Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council and Ors
[2014] QPEC 24
•16 May 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors [2014] QPEC 24
PARTIES:
PARKLANDS BLUE METAL PTY LTD ACN 010471548
(appellant)v
SUNSHINE COAST REGIONAL COUNCIL
(respondent)and
CHIEF EXECUTIVE ADMINISTERING THE TRANSPORT INFRASTRUCTURE ACT
(first co-respondent by election)and
CHIEF EXECUTIVE OF THE DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION AND CHIEF EXECUTIVE OF THE DEPARTMENT OF NATURAL RESOURCES AND MINES (FORMERLY CHIEF EXECUTIVE OF THE DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT)
(second co-respondent by election)and
YANDINA CREEK PROGRESS ASSOCIATION
(third co-respondent by election)and
OTHERS
(fourth – twelfth co-respondents by election)FILE NO/S:
D247/11
DIVISION:
Planning & Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning & Environment Court, Maroochydore
DELIVERED ON:
16 May 2014
DELIVERED AT:
Maroochydore
HEARING DATE:
18–29 November 2013, 7 February 2014
JUDGE:
Robertson DCJ
ORDER:
Appeal allowed and adjourned to formulate conditions
CATCHWORDS:
APPEAL AGAINST REFUSAL – where proposal has strong planning support in State Planning Policy and Planning Scheme; where proponent must satisfy the Court that the inevitable impacts on amenity from noise, dust, traffic from such a use can be acceptably limited or minimised, and that there is a need and community benefit for quarry products.
AMENITY – where visual amenity impacts are alleged to be significant on residences within a 2 kilometre radius of the proposed quarry; where submitters allege unacceptable impacts both visual and general, tangible and intangible.
NEED – where proponent must establish a community benefit; whether proposal is too late in the sense that the Key Resource Area designated for the site is sterilised because of significant residential encroachment since a 1992 approval by this Court for a rezoning to permit extractive industry on the site.
AVIATION SAFETY AND EFFICIENCY – where site is within the flight path of the proposed new east/west runway for the Sunshine Coast Airport; whether fly rock from unconstrained blasting presents an unacceptable safety risk to aircraft departing and arriving via the new runway.
QUARRY PRODUCTS AND OPERATIONS – whether proponent has presented sufficient information to enable the Court to properly assess impacts on environmental and general amenity; where Council expert failed to raise myriad objections and criticisms in the Joint Expert process supervised by the ADR Registrar.
Legislation:
Integrated Planning Act 1997
Sustainable Planning Act 2009
Cases:
Ackland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 342; [2007] QPEC 112
Arksmead Pty Ltd v Council of the City of Gold Coast & Ors [1999] QPLR 322
Broad v Brisbane City Council [1986] 2 Qd R 317
Fitzgibbons Hotel Pty Ltd & Ors v Logan City Council & Anor [1997] Q.P.E.L.R. 2008
Intrafield v Redland Shire Council [2001] 116 LGERA 350
Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors [1996] Qd R 266
Mansell v Maroochy Shire Council & Ors [2008] Q.P.E.L.R. 122
Reservilt Pty Ltd v Maroochy Shire Council (2002) 123 LGERA 233
SDW Projects Ltd v Gold Coast City Council [2007] Q.P.E.L.R. 24
Seabridge Pty Ltd v Beaudesert Shire Council [2001] QPELR 191
Stockland Development Pty Ltd v Sunshine Coast Regional Council [2013] QPEC 79
Suncoast Quarries Pty Ltd v Council of the Shire of Maroochy & Ors [1992] QPEC 72
Sunshine Coast Quarries Pty Ltd v Maroochy Shire Council & Ors (BC9202242, unreported decisions of the Planning and Environment Court, 23 January 1992)
Telstra Corp Ltd v Pine River Shire Council [2001] QPELR 350
Vacuum Oil Co Pty Ltd v Ashfield Municipal Council (1957) 2 LGRA 8
Westfield Management Ltd v Pine Rivers Shire Council [2005] Q.P.E.L.R. 337
COUNSEL:
Mr MD Hinson QC and Mr JD Houston for the Appellant
Mr CL Hughes QC and Mr A Skoien for the Respondent
Ms NJ Kefford for the 3rd-12th Co-Respondents
SOLICITORS:
P&E Law for the Appellant
Mr G Phillips - Sunshine Coast Regional Council Legal Services for the Respondent
Mr S Barclay - Department of Environment and Heritage Protection for the 2nd Co-Respondent
Andrew Morris Legal Practice for the 3rd-12th Co-Respondents
INDEX
Introduction ………………………………………………………………. 4
The proposed hard rock quarry …………………………………………… 6
The legislative framework …………………………………………… 9
The planning instruments …………………………………………… 10
The issues ………………………………………………………………….. 18
Ecology …………………………………………………………………… 23
Air Quality …………………………………………………………… 24
Blasting …………………………………………………………………… 27
Traffic …………………………………………………………………… 31
Aviation Issues …………………………………………………………… 35
Noise …………………………………………………………………… 45
Quarry operations and Products …………………………………………… 51
Visual amenity ……………………………………………………………... 67
The evidence of the submitters …………………………………………… 73
Need …………………………………………………………………… 79
Town Planning issues …………………………………………………… 85
Conclusions …………………………………………………………… 87
Introduction
The appellant, Parklands Blue Metal Pty Ltd (“Parklands”), appeals against a decision of the Council made on 31 October 2011 to refuse its development application made in March 2009 for development permits for:
(a) a material change of use of premises (Extractive Industry);
(b) a material change of use (Environmentally Relevant Activity – 16);
(c) operational work (extraction of rock); and
(d) reconfiguration of a lot (access easement across lot 2).
The proposed quarry is to be developed on parts of land at 953 and 945 North Arm-Yandina Creek Road, Yandina, described as Lots 2 and 3 on RP214949 (“the site”).
The site is 98.27 hectares in area (Lot 3, the quarry site, being 88.24 hectares and Lot 2 to be used for access, being 10.03 hectares) and as frontage to:
(i) Pryor Road to the north-west, approximately 830 metres;
(ii) McCords Road to the east, approximately 145 metres; and
(iii) North Arm-Yandina Creek road to the south-east, approximately 195 metres; and
(iv) comprises two conical hills rising approximately 80 metres above the surrounding plains;
(v) is undeveloped on lot 3 and contains a single detached dwelling and outbuildings on lot 2.
The locality is described by the town planning experts as follows:
“3.0.3The subject land is located in Yandina Creek approximately 18 kilometres from Peregian Beach, 19 kilometres from Yandina, 18 kilometres from Eumundi, and 12 kilometres from Coolum by road. The immediately surrounding area is generally mixed rural and acreage living, with a range of larger properties previously used for sugarcane, some horse related uses and small rural and large acreage lots with houses on many of these.
3.0.4Within a 2 kilometre radius of the site there has been ongoing rural and rural residential growth and development from approximately 1992 to current times.”
The development application was impact assessable. There were a large number of objectors, and some submitters joined the appeal and were represented by Ms Kefford. The Department of Environment and Resource Management (now Department of Environment and Heritage Protection and Department of Natural Resources and Mines) (“DERM”) was both a Concurrence and Referral agency, and, on 1 April 2011 provided its response, which relevantly included a permit which approved, subject to extensive conditions, the Environmentally Relevant Activity (“ERA”) aspect of the proposal i.e. extractive and screening activity associated with the proposed quarry. It also provided other permits relating to vegetation clearance and response to wetlands, which are not issues in the appeal.
As part of the haul route intersects with and includes a State controlled road, the Yandina-Coolum Road, the Department of Main Roads, now known as the Department of Transport and Main Roads, (“DTMR”) was a concurrence agency. On 25 July 2011 it provided conditions to Council as assessment manager that it required to be attached to any approval.
DTMR did not (by leave) take any active part in the hearing. DERM was represented by in-house counsel Mr Stephen Barclay, who provided considerable assistance to the court during the hearing relevant to the issues in which his client has a statutory interest.
The proposed hard rock quarry
After lodging its appeal, Parklands has produced a number of amendments to its plans, and, on 14 November 2013 i.e. shortly before the hearing commenced, it produced Exhibit 8, its proposed Activity Based Management Plan (“ABMP”), the purpose of which is stated at 1.2 of the ABMP:
“1.2Purpose of the Activity based Management Plan (ABMP)
The ABMP is a management tool for guiding environmental management at the quarry. It is a “working” management document which identifies potential environmental impacts, including those identified in various reports and assessments prepared in the course of the approval process and sets out commitments, controls and measures to manage and control and minimize those impacts.
Activities and plant and equipment with the potential to generate environmental impacts are described along with the controls proposed to achieve or maintain the nominated acceptable levels of impact.
The principal objective of the ABMP is to address the provisions and requirements of the DERM (DEHP) permit conditions of approval including:
a)Protecting the general amenity of the site and surrounds during and subsequent to extractive operations;
b)Protecting the acoustic environment at surrounding residences and minimise the likelihood of complaint;
c)Controlling blast emissions to protect amenity and safety of premises in the vicinity of the quarry;
d)Protecting air quality of the locality and minimise the likelihood of complaint;
e)Protecting visual amenity;
f)Ensuring stormwaters are managed to provide for appropriate protection of downstream water quality;
g)Managing and reduce the potential for erosion and sedimentation;
h)Ensuring that appropriate landcare is carried out to appropriately manage, for example, the possible spread of weeds, unnecessary loss of habitat and uncontrolled fires;
i)Restricting land disturbance to that which is essential for the extraction and processing of quarry materials and according to proper safety considerations;
j)Minimising wastes generated by quarrying activities and control disposal of waste;
k)Minimising the contamination of air and land and preventing contamination of receiving waters;
l)Identifying a post extraction landform that is sustainable, stable and compatible with the site and surrounds and the planning scheme intent;
m)Fostering good relationships and co-operation with the local community; and
n)Documenting and periodically review and confirm measures to safeguard the environment including the environmental amenity of residents closest to the quarry lands are effective.
The ABMP aims to provide a framework for environmental management at the quarry and a practical guide for quarry personnel as they implement the quarry’s operational plans.”
It is proposed that the initial construction phase will take approximately 18 months. Lot 3 is presently vacant land and, as noted, contains two vegetated hills roughly conical in shape. Parklands proposes that the quarry would work the eastern (larger) hill on Lot 3; and part of Lot 2 would be used predominantly for an access road to link the processing plant on the quarry floor to McCords Road.
The quarry is to be developed with the preliminary stages beginning in the western slopes of the easternmost hill, and extending into that hill to the east. The current plans for the quarry development are the plans that represent a snapshot in time for Stages 1 through to 4 which appear at pp 4-7 of Exhibit 1.
The quarry is proposed to have an output of 350,000 tones per annum, with a maximum permitted output of 500,000 tonnes per annum in times of peak demand.
The fixed quarry processing plant will be located on a platform south-west of the quarry resource and will include plant, a stockpile area, workshop, office and weighbridge.
