Neilsens Quality Gravels Pty Ltd v Brisbane City Council

[2016] QPEC 39

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Neilsens Quality Gravels Pty Ltd v Brisbane City Council & Ors [2016] QPEC 39

PARTIES:

NEILSENS QUALITY GRAVELS PTY LTD
(appellant)

v

BRISBANE CITY COUNCIL
(respondent)

and

OTHERS
(co-respondents by election)

FILE NO/S:

3350/2011

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court at Brisbane

DELIVERED ON:

26 August 2016

DELIVERED AT:

Maroochydore

HEARING DATE:

9th May 2016 (site inspection), 10 – 13, 16 – 18 May, 19 May (written outlines) 20 May (oral argument); further responses and submissions received up to 27 July.

JUDGE:

Robertson DCJ

ORDER:

The appeal is adjourned to a later date to enable the parties and DEHP to formulate conditions consistent with these reasons and as a response to them and including conditions agreed to by the parties outside the issues disputed at trial

CATCHWORDS:

PLANNING AND ENVIRONMENT: where appellant has conducted extractive industry use on the western side of the South Pine River since 1980 with many approvals from the Pine Rivers Shire Council and other State permits; where proposal and land on western side of the river is designated in relevant State Planning Policies as a Key Resource Areas for sand and gravel; where Council consented to a similar use on Lot 11 on the eastern side of the river in its Local Government Area after resolving very similar disputed issues in an appeal to this Court as are raised in this appeal; where Council refused an application for MCU for extractive industry on a much larger portion of the site than Lot 11 in the KRA; where a number of disputed issues relating to groundwater, flora and fauna, acid sulphate soils and traffic were all resolved as a result of expert conclaves; where disputed issues focussed mainly on flooding and water quality, impact on visual amenity and landscape values of the site, noise and dust, quarry plans and management; where Council alleges irretrievable conflict with CP2000, CP2014 and other planning instruments; characterisation of conflict and consideration of disputed ground, planning need

Legislation Cited

Integrated Planning Act 1997 (Qld) ss 1.2.3, 3.5.5, 3.5.11, 3.5.14, 4.1.52(2),

Sustainable Planning Act 2009 (Qld) s 329(1)(b), 819

Statutory Instruments Act 1992 (Qld)

Local Government (Planning and Environment) Act 1990 (Qld) s 4.4(5A)(b)

Cases

Kin Kin Community Group Inc v Sunshine Coast Regional Council & Ors [2011] QPELR 349

Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [2014] QPELR 479

Zappala Family Trust Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Leda Holdings Pty Ltd v Caboolture Shire Council & Anor [2005] QPEC 56

Lockyer Valley Regional Council v Westlink Pty Ltd & Ors (2011) 185 LGERA 63

Equity Limited v Gold Coast City Council [2007] QPELR 356

Brisbane City Council v Bowman & Ors and Bowman & Ors v Brisbane City Council [2015] QPEC 14

Blue Sky Pty Ltd v Brisbane City Council & Pelligrino [2011] QPELR 182

Lane v Gatton Shire Council [1988] QPLR and Esteedog Pty Ltd v MSC [1991] QPLR 7

Sol Theo as Trustee for the Solon Theo Family Trust v Caboolture Shire Council & Anor [2001] QPELR 101

Histpark Pty Ltd & Anor v Council of the Shire of Maroochy [2002] QPELR 134

Mansell & Neil K Mansell Concrete P/L v Maroochy Shire Council & Ors [2008] QPELR 122

GFW Gelatine International Limited v Beaudesert Shire Council & Ors (1993) QPLR 342

McBain v Clifton Shire Council [1996] 2 Qd R 493

Seabridge Pty Ltd t/as Clutha Creek Sands v Council of the Shire of Beaudesert [2001] QPELR 191

Broad v Brisbane City Council [1986] 2 Qd R 317

Berry & Ors v Caboolture Shire Council & Johnson [2002] QPELR 96

Baskerville & Ors v Brisbane City Council & Anor [2011] QPELR 333

Sunshine Coast Regional Council v Parklands Blue Metal & Ors [2015] QCA 91; (2015) 208 LGERA 199

Gillion Pty Ltd v Scenic Rim Regional Council (2013) QPELR 711

Lockyer Valley Regional Council v Westlink Pty Ltd & Ors (2012) LGERA 452

Westlink Pty Ltd v Lockyer Regional Council & Ors [2013] QPEC 35

Woodman McDonald Hardware Pty Ltd v Mackay Regional Council [2013] QPELR 496

Weightman v Gold Coast City Council (2003) 2 Qd R 441

Bassingthwaighte v Roma Town Council & Ors [2011] QPELR 63

Luke v Maroochy Shire Council [2003] QPELR 447

All-a-wah Carapark v Noosa Shire Council [1989] QPLR 155

Roosterland Pty Ltd & ITS Agents v Brisbane City Council [1986] QPLR 515

GMF Contractors Pty Ltd v Shire of Serpentine – Jarrahdale [2006] 151 LGERA 74

COUNSEL:

J Gallagher QC with M Johnson of Counsel for the Appellant

R Bain QC with M Batty of Counsel for the Respondent

Skoien, A. of Counsel for the Moreton Bay Regional Shire Council (others excused from active participation in the appeal on the first day)

SOLICITORS:

Minter Ellison for the Appellant

Brisbane City Council Legal Services for the Respondent

Solicitor for Moreton Bay Regional Shire Council

Index

Introduction  [5]

The site and surrounding land use, present and historical  [10]

The proposal  [14]

The disputed issues  [17]

The assessment regime  [18]

Consideration of disputed issues:  [22]

Flooding/Hydrology  [22]

Water Quality  [40]

Acoustics and Air Quality  [46]

Environmental Issues not in Dispute  [53]

Visual Amenity/Landscape Value  [54]

Quarry design and availability of resource  [60]

Town Planning Issues  [68]

The planning instruments  [69]

Discussion  [72]

CP 2000  [72]

SPP02/07 Protection of Extractive Resources   [82]

Table of Assessment for the Rural Area in CP2000  [86]

CP2014   [88]

CP2000 and CP2014 Codes   [89]

Conclusion on conflict   [90]

Need  [93]

The significance of the DEHP and Moreton positions   [98]

Order  [99]

Introduction

1. For many years, the appellant (Nielsens) has had the benefit of a number of planning approvals from the Pine River Shire Council, now Moreton Bay Regional Council (Moreton), and various environmental authorities over land it controls for uses for extractive industry purposes, screening, concrete batching and associated purposes on that part of its lands at Brendale that lies west of the South Pine River (the river).  According to the unchallenged evidence of its Director, Mr Raymond Neilsen, extractive industry activity commenced on the western side in 1980 and has continued until this day.

1. On 9 September 2009, Nielsens lodged a development application (which included a number of components) for a material change of use development permit to extract sand and gravel from its lands east of the river.  It has always been proposed that sand and gravel extracted from these lands (in Bald Hills and in the Brisbane City Council (the Council) Local Government Area), would be trucked across the river, and all processing, screening, and washing would be undertaken using the established infrastructure on the western side (Brendale in the Moreton Local Government Area).

1. All the Neilsens’ lands are within Key Resource Area (KRA) 60 – Pine Rivers South in SPP 2/07 to which reference will be made later.

1. The application as then framed sought approval for the establishment of a 70 hectare extraction area (including buffer zones) operational over (9) lots at Bald Hills.

1. That application noted that there was a concurrent development application for approval for sand and gravel extraction from one other Lot on the eastern side of the river, referred to variously in the evidence as Lot 11, Stage 1B, Bald Hills South (Lot 11).

1. The lands the subject of the 9 September development application are generally confined to the east of the river; to the south generally bordered by the Linkfield- Connection Road, and to the west by Gympie Road.  For the purposes of the application, the proposal includes lands to the west because the existing plant will be used to process extracted material, and the existing water circulation plant on the Brendale side will be used.  All material extracted from the proposed site (apart from that used in the batching plant) will be trucked from the existing processing area on the Brendale side.

1. The land depicted in an aerial photograph[1] indicates the overall application site boundary including existing and continuing plant and treatment ponds.  Also superimposed on the photograph is the approximate extent of the proposed extraction area.  The land to be developed on the Bald Hills side will be referred to as “the site”.

   [1] Exhibit 5 p. 11

1. In the original application, it was proposed to extract from west to east, i.e. from the river towards Gympie Road.  As the visual amenity and acoustic and air quality experts note, along Gympie Road, there are a number of dwellings which overlook the site.  A number of those residents (represented in Court by one of their number Mr Townley-O’Neill) joined the appeal, but none provided affidavits or gave evidence.  To the northeast, and overlooking the site, but very heavily screened by a plantation of mature hoop pines and other large trees, is the Bald Hills State School.

1. The development application was refused by Council on 15 August 2011, and Council’s decision notice sets out 22 grounds of refusal. The reasons for refusal were modified and added to after the appeal was lodged, and helpfully consolidated into one document by Mr Batty,[2] and as will be seen later, the original reasons for refusal were very similar to the reasons for refusal given in relation to the Lot 11 proposal.

   [2] Exhibit 2

1. The Lot 11 refusal was subject to a separate appeal[3], which involved many similar disputed issues, but which was resolved by a consent judgment of this Court in 2014.  Extraction of the Lot 11 resource, subject to extensive and stringent conditions imposed as a result of the Court Order, is almost completed, and its pits, and dewatering process, along with the site and processing plant were inspected on the first day of hearing, as were areas downstream, and the boundary with residences along Gympie Road which overlook the site.

   [3] Number 3764 of 2010

1. The significance of Council’s consent to the Lot 11 approval is a matter of dispute between the parties.  However, always a relevant consideration in an assessment of this nature is land use in the vicinity and, in this case, many of the same experts were engaged by the parties in relation to similar disputed issues and, in the analysis of the expert evidence, the opinions expressed in relation to the Lot 11 proposal may be relevant to the weight to be given to the opinions of the same experts on similar issues in this appeal.

1. As Council points out; there are differences.  Lot 11 is a much smaller proposal. It is close to the river at its western end, as will be Stages 4 and 5 of this proposal, and the boundaries of Stages 4 and 5 with the river  are more extensive.  Also, the Bowman Land (to which reference will be made later in these reasons) acted as a form of barrier between Lot 11 and sensitive receptors, such as the School and the Gympie Road houses, which will be closer to Stages 1, 2 and 3 of this proposal.

1. Sand and gravel is now to be extracted from the site in 5 Stages from the west to the east.  That is, moving away from the sensitive receptors.  As often occurs in proposals of this nature, the proposal changed in response to advice from consultants and as part of the JER process.  Indeed, the proposal has undergone a number of changes since the JER process, which were contained in the trial reports of experts engaged on behalf of Neilsens.  Council is critical of this, particularly of Mr Gray, who has been involved as a consultant mining engineer by Neilsens in relation to the site, Lot 11, and the quarrying operations on the Brendale side of the river for many years.  A vigorous critique of his evidence is mounted in Council’s written outline and I will deal with that later in my reasons.  I think there is some merit in Neilsens submission that to some extent, Council has approached the proposal as being akin to a static use, such as a building proposal or a subdivision where detailed engineering plans can be provided at the very beginning.  A quarry, whether it be hard rock or, as here, sand and gravel is not a static use.

