Neilsens Quality Gravels Pty Ltd v Brisbane City Council

[2015] QPEC 29

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Neilsens Quality Gravels Pty Ltd v Brisbane City Council

[2015] QPEC 29

PARTIES:

Neilsens Quality Gravels Pty Ltd (applicant)

v

Brisbane City Council (respondent)

and

Queensland Electricity Transmission Corporation Limited

(first co-respondent by election) and

Richard Townley-O’Neill

(second co-respondent by election)

FILE NO/S:

1424 of 2015

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVEREDON:

17 June 2015

DELIVEREDAT:

Brisbane (Ex tempore)

HEARINGDATE:

17 June 2015

JUDGE:

Rackemann DCJ

ORDER:

1.   The application be allowed.

2.   The request be approved subject to the agreed conditions in the development approval package.

3.   Each party bears their own costs.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Request to change a development approval – proposed change to water treatment train for proposed quarry – where changes to configuration and operation of ponds, but with no new or increased impacts
– whether substantially different development – whether changes would be likely provoke a properly made submission

COUNSEL:	JE Gallagher QC & MF Johnston for the appellant
SOLICITORS:	Minter Ellison for the appellant Brisbane City Legal Practice for the respondent Norton Rose Fulbright for the first co-respondent by election

[1] This is an application, pursuant to section 369 of the Sustainable Planning Act, for a permissible change to a development approval granted by the Court on 14 May 2014. The original approval was for a material change of use for an extractive industry, a material change of use for an environmentally relevant activity (ERA16) and for operational works in respect to land located in Brendale and Bald Hills. The original proposal was impact assessable.  Its operation is as a sand and gravel quarry.

[2]     Section 367 of the Act defines a permissible change. Relevantly, for present purposes, it must be one which would not, because of the change: (a) result in a substantially different development or (c) be likely, in the responsible entity’s opinion, to cause a person to make a properly made submission objecting to the proposed change is the circumstances allowed.

[3]      The change relates not to the extent or quantity of resource extraction, but to the way in which water is dealt with. The development is required to deal with both waste water both from on its own development and also with storm water which comes onto the site from an adjoining industrial development area. As approved, the proposal includes a series of ponds, for that purpose.

[4]    A number of ponds to be used for the new operation were existing ponds used in relation to a pre-existing use. When the ponds were examined more closely, it emerged that there would be difficulties in using the ponds for treatment of the waste water in the manner proposed. In particular, a concern was raised in relation to the removal of accumulated sediments in ponds 1 and 2 because the geotechnical stability of material in the ponds gave rise to a potential, when cleaning, for slumping of silts and the failure of the walls to occur. As men and machinery were required to be sent

into the ponds to clean them to their target limits and depth, there was a concern about a risk of failure during deep cleaning.

[5]    Ponds 1 and 2 were originally excavated for sand and gravel several decades ago, and the final limits and floor levels were not accurately known, but were suspected to be deeper than RL0 metres AHD. In that event, in order to establish a working platform for the excavator and trucks which were to clean, they would need to be excavated beyond RL0 metres to the firm base of the original pit, thus adding further to the geotechnical risk of failure.

[6]    These concerns were raised with the geotechnical engineer engaged by the applicant who confirmed the safety-related risks. The engineer further advised that the proposed construction of a bund wall around pond 2, to provide river flood immunity, would add further loading to the perimeter of the pond which, along with the adjacent usage, could exacerbate the risk of pond wall failure. Concerns were also raised about the narrowness of the levy bank between pond 2 and pond 4 and erosion into the southern part of the pond 4 levy bank. Evidence of the onset of slumping failure along the western wall of pond 2 became apparent. The limits of pond 2 were found to extend further to the north-west than those indicated on the plans and the conditions of approval.