The quarry is proposed to operate between 6 a.m. and 6 p.m. Monday to Friday and from 6 a.m. to 6 p.m. on Saturday. From Monday to Friday between 6 a.m. and 7 a.m. and 5 p.m. and 6 p.m. there will be no production activity. Similarly in the hours 6 a.m. to 7 a.m. on Saturday there will be no heavy vehicle activity. Production on Saturdays will be confined to 7 a.m. to 12 noon with the remaining part of the day being available for maintenance and administration. There is to be no activity onsite during public holidays and Sundays.
The proposed development will employ approximately 10 permanent staff members. Transportation of materials from the site will be undertaken by either 19 metre articulated vehicles or rigid trucks with dog trailers, with an average load of 50 tonnes. The proposed development will generate a maximum 112 heavy vehicle trips a day, 56 of which will be loaded trucks.
The proposed development also includes the establishment of an access road along an easement to be established through Lot 2, 110 metres north of the McCords Road/Toolborough Road intersection. The access road will connect with McCords Road to the east, with quarry traffic then proceeding west and then south along North Arm-Yandina Creek Road, connecting to Yandina-Coolum Road via Toolborough Road.
The quarry excavation will be limited to an area of approximately 27 hectares on Lot 3 – the balance of Lot 3 (little over 60 hectares) will be left untouched.
The area to be excavated will be excavated using the receding rim method as described in the draft ABMP, which purposely maintains a buffer between the open pit and the nearest sensitive receptors, and maintains the eastern vegetated hillside as a screen.
The proposed quarry has estimated reserves of approximately 20 million tonnes; although as a result of evidence given during the hearing it is accepted that the reserves may be in fact less, approximately 17 million tonnes. The life of the quarry is expected to be approximately 40 years.
The legislative framework
The application was made under the now repealed Integrated Planning Act 1997 (“IPA”). Pursuant to s 819 of the Sustainable Planning Act 2009 (SPA), the Court must hear and decide the appeal under IPA as though SPA had not commenced.
It is for Parklands to establish that the appeal should be allowed. The application was impact assessable and is to be assessed by the Court, standing in the shoes of the assessment manager, by reference to s 3.5.5 of IPA, and decided in accordance with ss 3.5.11 and 3.5.14 of IPA. Under the IPA, the appeal is by way of hearing anew and must be decided based on the laws and policies applying when the development application was made, although the Court may give weight to any new laws and policies that it considers appropriate (s 4.1.52(2) of the IPA).
The Court’s decision must not conflict with the Planning Scheme, unless there are sufficient grounds to justify the decision despite the conflict: s 3.5.14 of IPA.
It is necessary for the Court to determine whether a decision to approve the proposed development will conflict with the Planning Scheme. The relevant Planning Scheme is the Maroochy Plan 2000 (“the Planning Scheme”). Any alleged conflict must be plainly identified: Fitzgibbons Hotel Pty Ltd & Ors v Logan City Council & Anor [1997] Q.P.E.L.R. 2008.
It is common ground that the principles set out in Westfield Management Ltd v Pine Rivers Shire Council [2005] Q.P.E.L.R. 337 at 342 guide the proper approach to construction of the Planning Scheme and other relevant planning instruments. A complete extract from the judgment is replicated at para [189] of Council’s written submission. In determining whether there is a conflict, the court ought to construe the Planning Scheme broadly, taking a sensible and practical approach, reading the Planning Scheme as a whole.
Under s 3.5.5 of the IPA, impact assessment is to be carried out having regard to (relevantly):
(a) the common material;
(b) the Planning Scheme and any other relevant local planning instrument;
(c) relevant State Planning policies (or part thereof) and the Regional Plan to the extent they are not identified in the Planning Scheme as being appropriately identified;
(d) any development approval for, and any lawful use of, premises the subject of the application or adjacent premises;
(e) the laws that are administered by, and the policies that are reasonably identified as policies applied by, the assessment manager and that are relevant to the application.
In determining an impact assessable application, the Council’s decision must not:
(a) compromise the achievement of desired environmental outcomes for the Planning Scheme area unless it is necessary to do so to further the outcomes of the State planning policies that are not reflected in the Planning Scheme; or
(b) conflict with the Planning Scheme unless there are sufficient grounds to justify the decision despite the conflict.
The planning instruments
The relevant State and Regional planning documents in force at the date the development application was lodged were:
(a) the South East Queensland Regional Plan 2009-2031 (“SEQRP”);
(b) State Planning Policy 2/07 – Protection of Extractive Resources (“SPP 2/07”);
(c) State Planning Policy 1/02 – Development in the Vicinity of Certain Airports and Aviation Facilities (“SPP 1/02”).
SPP 1/02 expired in August 2013. A draft State Planning Policy (“SSPP”) to replace all existing State Planning Policies (including SPP 2/07 and SPP 1/02) was released for public consultation in April 2013. The draft SPP was adopted and came into force on 2 December 2013 and repealed SPP 2/07. SPP1/02 is relevant to the aviation safety issue discussed below, but it is appropriately reflected in the Maroochy Plan 2000 itself.
As indicated, a development application was lodged under Maroochy Plan 2000 (the Planning Scheme) which remains in force. A draft of the proposed new Planning Scheme for the Sunshine Coast town planning area was on public display from October 2012 until 14 December 2012 (the Draft Planning Scheme).
The use of the subject site for extractive industry has been supported by relevant planning controls for more than 30 years, including:
(a) designation as extractive industry in the 1985 Strategic Plan;
(b) designation as extractive industry in the 1996 Strategic Plan;
(c) designation as extractive industry under all versions of the Planning Scheme;
(d) designation as a Key Resource Area (“KRA”) under State Planning Policy 2/07 – Protection of Extractive Resources;
(e) designation as extractive industry under all versions of the SEQRP;
(f) designation as extractive industry under the Council’s Draft Planning Scheme.
In Suncoast Quarries Pty Ltd v Council of the Shire of Maroochy & Ors [1992] QPEC 72 this Court allowed an appeal in relation to the land and approved an application to rezone it for extractive industry, although the approved use did not proceed.
There is no allegation of conflict with SEQRP. The relevant policy in SEQRP seeks to identify and protect extractive mineral resources for potential future extraction, including providing appropriate transport corridors and buffers. Under SEQRP the land is located within the Regional Landscape and Rural Production Area regional land use category, which is intended to protect rural land from encroachment by urban development and also includes land with natural economic resource values, including extractive resources. It is identified on Map 8 – Rural Production and Natural Resources as an Extractive Resource.
SPP 2/07
This Policy came into force on 3 September 2007. As indicated it was replaced on 2 December 2013 by the current single State Planning Policy.
The outcome sought by SPP 2/07 :
“…identifies those extractive resources of State or regional significance where extractive industry development is appropriate in principle, and aims to protect those resources from developments that might prevent or severely constrain current or future extraction when the need for the resource arises.”
Under the Policy the subject site is part of a Key Resource Area (“KRA”) 54 – Yandina Creek KRA (“KRA 54”); and Yandina Creek and Toolborough Road are identified as transport routes.
The SPP 2/07 Guideline describes KRA 54 as strategically placed to provide construction aggregates and armour stone for a large part of the northern Sunshine Coast.
SPP 2/07 “endorses the principle of extractive industry … in a resource processing area of a KPA”, but emphasises that an assessment would not only include the Policy, but also “detailed consideration of the … requirements in the applicable local government Planning Scheme …”. Where the proposal is impact assessable, as it is here, submissions (made by the residents) “must be considered in the assessment”.
SPP 2/07 does not guarantee that a particular development application for an extractive industry in a KRA will be approved.
Mr Brownsworth, in giving town planning advice to Ms Kefford’s clients, seemed to take comfort in his assessment of reasonable expectations from my decision in Mansell v Maroochy Shire Council & Ors [2008] Q.P.E.L.R. 122. That case concerned an appeal by the same developer against a Council refusal for a permit to operate a hard rock quarry at 2 Zgrajewski Road, Yandina, on a site not far from the site and (in part) in the same Planning Area and Precinct. The decision is referred to by many submitters. As can be seen from my reasons, the site the subject of that appeal was deliberately excluded from the draft State Planning Policy identifying hard rock reserves as KRAs, for reasons identified in my judgment. As I noted that decision affected Council’s decision made in 2006 to exclude the designation of the Zgrajewski Road resource from its Extractive Industries Resource designation in the Strategic Plan Map.
Paragraph 7 of SPP 2/07 provides that:
“(1)The Policy’s outcome is achieved when development to which the Policy applies is compatible with the existing and future extraction, processing and transportation of extractive resources from a Key Resource Area. This will be achieved if development-
(a)in a resource/processing area is associated with either the extraction or processing of the extractive resource; and
(b)in the separation area for a resource area-
(i)does not increase the number of people living in the separation area; and
(ii)to the greatest extent practicable minimises the potential adverse effects from existing or future extractive industries on people working or congregating in the separation area; and
(iii)does not compromise the function of the separation area in providing a buffer between extractive/processing operations and any incompatible uses outside the separation area; …”
The Planning Scheme
From the Strategic Plan level in volume 2 through to the Planning Area and Precinct provisions in volume 3 to the relevant Codes in volume 4 of the Planning Scheme, a number of themes recur, as can be seen from some of the extracts reproduced below. The Objectives and Implementation Measures recorded in the Preferred Dominant Land Uses section of the Strategic Plan for Extractive Industry are a good example of these themes, which relevantly arise in the context of this appeal:
(a) protection and preservation of significant quarry materials resources from “land uses which may limit the viability …” of extracting and hauling such material in the Shire (17.5.1);
(b) a recognition that there is a need to maintain a high standard of environmental amenity, and that extractive industry, by its very character, has the potential to destroy natural features and ecological systems (17.5.2);
(c) a need to ensure that extraction of quarry products has minimal impact on the amenity of surrounding areas (17.5.3).
The Strategic Plan (see 17.3.1 and 17.5.5) refers to the extractive industry areas as shown on the Strategic Plan Map, which are described as “significant deposits either presently operating or have been identified as needing to be operated”. It is common ground that the site is one such area.
Section 17.3 of the Strategic Plan contains the Mining and Extractive Industry Strategy. It contains the following two elements:
“17.3.1 It is intended that all known significant deposits of sought after extractive resources considered appropriate for extraction (subject to appropriate controls), be identified on the Strategic Plan Map. Possible haul routes can then be identified, land use decisions made for adjoining areas and adequate buffer zones provided around the resources.
17.3.2 Other provisions in the Strategy include determining appropriate environmental, aesthetic and operational controls to limit the impacts of the industry on surrounding communities and the environment and minimising conflict by ensuring compatible development in the vicinity of the mining and extractive material deposits and probable haul routes.”