1. In Kin Kin Community Group Inc v Sunshine Coast Regional Council & Ors,[4] Judge Dodds made observations in this regard at [23] and [91].  Similar arguments were mounted by the Council in Parklands Blue Metal Pty Ltd vSunshine Coast Regional Council;[5] where criticisms were made of the proponent for a lack of design detail over the life of what was a much longer development period for a hard rock quarry on a green field site.

   [4] [2011] QPELR 349

   [5] [2014] QPELR 479

1. The reverse staging plan came about as a result of a “minor change” application made by Neilsens on 13 August 2015.  The application was supported by affidavits from Mr Gray (mining engineer, quarry design, quarry operations); Mr Neil Collins (hydrology engineer); Mr Bristow (water quality); Mr Paul King (noise/dust); Mr Chenoweth (visual amenity; rehabilitation plan), and Mr Buckley (town planning).  The precise description of the changes to the proposal are set out in Mr Gray’s report.[6] As well as reversing the extraction stages (and thus backfilling and rehabilitation), the new plans proposed a change to the water treatment cycle aspect of the use.  As a result, water pumped from the pits on site during excavation will be treated for removal of sediment in Ponds 1 and 2 and then stored in Ponds 4 and 5 before return to the river (these ponds are on the Brendale side and form part of the use approved by the Court in relation to Lot 11).  The new proposed extraction plans are Attachment 2 to Mr Gray’s affidavit filed in the minor change application.[7]   The relevant Staging Plan[8] includes an area in Stage 1 in which extraction activity will be limited to outside school hours to reduce impacts on the Bald Hills State School.  Judge Morzone QC approved the minor change on 10 September 2015.

   [6] Exhibit 3 Volume 5 p. 2324

   [7] Exhibit 3 Volume 5 p. 2341

   [8] Exhibit 3 Volume 5 p. 2343

1. As will be seen later in discussions of the disputed issues, Neilsens have accepted further changes recommended by their consultants which it argues reduce environmental impacts to acceptable levels.

1. As I have noted, the site to be mined is all on the Bald Hills side of the river, and therefore within the Council local government area.  The water treatment and processing aspects of the use are on the Brendale side; with the present plant and infrastructure being used for that purpose.  All truck movements of product will use the present haul route commencing with Johnstone Road, so all of this aspect of the use is in the Moreton local government area.  Traffic was originally a disputed issue but was resolved by agreement.

The site and surrounding land use, present and historical

1. During the IDAS process, it was determined that the Council would be the assessment manager, and Moreton would be a concurrence agency.  The former Department of Environment and Resource Management, now known as the Department of Environment and Heritage Protection (DEHP) was also a concurrence agency.  Both Moreton and DEHP had power to direct Council to refuse the application but did not.  Both provided concurrence agency responses identifying conditions that ought to be imposed on any approval.  Moreton was represented by Mr Skoien of Counsel in the hearing and he was excused on the first day, and his instructing solicitor remained throughout but did not participate in the proceedings.  Mr Skoien has provided a short submission which conventionally asks the Court, in the event of approval, to adjourn the appeal to enable his client to consider its response conditions, and whether any variations are needed in light of the evidence and the Court’s findings.  DEHP did not participate in the appeal.  Neilsens submit that the response of these concurrence agencies is of some significance given the emphasis in the hearing on disputed issues involving impacts on the environment.

1. At page 8 of the Town Planning Joint Expert Report,[9] Mr Buckley and Mr Brown set out a description of the subject land which includes the site to be excavated on the Bald Hills side of the river:

   [9] Exhibit 3 Volume 9 p. 3885

   1. The Neilsens’s operations straddle the South Pine River, which is also the boundary between Brisbane City Council and Moreton Bay Regional Council.

   2. The land the subject of the appeal is shown on Figure 1. This figure contains the cadastral boundaries and formal description of the twenty-six (26) parcels that make up the subject land.

   3. The site has an area of approximately 165 hectares with approximately 79 hectares in the Brisbane City Council area which is comprised of the new extraction areas (including the aforementioned approved extraction area in Lot 11 SP 122601) and approximately 86 hectares in the Moreton Bay Regional Council area.

   4. The site is located in the floodplain of the South Pine River and a large part of the site is very flat and low lying. The land to the east of the South Pine River is currently utilized as pasture (grazing) land and contains areas of remnant vegetation including riparian vegetation. The land to the west of the South Pine River contains the existing operations.

   5. The subject land includes all the holdings associated with the Neilsen operations on both sides of the South Pine River. The operations include:

   a) Administration offices;

   b) The processing plant and active settlement ponds;

   c) Rehabilitated settlement ponds no longer in active use;

   d) The Lot 11 extraction pit;

   e) The rural areas on the same eastern side of the South Pine River as  Lot 11 under which exists the sand and gravel resource;

   f) Haulage routes, infrastructure and bridges associated with the extraction and processing aspects of the operations; and

   g) Undeveloped open buffer areas.

   6. Figure 2 is an annotated aerial photograph showing the above paragraph 5 information. It will be apparent that the South Pine River is the common boundary between the plant and treatment areas in the west, and the proposed and existing extraction areas to the east.

   7. An obvious gap in connectivity between Lot 11 and the proposed excavation area is land known as the Bowman land; it has sand and gravel resources but has been used for nonputrescible land fill.

   8. The western plant and ponds’ part of the operations have road frontage to Johnstone Road, Linkfield-Connection Road, Scouts Crossing Road, Belconnen Crescent, Nolan Road and Coles Lane. The only access to and from the plant is via Johnstone Road.

   9. The eastern resource and working pit part of the operations touches Gympie Road, the northern rail line, Buckle Road and the Linkfield-Connection Road. None of these roads play any part in the application; all conveyance of extracted material and any fill being returned for rehabilitation will be via the existing plant.

   10. The site is subject to a number of constraints including flooding, stormwater, wetlands, acid sulphate soils, erosion prone areas, all of which are matters for consideration in this appeal.

2. At page 10[10]  the planners provide a helpful description of land use in the locality:

   [10] Exhibit 3 p. 3887

   1. The existing Neilsen’s operations are a dominant and all pervasive presence in the local landscape, but not in the long view looking from the east to the west.

   2. Generally to the west of the subject land, the local land use is characterized as predominantly industrial.

   3. Land to the east and north east of the subject land is urban residential land.

   4. To the south of the subject land (and north of the Linkfield-Connection Road) land use is characterized as predominantly rural or rural residential and was at the time the application was made included within the Rural Area classification. (This land is now in the Rural zone.)

   5. The site adjoins low density residential development comprised of predominantly single dwellings to the east. The Bald Hills railway station (park and ride facility) is located approximately 250metres to the northeast of the site.

   6. The plant, stockpiles and ponds, and associated movement of vehicles and earth moving machinery are visible through and over the open treed edges of the South Pine River, from the back of residential properties on Gympie Road to the east, and from parts of a local park, i.e. the elevated John Stewart Memorial Park, across Gympie Road further to the east.

   7. These residential properties on the western side of Gympie road create a ‘one house deep’ row of single dwelling houses. These are quite elevated compared to the subject land, and have views directly to the Neilsen’s plant but in addition beyond to the Brendale industrial area, the Strathpine commercial area to the north west, towards Albany Creek to the south west, and significantly, in the long view, to the Taylor Range mountains beyond.

   8. In the near view, from this eastern perspective, the existing use of the area proposed to be excavated, being used for intermittent and low key cattle grazing, is clearly evident.

   9. Without entering the houses to confirm, it is not clear whether there are views available over the Bowman land adjacent to the Lot 11 operations, which have now been in operation for over 12 months.

   10. Direct views of those operations are only directly available from either (it is assumed) the Bowman land, or from the Linkfield-Connection road verge, or from within the Neilsen holdings. In any event the operations are dynamic in that excavation and backfilling is progressive and continuous, and at no time is the entire extraction area fully exposed.

   11. North and north east of the subject land are:

   a) The Bald Hills State school and playing fields; and

   b) The Northern rail line (commuter, freight and intra-city).

   12. Both are elevated. The rail line is a much used piece of public transport infrastructure. The school is of long standing and has direct views over the subject land primarily in a south westerly direction.

   13. Beyond the narrow row of dwelling houses and the school is part of the Bald Hills residential community. This older part of Bald Hills contains some Gympie road based retail and service uses and a hotel. Flanked to the east by the Bruce highway, the number of houses and other facilities are not very extensive geographically.

   14. South east of the subject land is the Guide Dogs Association of Queensland Training Centre and two small rural residential properties.

   15. Behind the Neilsen plant is the large and regionally significant Brendale Industrial area. It contains a mix of uses including manufacturing. This area has arterial road access north and south, and via the Linkfield - Connection road and Gympie road to the east.

1. At page 12[11] Mr Buckley and Mr Brown set out a useful description of the historical land use context both before and after Neilsens commenced sandmining operations:

   [11] Exhibit 3 p. 3889

“1.The history of development in the locality provides important context of some of the issues in the appeal.

2.Figure 3 provides aerial photography of the locality from 1958 to 2015.

3.Understandably, the land use change over the 57 years, particularly from 1983 has been dramatic with the Brendale industrial area developing into a major node of business and industry.

4.Some observations about key components of the changing local land use are as follows:

a)The Bald Hills community was well established in the late 1950’s but only south of what is now known as the St Paul’s School campus.  Significant northward expansion clearly was proceeding by 1972;

b)The subject land and for a very wide area to the north west and west (i.e. including Strathpine and Brendale) was open rural land through the early 1970s;

c)The narrow row of houses along Gympie Road was not fully developed until the late 1970s, although a few houses were there in 1958;

d)There is evidence of more intense agricultural activity on the subject land in 1972;

e)By 1983 the first stages of the Neilsen operations are clearly evident, but at that time closely aligned to just the end of Johnstone Road.  The Brendale Industrial estate was only in its infancy at that time;

f)By 1991 the Neilsen operations had proceeded to what is now known as the area south of the Linkfield- Connection road, (which road did not exist then); and the Brendale Industrial area is now a significant geographical extent;

g)More intensive agricultural activities on the subject land were again apparent in 1991;

h)By 1997 the southern extent of Neilsen operations had further expanded and was well entrenched south of the Linkfield-Connection Road;

i)Activity on Bowman’s land is evident by 2002 and very dominant in the period 2009-2015; and

j)The Lot 11 extraction is well underway in 2015.”

The proposal

1. At page 13[12] the town planners set out a brief description of the Neilsens’ operations, much of which is set out above.  There will be later reference to the significance of the purchase of a number of properties by Neilsens over the years along Gympie Road.

   [12] Exhibit 3 p. 3890

1. At page 15 of the Town Planners Joint Expert’s Report,[13] they set out a description of the development as modified as a result of Judge Morzone QC’s Order.

   [13] Exhibit 3 p. 3892

1. There will be a total extraction area of 46.4 hectares with an extraction rate of up to 400,000 tonnes per annum and in five stages:

a)          Stage 1 – 14.42 hectares;

b)          Stage 2 – 8.24 hectares;

c)          Stage 3 – 9.44 hectares;

d)          Stage 4 – 5.64 hectares;

e)          Stage 5 – 8.66 hectares.

1. The Staged extraction will involve progressive rehabilitation over each stage.  Extraction will occur over 12 years with full rehabilitation completed in 16 years.  Again, there have been some modifications in the rehabilitation plan which will be referred to in the discussion below of the evidence of Mr Gray, the flood engineers and Mr Chenoweth.