[7]    A conclusion was reached that the geotechnical conditions encountered meant that pond 2 (and most probably pond 1 as well) could not safely or practically be extracted and used in accordant with the approval. This caused the applicant’s consultants to look for a better solution. The alternative solution involves ponds 1 and 2 receiving flocculated waste water under normal operation. Previously, the approval allowed for flocculent to be used, but only as a contingency.

[8]    Using ponds 1 and 2 to receive flocculated water under ordinary operation allows their size and method of operation to be modified to avoid the identified difficulties. This will also allow ponds 4 and 5 to act as water storages, rather than as sediment ponds. This also presents the opportunity to review the configuration of pond 4. The result is a reduction in the area and capacity of pond 4 in order to address the riverbank erosion and obviate risk. Consequently, the external storm water from the industrial area, which was initially to be contained within ponds 4 and 5, is now to be redirected to one of the other ponds, that is, pond 3. There are other more detailed changes which are unnecessary for me to recount.

[9]     The changes in the water management circuit may be summarised as follows:

(a)    the introduction of flocculant to the wastewater as part of normal pond operations to accelerate the settlement of fines, instead of a free-settlement process and instead of flocculation only being added as a contingency measure in the event of non-compliant water;

(b)   consequential changes to the pond arrangement to resolve safety problems caused by the on-site geotechnical conditions;

(c)    a consequential diversion of stormwater that originates from the external industrial estate land to pond 3 instead of diversion to ponds 4 and 5.

[10]   I have already noted that the changes are limited to the water management circuit and do not have any effect on the nature or extent of the extractive industry operation. Similarly, they do not extend the use onto any new parcel of land or involve any new component or the removal of any integral element. They simply change the configuration and operation of an existing component, namely, the water circuit.

[11]   The consequences of the changes have been the subject of expert assessment from both a flooding and a water quality perspective. The former was assessed by Mr Neil Collins, a well-known hydraulic engineer, who concluded that the changes would not result in any significant new flooding impacts than those of the approved design. Indeed, the result of his analysis was that, as for the approved proposed development, the impacts of the development are localised in an area either within the land owned by the applicant or the land owned by the principal of the applicant, with no adverse impacts upon habitable dwellings or on Linkfield Road. Flood storage across the site has been maintained or improved for all ARI flood events from 2 to 100 years.

[12]   Insofar as water quality is concerned, the evidence of Mr Bristow, a well-known consultant in this field, is that the water management system, which continues to cover the same area as it did under the conditions of approval and, effectively, is of the same scale, bulk and appearance, still delivers the same water quality outcomes as were required under the original conditions of approval.

[13]   In the circumstances, I am comfortably satisfied that the changes do not result in a substantially different development.

[14]   Insofar as the likelihood of the change provoking a properly made submission if circumstances allowed, I have had regard to the expert analysis of the effects of the changes, and to the matters which were the subject of submissions when the original application was advertised. Those matters are summarised in the affidavit of Mr Buckley, a well-known town planning consultant.

[15]   As Mr Buckley points out, whilst water quality and water quality management was raised in some of the submissions, and, in particular, the submissions discussed aspects of water quality outcomes, outputs, the effects relating to flood and drought

conditions and the like, none raised a comment or an objection about the particular water quality treatment system used to deliver the outcomes or effects. What the applicant proposed to do with the ponds or even the use of the pond was not commonly acknowledged in the submissions. It is understandable that matters in relation to effect and impact were of more concern than the precise mechanisms.

[16]   In this case, in a broad sense, the mechanism to deal with water is similar to that which was approved. It is designed to achieve the same outcomes in impact mitigation, and, on the material before me, will do so. There is no basis for thinking that there is any substantial (as opposed to remote) prospect of a potential submitter – particularly one assumed to be objective and rational – making a submission objecting to the change if circumstances allowed.

[17]   I am satisfied that the change proposed, and, indeed, the consequential changes to conditions (which been agreed between the parties) fall within in the definition of a permissible change, and I am satisfied that it is appropriate, as a matter of discretion, to permit the change to be made.