Clearly at this level, the Planning Scheme makes a distinction between what it calls “environmental impacts”, which are to be “minimised” or limited, and “amenity of the surrounding area”. 17.5.2 and 17.5.3 when construed broadly clearly overlap and it would be an error to construe them otherwise. At 17.5.2, the important planning concept that arises in the context of this appeal,, the balancing of the maintenance of a high standard of (environmental) amenity against community need for extractive industry (on this site), is introduced. The drafting in these important provisions does leave a lot to be desired e.g. 17.5.2 refers to dust generation, noise, vibration and traffic impacts as being issues that “Council will have regard to” in assessing environmental impacts, whereas 17.5.3, dealing with the important issue of amenity impact on the surrounding area, does not refer to these issues, but rather the short and long-term impacts of the proposal (which obviously includes visual amenity issues such as the reduction of the height of the presently vegetated hill by about 70 metres), impacts on lifestyle and the likely effects on land values of neighbouring properties.
Volume 3 of the Planning Scheme contains more detailed planning provisions.
Volume 1 tells the reader (unsurprisingly) that the Planning Scheme “is intended to recognise and be responsive to the individual character needs of … many different localities …. Accordingly, the Shire has been divided into Planning Areas, each of which is divided into Precincts.” 18 Precinct Classes are identified. The site is within the General Rural Lands Precinct Class, within Planning Area 24 Yandina Creek Valley and the Yandina Valley Uplands Precinct. In the Planning Area provisions there is a recognition of Extractive Industry Use e.g. at 3.24.3 Key Character Elements under Rural Landscape it is stated:
“…
(c) Any extractive industry should be carried out in accordance with best management practices, including effective rehabilitation of the site.”
There is considerable controversy between Parklands and Council arising out of the evidence of Mr Huntley who gave expert evidence for Council on the issue of quarry operations and products, to which I will refer in some detail later.
At 3.24.4, Statements of Desired Precinct Character, under (3) Yandina Valley Uplands (Precinct Class = General Rural Lands), not surprisingly, the presence of the site as an Extractive Resource Area is specifically recognised in a Precinct described generally as “a mosaic of remnant forest with some residual commercial farming”.
Under the Intent section are the following statements:
“While most of the land in this precinct is relatively remote from urban areas, the land holdings within the precinct are probably too extensively fragmented to allow for commercial rural production of any significance.
It is intended to allow for a wide range of rural activities within this precinct, while favourable consideration could be given to other “broadhectare” activities that are compatible with a rural setting and do not require urban services and infrastructure.
…
Extractive industry activities are allowed for where the workings are, or are proposed to be, in relation to a site-specific resource that is proven to be commercially and environmentally suitable for exploitation and is carried out in accordance with an approved programme of works and restoration. In assessing any application for development for such purposes, particular consideration will be given to the intended method of working, the measures to be used to limit adverse environmental impacts to acceptable levels.”
Mr Hinson QC and Mr Houston make the point that Rural Residential Use is not mentioned in these Precinct provisions despite the rural subdivision along Pryor Road being in this Precinct. The Country Coolum Estate which includes residents of Whistler Ridge Road to the southwest is in Planning Area 24 but in the Planning Area Map, it is within the Ninderry Plains Precinct, and the Coolum Chase hilltop subdivision which includes Musgrave Drive to the southeast of the site is in an adjoining Planning Area.
In that same section of the Planning Scheme under Preferred and Acceptable Uses is the following important statement:
“Extractive industry may also be an acceptable use of land in this precinct where a community benefit and acceptable environmental impacts can be demonstrated by the proponent to Council's satisfaction.”
The relevant Codes, in light of the issues joined in the appeal, are the Code for Development in the Vicinity of the Airport and the Code for the Protection of Extractive Resource. Other Codes were called up, but in light of the evidence and the confining of issues, there is no issue that the application should be refused as a result of conflict with these other Codes. The Airport Code can be set aside for the moment. It is relevant to the aviation safety and airport efficiency issue joined between Council and Parklands which will be discussed later.
The Extractive Resources Code, not surprisingly, takes up the same or similar themes to those raised throughout the Planning Scheme relating to such a use. Both Council and Ms Kefford’s clients assert conflict with parts of the Code. It is worthwhile to keep in mind what Rackemann DCJ said in SDW Projects Ltd v Gold Coast City Council [2007] Q.P.E.L.R. 24 at 30 in relation to a similarly performance-based Planning Scheme:
“The performance criteria are generally outcome focussed, while the acceptable solutions indicate a ‘desirable’ way to ‘ensure’ compliance. The acceptable solutions however, are not the only solutions. Performance criteria generally ought not be interpreted as requiring adoption of the acceptable solution, or even as requiring an alternative solution to be akin to the acceptable solution.
It is not legitimate to regard departure from the acceptable solution as necessarily indicating non-compliance with the code. In this regard, acceptable solutions differ from development standards which were often a feature of town Planning Schemes under the former regime. Compliance with such standards was commonly required unless a relaxation or dispensation was granted. Under the performance based approach, the acceptance of an alternative solution does not represent a ‘relaxation’ or a ‘dispensation’.”
Relevant sections of the Codes contained in volume 4 of the Planning Scheme are replicated in paragraphs 64 to 65 of Ms Kefford’s submission on behalf of the third to twelfth Co-respondents by election.
The Draft Planning Scheme
The Draft Planning Scheme (“DPS”) continues the designation of the site as an “Extractive Industry Key Resource Area”, albeit in a Scheme structured differently from the Planning Scheme. As the site remains in the Rural Zone, extractive industry is Impact assessable, but a consistent use in the Zone where in a KRA. It is (relevantly to issues in the appeal) included in the Extractive Resources overlay map, but not in the Scenic Amenity overlay map.
In the Spatial Planning Framework in the DPS, a number of key concepts for natural resources are set out, including, (relevant to issues such as need and community benefit), a strategic outcome that in 2031, the Sunshine Coast retains the capacity to supply non-renewable resources (such as extractive materials) from local sources. The DPS also recognises that such a use has the potential to result in adverse environmental and amenity impacts. A strategic outcome stated in the DPS is to effectively mitigate that potential so as to protect the environment and amenity of the Sunshine Coast.
Given the stage it has reached, I agree with Parklands, that the DPS should be given significant weight, the course taken by this court in Stockland Development Pty Ltd v Sunshine Coast Regional Council [2013] QPEC 79. As Council notes in it’s submission, under the DFS, the use remains impact assessable but is likely to be a consistent use in the relevant Zone.
The issues
As invariably happens in appeals of this nature which involve proposals for uses like quarries in the vicinity of incompatible uses such as rural residential uses, the issues raised have changed and expanded, often involving repetition and overlap. Some issues were pursued by Ms Kefford’s clients but not by Council e.g. the issue of “likely effects on land values of neighbourhood properties” raised as an amenity impact consideration in 17.5.3 of the Strategic Plan.
Council’s decision notice identified four reasons for refusal:
“1.The proposal conflicts with the Maroochy Plan 2000 as the applicant has not been able to demonstrate that the proposal can proceed without unacceptable impacts on amenity. The information provided is either insufficient and/or unsatisfactory to determine whether potential impacts of the quarry’s operations can be satisfactorily minimised with respect to noise, dust, blasting, visual amenity and character.
2.The proposal conflicts with the Maroochy Plan 2000 as the proposed quarry would exceed the current physical capacity of the local roads to be used for haulage and there is insufficient and/or unsatisfactory information to determine whether these roads are capable of being upgraded to meet the demand likely to be generated.
3.The proposal conflicts with the Code for Nature Conservation and Biodiversity as insufficient buffers are maintained to the site’s waterway adjacent to the proposed extraction area and vegetation that is likely to contain protected or threatened species is proposed to be cleared. The former assessment has not satisfactorily addressed the impacts of clearing their habitat.
4.The proposal conflicts with State Planning Policy 2/07 – Protection of Extractive Resources as the proposed quarry extends into the identified separation area and, therefore, compromises its function as a buffer.”
The sheer size of Exhibit 11, the book of documents identifying issues, which also includes extensive correspondence between the parties, gives some indication to the intensity with which all parties have approached the litigation. In this case, the joint expert meeting process has worked as it should (with one notable exception), and many of the highly controversial technical issues relating to the quarry were resolved, at least between the experts. In her written submission at paragraph 17 Ms Kefford provides a useful summary of the disputed issues as follows:
“(a)whether there is conflict with Maroochy Plan as a consequence of:
(i)unacceptable environmental and amenity impacts (including the effects of blasting, namely vibration and overpressure impacts and risk of fly rock, noise, dust, visual amenity impacts and traffic impacts); and
(ii)insufficient overall community benefit to outweigh the unacceptable impacts;
(b)whether there are unacceptable impacts on the safety of future aviation associated with Sunshine Coast Airport or unacceptable compromise of the planned upgrade of that airport; and
(c)whether there are sufficient grounds to justify approving the application despite the conflict with the scheme.”
In their joint submission for Council Mr Hughes QC and Mr Skoien summarised the key issues in the case (from Council’s point of view at the time of the hearing) as follows:
“(a)whether there is truly a town planning or community need for the provision of the additional hard rock quarry facilities at this location at Yandina Creek; and
(b)the nature, extent and acceptability of impacts from the proposed development on:
(i)the amenity, character and lifestyle of the locality and its residents, as a result of noise, dust, vibration, physical disturbance to land form and traffic;
(ii)local traffic operations and amenity (in the absence of a commitment to undertake necessary works); and
(iii)the planning for, and operation of, the Sunshine Coast Airport, both now and in the future;
(c)the real nature and extent of the activities, and consequent disturbance of topography and vegetation, associated with the proposed quarry;
(d)the nature and extent of conflict between approval of the development application and the Planning Scheme; and
(e)whether or not there are sufficient grounds as that term is defined (i.e. excluding private interests) and, in particular, planning or community need, to justify approval of the development application despite the conflicts with the Planning Scheme.”
On 5 October 2012, in accordance an order of this Court, Council provided reasons for refusal identified as further issues. The further issues are nominated as follows:
“2.Approval of the proposed quarry will cause irreversible environmental damage and the destruction of significant vegetation, fauna habitat and bio-diversity.
3.Approval of the proposed quarry will have unacceptable visual impacts:
(a)which will result in permanent scarring of the landscape and alteration of the landform which will in turn result in an unacceptable permanent visual impact.
(b)as the quarry will, over time, be highly visible and highly obvious having regard to not merely the quarrying activities but also the air emissions, noise and quarry traffic movements to and from the site (including heavy vehicle movements); and
(c)which conflicts Desired Environmental Outcome 1 of the Strategic Plan with the ‘Planning Scheme’ in that:
(i)it will not protect but destroy part of the Shire’s unique, natural, open space, rural and scenic attributes;
(ii)it will not protect but destroy bio‑diversity ecological processes;
(iii)it will not protect but destroy a visually attractive and varied landscape enjoyed by numerous residents of, and visitors to, the locality, namely that rural area dominated by rural and residential uses on the surrounding road network including Toolborough Road, McCords Road, Zgrajewski Road, North Arm-Yandina Creek Road, Pryor Road and Musgrave Drive (“the locality”);
4.Approval of the proposed quarry will conflict with the strategic implementation measure s 2.2(2)(d) of (the Planning Scheme), which seeks to limit uses in rural, scenic and natural areas to low intensity, generally non urban, activities consistent with the environmental capacities of such areas.