1. During the joint expert report process, and subsequent to it, and even during the course of the hearing, there have been significant modifications to the proposal.  The proposal now is to develop the site as a series of small pits or cells developed within stages and then sub-stages.  As noted above, there are five overall proposed stages of extraction, generally moving east to west.  Stages 4 and 5 are closest to the river.  For those stages, progression will be generally away from the river (west to east) and are proposed to be subject to sub-staging and cells.

1. The “sub-staging” within Stages 1 to 5 was not considered by Mr Corrigan (civil engineer engaged by Council) and Mr Gray at their joint expert meeting on 11 February 2016.  The staging plans, then considered (attachment F), were the staging plans approved in the minor change application.  The “sub-stage plans” first appear as an attachment to a memo from Mr Gray to Neilsens’ Solicitors dated 22 April 2016 to “specifically address matters raised by the noise and air quality and water/flood experts in their respective JERS”.  Figure 2 to that memo[14]  divides Stage 1 into four sub-stages or cells; Stage 2 into two cells; Stage 3 into two cells; Stage 4 into three cells; and Stage 4 into three sub-stages or cells.

   [14] Exhibit 3 Volume 9 p. 4178

1. The Application (in its original form), was publically notified and attracted 282 valid adverse submissions.  A number of these submissions appear in Volume 4 of Exhibit 3 commencing at page 1552.  As I have noted, only a small number elected to join the appeal and none provided affidavits.  However, it is clear from the issues raised in their submissions that the impacts on amenity and the environment that concern them most are those very issues agitated by Council.

1. The proposal will employ similar methods, procedures and processes already used for the existing Lot 11 extraction operation.  The proposed operation can be summarised as follows:

a)          The extraction method involves a removal of over burden (vegetation, topsoil and unusable material such as clay);

b)          Extraction of the resource itself from pits, where it is placed on trucks and driven across a causeway over the river to the existing screening and processing plant on the western side of the river;

c)          Extraction pits are dewatered as required, with the water pumped to the existing operational settlement ponds and water management circuit on the western side of the river.  The water is discharged into the river once treated to meet stated objectives (this is what already occurs with the existing Lot 11 operation);

d)          When the material is extracted, the pits are progressively backfilled with clean materials to a similar pre mining profile, top soil added and then revegetated and reinstated to a pre-development land form pursuant to a rehabilitation plan the latest version of which was prepared by Mr Alan Chenoweth on behalf of Neilsens.

1. Figure 1[15] prepared by Mr Gray, is described as a Sub-Stage Schematic Development Plan, and shows in schematic form the proposal for each sub-stage.  As he explains in the memo referred to above, and in his trial report (and indeed he was tested vigorously about this issue in cross-examination), Figure 1 proposes a maximum disturbed area of 5 hectares for a single working area, which, as proposed, will be progressively rehabilitated.  As he notes (and confirmed in his evidence), it is proposed that the average sub-stage or cell size of the 14 cells will be approximately 3.3 hectares.  At any one time, he says that the maximum disturbed area of any multiple cells being worked within the site is proposed to be 10 hectares.  Stages 4 and 5 will be mined only in the dry season.  This will be discussed later in these reasons

   [15] Exhibit 3 p. 4177

1. The proposed hours of operation for extractive operations are 7.00 am to 6.00 pm Monday to Friday, and 7.00 am to 4.00 pm on Saturday, save in the designated area in Stage 1, close to the school, where the proposed operations will be outside normal school hours.

The disputed issues

1. The grounds of refusal identified a number of disputed issues.  It is accepted now, as a result of the joint expert process, that there are no issues of traffic, ground water, flora or fauna or acid sulphate soils that warrant refusal.  Conditions as proposed by the relevant experts will ultimately form part of any permit if the development application is approved by the Court.

1. The disputed issues relate to flooding and water quality, air and noise,  visual amenity, and quarry design and management proposals.  Mr Gray, who was involved as an expert both in relation to engineering and also as part of a joint expert process with Dr McConachie (on behalf of Council) to address part (a) of Judge Rackemann’s Order made 10 February 2016 which related to the extent and quality of the resource on the subject land, was subjected to extensive cross-examination, as was Dr McConachie.  That evidence feeds into the need issue.  The town planning issues are whether the proposal conflicts with the relevant planning instruments including City Plan 2000 (CP 2000) and City Plan 2014 (CP 2014) and if so, what is the extent of the conflict, and if there is conflict are there sufficient grounds to approve the proposal notwithstanding conflict.  The only “ground” advanced is planning need, although Mr Buckley, in his trial report,[16] tended to conflate this issue with other issues that are relevant to the overall impact assessment (e.g. existing land uses, and DEHP’s attitude), but not directly to the need issue.

   [16] Exhibit 3 p. 4130

The assessment regime

1. The development application was lodged in September 2009 at which time the Integrated Planning Act1997 (Qld) (“IPA”) was in force.

1. In the time between when the development application was lodged and the hearing of this appeal, the Sustainable Planning Act2009 (Qld) (SPA) commenced.

1. Notwithstanding, pursuant to s 819 of SPA, this appeal is to be heard and determined under the repealed IPA, as if SPA had not commenced.

1. The development application for the proposed development, being an impact assessable development, is to be:

a) Assessed pursuant to s 3.5.5 of IPA; and

b) Decided in accordance with ss 3.5.11 and 3.5.14 of IPA.

Section 3.5.14 of IPA provides that the assessment manager’s decision must not:

a)          Compromise the achievement of the desired environmental outcomes for the planning scheme area; or

b)          Conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict.

1. Section 4.1.52(2) of IPA provides that the assessment and decision making process for the appeal must be based on the laws and policies applying when the development application was made.  City Plan 2000 (CP2000) and State Planning Policy 02/07 (SPP) were in force at the time the application was made.  The Court may, however, give weight to any new laws and policies it considers appropriate.

1. In this context, it means that the Court may give weight to both  City Plan (CP2014) and the Moreton Bay Regional Council Planning Scheme 2016 (the Moreton Scheme) despite the fact that both planning instruments were introduced after the lodgement of the development application, and the Single state Planning Policy 2016 (SSPP) which consolidated all State Planning Policies into one Policy.  In the Town Planning Joint Expert Report, Mr Buckley[17] sets out a time-line by reference to Scheme maps which is quite helpful in ascertaining an overall impression on how planning schemes have dealt with the resource on the site commencing with the 1987 City of Brisbane Town Plan and continuing through to the most recent 2016 Moreton Planning Scheme and the 2016 Single State Planning Policy.

   [17] Exhibit 3 p. 4058

1. CP2014 commenced on 30 June 2014.  The Moreton Scheme commenced on 1 February 2016.

1. The principles applicable to the construction of planning documents were restated by the Court of Appeal in Zappala Family Trust Co Pty Ltd v Brisbane City Council.[18]

   [18] (2014) 201 LGERA 82

1. At [52] the Court observed “the same principles which apply to statutory construction apply to the construction of planning documents.”  The Court then referred to what the High Court said in Project Blue Sky Inc v Australian Broadcasting Authority:[19]

   [19] (1998) 194 CLR 355

“[69]The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statutehttp:// - . The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70]A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71]Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.

…

[78]However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

In Statutory Interpretation, Mr Francis Bennion points out:

‘The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.’” (footnotes omitted) (citations omitted)

1. Planning instruments should be read as a whole, and applied in a practical and common sense way, and so as to achieve their evident purpose.  Statements of intent, aims and objectives in planning schemes are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate: Leda Holdings Pty Ltd v Caboolture Shire Council & Anor.[20]  A planning scheme should be construed broadly, rather than pedantically or narrowly, and with a sensible practical approach: Lockyer Valley Regional Council v Westlink Pty Ltd & Ors.[21]

   [20] [2005] QPEC 56 per Wilson SC, DCJ at [11]

   [21] (2011) 185 LGERA 63 per Fraser JA at [20]

1. Conflict is considered against the substance of the planning scheme, and not against a provision in insolation from the whole and the conflict must be plainly evident: Equity Limited v Gold Coast City Council.[22]

Consideration of disputed issues

[22] [2007] QPELR 356 at [16] and [17]

Flooding/Hydrology

1. In relation to this important issue, Mr Neil Collins gave evidence on behalf of Neilsens and Mr Clarke gave evidence on behalf of Council.  Both were involved in the Lot 11 proposal and participated in three joint expert reports in relation to that proposal.  These reports are now Exhibits 12, 13 and 14 in these proceedings.  In relation to this proposal, they participated in producing two joint experts’ reports, the first on 8 March 2016 and the second on 13 April 2016.  Both have provided individual trial reports, and both gave oral evidence.  Flooding and water quality are significant issues, as the site is flood prone, and has an immunity of less than 1 year ARI event i.e. it is estimated that the site is likely to flood at least once a year.

1. It is useful to concentrate on their points of disagreement, as they are significant and feed into the disagreement between the water quality experts.  Resolution of these disputed issues between experts is very important in the assessment process in this case, as the site lies in waterway corridor, namely the flood plain of the river and is subject to regular flooding.  Since approval of the Lot 11 use, and since commencement of operations, the area has been flooded twice.  The real danger is the transportation off site of sediment and particularly fine sediment and other material into the river system thus adversely impacting on the water quality of the river and downstream river systems and wetlands.  This is especially significant in an area that is mapped and subject to overlays in CP 2000 and CP 2014 which identify the area as having ecological value.

1. In their first joint expert report[23] Mr Clarke and Mr Collins set out 13 points of agreement:

   [23] Exhibit 3 Volume 8 p. 3523

   “1. The proposal has been significantly modified since the original application of 9/8/2011, however these changes were accepted as minor by the Court in its order of 10 September 2015.

   2. From a flood management view point, the modifications are seen as an improvement as initial extraction stages are well to the east of the river and away from higher flow velocity areas. This will enable flood management and scour management systems to be tested and if necessary refined before moving closer to the river.

   3. The TUFLOW flood model used for assessments is Moreton Bay Regional Council’s current flood model, is the most recent and up to date model available, and is considered suitable for assessing flood impacts on site.

   4. The various pit stages are subject to a range of flood conditions, corresponding to their proximity to the main channel of the River (Attachment 4 provides indicative velocity and shear stress plots for the ARI 100 year event) ie:

   a. In it’s existing situation, the area covered by the Stage 1a proposal is generally a low velocity, ponded area located at the eastern edge of the floodplain, remote from the main channel. Velocities are generally less than 0.45m/s (in terms of a key parameter from the water quality JER) for flood events up to the ARI 100 year flood event, Inundation of Stage 1a tends to occur as a result of increasing backup from downstream, rather than direct flood flows from upstream.

   b. In their existing situation, Stages 2 and 3 are located towards the middle of the floodplain and while higher velocities than Stage 1a are present, stages 2 and 3 generally have velocities less than 0.45m/s.

   c. In contrast to Stages 1a, 2 and 3, in the existing situation the areas covered by Stages 4 and 5 are adjacent to the main channel of the river, subject to direct flood flows exiting the river onto the floodplain and as such display higher velocities than Stages 1a, 2 and 3 in excess of 0.45m/s, but generally well less than 1 m/s.

   5. By providing nominal temporary ARI 1 year river flood bunding around each stage of extraction, local run-off and frequent river floods (less than ARI 1 year event) are separated from the works to further minimize risk of sediment loss. There is no significant adverse afflux impact on flood or drainage afflux created by the proposed staged works, as demonstrated by the flood assessments in Attachment 1.

