal industry; and
(e) intensive horticulture; and
(f) major electricity infrastructure; and
(g) out-building/s associated with the cropping use; and
(h) rural industry; and
(i) rural workers accommodation; and
(j) utility installation.”
3
6
1