5.Approval of the quarry will result in adverse environmental and amenity impact for residents and the surrounding locality (as defined above) as a result of:
(a)dust including unacceptable impacts on the air quality presently enjoyed in the said locality;
(b)noise;
(c)vibration, noise, dust and over pressure as a consequence of blasting;
(d)risk of fly rock causing damage to people and property;
(e)increased levels of heavy vehicle traffic;
(f)destruction of significant vegetation causing scarring of the landform; and
(g)insufficient buffering in terms of both distance and vegetated areas, particularly having regard to the topography of the locality and the fact that may of the surrounding residential uses are elevated.
6. In terms of economic, community and planning need:
(a)There is no need for the proposed quarry to be approved to satisfy the current and foreseeable future needs for hard rock products of the type likely to be produced having regard to existing approved quarries; and
(b)Any community benefit to be provided by approval of the proposed quarry (in terms of an alternative supply of relevant hard rock products) will be overridden by the adverse environmental amenity impacts referred to above.
7.While approval of the quarry on the subject site may well have been appropriate 20 years ago, the suitability of the site for such activities has been lost having regard to the encroachment of residential development including rural residential development during the period of almost a quarter century.
8.Approval of the proposed quarry is unacceptable in terms of traffic capacity, safety and the amenity of existing road users having a regard to;
(a) The matters referred to in paragraph 1(ii) above in the Respondent’s original reasons for refusal;
(b)The vertical and horizontal alignment of local roads including, in particular, Toolborough Road and McCords Road;
(c)The existing width, surface and construction of the local roads including Toolborough Road and McCords Road;
(d)The presence of residential and rural residential domestic traffic on such roads;
(e)Heavy truck traffic generated by the proposed development would have an unacceptable impact on traffic safety on the unsealed sections of the nominated haul route which are, in any event, low standard roads intended to carry only very low volumes of traffic generated locally;
(f)Heavy truck traffic generated by the proposed development would have an unacceptable impact on the light duty unsealed pavements on the unsealed sections of the haul route nominated;
(g)heavy truck traffic generated by the proposed development would have an unacceptable impact on the amenity of residences adjacent to the unsealed sections of the haul route nominated having regard to issues of safety, visual amenity, dust and noise; and
(h) The proposed haul route is subject to local flooding which, inter alia, may force quarry traffic during flooding events onto other roads with consequential impacts on other nearby land uses.”
The issues discussed
To a significant extent the degree to which the allegations of conflict are made out depends on the Court’s analysis and conclusions in relation to the evidence of the experts and the evidence given by the submitters, by reference to the Planning controls.
Ecology issues
In his opening, Mr Hinson QC observed that ecological issues had been resolved as a result of the joint expert meeting process. Certainly Council did not persist with issue 3 in its reasons for refusal contained in its decision notice.
In the first meeting of the ecological experts, Dr Hassall attended on behalf of Council and Dr Olsen on behalf of Parklands. Dr Hassall required some clarification and the experts recommended that further survey data be provided. Even at that stage, the experts considered that the conditions imposed by DERM were considered generally appropriate and relevant to the proposed works given the biotic features of the subject land subject to further information being received. That information was provided, and the experts met again on 17 May 2013 and subsequently via email, and Mr Chenoweth on behalf of Parklands was involved for the purposes of discussing the rehabilitation plan only.
At that stage, revised and new quarry staging plans dated 15 April 2013, had been provided to the experts, together with an original ecosystem overlay plan and an amended rehabilitation plan prepared by Mr Chenoweth.
Ultimately it was agreed that having regard to the issues identified, the proposal would not conflict with the Code for Nature Conservation and Biodiversity, or with any other relevant Codes, and that there was no unacceptable impact on fauna habitat. The environmental experts agreed that all the identified issues could be addressed subject to the imposition of appropriate conditions.
Rehabilitation was not identified as an issue in the appeal, but was nevertheless subject to two minor points of disagreement which were recorded in the second joint expert report. Dr Hassall suggested that, as part of the final rehabilitation of the subject site, a minimum 2% cross-fall would be required to facilitate drainage and ensure the successful growth of vine forest species; and as rehabilitation cannot practically be undertaken until quarrying ceases, Dr Hassall proposed either:
(i) the progress of quarrying should be redesigned to facilitate staged completion of the final landform and subsequent staged rehabilitation; or
(ii) a bond for uncompleted work would be lodged with Council sufficient to effect the rehabilitation.
In respect of those points the final landform shown on drawing ST05 was changed from 1:200 to 1:50 i.e. 2%, as Dr Hassall suggested. Dr Hassall’s proposal to redesign the quality was impractical having regard to the receding rim method proposed, which leaves the issue of a bond for uncompleted work sufficient to effect the rehabilitation. In my view, as I have noted, this was not an issue in the proceedings, and in the circumstances, I am satisfied on the balance of probabilities that no reasonable and relevant condition is required to this effect. The appropriate conditions identified by the environmental experts in their final joint expert report should be incorporated as conditions of any approval.
Air quality
The following experts were appointed to address air quality issues:
(a) Mr Ormerod on behalf of Parklands;
(b) Mr Welchman on behalf of Council;
(c) Dr Khan on behalf of DERM; and
(d) Mr Beyers on behalf of Ms Kefford’s client.
The four air quality experts participated in joint meetings which gave rise to a joint report dated 2 July 2013 and a second report dated 17 September 2013.
Air quality is an aspect of amenity, both environmental and general, that can be modelled and measured or estimated scientifically. The air quality issue that arises in a use such as a quarry relates to dust. Particulate matter and silica dust are the key air pollutants associated with a quarry. The DERM conditions contain a number of extensive conditions required as part of its response, and it is common ground that the Queensland Environmental Protection (Air) Policy 2008 is the appropriate basis for assessing potential impacts of the proposed quarry in relation to particulate emissions.
By the end of the first joint experts meeting and as set out in their first joint experts report, there were a number of areas of disagreement. At that stage, the air quality experts could not agree on whether the quarry could be conducted without adverse impacts. However they agreed that, if it was determined that the proposed quarry was able to be managed so that it does not adversely impact on the health and amenity of the residents in the region, monitoring would likely be needed at a location represented at the nearest residence to the north and a residence adjacent to the quarry access road. They further agreed it would be necessary to specify a maximum allowable daily and annual production rate. Those maximum rates, the experts opined, should be consistent with the maximum rates for which it has been demonstrated that no adverse impact would occur.
As they noted, appropriate air quality impacts would require adherence to stringent dust control measures. As they noted, this was particularly the case as the development moves northwards, towards the closest residences, where there may be a possible need for reactive or proactive dust management.
In their first joint experts report at paragraphs 34 to 41, they set out areas of disagreement.
Thereafter, as a result of requests from the experts, and correspondence between the parties, further information was provided by Parklands. The experts then met again and further clarification was sought and further modelling was undertaken. The dust deposition concentration rates predicted by the modelling of the quarry, operating at an hourly production rate of 204 tonnes per hour, are set out in Table 1 at p 6 of Exhibit 9 behind tab 4. All experts agree that the predicted concentrations of all relevant air pollutants comply with the respective air quality objectives. The assumed production rate of 204 tonnes per hour (or 2,040 tonnes per day for a 10 hour production day), is 20% higher than the average of 174 tonnes per hour calculated from a 500,000 tonnes per annum production rate (an assumed 5.5 production days per week and 10 hours per day). In other words, the modelled impacts are based on a 20% production rate higher than the maximum production rate proposed.
The second joint expert report sets out the conditions that will be required to ensure that appropriate standards of air quality can be achieved for the life of the quarry. The modelling, as I have noted, was based on a very conservative assumption of a 20% increase above the hourly average for the maximum proposed production rate.
There was still some minor dispute over the issue of dust emission reduction from vehicles travelling at low speeds, but there was agreement that it is now “a moot point” as the revised modelling (subject of the agreement set out in the second JER) was conducted with no adjustment of emissions for truck speeds.
Perhaps surprisingly, notwithstanding the clear statement to the effect at the end of the second joint experts report, Mr Welchman provided a quite lengthy trial report. His summary at paragraph 1 of his trial report does nothing more than confirm (in a helpful summary form) what had been agreed to by all experts resulting in the joint opinion that with conditions proposed “the objectives for protection of human health and amenity could be achieved at the nearest sensitive receptors”.
He introduced only one indirect reservation not raised in the joint expert sessions, and which was contrary to one of the agreed assumptions he had joined in making. He regarded the hourly peak rate of 20% above hourly anticipated production as “unusual”. In his experience (not shared with other experts) a peak production rate “more than 50% higher” tends to be assumed for air quality modelling assessment.
Although he did not provide a trial report, it was nonetheless necessary for Mr Omerod to be called to give evidence. This issue should have been raised by Mr Welchman at the joint expert meeting. These four experts met on multiple occasions and there is no suggestion that anyone felt pressured by the process. Mr Omerod pointed out what is obvious, and that is the assessment used involved assumptions about hourly production rates that exceed the capacity of the quarry. The quarry is rarely, if ever, likely to reach the 500,000 tonne per annum capacity in any event. This means that the air quality modelling assessment is based on more than the worst case scenario. As noted in the joint expert process, the modelling also assumed higher wind speeds than are anticipated, and it assumes that the haul route will be sealed, which it will be as a result of conditions to be imposed.
The much discussed ABMP (Exhibit 8) also provides scope for Council to insist on (for example) continuous monitoring in later stages such as stage 4, when the quarry will be most exposed to sensitive receptors such as Mr Tinney’s home in Pryor Road. As Ms Kefford suggested to Mr Omerod, the continuous monitoring requirement in Table 5 on p 27 of Exhibit 8 relating to dust concentration levels, could be reasonably strengthened to require the quarry operator to undertake such monitoring throughout the life of the quarry, except in circumstances in which it can satisfy Council that the levels are compliant with those agreed by all experts. In any event, as Mr Barclay pointed out, the ABMP provides for five‑yearly reviews of the dust management plan based on actual site-specific data. His client’s conditions, in any event, show the level of control that it will have in ensuring compliance with the Dust Management Plan and conditions.
Council’s outline of submissions couples noise, vibration and dust together under the general rubric of amenity impact. The submission does not in any way demur from the agreement reached by all experts, including its own experts but nevertheless seems to suggest that in the absence of certainty, conditions and stringent conditions as proposed will not ensure that the impact on amenity is minimal or limited. I think the conditions proposed meet the concerns expressed by Ms Kefford in her submission. Unlike Council she directly addressed the evidence relating to dust impacts. All the conditions she refers to in paragraph 126 of her submission are conditions encompassed by the joint expert agreement and I have referred already to the condition that she proposes at 126(d) which is reasonable and relevant in light of the evidence of Mr Omerod in cross-examination by Ms Kefford.
Mr Omerod and Mr Welchman also conducted a joint meeting and provided a joint report dated 1 November 2013 to address specific questions directed to them by the aviation experts in respect of the aviation safety issue raised by the Council. The aviation safety issue and the third joint report of Mr Omerod and Mr Welchman will be dealt with below.