   6. Given the dynamic nature of sand extraction operations, we agree that an annual independent third party audit should be conducted by a suitably qualified flood and erosion control engineer who is a current Registered Professional Engineer in Queensland (RPEQ). A certified report on compliance, and any modifications required to the quarry management plan (which will incorporate flood and emergency flood management), should be produced after each audit and that report should be available on site for inspection by Council or other approving authorities during normal working hours.

   7. Removal of the illegal filling on the adjacent Bowman land would have an impact on the flood flow distributions across the floodplain relevant to Stages 1a and 2 to 5, but in general, this would not significantly affect the proposed extraction strategy, but may require a refinement of bunding arrangements if and when such removal were to take place. This would also require revised flood modelling.

   8. While the bund crest levels are proposed to be set at the ARI 1 year event level, the rock chutes are proposed to be 300mm lower than the bund crest levels and will thus allow flow to enter the pits for events much smaller than the ARI 1 year event. The proposed arrangements do not provide immunity for the ARI 1 year event, though the pit would generally remain trafficable by the plant until the point when the bunds are overtopped, so it is trafficable within the pit in an ARI 1 year event.

   9. The use of rock inlet weir/chutes is appropriate for provision of controlled overtopping for events smaller than the ARI 1 year event. This controlled overtopping provides a final safeguard to workers, even if all other warnings have been ignored to alert them to a flood event and to evacuate the pit.

   10. For events larger than the ARI 1 year event, the rock chutes allow some flood water to enter the pits prior to the ARI 1 year bunds overtopping. Preliminary calculations indicate that (depending on the flood event) water depths in the bottom of the pits may be of the order of 0.1m at the point at which the bunds are overtopped. Once the bunds are overtopped in events greater than ARI 1 year, there will be uncontrolled flow down all of the exposed pit faces. This uncontrolled flow will erode material from the exposed pit faces during the period in which the pit is filling.

   11. NC says that given that Neilsens do not operate the pits when there has been more than 10mm rain in a day, operationally they can manage with the proposed arrangement that has less than 1 year ARI immunity in the pit because of the spillways and chutes, and that a primary purpose of the low bunds is to protect the pits from local runoff. NC says that a core intent of the EFMP is to make sure workers are not in the pit when a river flood occurs.

   12. SC says that with the change in commitment from providing warning and evacuation routes to workers potentially in the pit when a flood occurs, to a commitment to ensure workers do not enter the pit if there is the possibility of a flood event occurring, that subject to further refinement and agreement, the WBM EFMP (attached) is sufficient to demonstrate that the site can be worked to an adequate level of safety for workers and visitors, subject to suitable refinement prior to works commencing

   13. It is agreed that in terms of emergency flood management planning, temporary refuge of last resort platforms as proposed by the WBM EFMP are desirable and necessary and that these temporary platforms should be constructed from selected non-scourable import material (eg either compacted clay or selected building rubble).

   (References to Stage 1a can be taken to be references to Stage 1 as Lot 11 has been referred to as Stage 1b).”

1. The reference to the Bowman land is a reference to the land identified in the aerial map[24] as lying between Lot 11 and the southern end of the site contiguous (in part) with the boundary of the proposed Stage 4.  To say that Mr Bowman has acted unlawfully in filling his land and in other ways, is probably an understatement.  The whole sorry history is set out in Brisbane City Council v Bowman & Ors and Bowman & Ors v Brisbane City Council[25] which is in Volume 11 of Exhibit 3 commencing at page 4949.  As indicated in Mr Neilsen’s affidavit in these proceedings,[26] Bowman interests owned that land in 1978 when Neilsens’ interests acquired the Brendale land, and they co-operated in constructing Johnstone Road which is the commencement of the haul route for this and all previous extraction activity.

   [24] Exhibit 5 p. 11

   [25] [2015] QPEC 14

   [26] Exhibit 3 Volume 11 p. 4999

1. As the flood modelling undertaking by Mr Collins reveals, despite being in the same flood plain as Lot 11 and the site, the Bowman land is only inundated in 10-100 year flood events, and even then not completely.  The apparent illegal dumping of fill has given the land an elevation well above natural ground level.

1. At page 3525 of the same JER, the flood engineers set out in 11 paragraphs what they characterise to be five points of disagreement in the second JER in April 2016:

“14. SC says that the proposed arrangement does not comply with a key recommendation (the provision of Q1 immunity for the extraction areas) of Water Quality and Related Issues JER 1 for. More specifically, the proposed arrangement conflicts with:

a. Point 12 d) and recommendations 36 d), g) i) (both subpoints), and

b. Qualification 1 of the Water Quality and Related Issues JER1 notes that “Should the disturbance foot print be … provided with a flood immunity of more or less than Q1, then we will have to reconsider our conclusion and agreements”.

15. NC says that in terms of flood flow impacts on sediments, the rock lined weirs and chutes proposed provide a partially controlled filling mechanism for the pits during a flood event and that by the time levee overtopping occurs, the pits will only be about 100mm deep pondage and still trafficable by the site plant; hence, for all practical purposes, the pits do provide immunity in terms of trafficability from the ARI 1 year event for river flood bund overtopping events.

16. SC says that for events larger than the Q1 that overtop the proposed bunds, there will be uncontrolled flow down the exposed pit walls until the pits are full. Point 36 c) i) of Water Quality and Related Issues JER 1 states that “exposed unprotected soil and backfill is not to be exposed to surface velocities greater than 0.45m/s”. Velocities in excess of 0.45m/s down the exposed pit faces are possible. Erosion of the pit walls will lead to increased suspended sediment within the submerged pits. While the coarser material may settle out, fine material will be available for export to downstream areas. This is a matter for further consideration by the water quality experts.

17. NC says in terms of scouring and sediment suspension, that whilst there will be scour of the pit walls when bund overtopping occurs, all scoured material will be captured in the pit, and by the time that the pit fills and flood flows exit, all but the fine suspended material will have settled in the bed of the pit. This is a matter for the water quality experts to further consider

18. SC says that that there will be the potential for significant sediment/turbidity generation at the start of the pit life the topsoil has been stripped, but prior to significant excavation.

19. NC says that they will never have 10 ha of bare earth with no excavation. Surface stripping will occur progressively as and when additional pit areas need to be opened up. Velocities are all less than 0.45m/s for Stages 1a, 2 and 3. For stages 4 and 5 they are less than 1 m/s except for on the top of the protection levees.

20. SC says that there will be the potential for significant sediment/turbidity generation at the end of the pit life when the pit has been backfilled, but not revegetated.

21. NC says that he expects backfill material to be clays, rock and material other than sand, but acknowledges there is a period where there is an exposure until revegetation can occur. However, NC further says that in his view a rehabilitation plan should see the backfilling progressively occur with progressive revegetation and notes that he has not seen the final Alan Chenoweth rehabilitation plan.

22. SC says that during flood events that overtop the bunds (larger than ARI 1 year event) that there is risk of a catastrophic avulsion/failure of the pit wall leading to a headcut (erosion) that progresses back towards the river.

23. SC further says that for Stages 4 and 5, that this is a significant risk (despite the proposed buffer) for the length of pit faces that are adjacent to the river. Further, if the water level in the pit has not filled to a level above the natural surface, “pit capture” could occur whereby the failure of the pit wall leads to a change of river course into the pit.

24. NC says that this is a low risk but can be managed with an appropriate contingency plan to require Neilsens to repair any damage and, if necessary, to provide additional rock armouring to stop it and prevent any future problems. Downstream of the railway line is a high risk area for stream migration whereas upstream of the bridge the river and floodplain are quite stable. Inspection of historic photos indicates there is no evidence of stream movement on the Bald Hills side where the proposed extraction works are proposed. NC also says that the risk of headcut erosion from the pit back to the river can be minimized through the sub stage extraction sequencing (e.g. having 4 or 5 sub-stages as east west slices), and by extracting adjacent to the river first, then backfilling with more selected import material ( e.g. concrete rubble) to provide an armouring to protect subsequent extraction to the east.”

1. It is the issue raised by Mr Clarke at [22]-[23] that became the focus of much of the dispute between the flood experts during the hearing.

1. By the time of their second JER, the experts had narrowed their disagreements but, as can be seen from the alternative conditions proposed on page 3872, their main disagreement focussed on the issue of “catastrophic river migration”.  As can be seen from these alternatives,[27] the “conditions” proposed by Mr Clarke are really not conditions at all, but reasons why, in his opinion, Stages 4 and 5 could not be approved.  This opinion is expanded upon in his trial report.  At that point, Mr Collins had produced a further “indicative” plan of Stages 4 and 5, with a cross-section of the armoury he then proposed of selected cobbles minimum 150 mm along the intersection of Stages 4 and 5 with the boundary of the extraction area with the river.

   [27] Exhibit 3 Volume 8 p. 3872 at 1 (a), (b) and (c)

1. This drawing, prepared on 12.4.16,[28] pre-dates the Gray memo of 21 April 2016 referred to above, and appears to indicate further “sub-staging” in Stages 4 and 5.  At that point, he also referred to a further condition that Neilsens will accept that there will be no excavation activity during the wet season in the sub-stages closest to the river in Stages 4 and 5, characterised then by him as being between the months of October and March.

   [28] Exhibit 3 Volume 8 p. 3877

1. In his trial report,[29] dated 26 April 2016, Mr Clarke provides a helpful glossary of terms.  “Avulsion” is the process in which a stream rapidly abandons a developed channel and creates a new one; in other words dramatically changes course.  “Pit capture” is a form of avulsion whereby the river changes course into an evacuation pit as a result of one or more failure mechanisms:

   [29] Exhibit 3 Volume 10 p. 4540

1.          Lateral migration of a river channel into a pit;

2.          Sub-surfacing piping of ([sic] – presumably flood water) into pits and subsequent failure of pit walls;

3.          Flow of water into and through the pit and subsequent erosion of the buffer strip between the channel and the excavated pit.

1. Mr Clarke maintained his view expressed at paragraphs 22 and 23 of the first JER that across all stages there was a risk in any flood event larger than an ARI 1 year event, of failure of the pit wall leading to an erosion that progresses back to the river, and therefore leads to a change of river course into the pit.  As he had always said, the risk was in his opinion greater or “significant” at Stages 4 and 5.

1. Mr Collins opines in his trial report that “the risk of catastrophic erosion (is) extremely low and highly manageable”, and, “there is a high level of confidence that there will not be large quantities of eroded material scoured from the extraction pits during flood events.”

1. As can be seen from the conclusions to his trial report,[30] his assessment of the likelihood of such risk (expressed during the hearing as “exceedingly low – extremely low”) was based on the sub-staging proposed in the plan submitted by Mr Gray in April 2016 ; the limit of extraction in sub-stages in Stages 4 and 5 closest to the main river channel to the April to September period to avoid the typical flood period (in his oral evidence he suggested that more recent data suggests the better time is from June to November); the limiting of actual disturbed area proposed in the April 2016 Gray drawings; the extraction in those stages to proceed away from the river proceeding east; use of information and data gained from the agreed annual auditing provisions from stages 1 – 3 to “refine” the flood management strategy for stages 4 and 5; use of armouring proposed by him on the pit faces closest to the river; his observation and analysis of actual pit performance during and after actual flood events which inundated pits in Lot 11; and the proposed permeable bunds suggested by Mr Paul King (after the acoustic JERs) to provide noise and visual screening.  In addition, he found the report of Dr Shorten, concerning the strength of materials actually excavated from Lot 11 to be supportive of his opinion on the assumption,  challenged by Council in its cross-examination of Dr Shorten, that materials on the site were likely to have the same or similar strengths as the samples viewed by Mr Shorten in the Lot 11 pits.

