PMM Brisbane Pty Ltd & Anor v. Nebo Shire Council & Ors

[2007] QPEC 75

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

PMM Brisbane Pty Ltd & Anor v Nebo Shire Council & Ors [2007] QPEC 075

PARTIES:

PMM BRISBANE PTY LTD (ACN 010 370 448) and TAYLORS SOLICITORS

Appellant

V

NEBO SHIRE COUNCIL

Respondent

And

TRANSPAC CAPITAL PTY LTD (ACN 076 836 470)

First Co-Respondent

And

THE CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS

Second Co-Respondent

And

THE CHIEF EXECUTIVE, DEPARTMENT OF NATURAL RESOURCES AND WATER

Third Co-Respondent

And

ENVIRONMENTAL PROTECTION AGENCY

Fourth Co-Respondent

FILE NO/S:

BD 845/2007

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

24 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

7 August (Inspection of site and locale); 8, 9 and 10 August 2007; further written submissions received 20 August 2007

JUDGE:

Alan Wilson SC, DCJ

ORDER:

1 Appeal dismissed

2 Review at 9:15am 2 October 2007

3 Liberty to apply

CATCHWORDS:

ENVIRONMENT – ENVIRONMENT AND PLANNING – MINERS’ QUARTERS NEAR COAL MINES – appeal by submitter – whether conflict with transitional or draft new planning scheme – environmental issues – whether planning grounds justifying approval, despite any conflict – level of conflict

Integrated Planning Act 1997, s 6.1.30
Local Government (Planning and Environment) Act 1990, s 4.4(5A)
Vegetation Management Act 1999, s 22

Cases considered:

Maher v Hervey Bay [2006] QPEC 098

COUNSEL:

B D Job for appellants
S Ure for respondent Council
W G Everson for first co-respondent
J S Brien for third co-respondent

SOLICITORS:

Deacons for appellants
King and Company for respondent Council
McCullough Robertson for first co-respondent
Crown Law for third co-respondent

1. Nebo Shire lies west of Mackay, and at the north-east corner of the coal rich Bowen Basin.  This case concerns residential facilities for workers at coal mines in the Shire.  Transpac, the first co-respondent, has Council approval to build single men’s quarters (SMQ) for miners working in nearby coal mines operated by Macarthur Coal Limited.  The appellant PMM operates a similar facility nearby, and contends the proposal offends the local planning scheme and legislation intended to prevent environmental damage.  Neither the second nor the fourth co-respondents took an active part in the hearing.  The first day was taken up with an inspection of the site of the proposed facility and the nearby Moorvale mine, the settlement of Coppabella, SMQs operated by PMM at Coppabella and the town of Nebo, and Nebo itself.

1. The proposal involves an SMQ containing 400 accommodation units, with associated facilities including a sewerage treatment plant[1].  The site is a few kilometres south of Coppabella and, when built, would occupy about 27 hectares of part of the former Moorvale Station[2] which is presently bushland.  A short distance to the south is the Moorvale coal mine.  Access to that mine, and the proposed development site, is off the Peak Downs Highway on the Moorvale Mine Access Road.

   [1]The application shows future expansion plans to 470 units; and that, when built, the facility will include a reception and office area;  a small car park;  kitchen and communal dining facilities;  a tennis court, pool and gymnasium;  and a fuel storage facility.

   [2]Lot 1 on SP 158697

1. The proposal arises in the particular context of specialised housing for miners, as facilities of that kind have developed in Nebo Shire (and elsewhere in Queensland).  The nature of accommodation provided for workers at mining sites has changed over time from one involving the development of permanent townships with residential facilities for miners and their families, to one based on the ‘fly in, fly out’ system.  Under the more recent approach, the miners ordinarily have their permanent residences at places quite remote from the mines themselves – e.g. in Townsville, Mackay, Rockhampton (or other coastal towns or, even, capital cities) – and are flown in, accommodated in SMQs while working quite long shifts at the nearby mines.  They stay, without a break, for between five and ten days, and are then flown out (or, bused out) to their place of residence for lengthy rest periods – often, again, five to ten days. 

1. In the result, these SMQs or ‘works camps’ have sprung up at various places within the Shire.  Major facilities exist within or adjacent to Nebo and Coppabella, and some lie further afield.  The advantages of the system are that permanent townships are unnecessary, and permanent infrastructure is not required.  That said, the evidence suggests some of the nearby coal deposits have an expected economic life of up to two decades, and inspection showed the SMQ encampments take on a semi-permanent look with gardens, paved roads etcetera. 

1. The nearest settlement, Coppabella, is located between the Peak Downs Highway and a railway line.  It was established in 1971 to house employees working on rail operations associated with the transport of coal from a number of Bowen Basin mines to the ports on the coast.  Unusually, it sits almost entirely on one title under the ownership of Queensland Rail.  It is a small community with a permanent population of about 300, and little room for expansion.  On the opposite, southern side of the highway is the appellant’s SMQ facility, known as the Coppabella MAC camp.  At the moment it contains 860 rooms, shortly to increase to 977 and with an existing approval permitting slightly more than 1,300.