Blasting
Dr John Heilig advised the appellant on this issue, and Dr Cameron McKenzie advised Council.
The Blast Management Plan commences at p 35 of the ABMP.
Poor blasting practices have the potential to generate unacceptable levels of ground vibration and/or air blast overpressure for residents living within 500 metres of the quarry limits. Figure 4 at p 81 of the ABMP indicates the distances from the quarry boundary of the residence which will be most affected by blasting. Mrs Bowtell’s residence at receptor 45 and the residence at receptor 44 will be within 250 metres of potential blasting during the quarry operation.
In accordance with the Blast Management Plan, and the development application proposal, it is expected that the frequency of blasting will not exceed two blasts per month, based on a drilling pattern of approximately 100 blast holes. In accordance with the evidence of both experts, technically the blast will be detonated within a second and the effects of an entire blast will persist for no more than several seconds.
Another risk from poor blasting practices relates to the potential to eject fly rock beyond the blast zone, thus posing a safety risk including injury to people and damage to property.
As with all aspects of the quarry proposal, the design parameters for bench heights and depths of blast holes changed as Parklands responded to expert advice, essentially designed to reduce environmental and more general amenity impacts. Although blasting (because of its infrequency and stringent controls) is not a significant contributor to dust emissions, it is a very important feature impacting on tangible and more intangible aspects of amenity in an operation such as a quarry, and in this appeal it is also an important issue to be considered in relation to aviation safety.
Dr Heilig and Dr McKenzie participated in a joint meeting and prepared a joint report dated 3 July 2013.
Dr Heilig and Dr McKenzie recorded no areas of disagreement and the following areas of agreement:-
“5. Areas of agreement
5.1Dr McKenzie and Dr Heilig agree that vibration and overpressure impacts can be controlled to comply with Ecoaccess Guidelines 2006 at all existing residential structures by appropriate adjustment of the size of explosive charges.
5.2Dr McKenzie and Dr Heilig agree that maximum fly rock projection distances can be controlled so that rock fragments should not be projected into nearby properties by appropriate adjustment of the depth of burial of the explosive charges.
5.3Dr McKenzie and Dr Heilig agree that whereas vibration and overpressure impacts represents nuisance disturbance, fly rock has the potential to cause damage to property and injuries to people.
5.4Dr McKenzie and Dr Heilig agree that there are precedents for quarry blasting activities within 200 metres of housing.
5.5Dr McKenzie and Dr Heilig agree that quarry blasting activities for the initial stages of the proposed pit development can be safely conducted.
5.6Dr McKenzie and Dr Heilig agree that a Blast Management Plan should be prepared as a living document defining protocols to be followed for all blasting operations at the site, including details of face profiling monitoring, as per AS 2187.2 2006 recommendations.
5.7Dr McKenzie and Dr Heilig agree that external review of environmental impacts and blasting protocol should be conducted annually once blasting operations commenced, by qualified and experienced personnel. Further, the experts agree that all blast must be videorecorded, and all video records must be retained and analysis thereof included in the annual review.
5.8Dr McKenzie and Dr Heilig agree that, irrespective of the stemming lengths used by the quarry and blasting operations, no blasting should occur within 250 metres of property containing occupied housing. This recognises that the risk of a mishap resulting in grave consequences (potential injury or death) increases with decreasing separation distance, justifying a minimum separation between blast patterns and occupied property.”
The Blast Management Plan incorporating their agreed recommendations forms part of Exhibit 8. It is indeed a “living document” in that it does provide for review and audit at paragraph 10. Dr Heilig’s original modelling, prepared as part of the IDAS process, indicated that fly rock could range up to 135 metres laterally. He expressed this view with a 99% degree of confidence. This was based on the then proposed 14 metre bench heights, and 89 mm blast hole diameter and a 3 metre uncharged collar.
When the aviation safety issue was raised late by Council, the blasting experts reconvened to look at the maximum vertical extent of fly rock to advise the aviation safety experts. However, Dr McKenzie undertook additional fly rock modelling based on the smaller scale blasting now proposed by Parklands using a 76 mm diameter blast hole and 12 metre benches, and for those blasts most likely to affect receptors such as Mrs Bowtell’s residence, three decks will be used, all of which will mitigate ground vibration and overpressure (air) impacts and fly rock projection. During their meeting for the purposes of advising the aviation experts, Dr Heilig raised the example of Parklands’ present quarry at Nambour where no fly rock has been thrown off the quarry throughout its decades of production life.
As indicated in 5.8 above, both experts agreed that no blasting should occur within 250 metres of properties containing occupied houses. On the basis of modelling done by the experts, the maximum projection range for fly rock using 76 mm diameter blast holes and 2.5 metres of stemming (which will be required when blasting is closest to affected receptors referred to in the Blast Management Plan) is 70 metres horizontally and 50 metres vertically. In his evidence, Dr McKenzie confirmed that he was not saying that blasts would throw fly rocks 250 metres but rather he was not comfortable having people closer than 250 metres to blasts. As he said in evidence:
“I can feel comfortable that rock would only go 50 metres but I’m just not comfortable having people closer than 250 metres to explosives.”
To ensure that the 250 metre condition is complied with, the Blast Management Plan provides at paragraph 5.2 (p 37 of Exhibit 8) for 24 hours’ notice to residents of properties within 500 metres of the site (see Table 7 at p 35). In its written submission, Council (at [121]) said this:
“It is apparent that both blasting experts agreed that there should be a separation of at least 250 metres between any blasting for the proposed quarry and sensitive place (notably, an occupied residence). Importantly, this means that blasting would not be able to occur in all parts of the proposed quarry identified in the plans of development. There is simply no explanation as to how the proposed quarry can be operated without blasting those areas.”
I agree with Parklands that this paragraph raises a false issue. The Stage 3 and 4 plans and the Blast Design Plan show that the only residents within 250 metres of the pit are:
(a) receptor 44 in stages 3 and 4;
(b) receptor 45 in stage 4.
Blasting in some small parts of stages 3 and 4 will have to be carried out when the residents of those receptors are absent from their residence. That will not have to be done for many years. As Mr Hinson QC and Mr Houston note, the ABMP is intended to be reviewed and periodically updated to reflect, amongst other things, changes in the operating environment. This will include input from people with the expertise such as that held by Drs Heilig and McKenzie. As they note in their submission, if it proves impossible to blast in some small areas of stages 3 and 4, the quarry design can be modified to shrink the pit size to be able to comply with the 250 metre limit.
As pointed out by Ms Kefford, there will have to be a provision in the ABMP to ensure that no traffic strays into the exclusion zone during blasting. This could be facilitated by an appropriate condition.
The very strict conditions contained in the Blast Management Plan with which both experts agree, are sufficient, in my opinion, to reduce impacts of blasting to acceptable levels. I will deal with the blasting evidence as relevant to the aviation issue when I discuss that discrete issue, and the effects of blasting in a quarry operation are also relevant to intangible amenity issues, which will be discussed later.
As with a number of issues, Council’s written submission really does not acknowledge the degree of agreement between two eminent experts, one of whom was advising it. As with many issues, it asserts that there is insufficient information to enable the court to safely be satisfied with the conditions proposed by the experts and those contained in the concurrence agency responses are not sufficient to mitigate unacceptable impacts.
Traffic
The traffic engineers met on 19 February 2013. Mr Holdsworth was retained by Parklands, Mr Beard by Council, Mr Holland by DTMR, and Mr Quinn by Ms Kefford’s clients. All agreed that the proposal could not proceed in the absence of upgrading of that portion of the proposed haul route that is Council controlled, namely the 500 metre from the intersection of the State controlled road Yandina Coolum Road with Toolborough Road, via Toolborough Road, North Arm Yandina Creek Road and McCords Road.
At that stage, the experts identified 4 issues namely:
“a. The civil engineering feasibility of upgrading the haul route to an appropriate standard within existing road reservations;
b. The definition of an appropriate standard of the upgrading of the haul route;
c. The safety of use of the upgraded haul route, and potential adverse impacts on the amenity of rural houses by the movement of generated heavy haul vehicles; and
d. Definition of the upgrading required and the responsibility of the applicant in that regard at the intersection of Toolborough Road and Yandina Coolum Road.”
Parklands appealed against only one of the DTMR conditions relating to issue (d), namely that it bear the total cost of the upgrade. That issue was resolved between those parties prior to the appeal. As I understand what Mr Holdsworth told Mr Hughes QC during cross examination, DTMR have agreed to leave that issue for negotiation at the conditions stage.
Mr Holdsworth did obtain civil engineering plans as anticipated by issue (a) from his client, and although the adequacy of those plans was still contentious at the time of the hearing, Council sensibly now agrees that the provision of more detailed plans (including hydraulic input) can be left to the conditions phase.
The experts met again on 24 April 2013, to consider the design plans obtained by Mr Holdsworth. Although not actually present, (he had Court commitments), Mr Beard agreed to the matters set out at paras 1-9 of the second JER dated 3 May 2013. In reality, the only substantial area of disagreement was as to the wording of a condition which requires Parklands to upgrade that part of the haul route that is under Council control to an appropriate standard. Mr Holdsworth argued that the condition should not be worded to prevent Parklands from having the opportunity to negotiate with Council at the conditions stage as to the funding of the works.
Exhibit 43 contains correspondence between Mr Williams (Parklands’ Solicitor) and Mr Phillips (Council’s Solicitor) which has, to an extent, been overtaken by events. Conditions should be imposed to reflect the agreement reached at the second JER. Mr Beard and Mr Holdsworth did meet again to respond to the 2 metre noise barrier proposal (discussed in the visual amenity evidence section), and agreed that the pavement seal should be dense graded asphalt (bituminous concrete), rather than the general description of the seal type set out at paragraph 4 of the second JER.
In his Court report (Exhibit 21), Mr Beard raises the issues of who pays for the upgrade, which all engineers agree is essential, and is critical of deficiencies in the design plans presented to the second meeting, which criticisms are reflected in the correspondence in Exhibit 43.
It followed that by the time of the hearing only 2 traffic engineering issues remained unresolved, and those are the issues raised in Mr Beard’s trial report. As noted, Council now accepts that detailed design issues of the kind raised by Mr Beard at page 5 of Exhibit 21 can be left to be resolved at the conditions phase.
As I understand what Mr Hughes QC said in final submissions on 14 February 2014, this also includes agreement as to the terms of a condition to ensure Parklands maintain the haul route to an appropriate standard during the life of the quarry.
That the haul route should be upgraded to the appropriate standard before the use commence is essential for traffic safety reasons, but also to ameliorate amenity impacts arising from 110 very large truck movements on an average weekday( when the quarry is working at maximum capacity), such as noise, dust and intangible impact on amenity of residents along the haul route. All the conditions agreed by the experts should be imposed.
Although he did not provide a trial report (clearly it was not needed) Mr Holdsworth gave oral evidence. When he was cross examined by Mr Hughes QC, he was shown traffic counts from May 2011 produced by another traffic engineer in a document entitled Developer Maintenance Contribution Report (Exhibit 44). He frankly conceded that his advice to his client was that it should bear the costs of the upgrade.