   [30] Exhibit 3 Volume 9 pp. 4148-4149

1. Mr Clarke maintained his opinions in his trial report and evidence.  Both of these men are eminent experts in their field of hydrology and there is no reason to prefer the opinion of one over the other on the basis of any suggestion that their respective opinions are not genuinely held.

1. It is helpful to keep in mind what has been said in this court about the approach to assessment of risk in the impact assessment being undertaken by the court.  In Blue Sky Pty Ltd v Brisbane City Council& Pelligrino [2011] QPELR. 182, in discussing the concept of risk, in the context of an impact assessable proposal under the IPA (relating to the possible spread of a form of fungus into New Farm Park), Durward SC, DCJ wrote, at [240] on 213:

“[240]In assessing a proposal that has an element of risk, even serious risk, the court should take a robust view, in accordance with the evidence about the risk, on the balance of probabilities, with due regard being given to the potential for minimising or eliminating, so far as is practicable, the realisation of risk.  Assessment of risk is not and cannot be made on the basis of a guarantee that the risk will not be realised.”

1. I note that the Q.P.E.L.R. (and therefore Mr Gallagher QC and Mr Johnstone) when referring to the case in oral argument, wrongly attribute the statement to Judge Robin QC, an august and eminent past member of this Court, but he was not the trial judge in that case. The report contains an errata recognizing the error.

1. I think his Honour’s statement, which follows reference to cases such as Lane v Gatton Shire Council [1988] QPLR and Esteedog Pty Ltd v MSC [1991] QPLR 7, should be considered in the light of the circumstances that pertained in that case. He was assessing a proposal to build a kiosk in New Farm Park against the provisions of CP 2000 where the primary disputed issues, found to conflict with the scheme, were bulk, scale, traffic, heritage issues and noise. The statement referred to above was made by reference to an issue raised in the grounds of refusal concerning the possible spread of a dangerous tree pathogen known to exist in one tree in the Park as a result of the proposal.

1. His Honour immediately after this passage referred to the precautionary principle. The statement on its own does not say anything about risk weighted consequences.  For example, it may be established in a particular case that there is a 10% risk of an event occurring which, if it did, would have catastrophic consequences. That may be deemed to be an unacceptable risk.  On the other hand, it may be found that there is a much higher risk of an event occurring, but that the consequences e.g. on the environment, may be very small.  Such a risk may be acceptable.  The court should not regard the statement as establishing any general principle applicable to assessment of risk in planning appeals.

1. Impact assessment includes the assessment of the environmental effects of the proposed development (with conditions); and the ways of dealing with the effects: Schedule 10, IPA; and in the assessment of this proposal the assessment of risk e.g. of avulsion or pit capture, will necessarily be undertaken in the orthodox way, by careful assessment of the evidence of the experts leading to decisions about the weight to be given to their opinions, which, in turn will involve examining the facts and assumptions underlying disputed opinions.

1. At least one of the Councils’ experts referred to the precautionary principle. Neilsens written submissions, which were received by me on 19 May before Council’s submission, refer in some detail to this issue at [222]-[229]. The submission concludes with robust criticisms of Mr Clarke at paragraph [229].

1. As far as I can tell, neither Council’s written submission nor Mr Bain QC’s oral submission referred to the precautionary principle as such.  Rather, in the context of discussing Mr Clarke’s evidence, Council urges the Court to adopt a “cautious approach” (to the issues of pit capture and avulsion) by reference to the Purpose and Performance Outcomes P01 and P02 in the Storm Water Code in CP 2000.

1. Section 1.2.3(a) of IPA provides (inter alia) that advancing the Acts purpose includes ensuring that decision making processes-

………

“(iii) apply the precautionary principle’”

Section 1.2.3(b) provides that advancing the Act’s purpose includes “avoiding, if practicable, or otherwise lessening, adverse environmental effects of development.”

Section 1.2.3.(2) of IPA states:

“For subsection (1)(a)(iii), the precautionary principle is the principle that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment if there are threats of serious or irreversible environmental damage.”

1. The relevant points to discern with respect to the precautionary principle are:

(a)It essentially calls for avoidance of serious or irreversible environmental damage whenever possible;[31]

(b)The principle is not concerned with bare possibilities of environmental damage, but with situations where such damage can reasonably be said to be threatened.[32]

(c)This excludes a situation where environmental damage is a theoretical possibility, but highly unlikely;[33]

(d)The principle does not require proof of a complete absence of any likely future environmental harm;[34]

(e)It is not necessary for an appellant to prove with scientific certainty the absence of any possibility of serious environmental harm in the future.[35]

[31] Sol Theo as Trustee for the Solon Theo Family Trust v Caboolture Shire Council & Anor [2001] QPELR 101, [42] (McLauchlan QC DCJ).

[32] Sol Theo as Trustee for the Solon Theo Family Trust v Caboolture Shire Council & Anor [2001] QPELR 101, [42] (McLauchlan QC DCJ); see also Histpark Pty Ltd & Anor v Council of the Shire of Maroochy [2002] QPELR 134, [21] (Robertson DCJ); see also Mansell & Neil K Mansell Concrete P/L v Maroochy Shire Council & Ors [2008] QPELR 122, [137] (Robertson DCJ).

[33] Sol Theo as Trustee for the Solon Theo Family Trust v Caboolture Shire Council & Anor [2001] QPELR 101, [42] (McLauchlan QC DCJ).

[34] Histpark Pty Ltd & Anor v Council of the Shire of Maroochy [2002] QPELR 134, [21] (Robertson DCJ); Mansell & Neil K Mansell Concrete P/L v Maroochy Shire Council & Ors [2008] QPELR 122, [137] (Robertson DCJ); GFW Gelatine International Limited v Beaudesert Shire Council & Ors (1993) QPLR 342 at 353 (Quirk DCJ).

[35] Histpark Pty Ltd & Anor v Council of the Shire of Maroochy [2002] QPELR 134, [21] (Robertson DCJ); Mansell & Neil K Mansell Concrete P/L v Maroochy Shire Council & Ors [2008] QPELR 122, [137] (Robertson DCJ).

1. As can be seen from my conclusions that follow, in the circumstances here, there are no threats (with conditions in place) of serious or irreversible environmental damage, and it cannot be said that such damage from pit capture and/or avulsion can be seen as “reasonably threatened”.

1. There are a number of reasons why I have concluded that in the circumstances here, based on my assessment of all of the evidence before the Court, that Mr Collins’s opinion on these critical issues is to be preferred that of Mr Clarke.

1. I am unconvinced that the extensive work undertaken by Mr Collins and Mr Clarke in the Lot 11 proposal is of only marginal relevance in relation to the same or similar issues, accepting as I do, the differences relating to the size of this proposal, and the existence of the Bowman land etc. referred to by Council in its written submission.

1. It is common ground that Lot 11 and the site are part of the same flood plain.  As the extensive cross- examination of Mr Clarke revealed, in the JER process for Lot 11, he did not raise the possibility of avulsion, rather the focus was on the level of the flood immunity of ponds 4 and 5 on the Brendale side of the river, at a point even closer to the river than the western boundaries of Lot 11 and Stages 4 and 5.  He agreed that despite this, ponds 4 and 5 had not failed in the 2011 flood or in the two floods since operations on Lot 11 had commenced.

1. He endeavoured to explain this by suggesting that Stages 4 and 5 are in “quite different parts of the flood plain”, but as can be seen from the aerial map,[36] Lot 11 is very much part of the same flood plain separated only by the Bowman land.  The whole area, including Lot 11 and the site, are mapped in CP 2000 as part of the same Brisbane river corridor, and in CP 2014 as part of the same Local Water Corridor. 

   [36] Exhibit 5 p. 6

1. Mr Clarke also supported his opinion by suggesting that the river historically is migrating laterally east at Stages 4 and 5.  In relation to the Lot 11 assessment, Mr Clarke agreed with Mr Collins that there is a relatively low chance of the river moving laterally from its present position to the extent that it could breach the extraction void (of Lot 11).  Apart from that inconsistency, the evidence placed before the Court strongly supports Mr Collins’ opinion that there is a very low risk of the river changing course over what will be (for a quarrying operation) a relatively short period of 12 to 16 years, because of the historical evidence.

1. From the aerial photographs it is apparent that since Neilsens commenced extractive operations in 1980 (at a time when flooding and sediment release controls were much cruder), there has been very little movement of the river.  Perhaps the clearest example of this is a comparison of the aerial photographs from 1955 to 2016.[37]  This is despite the very severe Brisbane floods of 1974 and 2011.  As Mr Collins said, the river course in this locality is now heavily constrained by the protective barriers to the north where the river intersects with the railway line, and to the south where the banks of the river are heavily constrained by concrete barriers under the Linkfield-Connection Road.

   [37] Exhibit 10 p. 19

1. The only evidence of any breakthrough in the 36 years of Neilsens’ operations is on the western side of the river, south of Linkfield Road some time ago, which was repaired without any alleged adverse consequences to the environment.  The conditions imposed on Lot 11 to prevent breach of pits during flooding are much more stringent than those that applied to the earlier Neilsens operations on the western side, and the conditions proposed for the site by Mr Collins are even more stringent.  In his cross-examination he said in his 30 years as a hydraulic engineer he had never encountered a sandmining proposal with so many protective measures.

1. According to the unchallenged evidence of Mr Collins, that historical breach occurred right on the waterway at a time when buffering was only 10 to 15 m, and there was no armouring.  Here, at Stages 4 and 5, the closest the pit will be to the river is 50 m and on average, 90 m; and extensive armouring is proposed with other conditions such as the wet season moratorium.

1. Further, despite two floods in 18 months of actual operation of the use of Lot 11, there has been no pit failure, let alone catastrophic failure.  It was accepted that the flood in May 2015 was a one in ten year flood event, where the excavation pit filled with water, but the bunds and pit face did not move significantly.  Mr Bristow took photographs after one of these floods[38], which show the pit face largely intact.  The pits in Lot 11 worked exactly as predicted by Mr Collins and Mr Bristow during actual flooding, and filled quickly (within approximately 1.5 hours), and it is during this period that scour and sediment release is most likely; and then the flood passed over the top, and when the flood was over, the water in the pit was treated and pumped out of the pit into the water circulation unit which includes a chemical coagulant plant which further purifies the water before release into the river.  There was only minor erosion which went into the pit; no pit break through and no catastrophic avulsion.

   [38] Exhibit 10 pp. 7-8

1. Exhibit 10,[39] is a diagram prepared by Mr Collins with a predicted cross-section in Stage 4 at the point he estimates to be “pretty much the closest point that Stage 4 gets to the river”, and that Stages 4 and 5 are generally no closer to that shown on the diagram.  As Neilsens observe in their written outline, this diagram does not factor in a need for the flood to break through the proposed armoury, and in the dry season.  Mr Clarke did accept that in relation to Lot 11, pits did fill “very, very quickly” in the floods, and he accepted that once the pits are full erodibility is then significantly limited.  In this regard, this is exactly what Mr Collins is predicting in relation to Stages 4 and 5 where the pits will fill quickly (within 1.5 hours).  Unfortunately, the diagrammatic portrayal of the erodibility process in flood referred to in paragraph 2 of Mr Clarke’s trial report is based on incorrect data from the 2006 Ground Works figure which was corrected in 2008.  The section assumes that the river is still flowing in accordance with the cadastral boundaries, whereas the evidence (referred to above), is that the river is a further 130 m to the west, with the obvious increased buffering.

   [39] P. 11 – bottom diagram

1. I think the actual performance of the pits in flood in Lot 11, and the additional measures proposed by Mr Collins, to a large extent dispose of the other areas of disagreement between him and Mr Clarke at the time of trial.  The safety of employees in a flood event can be ensured by the conditions proposed by Mr Collins; and the issue concerning sediment loss from bare earth after initial excavation, can be appropriately met with conditions proposed by Mr Collins and Mr Gray, whereby the surface area of bare earth exposed at any one time is now proposed to be much less than was originally proposed.  Similar conclusions follow in relation to sediment loss (during flood) from pits that have been backfilled but not yet re-vegetated.  Conditions that require use of fast growing grasses, and the proposals set out in Mr Chenoweth’s latest Rehabilitation plan, and the nature of the clean fill proposed for backfilling, I think can appropriately mitigate against unacceptable sediment loss to the river.

1. Mr Collins relies on Dr Shorten’s report (obtained after the JERs), and which he requested, in which Dr Shorten expresses his opinion (based on “post flood evidence presented for Lot 11”) that “in general, both the overburden and the sand and gravel layers to be excavated are resistant to erosion due to aging, compaction and/or cementation, with bed shear stress resistance akin to high strength engineering soils or extremely low strength rock, rather than soft normally consolidated cohesive soils or loose sand …”  He relied in part on the photographs taken by Mr Bristow following flooding of the Lot 11 pits, and photographs of his own[40] which he described as indicating the faces at the Lot 11 pit as “generally cemented soils that are capable of standing vertically in excavation when dewatered”.

   [40] Exhibit 3 pp. 4187-4188

1. It is accepted that the modelling done by Mr Collins (accepted by Mr Clarke and the water quality experts as appropriate) assumed the resource in the site to be loose sand and gravel.  Dr Shorten’s report also gave comfort to Mr Bristow whose evidence I will discuss later.  Dr Shorten had been involved as a geology expert by Neilsens and had participated in the JER process with Dr McConachie on behalf of Council, and no issue about the predicted strength of the material in the site had arisen during the JER process.  In the geology JER at p 3008, Dr Shorten had discussed the sediments on the site as “dense and slightly cemented in situ although easily dissociated by normal machine working, handling and washing …”.  This observation (in relation to the effect of wetting of the material, as would occur in a flood), is borne out in part by the last paragraph on page 1364 of the academic journal[41] produced by Mr Bristow during his evidence-in-chief.

   [41] Exhibit 35

1. Dr Shorten’s supplementary report produced much heat and light during the hearing and his evidence is criticised in paragraphs [196] - [198] of Councils’ written submissions.  It is accepted that no tests have been done on site to ascertain the strength of the material to be mined.  The Groundworks core sampling (see page 4647, Exhibit 3) certainly suggests that the geology of the site is similar to the geology of Lot 11, but it says nothing about issues such as erodibility and strength.  Neilsens in turn was critical of Council for not having Dr McConachie give evidence with respect to these qualities of the sand and gravel on site.

1. On this discrete issue, Dr Shorten’s evidence can be put to one side, not because I think it is unreliable, but I think his opinions to have weight need to be backed by more evidence from actual site testing.  Mr Collins did not rely heavily on Dr Shorten’s report in assessing the risks (of avulsion and pit capture) as “very low”.  His evidence was that if the material on the site was of the strength predicted by Dr Shorten, the additional protective measures proposed by him e.g. dry season mining on Sub-stages 4 and 5 closest to the river, extensive armouring, additional chutes etc. would not be necessary.

1. In his trial report, Mr Clarke referred to an incident at a quarry at Coomera which he described as an example of pit capture in the last five years, and to support his opinion here that there is a significant risk of avulsion at Stages 4 and 5 and a risk of pit capture at Stages 1, 2 and 3.  The Coomera example is set out in Appendix D of his trial report.[42]  He struggled to explain why this was an appropriate or analogous example.  Mr Collins undertook a careful analysis of what occurred at Coomera and I accept his evidence that the bund wall that failed was standing very close to the creek with little buffering, much closer than the minimum of 50 m buffering from the river to the sub-stages of Stages 4 and 5 in this proposal; it involved the failure of a very high bund and not (as Mr Clarke predicts here) the pit face eroding back to the river; it was an example of much older mining techniques, and did not have the stringent protective measures proposed here.

   [42] Exhibit 3 Volume 10 p. 4593

1. In relation to the flood expert evidence, I comfortably prefer Mr Collins’ evidence to that of Mr Clarke, and find that the likelihood of risk of avulsion or pit capture is very low and, on the balance of probabilities, I am satisfied that the conditions proposed both by agreement in the joint JERs and in Mr Collins’ trial report and evidence, are more than adequate to prevent unacceptable risk associated with flooding of the site during operation.

Water quality

1. The predicted risks to water quality in the river from an unacceptable flow of sediments from excavated pits and the site during flooding and erosion to the river banks, and adverse downstream affects are significantly reduced in light of my conclusions of fact in relation to the flood evidence.

1. By the time of the second meeting between Mr Catolana and Mr Bristow (report dated 1 April 2016) had access to the first JER between Mr Collins and Mr Clarke dated 18 March 2016 among other reports and material.  At page 3675 (paragraph 5), they state:

“The Flood report as issued on 18 March 2016 has reaffirmed our concerns that the site presents significant erosion and sediment control risks that must be managed to minimise and control sediment transport from the development that were expressed by us in our Joint Report of 8 March 2016.  We acknowledge that there are a number of points of disagreement between the flood experts and a solution to adequate erosion and sediment control was not concluded.”

1. This statement indicates the close correlation between the water quality expert evidence and the flooding evidence which perhaps is obvious.  At p 3685, they set out the summary of their respective positions:

“21.As there are several disagreements by the flood experts on appropriate management of erosion and sediment transport, we have had to interpret raw data from flood models and make suggestions.  We await agreement from the hydraulic experts on our interpretation.

22.Based on the information provided to us to date, we are of the opinion that, subject to conditions, Stages 1, 2 and 3 of the development could be approved on the grounds of water quality, storm water, sediment and erosion control should the court be minded to do so.

23.Approval of Stages 4 and 5 subject to conditions, could also be contemplated, provided conditions that apply to Stages 1-3 are adopted and additional conditions imposed that require:

a..The collection of performance information on the sediment and erosion control and release sediments from Stages 1-3.

b.The collected performance information is used to inform and develop detailed designs for Stages 4 and 5.

c.The detailed designs for Stages 4 and 5 are submitted with the performance information for Stages 1 to 3 to Council for approval by Council and certified by an appropriate RPEQ prior to development of the stages (4 and 5).

d.Riverine bank rehabilitation against Stage 4 should incorporate vegetated step benching to eliminate the near vertical river bank (eastern) along this reach of the river.

24.Given the current lack of design detail and the erosion risk against the riverbank for Stages 4 and 5 are significant, this area requires a considered detailed design approach.  The detailed designs for Stages 4 and 5 are recommended to be submitted with performance information for Stages 1-3 for approval by Council based on certification of a design by an appropriate RPEQ prior to the development of the stages (4 and 5).

25.It would assist the approval of Stages 4 and 5 if regulatory authorities also inspected the performance for Stages 1 to 3 within 24 hours of an inundation event or when it is safe to do so (whichever the later).

26.We reaffirm that without an appropriate condition package we would not recommend that the development be approved, as a documented development proposal is sufficiently incomplete as to leave too much doubt on water and water quality of management, monitoring and controls, particularly as the submitted EMP has been overtaken by the minor change approval and the existing EMP for Lot 11 (Bald Hills South) provides superior monitoring, management, reporting control.

27.We reaffirm that in our opinion, to approve the development the conditions listed in our 8 March 2006 joint report (sic) and the additional requirements listed in points of agreement 11, 14 to 18 above need to be accepted or adopted subject to agreement by the hydraulic experts as discussed in 21 above.”

1. At [14] they proposed conditions in relation to Stages 4 and 5:

“14.Additional significant erosion treatment should be adopted to manage Stage 5 and parts of Stage 4, particularly the zone against the river channel.  However, there is considerable uncertainty with how Stages 4 and 5 are intended to be managed effectively considering the high flow velocities in this area and the high frequency of inundation.  The application documentation does not describe any specific measures.

a.We are of the opinion that an engineering solution should exist, and its feasibility will also need to be considered, but in any case no formal documented solution has yet to be put forward to allow practical development of this portion of the Key Resource Area.

b.As a minimum DB would recommend, in addition to the measures listed in POA 11, the non-biodegradable erosion controlling matting (e.g. Enkamat by Kolbond or similar) be used on the bunds with hydro mulch and 70% vegetative cover instead of degradable matting to resist potentially higher velocities and bed shear predicted to be experienced along the river bank as the flood spills into the flood plain.

c.DB also recommends the eastern riverbank rehabilitation plan for the river reach from approximately adjacent to Johnson Road to the site’s northern boundary should include vegetated benching to achieve a series of 4-5 m wide benches and 1 m vertical rises within the buffer zone, to eliminate the sections of near vertical river bank, and the [sic] reduce the risk of bank erosion and avulsion.  Drawing L1511-001-RIP001 REV-A attached shows a concept profile – vegetation planting subject to the fauna and flood experts advice and agreement.  Any revetment should be keyed into the bank profile to prevent undercutting.

d.We recommend that Stages 4 and 5 development be subject to a condition that requires detailed design and approval of the detailed design before proceeding with them.  The detailed design must be informed by performance information collected from the preceding stages.  To this end, we note that the risks in Stages 4 and 5 are significant and therefore this area requires a considered detailed design approach taking into account detailed hydraulic data that is beyond what can be resolved in a joint experts’ water quality report within the time frame allowed by the court’s order of 15 March 2016.  Engineering solutions may be significant to ensure the integrity of the bund structure and retention of sand and silts in the pit during and immediately following an inundation event.”

1. To a significant extent, in light of my conclusions in relation to the flood evidence the “considerable uncertainty” has been addressed.  As Mr Bristow notes in his trial report, by the end of the joint expert process with Mr Catalano “the largest management issue to control water quality is the erosion and subsequent mobilisation of sediments from the disturbed areas, primarily being the quarry pit, working face and backfill areas, during flood events”.  As I have noted, the revised sub-staging plans involving Stages 4 and 5 contain the requirement that operations in the sub-stages closer to the river be restricted to the dry season, and the armouring and other methods proposed by Mr Collins in his trial report will (with the many other conditions agreed between Mr Collins and Mr Clarke and the water quality experts), on the balance of probabilities, adequately manage these issues and thus reduce the impact on the waterway to an acceptable level.  Mr Bristow also mentions the permeable bund system proposed by Mr Paul King in relation to noise attenuation which I will deal with later.  He also refers to Dr Shorten’s report which I have found is neutral in its effect for the reasons stated earlier.