Mr Beard gave evidence. As he noted, the traffic counts on all relevant parts of the Council controlled haul route are very low, particularly since the closure of Boral’s quarry on Toolborough Road. He was not challenged about his statement in his trial report to the effect that Council has no plans to upgrade any of the haul route in the foreseeable future and that no funds have been committed for that purpose. In his oral evidence, he made the point that there is no other developer with a proposal along the haul route who may be required to contribute. Council introduced Exhibit 45 which is a summary of the relevant traffic counts from Exhibit 44. Not unreasonably, in cross examination he was asked why he did not raise some of these issues in the JER process. Given Council’s final position on 14 February 2014, very little of this really matters.
The evidence about traffic counts, and the evidence given by Mr Holdsworth about trigger points for upgrading dirt roads across Australia in traffic engineering terms, was not discussed at in the JER because it was not raised.
At the end of the day, it is difficult for me to reach any final conclusion apart from observing that the evidence which is limited (eg. flow rates, absence of other possible developer contributors, Boral closure), does not suggest any basis on which Council should be called upon to contribute to the upgrade of the haul route to the appropriate standard prior to the commencement of the use. It appears highly unlikely that Council will alter its position and agree to contribute, however the evidence is not sufficient for me to conclude (from a traffic perspective) that the condition should be so worded as to prevent Parklands from seeking to have discussions with Council.
As Parklands observes in its written submission, if the issue cannot be resolved, and if it is necessary, a conditions hearing can take place where the evidence can be expanded. I reject Council’s submission (particularly given that issues, about traffic flows etc were not raised until very late) set out in paragraph 81 of its written outline. It will be a condition that the haul route be upgraded to an appropriate standard, and a condition to be negotiated (hopefully) about its maintenance, another issue not raised until very late. It is quite common that issues to do with payment, in situations like this, are put off until the conditions phase as has occurred in this very case with DTMR.
Aviation issues
Council is the owner of the Sunshine Coast Airport. Quite late in the proceedings, and at a time when two weeks had already been allocated for the purpose of the appeal, Council raised an issue about the potential impact of the quarry on the operation a proposed new runway at the Sunshine Coast Airport.
Given the stage in the proceedings, it was necessary for the Council to apply for leave to include a new issue. The Council’s application led to a request for particulars and the substantive aviation issues are identified as:-
“(g)Blasting activities at the site of the proposed quarry would involve an unacceptable safety risk to aircraft due to possible dust ingestion into the engines, airframe impact from projectile rocks, shockwaves from blasting, visual distraction to pilots from explosions and interference with radio and navigation instruments; accordingly
(h) approval of the proposed quarry will have an unacceptable impact on aviation safety, or alternatively, would unacceptably compromise longstanding planning to upgrade the Sunshine Coast Airport for the benefit of all residents of the region generally.”
Council’s particulars effectively raise two issues, namely aircraft safety and operational efficiency of the proposed upgraded airport. Given that the proposed quarry is located 5.5 nautical miles (13 kilometres) from the threshold of 13/31, it is not surprising that the Aviation State Planning Policy (Exhibit 68) and the Code for Development in the Vicinity of the Airport, seek to ensure that the development does not affect the safety and operational efficiency of the Sunshine Coast Airport. It is not necessary for me to resolve the subtle dispute raised in the written submissions about construction of those planning instruments because I accept the evidence of the experts to which I will now turn, and the evidence I accept appropriately addresses (indeed is informed by) the controls in those instruments.
As noted above and sensibly in relation to issue (g), set out above, the aviation experts required further reports from the air quality experts and the blasting experts.
The following experts were appointed to address aviation issues:
(a) Mr Murray and Mr Guselli – on behalf of Parklands; and
(b) Mr Tonkin and Mr Adams – on behalf of the respondents.
Mr Omerod and Mr Welchman prepared a joint report dated 1 November 2013 after meeting, and Dr McKenzie and Dr Heilig met and prepared a joint report, both of which were provided to the aviation experts.
A joint meeting was held between the four appointed aviation experts and a joint report was prepared by them dated 11 November 2013 and is Exhibit 10, volume 2, tab 3.
The experts reached substantial agreement at their various meetings as set out from paragraphs 7 to 11 of their joint report.
As noted, the Council owns and operates the airport. A proposed new runway generally orientated east-west and described as runway 13/31 has been part of Council’s planning for a considerable period of time. The proposal is discussed in some detail in the Sunshine Coast Airport Master Plan September 2007. The Master Plan is attached to Exhibit 19A, which is a statement of evidence of the manager of the Sunshine Coast Airport. As he notes in his statement, Sunshine Coast Airport is in the final stages of the preparation of its EIS for the new runway project. This is the culmination of over 30 years of planning and is a critical element in the 2013 Sunshine Coast Council Economic Development Strategy, the Queensland Aviation Strategy and the recently released Economic Direction Statement – Queensland Airports 2013-2023. As he notes, the new runway project was conceived in the 1980s and developed over time, until in 2007 the Master Plan was approved by the then Maroochy Shire Council and set a target delivery of its new east-west runway at 2020.
The Sunshine Coast Airport presently has two runways. Runway 18/36 is used for regular passenger transport aircraft, and runway 12/30 is typically used for general aviation operations. The proposed upgrade of the airport involving the construction of the new runway will be used for regular passenger transport. Runway 18/36 will then be used as a secondary cross-runway mainly by general aviation aircraft.
The proposed quarry is located 5.5 nautical miles (13 kilometres) from the new runway threshold and is underneath the flight path of aircraft approaching the new runway from the northwest and departing to the northwest. Approaching aircraft will be flying at 1,000-2,000 feet above ground level over the quarry site. Departing aircraft will be overflying the quarry site at 1,000-5,000 feet above ground level. In his evidence, Mr Pallot (the Airport Manager) noted that funding has not yet been approved for the proposed upgrade.
Informed by the joint reports of the air quality experts and the blasting experts, the aviation experts agreed that:
(a) dust from blasting at the quarry will not pose an unacceptable risk to aviation safety;
(b) interference with radio and navigation instruments from blasting at the quarry will not pose an unacceptable risk to aviation safety;
(c) blasting at the quarry will not pose an unacceptable risk to aviation safety in the form of a visual distraction to pilots;
(d) there is potential for a projectile rock to impact on aircraft overflying the blasting site if blasting operations are unconstrained;
(e) an acceptable level of aviation safety could be provided if there was positive control of the blasting activity and air traffic was managed in order to separate aircraft from the blasting activity. Appropriate control and management arrangements would need to be determined through preparation of an aeronautical study;
(f) an area with defined vertical and horizontal limits, from which aircraft must be excluded during blasting activity at the subject site, could be established to delineate the required separation of air traffic from potential projectile rock created by the blasting activity. Aircraft should be excluded from the defined area, under normal conditions, for a period of approximately 10-15 minutes prior to blasting (when the blast area is secured) until the all clear is given, and approximately 5-10 minutes after the blast, depending upon access to the blast area, proximity of firing and extent of any dust or gases;
(g) conditions which may require this period of exclusion to be extended (as provided by the blasting experts in their applicable joint reports) are listed below:
(1) an initiation system communication problem may extend the period of exclusion prior to blasting up to about one hour;
(2) if a shot is fully or partially loaded, and the site is evacuated due to nearby lightning (within 15 kilometres), no aircraft should be allowed in the exclusion zone until the lightning threat has passed (as determined by the contractor’s lightning warning system);
(3) if a shot produces strong orange-colour fumes (nitrous oxides), no aircraft should be allowed in the exclusion zone until the orange fumes are no longer visible. Dispersion and chemical breakdown of the gasses may take up to about 15 minutes, and is an unusual (though not rare) event; and
(4) a misfire could add a further 20-40 minutes to the clearance time.
The experts also agreed that:
(a) there is potential for projectile rock, dust, other emissions and/or shockwaves (overpressure front) with a vertical velocity of greater than 4.3 m/sec associated with blasting at the quarry to penetrate the obstacle limitation surfaces (operational airspace) of the proposed new runway 13/31;
(b) the quarry site is located inside the Sunshine Coast Airport Control Zone which extends to 8 NM from the aerodrome reference point, and all aircraft operating within the control zone or associated controlled airspace would be under positive air traffic control while the airspace is active;
(c) uncoordinated blasting has the potential to cause disruptions to the flow of air traffic at and within the vicinity of Sunshine Coast Airport; and
(d) an appropriate Air Traffic Control Agency (to be determined) must hold the final authority (subject to the conditions under which this authority would be granted and exercised) over whether blasting takes place at particular times.
At paragraph 12 of their joint report, the aviation experts advising Council provided a definition of the exclusion area as agreed to in (f) above. The aviation experts advising Parkland provided a form of management protocol which is Annexure A to the joint report of the aviation experts, which the experts for the Council did not agree is sufficient to properly define the defined vertical and horizontal limits of the exclusion zone during blasting activity as referred to in the points of agreement above. I agree with Mr Hinson QC and Mr Houston that it is not necessary in these proceedings for the court to resolve that disagreement. Those limits will be determined by the appropriate aviation authority (CASA) following the aeronautical study agreed by the experts and input from interested parties. Once the aeronautical study is done and the terms of the protocol (as contemplated in (f) and (g) above) are agreed, its terms should then be incorporated into the ABMP, and the ABMP modified accordingly.
As the evidence indicates, the risk of fly rock being propelled to a height of 1,000 feet is extremely low. In worst case conditions with no stemming, a blast fragment could be projected vertically 350 metres i.e. 1,148 feet. Under the proposed blasting conditions (76 mm blast holes and 2.5 metres of stemming) the maximum height which fly rock could reach is 50 metres.
I agree with the submission made by Mr Hinson QC and Mr Houston that the evidence establishes that to project a rock fragment 350 metres vertically would require a determined effort rather than mere inadvertence. The blast would have to be unconfined i.e. there would be no stemming, and explosives would be filled to the top of the blast holes. There would have to be an absence of laser profiling, and drilling of blast holes without any recognition of what the free face looked like, and inconsistency in the angles the bore holes were drilled at. All these things would have to go on without notice. Given the very strict conditions contained in the Blast Management Plan to which Parklands is committed, an event of this nature is highly unlikely.
Blasting will only occur in accordance with a protocol to be approved by CASA under which blasting is managed to separate it from air traffic movements, and the Air Traffic Control Authority determines if and when blasting can occur. I am satisfied that, having regard to the Aviation State Planning Policy and the Code for Development in the Vicinity of the Airport in the Planning Scheme, the blasting operations can be operated within acceptable limits having regard to safety, by conditions to be determined as set out above.
In its written submission, and despite the protocol definition proposed by Mr Adams and Mr Tonkin, Council nevertheless asked me to interpret their evidence as supporting a conclusion that even with the protocol there will be adverse impacts on safety in relation to the aircraft using the new runway. This cannot be accepted. Clearly both Mr Adams and Mr Tonkin, at the time of the final joint expert report to which they are signatories, agreed that safety could be provided at an acceptable level with a protocol in the form set out in paragraph 12 of the joint experts report. As with a number of issues, Council’s submission seems to suggest that in the absence of absolute certainty the court could not be satisfied that Parklands has established that there would be no unacceptable impacts on safety of the proposed new runway even with the strict conditions to which Council’s own experts have predominantly agreed. In my view that is not the correct approach to the assessment in the circumstances.