1. Council submits that condition 14(d) in the form proposed by the water quality experts offends the finality rule.  In view of the refinements in design to the proposal, particularly in relation to Stages 4 and 5 since the joint expert process, such a stringent condition is not required so it is not necessary for me to finally resolve this issue of law.  Mr Collins and Mr Clarke both agreed that the annual auditing provisions relating to Stages 1 to 3 could be incorporated into the EMP for the whole site, and will allow significant time (approximately seven years) to audit Stages 1 to 3, and to refine the flood management strategy for Stages 4 and 5, and this is sufficient in my opinion.  The condition in 14(d) proposed by Mr Bristow and Mr Catalano is similar in its effect to the conditions held to be impermissible in McBain v Clifton Shire Council,[43] in that it tends to put off until a later date decisions that could fundamentally alter the nature of the proposal.  As I say it is not necessary for me to consider this argument further.

   [43] [1996] 2 Qd.R 493

1. One of the issues that impact on the opinions expressed by the flood experts and therefore the water quality experts during the joint expert process was the TUFLOW modelling undertaken by Mr Collins to assess flood impacts over the full range of river flood events from ARI one year to 100 years.  All experts agreed that it was the appropriate instrument for this purpose.  It models flood impacts and includes predictions over all events such as inundation velocities and bed shear stress, which are important in predicting erosion rates (and therefore) unacceptable impact on the waterway, particularly of the escape of finer grained sediment.  Reference to the modelling is contained in (for example) paragraph 10 of the second joint expert report dated 1 April 2016 where velocity is predicted close to the river (towards and including Stage 4 and Stage 5 and the riparian buffer) to be high, significantly during the short period of bund overlapping prior to pit inundation.  The bund inflow and outflow spillways were not included in the modelling, and of course, it does not take into account the significant changes in the proposal designed to prevent pit failure and sediment loss resulting from Mr Collins proposals, and the amended sub-staging proposals that have occurred since the joint expert process. 

1. Exhibit 19 is a series of emails initiated by Mr Collins (and including Mr Clarke, Mr Bristow and Mr Catalano), in which he identifies an anomaly in the TUFLOW modelling software identified on user forum websites which leads to an overestimate, and therefore inaccuracies of bed shear stress, early in a flood event i.e. prior to inundation of exposed pits, when depth is shallow.  I accept Mr Collins’ opinion that in the first 1 to 1.5 hours of a flood event the model will significantly overestimate bed shear stress.  These emails were sent in May and therefore subsequent to the second JER of the water quality experts on 1 April.  Given my findings above in relation to the flood evidence, Exhibit 19 and Mr Collins’ opinion as to its significance does not affect or alter my conclusions.

1. At p 13 of the report[44] Mr Bristow and Mr Catalano refer (I infer) to these model anomalies, and suggest alternative modelling using another instrument.  This was not done, and Mr Collins did not think this was necessary because of the changes to the proposal.

   [44] Exhibit 3 p. 3678

[33]Accordingly, the effect of s 4.12(k) is that the proposed use is “not consistent” with the purpose of the zone for which it was proposed. The expression “not consistent” is used as a synonym for the word “inconsistent”, as is suggested also by the general provision in s 1.11(2) that “[u]ses not specifically identified in column 1 of each assessment table are considered to be inconsistent uses.” Having regard also to the context supplied by ss 4.9, 4.10, and 4.11, s 4.12(k) conveys that the proposed use is inconsistent with the Rural General zone code. The fact that the Planning Scheme eschews any express statement of a “conflict” or “inconsistency” between the scheme and a decision on an application concerning this proposed use, or any particular use, does not detract from that conclusion. Nor does the presence of the specific provision in s 4.11(2)(b) supply a ground for reading down the clear words of s 4.12(k). In the absence of any other provision which qualifies the operation of s 4.12(k) in relation to the proposed use, that paragraph requires the conclusion that a decision to approve the application is at variance with the Planning Scheme.”

In Gillion Pty Ltd v Scenic Rim Regional Council (2013) QPELR 711, the use was identified in the Table of Assessment for the particular Zone, and was, as a matter of construction “inconsistent” in that Zone, but nonetheless subject to impact assessment against the Scheme including a specific Code for that use. “Generally inappropriate” as a matter of construction may not be the same as “not consistent” or “inconsistent”, but nevertheless, for the reasons expressed by Fraser JA., it would still follow (as Council submits) that the proposal here is at variance with that part of the scheme, when read as part of the whole.

1. More elaboration of the effect of this provision in that Scheme came in the next Westlink case; Lockyer Valley Regional Council v Westlink Pty Ltd (2012) LGERA 452 from [11] – [15] which paragraphs were reproduced by Judge Robin QC at [41] of his judgement in Westlink Pty Ltd v Lockyer Regional Council & Ors [2013] QPEC 35.

CP2014

1. In essence, I accept the parties’ submission that its terms do not alter their respective approaches.  It should be afforded weight, as it is now the current Planning Scheme for the City.  At all levels of the Scheme, the same or similar terminology is employed, although the structure of the Scheme, in line with the prevailing views of the planners who write these Schemes, is different and different terminology is used, e.g. Elements becomes Themes etc.  Before turning to the Codes in both CP2000 and CP2014, it is important to note a number of features of CP2014.

1. The Land Use Strategic Framework Map contains a number of changes to Map A in CP2000.  The land is no longer in the greenspace and rural neighbourhood designations, and is designated as “extractive resource”.  Consistently with the policy expressed in CP2000 to allow no further sand and gravel extraction from the Brisbane River, a sand resource located to the south of the Map and close to the Brisbane River has been removed.

1. Instead of a neighbourhood plan, the locality is now governed by the Bracken Ridge and District Neighbourhood Plan Code, the purpose of which is to “provide finer grained planning at a local level”.  At 7.2.2.3.2(13) reference is made to the Bald Hills/Bridgeman Downs precinct and similar wording is employed to that in the first paragraph of 2.5.1 of CP2000.

1. As I have noted, Council refers at [139]-[143] of its submission to the Strategic Plan provisions which did maintain similar themes as those discussed above in relation to CP2000 in relation to rural lands, waterways, ecological and biodiversity values.

CP2000 and CP2014 Codes

1. The reasons for refusal assert conflict with the purposes of many Codes in both planning schemes.  As can be seen from the reasons for refusal,[73]  In paragraphs 2, 3, 5, 6, 7, 8, 9, 10 and 11 (relating to CP2000); and 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26 and 27 (relating to CP2014); conflict is alleged in relation to purpose provisions and performance outcomes relating to unacceptably adverse impacts in relation to visual amenity, on the waterway corridor and the river (particularly relating to water quality), biodiversity and ecological values in the river and on downstream wetlands; air and noise omissions, native habitat and fauna, flood planning and safety during flood events, acid sulphate soils, riparian vegetation and ecological and landscape values, and generally the environment, and inadequate rehabilitation.

   [73] Exhibit 2

1. As I have noted earlier, Council has conceded that the proposal should not be refused in relation to native habitat, fauna, flora and ground water issues, and some of the alleged conflicts, e.g. acid sulphate soils, are not pursued; and some were the subject of agreement between experts.  The remainder focus on the disputed issues of visual amenity, flooding and water quality, noise and air quality which I have resolved in Neilsens favour.

1. The grounds also allege conflict with the SEQRP in relation to impacts on urban stormwater, and suitable water cycle management which is not pursued.  The other issues relate to water quality and flooding and impact on downstream waterways and wetlands. 

Conclusion on conflict

1. I referred earlier to (152) of Council’s written submissions.  As I understand the submission (as developed at 268-270), Council is suggesting that the “nature and extent of the conflict must be assessed” which it is submitted, is a “separate and distinct step from determining whether there is conflict with the planning documents themselves”.  The authority relied upon is an observation made by Andrews SC DCJ in Woodman McDonald Hardware Pty Ltd v Mackay Regional Council:[74]

“The threshold issue in the SPA s 329(1) is whether there is a conflict with the planning scheme. The significance of a conflict with the planning scheme is not part of the threshold issue.”

[74][2013] QPELR 496 at [62]

1. Later (at [68]), his Honour wrote:

“This approach is consistent with the approach determined to be proper in Weightman v Gold Coast City Council where the Court of Appeal, dealing with an equivalent issue in s 4.4(5A)(b) in the Planning and Environment Act (repealed), determined that the nature and extent of the conflict was relevant when considering the sufficiency of planning grounds to justify the conflict. The three step process in Weightman is not the process to determine the existence of a conflict.” (footnotes deleted)

1. Weightman v Gold Coast City Council[75] per Atkinson J at [453], has been consistently applied as being the correct approach to decision making in circumstances such as the present. Her Honour, construed s 4.4(5A)(b) of the repealed Local Government (Planning and Environment) Act 1990, which is practically in the same terms as s 329(1)(b) of the SPA and s 3.5.14(2)(b) of the IPA which applies here. The so called three stage process enunciated by Atkinson J is worth restating in light of Council’s submissions:

“[36] In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s 4.4(5A)(b) of the P & E Act, the decision maker should:

1.        examine the nature and extent of the conflict;

2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;

3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.

[75](2003) 2 Qd R 441

1. As her Honour observed at paragraph [35], the terms of s 4.4(5A)(b) are framed in the negative, i.e. (the assessment manager) “must be refused … if there are not sufficient planning grounds…”.

1. In the IPA and the SPA, the phrasing is different so that the decision “must not conflict…unless there are sufficient grounds”. As the Court recognized in Lockyer Valley Regional Council (supra), in relation to the IPA provision (at [16]):

“It was not in issue that the correct approach to that provision was that which Fryberg J expounded in Woolworths Ltd v Maryborough City Council (No 2): 

―‗Conflict’ in this context means to be at variance or disagree with. It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme). Unlike ‘compromise’ in para. (a), it implies no particular impact by a subject upon an object. A determination that there has been a breach of the requirement that ‘the assessment manager‘s decision must not … conflict with the planning scheme’ requires the identification of the decision, the identification of some part or parts of the scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.
Section 3.5.14(2)(b) differs in several respects from s. 4.4(5A) and s. 4.13(5A) of the Local Government (Planning and Environment) Act 1990, provisions which may be regarded as its predecessors. Under those sections the subject of the putative conflict was the application; here it is the assessment manager‘s decision. Under those sections the object of the conflict was any relevant strategic plan or development control plan; under the present section it is the whole planning scheme. Under those sections (if they applied) the result was a refusal of the application in the absence of sufficient planning grounds; here the result in the same circumstances is simply a non-conflicting decision. Under those sections what required justification was approval of the application; under the present section what requires justification is the decision. Moreover, the grammatical structure of the two sections is significantly different. These differences mean that care must be used in applying the cases decided under those provisions to the present section.
If s. 3.5.14(2)(b) is dealt with in the sequence suggested by its form the identity of any conflicts between the decision and the scheme will have been established by the time the question of justification comes to be considered. That question will require the identification of planning grounds which might justify the decision and the determination of their sufficiency to do so. In making that determination regard will doubtless be had to the nature and extent of the conflict. That is substantially the process approved by this Court in Weightman v. Gold Coast City Council in relation to a previous section. It would, however, be a mistake to treat the relevant passage in that judgment as if it were a code for the determination of justification. Some of the submissions in the present case smacked of that error.”

1. The important point here in relation to Council’s submission is that these so called “decision” provisions relate to an “application… for development”.  The application is the proposal in full including all of its features as discussed above. As Fraser JA observed in Lockyer (at[18]), a reference “to a decision to approve the application should be understood as comprehending any approval subject to conditions.”  If all that Council is saying is that the conflict is so great that no grounds are sufficient to overcome it, that is accepted as a legally correct proposition; however the “examination of the nature and extent of the conflict” cannot be done in a vacuum; it has to be done by reference to the proposal with all its component parts, by reference to the relevant planning scheme provisions. 

1. I do not accept Neilsens submission that there is no conflict, nor do I think that Council’s submission that there is serious conflict with CP2000 across the whole scheme is made out. My findings set out above, and based on my interpretation of the relevant provisions, leads me to conclude that the proposed use is “generally inappropriate” in the Rural Area and is not actively discouraged or encouraged at the relevant Local Plan area; but is, with the stringent conditions to be imposed, capable of protecting and enhancing the waterway and visual amenity, such that impacts are reduced to acceptable levels. Across the whole of the Planning Scheme there is some conflict in that in the extraction stage, the proposal does not “protect and enhance” landscape values of the site, but is capable of doing so once the final stage of the Rehabilitation Plan takes effect. I would categorise this conflict as approaching moderate.

1. I now turn to the only ground advanced as capable of overcoming such conflict.

Need

1. The principles extracted from the cases referred to in 99(a) and (b) of Neilsens’ submission are accepted, as are the observations in cases such as Bassingthwaighte v Roma Town Council & Ors;[76] and Luke v Maroochy Shire Council;[77] and those referred to at [280] of Council’s submissions, particularly the cases that note that demand is not the same as need.  A number of these important principles that have been applied through many changes in the legislative framework are referred to by Skoien S DCJ in All-a-wah Carapark v Noosa Shire Council.[78]  Care however has to be taken in applying uncritically the principles set out in bold at [280] of Council’s submission that consideration of need in a town planning case must yield to the decisive effect of amenity and other town planning considerations, which is referred to again by Skoien S DCJ in Roosterland Pty Ltd & ITS Agents v Brisbane City Council.[79]  Cases such as these predated the Weightman approach which governs the approach to the assessment here.

   [76] [2011] QPELR 63 at [109]

   [77] [2003] QPELR 447 at [34]

   [78] [1989] QPLR 155 at [157]-[158]

   [79] [1986] QPLR 515 at [517]

1. Mr Norling (for Neilsens) and Mr Marcus Brown (for Council) gave evidence on this issue and produced one joint report dated 30 March 2016, and Mr Norling produced a trial report, and both gave evidence in the appeal.  They reached substantial agreement and diverged only as to the level of need.  Mr Norling characterised the need as “strong”, and Mr Brown as “demonstrable”; which he conceded in cross-examination meant the same as “significant”.  The economists were informed by the advice from Mr Gray and Dr McConachie as to the availability of like resources.  Council adopted Mr Brown’s evidence but characterised it as “some need”, and then proceeded, from paragraphs 284 of its submission to set out reasons why “the need is diminished”.  The evidence is that most of the material to be extracted from the site will be used by Neilsens in their concrete batching plants.  Council makes much of the statement in Mr Panuccio’s statement, that if the appeal is dismissed Neilsens will source sand and gravel from its other outlets and the concrete batching plant will continue on the Brendale site.

1. Ultimately, the nub of the dispute about the level of need objectively demonstrated is set out at paragraph 141(d) of the JER:

“(d)While Brown acknowledges the importance of sand and gravel to the development of communities and infrastructure; the ongoing and rising demand for natural sand and gravel; the scarcity of natural sand and gravel within Neilsens identified catchment; and the relatively higher costs associated with substitutes (either in the form of manufactured sand or resource brought into the catchment from further afield), a number of factors militate against Brown identifying a higher level of need than ‘demonstrable’ these being:

i. As noted in GJER2 of Mr Dugald Gray and Dr Bruce McConachie there are obvious substitutes for the Neilsens resource either in terms of manufactured sand and gravel or sand and gravel from other parts of SEQ, however accessing these alternatives comes at a cost.  The industry has been transitioning to alternatives to natural sand and gravel as resources have dwindled.

ii. The nature of the quarry and aggregates industry indicates that the resources extracted by Neilsens at the Bald Hills North quarry would be largely for their own use, although Neilsens have from time to time supplied other concrete manufacturers.

iii. Neilsens is one of the smaller players in the SEQ cement and aggregates market (and also within their own catchment).  With Neilsens being a price taker in the marketplace, the majority of increased costs associated with failure to receive approval for the Bald Hills North quarry would be borne by Neilsens, as opposed to end users (i.e. Neilsens would need to absorb the majority of increased costs, or face a reduction in market share).

iv. The primary benefit of the approval of the Bald Hills quarry appears to be the preservation of the competitive position of The Neilsens Group in the concrete and aggregates market.  Hence, any consideration of the benefits of maintaining choice and competition within the market place must be tempered by the actual extent of Neilsens market power to influences prices.

v. The active presence of Neilsens does create some level of competitive tension in the Brisbane North/Moreton Bay concrete aggregates market, but as already stated this is unlikely to be such that Neilsens have a material influence on concrete and aggregate prices.”

1. As to points ii.-v., I agree with Neilsens’ submission to the effect that all concern characteristics of Neilsens, and run contrary to established principle that assessment of a proposal is about land use, and not the characteristics of a particular proponent; in the sense that planning law “is concerned with the use of the land – not with the identity of the user”: GMF Contractors Pty Ltd v Shire of Serpentine – Jarrahdale.[80] 

   [80][2006] 151 LGERA 74 at [67]

1. As to i., I have noted that the constraints in relation to the costs of manufacturing sand, and to added transport costs.  In this regard Mr Brown accepted that the transportation costs saved for the construction industry over the life of the quarry would be in the order of $85 million, being $7.1 million to $8.5 million per year over the life of the 12 year extraction component of the proposal.  I have also noted the lack of evidence about crushing technologies, although clearly that is taken up by agreement between the economists that there will be extra costs involved in the manufacture of sand, although Mr Brown to some extent speculated that manufactured sands might be more cost effective than natural sand.  There is no evidence of this before me.

1. Mr Brown fairly conceded that if the Court regarded his five points as irrelevant, he would identify the level of need as “approaching strong”. 

1. There is no controversy about the following statements made by the economists in the JER:

“17. Unlike many land uses, quarries can only locate where sufficient quality resources exist in a location that is economically viable to extract. They are therefore site specific.
18. Unlike mining for metals or coal, quarry materials like aggregate, sand, road base and clay, are high volume, low-cost materials that need to be extracted and ideally processed as close as possible to the communities that use them. This is due to the high relative cost of transporting low-cost heavy materials. It is possible for a region to attain a competitive advantage if positioned in close proximity to a cheap source of building materials. Australian cities and towns generally benefit from being located close to sufficient quantities of these resources located nearby. This has avoided some of the undue upward price pressures on road base, aggregate, sand and clay down, thereby in part thus avoiding undue price pressures on the total costs of the building and construction industry. Exceptions do occur and are likely to more frequently arise, especially in larger urban areas, where quarries and extractive resource area have either been exhausted or sterilized by nearby urban development. For example, the average haulage distance to Sydney of quality aggregate is now understood to be in excess of 150km, which imposes a significant cost penalty upon the community.

19. This urban encroachment is also occurring in South-East Queensland, due to the high rates of population growth that have occurred, and where the population is anticipated to continue to grow into the future. Where resources are available and there are no undue adverse social, environmental or other impacts, it is both beneficial and in the community’s interest for a quarry to be developed close to development activity due to the high relative costs involved in transporting the extracted material…
56. The primary market for sand, gravel and other products (including concrete) produced at the Brendale Quarry is considered to be northern Brisbane, including that part of the Brisbane City Local Government Area (LGA) north of the Brisbane River and the Moreton Bay Regional LGA (see paragraphs 95 and 96 and Figure 7). This area is therefore identified as the Brendale sand and quarry Catchment Area…
67. There are fewer sand resources compared with hard rock resources in the north Brisbane and Moreton Bay locality. The above Table 2 identifies four sand/sand and gravel quarries that are currently operational in the north Brisbane and Moreton Bay area:

(a) Meldale/Donnybrook (operated by Holcim (Australia) Pty Ltd;
(b) Ningi and Beachmere (operated by Southern Pacific Sands); and
(c) Pine Rivers South (Brendale, operated by Neilsens)…

69. All of the above operating sand/sand and gravel quarries are also located within Key Resource Areas within the Moreton Bay Regional local government area, apart from the Pine Rivers South KRA, which straddles the border between the Moreton Bay and Brisbane City local government areas. The subject site is included within the Pine Rivers South KRA 60 which sits within the Moreton Bay Region and Brisbane City LGAs. The subject site is therefore strategically located to cater to both the north Brisbane City and Moreton Bay Regional markets. It is also the most proximate sand and gravel resource to the inner and northern suburbs of Brisbane City.
70. Upon exhaustion of the aforementioned KRAs (or closure of quarry operations at those sites), sand and gravel resources would need to be sourced from further afield or substituted with manufactured sands.
71. It is particularly relevant to note that the Meldale/Donnybrook, Ningi and Beachmere sands are largely fine to medium sand, which are quite different to the properties of the medium to coarse sand and gravel at the Pine Rivers South quarry. The Pine Rivers South resource is the only approved Catchment Area resource producing coarse river sand and gravel. This application seeks to extend this resource from an expected six month timeframe to between ten and twelve years.
72. There are six hardrock quarries within the Catchment Area that are currently operational, of which five produce greater than 200,000 tonnes per annum. Again, the majority of these quarries are located within the Moreton Bay LGA, with only three hard rock KRAs identified in north Brisbane City (of which only two are operational)…
77. As a result of the declining availability of natural sand, manufactured sand, made from crushing hard rock, has emerged as a necessary alternative to natural sand for some applications but is understood to be unsuitable for fill…
88. There is a strong demand for quarrying materials in South East Queensland and this is clearly demonstrated by the strong growth that has occurred in the price for these materials. The estimate of $AU per tonne of sand and hard rock has increased significantly over time as shown in TABLE 4 below. Aggregate prices have increased at approximately one and a half times the rate of inflation.
89. These significant price increases for sand reflect a combination of sand resources becoming more restricted and the increased environmental costs of quarry operations.”

1. To a certain extent, Council, in seeking to diminish the effect of the evidence of its own witness Mr Brown, has fallen into the same trap as he did in conflating the concept of planning need with the private interests of Neilsens, and the effect on them of a refusal.  I comfortably accept the evidence of Mr Norling that in a planning sense Neilsens have established a strong need for the proposal.

The significance of the DEHP and Moreton positions

1. I have referred earlier to the position taken by Moreton in the proceedings.  In the Moreton scheme the part of the site in its local government area is zoned as extractive industry.  The only relevance therefore of its position is that it could have directed Council to refuse the application but did not.  It is otherwise irrelevant to the impact assessment against CP2000 and the other planning instruments.  Exhibit 2 contains additional grounds for refusal by alleging conflict with the 2016 Moreton scheme, but Mr Bain QC properly concedes that if I am against him on the conflict issue with the Council planning schemes and State Planning Policy, then these grounds are unsustainable.  The DEHP’s position is relevant only to the extent that it is the State environmental regulator with respect to environmental issues, and its consent is subject to an extensive array of conditions in the permits, which include ongoing involvement in monitoring.  Its position does not detract from the need for the Court to undertake impact assessment of the proposal as amended and with conditions against the relevant planning instruments.

1. For the reasons expressed above, the strong need for the resource, as demonstrated in the evidence of Mr Norling, is sufficient to overcome conflict with the planning instruments.

Order

1. The appeal is adjourned to enable the parties to formulate conditions in accordance with these reasons and the conditions otherwise agreed to, including those required by Morteon and DEHP.