Council, further submits, that a condition that there be a protocol to be finally determined after an aeronautical study and the involvement of CASA, is uncertain, and, in effect, Parklands has not discharged the onus because it has been unable to satisfy the Court to the appropriate standard as to the terms of the protocol. I disagree. To dismiss the appeal on such a basis would be to fall into the same error identified by the Court of Appeal in Reservilt Pty Ltd v Maroochy Shire Council (2002) 123 LGERA 233. It is also a bold submission to make, given that it was Council, the owner of the Airport, the entity involved in the strategic planning for the new runway, that introduced this issue very late.
She is undoubtedly being sincere when she told Ms Kefford that the quarry would have an horrendous impact on her lifestyle. The issue for the court is, however, to assess objectively the subjects of concern for the residents in light of all relevant evidence keeping in mind the reasonable expectations of residents as informed by the planning controls, particularly those in the planning area, but also the designations of the site over many years to which earlier reference is made.
In cross-examination Mr Houston took her to some correspondence from his solicitors resulting from the third joint expert report of the noise expert. This concerns Parklands’ agreement to acoustic treatments to her property as recommended by the noise experts, and in particular for the acoustic fence proposals. As she had indicated, Parklands had never approached her (which is unsurprising). Mr Houston’s questions, based on a supposition that the court would approve, led her to say that she is not an unreasonable person, and, I infer, would at least consider proposals put to her designed to reduce noise particularly from trucks.
Mr Hemming also gave oral evidence. He and his family reside at 61 Whistler Ridge Drive, and the residence is described as receptor 127 at p 19 of Exhibit 1. Annexed to his statement is a photograph showing the proposed quarry hill. Over objection, he then produced Exhibit 69, a series of photographs from other properties in Whistler Ridge Drive, and one from Hideaway Court. All are within the zone of visual influence as agreed by the visual amenity experts.
There are a number of difficulties about the weight that should be given to this evidence, particularly as it affects the assessment of visual amenity impact.
None of the photographs were shown to the visual amenity experts, nor were either asked about them. Secondly, as Mr Hemming conceded, in taking the photographs he has used “a little bit of zoom”. The visual amenity experts, in particular Mr Chenoweth, are criticised for taking photographs from the street or driveways of affected properties. However, it is obvious even from viewing the photographs that they do not represent the actual view, but are presented to bring the hill to be quarried much closer. This is unfortunate. The point can be demonstrated by comparing Mr Hemming’s photograph from 106 Whistler Ridge Drive, which is receptor 151 as depicted in Exhibit 1, p 19, with either Plate 3 on p 8 of Exhibit (Mr Chenoweth’s trial report), or digital image 2 on p 5 of Exhibit 20 (Dr Hassall’s trial report) which is accepted, has the wrong hill marked with a black arrow. The same photograph appears in Appendix III of Exhibit 20 prepared at Dr Hassall’s direction using visual impact computer technology. Clearly, Mr Hemming has used more than “a little zoom” in his photograph. It is unfortunate because, although I do not doubt his distress about possible impacts, his evidence in this regard attracts very little weight because it simply does not assist me. Ms Kefford tendered a number of other statements by submitters. They have raised similar concerns to those discussed above.
Some, e.g. Mrs Watson, who purchased her property at 106 Zgrajewski Road (receptor 51) with her husband in 2002, gave unchallenged evidence that prior to purchasing the property they:
“… requested standard searches on the lot as advised by our solicitor. We also advised the Maroochy Shire Council and requested information regarding the zoning and potential development plans for the area. At no time were we advised that our lot was located in a general rural zone or that it was part of designated buffer zone surrounding an extractive resource. Nor were we told that our property was within 800m of another extractive resource located on McCords Road.”
Mr Bridge of 83 Musgrave Drive (receptor 223) again was not challenged when he stated in his trial statement:
“4.We employed a solicitor to advise us and carry out the transaction [sic] this we thought to be a wise move as we did not have any experience in the Queensland legal system. I also went to visit the planning officer at Maroochydore [sic] and at no time were we informed that an application for a quarry at 110 Zgrajewski Road, Yandina Creek had been refused by Maroochy Shire [sic] Council and was subject to an appeal by the applicant.
5.We bought our lot to build a house for our retirement and chose an elevated position with significant coastal and rural views, a quiet but not isolated location and ease of access to amenities all of which we thought we had achieved.”
Mr Bridge and his wife bought their land in 2006 and constructed their house in the same year.
Others (e.g. Dr Sandar, Exhibit 34, 63 McCords Road, receptor 59); and Jess Higgins, (Exhibit 37, 2 Figtree Lane, receptor 227), refer to adverse affects on businesses conducted on their property. In the case of the Higgins family, their 170 acre property has a boundary to the east of the site. The property was purchased in 2005, and in 2010, Council approved a bed and breakfast proposal on their property which is 800m “from the quarry site”. This clearly was a time when these proceedings were on foot. Such an approval is hardly consistent with a theme in all planning controls designed to prevent co-location of incompatible uses. The project, which includes the erection of six cabins, is partially constructed but now on hold pending the outcome of the appeal.
There are other submitters along the haul route who have provided statements expressing their concerns about noise, safety, dust and adverse effect on the ecology of the area.
In these circumstances; the Court is satisfied that the conditions to be imposed in relation to “hard” elements of amenity impact; noise, dust, blasting, truck movements and environmental issues and visual amenity are such as to appropriately minimise and limit impacts on amenity to an acceptable level. The conditions to be imposed are extraordinarily stringent, and Parklands will be bound to implement the various Plans incorporated in the ABMP, with the oversight of various agencies including Council itself. Accepting that there will be intangible adverse affects on amenity; that is that surrounding residents and those along the haul route will (despite the conditions) still be aware of the quarry activities such as crushing and truck movements, which activities presently do not exist. This will undoubtedly affect peoples’ sense of place in a subjective sense, however, having regard to the long term planning support for a hard rock quarry at this site, the reasonable expectations of the residents, coupled with the evidence of “hard” impacts, leads me to comfortably conclude that Parklands has satisfied the onus of satisfying me that the proposal can be appropriately conditioned to minimise and limit amenity impacts (tangible and intangible) to acceptable levels.
Need
This is an important primary issue, as references in the Planning Scheme confirm, because the assessment process requires an objective balancing of the maintenance of a high standard of amenity in what is a pleasant rural valley overlooked by pockets of residential development, against community need for extractive material. The Statement of Desired Precinct Character (Preferred and Acceptable Uses) for the relevant Precinct is worth repeating:
“Extractive industry may also be an acceptable use of land in this precinct where a community benefit and acceptable environmental impacts can be demonstrated by the proponent to Council's satisfaction.”
In her submission, Ms Kefford draws a distinction between “community benefit” and “need”. The Planning Scheme seems to derive its terminology from established jurisprudence so that in the Strategic Plan at 17.5.2 the concern to maintain a higher standard of “environmental amenity” must be “balanced against community need for extractive material”.
Clearly the balancing exercise referred to above is relevant to the merits of the proposal as measured against all relevant planning controls including the Planning Scheme, and to the issue of grounds, in the event that I determine that the proposal conflicts with the Planning Scheme.
The jurisprudence is well canvassed in the written submissions and it is not necessary for me to repeat it. Care must be taken in extracting and applying descriptions of town planning and/or community need from the cases without understanding the context in which those general statements were made. Parklands’ criticisms of paragraphs 49 and 50 of Council’s written submission by reference to Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors is a good example of this point. In Intrafield v Redland Shire Council [2001] 116 LGERA 350 at [20], the Court of Appeal (after referring to many of the need cases) noted that “need is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority was to take into account”.
The question of whether a need is shown to exist is to be decided from the perspective of the community and not that of an appellant, or even objectors. A community consists of more than just particular members of it. The concept of planning need does not mean pressing or critical or urgent need or widespread desire or anything of that nature.
Mr Geoff Coughlin was retained by Parklands and Mr Gavin Duane was retained by Council. As they identify in their joint report dated 16 July 2013, the need issue was raised by Council in its 5 October 2012 letter as a further issue:
“6. In terms of economic, community and planning need:
(a)there is no need for the proposed quarry to be approved to satisfy the current and foreseeable future needs for hard rock products of the type likely to be produced having regard to existing approved quarry; and
(b)any community benefit to be provided by approval of the proposed quarry, in terms of an alternate supply of relevant hard rock products, will be overridden by the adverse environmental and amenity impacts referred to above.”
Need was not raised as a reason for refusal in Council’s Decision Notice.
Unlike Mr Huntley, both Mr Coghlin and Mr Duane deferred to appropriate experts (including Mr Huntley) on issues such as rock quality and the extent of the resource to which I have referred earlier.
Conventionally, the economists discussed the proposal by reference to demand and supply based on detailed information which is summarised in the joint report. They set out to reconcile supply and demand issues and set out their individual conclusions where they disagree.
In essence, Mr Coghlin concludes that “there is a significant need for the proposed quarry”, and, in his trial report, for reasons set out therein, Mr Duane concludes that there “is a minor level of need for the proposed quarry without further information about the benefits that it could provide to the community”.
This is a reference to the lack of evidence presented by Parklands relating to their pricing structure both in their existing quarry at Parklands near Nambour and the proposed quarry, such that an economist could then compare those prices with other known prices to assess community benefit.
On the issue of demand, both experts agreed that, at the present time, there is no demand (as opposed to need) for products from a new quarry. It was agreed that, at present, the Sunshine Coast region is a net importer of quarry products and that ore production from quarries within the Shire is used within the Shire.
Mr Duane opined that even into the future it is likely that the Shire will be a net importer of hard rock products even with the approval of new quarries. By far the biggest source of “imported” quarry products into the Shire is from the Moy Pocket quarry operated by Boral outside Kenilworth but close to the Shire boundary.
Until the global financial crisis (“GFC”) in 2008, per capita hard rock demand (which includes assumed imports) was between 11-12 tonnes. As can be seen from Figure 1 on p 9 of the joint expert report, at the time of the promulgation of the Planning Scheme, demand was even higher. That same table indicates the effect of the GFC with demand dropping to nine tonnes, and then a slow increase in demand until the present.
As the experts note, industry analysts and economic forecasters are predicting a slow and steady recovery for the property and construction sectors in the Sunshine Coast region.
A number of large residential developments (Palmview, Caloundra South) are planned for the future, and at present demand has been boosted by the construction of the $2 billion health precinct at Kawana. The economists differed marginally as to the appropriate level to be used in assessing future demand (Mr Coghlin 12 tonnes, Mr Duane 11 tonnes), but both agreed that the estimated population growth in the Shire will be 46% over the next 20 years. Their differences in appropriate levels, leads to the conclusion expressed in Table 2, that the projected increase in demand from 2012-2031 is between 1.79-1.95 tonnes per capita.
Despite Council’s suggestion to the contrary in their written submission, the disagreements between the experts were really in relation to matters of degree. Figure 3 in the JER shows all quarries (operating and non-operating) within 40 kilometres of the proposed quarry. Mr Coghlin opines that this area would be the main service area for the proposed quarry, and would also contain the operating quarries that would compete with it. Mr Duane generally agreed with the notion that a 40 kilometre radius is preferred for quarry operators, but he thought quarries in the Gympie region (including the Scotchy Pocket quarry proposal, with which Mr Huntley is associated as a consultant) should be included as part of the supply assessment. I found Mr Coghlin’s evidence relating to the likely substantially increased transport costs associated with large truck movements from these more distant quarries very convincing, even taking into account the proximity of those proposed quarries to the Bruce Highway.
Both economists agreed that extractive resources are particularly sensitive to transport costs, and that transport costs typically average around 30 to 40% of the delivered cost depending on distance. Mr Coghlin’s analysis establishes that if quarry products have to be transported 70 kilometres or more, the delivered cost effectively doubles.
In the DPS Council gives significant recognition to “the capacity to supply non-renewable resources from local sources”. Indeed it is the first in seven Key concepts in the Natural Resources Theme. It is not disputed that all of the above projects (both planned and operating) are within a 40 kilometre radius of the proposed quarry. The emphasis in the DPS on supply from local sources is also an important consideration in determining the weight to be accorded to Council’s argument that projects such as Caloundra South could source quarry products from existing quarries which lie just outside the southern boundary of the Shire. Indeed, as Mr Coghlin noted, by reference to the table produced by Messrs Huntley and Gray (reproduced above) the Bacalba quarry, which is the nearest to the southern boundary, produces 800,000-1.5 million tonnes per year and sells only 10,000-20,000 tonnes into the Sunshine Coast Regional Council area. Both economists acknowledge that the Nambour landfill site controlled by Council (which in any event is producing only three types of quarry product) is providing a spike in supply, which will be exhausted over the next two years.
Increased competition is potentially beneficial to the community as it may put downward pressure on prices. The experts note that quarrying for quarry products is dominated in this country by three key players, Holcim, Boral and Hanson. These three companies have an estimated 80% market share in Australia’s sand and gravel market, and 76% in the rock, limestone and clay mining industries. Holcim and Hanson are present in the Sunshine Coast area. Boral’s quarry at Toolborough Road (on the proposal haul route) is closed and is operating on a maintenance only basis Boral operates the Moy Pocket quarry just outside the Shire. Mr Coghlin opines that the proposed quarry will add to competition and potentially affect price. Mr Duane says that the Gympie quarries will provide that once they come online, and he refers to the lack of pricing information as affecting his opinion to the contrary. For essentially the same reasons set out above in relation to transportation costs and distance from markets, I infer that there will be some community benefit and increased competition from the proposed quarry which is positioned centrally in the Shire.
In their discussion about reconciliation of supply and demand, the experts identify another area of disagreement which is taken up with some force in Council’s final submission. It is also a point made by Mr Huntley in his impermissible intrusion into needs forecasting.
Essentially Council argues, by reference to Table 3 in Mr Coghlin and Mr Duane’s joint report, that future demand for quarry products could be met by existing quarries increasing present production levels. For example, if one of those quarries has an approved annual production limit of 1,000 tonnes but is producing less than that, any increase in demand could be met by an increase in production. None of the quarries (which include Moy Pocket and Bacalba outside the Shire) produce to the maximum permitted level. Council argues therefore that an increase in production would meet the accepted future demand, and obviate the need for a new quarry.
I agree with Mr Coghlin that this argument is premised on speculation. Mr Duane noted in the joint report that:
“It is unclear whether quarries have the ability to mine up to the regulatory capacity, but there is nothing presented in this joint process that indicates that this is not the case.”
In the joint expert report at 4.3(iii) of Exhibit 9, volume 1-10, Mr Coghlin notes:
“(iii)GC says the regulatory limits often have little relation to the actual range of production. As shown in table 3, several quarries produce well below their licensed or approved limit. Prior to the GFC, they were not meeting demand from within the Sunshine Coast, requiring the importation of aggregate from elsewhere. Therefore, it is clear that in some cases there are significant commercial constraints to producing at or even near approved capacity, due to several potential factors including infrastructure constraints and the life of remaining reserves. GC therefore concludes that it is more realistic to gauge the production potential of SCRC quarries based on actual ranges of production achieved than on designated production limits.”
In the joint report of Messrs Gray and Huntley, they noted that many factors can affect a decision to increase production including market conditions, weather conditions, capacity of processing plant, capacity of site infrastructure and capacity of traffic or haulage routes. I agree with Mr Coghlin’s analysis and his opinion.
In the JER the economists agreed that:
(a) Due to closure of the Toolborough Road Boral quarry and the Parklands quarry at Nambour within the next two years, between 2016 and 2019 production can only meet the low demand scenario (3.39 million tonnes, from Table 2 on p 11 of the JER), and then only assuming maximum production from all remaining quarries;
(b) From 2019 demand under both low and high scenarios will exceed maximum total production;
(c) By 2023 annual demand will exceed maximum annual production by between 300,000 and 1.6 million tonnes;
(d) The gap will continue to increase after 2023 to 2031 because of continuing population growth.
As noted earlier, SPP 2/07 identifies the subject KRA as being strategically placed to provide construction aggregates and armour stone for a large part of the northern Sunshine Coast. The draft SSPP (now adopted and in force) identifies why extractive resources are of interest to the State. Extractive resources are said to be “essential” to the health of the construction industry. The Policy recognises that because it is “generally necessary to source extractive resources close to markets”, there can be conflicts with encroaching development, and so it is “important to maximise opportunities for co-existence between resource extraction and other development types where possible”.
In his Court report (Exhibit 13), Mr Coghlin expanded on the opinion he expressed in the JER that the site was the only undeveloped KRA in the Shire available for hard rock products. He refers to SPP 2/07 and three further proposed new KRAs which are within the SCRC region. He makes particular reference to KRA 147, which is on the border of the SCRC and the Moreton Bay Regional Council, and KRA 149, which is close to the Moy Pocket quarry. These proposed KRAs were not considered at the joint expert meetings; probably because the issues said to warrant refusal on Council’s case related to “existing approved quarries”.
In any event, with this proposal we are dealing with an existing KRA, with significant and appropriate recognition as an important resource in all relevant planning controls including the Planning Scheme itself. To factor these proposed KRAs into an assessment of need in relation to this proposal would involve pure speculation.
On the balance of probabilities, I am satisfied that Parklands have established that there is a future need for the quarry, and that there will be some community benefit as identified above. Given the effects of the GFC, and the economic forecasts for growth, I would not describe the need as “significant”, but my general preference for Mr Coghlin’s opinions over Mr Duane’s where they disagreed, leads me to categorise the level of need between modest and significant.
Town Planning issues
To a large extent, the findings of the Court expressed above tend to undermine the weight to be afforded to the town planning opinions of Mr Buckley (for Council) and Mr Brownsworth (for the submitters).
As noted earlier, one of the important planning issues arising upon a proper construction of the Planning Scheme is the need for Parklands in its proposal to balance amenity impacts against community need for extractive industry, by minimising and/or limiting adverse impacts on amenity and demonstrating community benefit. Mr Buckley agreed with Mr Vann that if (as a result of conditions) the proposal could minimise and/or limit unacceptable impacts, the question of need or community benefit would assume less significance. Given my conclusions above as to the level of need, I am satisfied that Parklands has discharged the onus upon it in relation this discrete issue.
Another issue raised by Mr Buckley and Mr Brownsworth was their concerns that there were limited opportunities for review and refinement as the quarry operates over its lifetime. To be fair to them, Exhibit 8 was produced late and Mr Buckley had not read it. On the other hand, neither, but in particular Mr Brownsworth, seemed to appreciate the extensive requirements in the DERM permit for ongoing monitoring and reporting and review of the various management plans in the ABMP at regular intervals. There is no doubt that the length of the ABMP and the stringent conditions to be imposed will require “best management practices”. That phrase is used on a number of occasions in the relevant Planning Scheme Planning Area provisions, and was never raised as an issue, in the sense that the proposal did not contemplate “best management practices”. Mr Brownsworth’s concerns about the degree of self regulation are unfounded as (a) he seemed not to appreciate the involvement of ongoing regulatory responsibility and (b) it is wrong to assume that a proponent will breach conditions: Seabridge Pty Ltd v Beaudesert Shire Council [2001] QPELR 191 at [11].
Mr Brownsworth raised some minor concerns about the detail of the ABMP which should be addressed e.g. including provision for physical attendance at a property prior to blasting if telephone contact cannot be made.
The other issue raised was that the proposal may have been viable at the time this Court approved the rezoning in 1992, but is no longer appropriate given the extensive residential encroachment since. This is a specific issue raised by Council in its October supplement, but not in its reasons for refusal.
There is no doubt that there has been considerable residential construction in residential rural allotments since 1992 in the Musgrave Road estate to the south-east, and the Whistler Drive area to the south-west.
Appendix 6 to the JER of the town planners (and indeed the evidence of some of the submitters) establishes that since 1992 only three houses have been built within 500 meters of the quarry, including both of the Bowtell houses identified as receptors 45 and 47. The estates involving Musgrave Drive and Whistler Drive were contemplated by the Court at the time of issuing the re-zoning approval.
As I have noted earlier (in relation to reasonable expectations), Mr Brownsworth’s reliance on my decision in Mansell (ibid) to support his opinion on the sterilisation issue is misplaced, because the Zgrajewski Road site was deliberately excluded as a KRA from the draft SP/07 and SP/07, and from the Strategic Plan Map in the Planning Scheme. In any event, my conclusions on amenity impacts in that case were very different from my conclusions in this appeal. I agree with Mr Vann that the planning strategy for this site is opposite to that of the other site, namely to preserve the resource, and to permit its extraction subject to appropriate management of impacts.
Finally I turn to the issue raised both by Council and the submitters as to conflict with the Code for Extractive Industry. Given its stated purpose, which includes:
“Extractive industry operations occur where the overall community benefits of winning an available resource are not overridden by adverse environmental or amenity impacts.”;
My earlier findings lead to the clear conclusion that the proposal, appropriately conditioned, does not conflict with the Code’s purpose.
In large part, their complaints resolve around the insufficient detail argument, and Mr Huntley’s evidence which is dealt with above. Ms Kefford also raises alleged conflict with DEO1 and DEO3. DEO3 was not raised as an issue, and none of the planners see conflict with DEO1.
Conclusions
Parklands have satisfied the onus upon it of establishing that the proposal conditioned in accordance with these reasons is not in conflict with the Planning Scheme.
Parklands have established grounds, namely a future need for the quarry, and some community benefit; and the upgrade of the haul route is also a matter of public interest in the sense that it will provide a safer driving environment for users of the road network.
The appeal is allowed and adjourned to enable conditions to be formulated in accordance with these reasons.
2