1. Town planning issues were addressed in reports from Mr Ovenden (for the appellant PMM), Mr Perkins (for the Council) and Mr Venn (for Transpac).  Pursuant to the usual practice of this court they met and prepared a helpful joint report[3].  The principal differences between them concern the extent of conflict between this proposal and Nebo Shire’s current, and draft new, planning scheme.

   [3]Reproduced, for example, in Mr Perkins’ report (Exhibit 6) at p.36

1. Council’s current planning scheme is a transitional one under the Integrated Planning Act 1997 (IPA) and was introduced on 21 September 2000.  A new IPA‑compliant scheme exists in draft and has been publicly exhibited since May 2007.  Under the transitional scheme, the subject land was included in the rural zone.  Because the proposal involves an application akin to a rezoning under the previous legislation[4] it is impact assessable and, as such, must be refused if it conflicts with the planning scheme and there are not sufficient planning grounds to justify approval despite the conflict[5].

   [4]Local Government (Planning and Environment) Act 1990 (the LGPEA)

   [5]IPA, ss 6.1.29, 6.1.30; LGPEA, ss 4.4(3), (5), and (5A)

1. The main issues in the case involve allegations of actual conflict with the transitional, and draft IPA schemes; the alleged destruction of valuable flora and fauna in contravention of vegetation management legislation; and, generally, the alleged risk of harm to regional ecosystems.  Another notified issue concerning the destruction of good quality agricultural land[6] was abandoned by the appellant at the commencement of the hearing.

   [6]See State Planning Policy 1/92

1. The evidence establishes a number of pertinent facts and circumstances.  I am satisfied that the site has been selected for its isolation from road, rail and mining operations and for convenient access to Macarthur Coal’s mines in the locality at nearby Moorvale, on the Peak Downs Highway to the east of Coppabella, and at the future Olive Downs mine.  As designed, it will be entirely independent for infrastructure, and would not rely on social or community facilities in Coppabella.  The occupant mine workers will be residents of other communities, generally outside Nebo Shire.  The proposal involves a relatively high standard of accommodation.  Unusually, (and unlike arrangements at the MAC camp at Coppabella) occupants will be transported to and from the site, and to their workplaces at the mines by bus, and private vehicle use will not be permitted.  Lastly, the proposed use can properly be categorised as a temporary one with an expected life of 15‑20 years, after which the site may revert back to rural use at the cessation of mining activities.

1. The appellant’s contention is that notwithstanding the proposal does not violently offend planning scheme provisions touching the rural zoning, the scheme contemplates non‑rural activities in this zone only when they cannot conveniently be established in urban areas.  The MAC facility accords, it is said, with this expressed intent.  The difficulty with the proposition is that the planning scheme does not categorise Coppabella as an urban area and it is (as inspection confirmed) more properly described as a works camp (albeit a well-established one), primarily for railway staff.  Certainly, it does not contain either space or facilities to accommodate something like Transpac’s proposal.  Moreover, locating the proposed SMQ in the vicinity of the existing MAC camp would provide no obvious advantage to the functioning of Coppabella, compared to the proposed location.

1. The proposal exhibits (as all the planners also agree) some degree of conflict with the existing planning scheme; at the core of the case is the level of conflict and the question whether or not there are sufficient planning grounds to warrant approval notwithstanding whatever level of conflict actually arises.  The appellant contends the scheme shows a clear intent that mining works camps should be located within or adjacent to established urban centres and the proposed site, being remote from them, involves significant conflict.   The transitional scheme does not in truth, I think, provide clear useful guidance on this question.  By way of example, a PDLU[7] touching the protection of agricultural land[8] must, logically, be read in concert with provisions which, simultaneously, strongly encourage the development of mining and extractive industries in the Shire.   

   [7]Preferred Dominant Land Use

   [8]S 1.4.2, Strategic Plan, and associated Objectives

1. The intent of the scheme’s urban PDLU[9] refers back to identified urban areas – something said, by the appellant, to show the anticipated limits of urban expansion and a general intention to favour developments which enhance the amenity and safety of those areas, which are identified as Nebo, Glenden and Coppabella.  But, as Mr Perkins cogently pointed out and, I accept, the evidence establishes, if it is (reasonably) assumed that urban expansion includes workers’ camps it is already clear that the identified urban areas are insufficient to meet the intent which has, therefore, been overtaken by events.

   [9]S 1.4.6

1. It is also tolerably clear that the implementation criteria for the relevant objectives envisage a collaborative approach between the mining industry, and the local authority.  The significant growth of SMQ accommodation in locations outside the scheme’s identified urban areas is, it seems to me, an indication that the aspirations of the scheme are no longer realistic or relevant to current demand, or development.  The conclusion is strengthened by the obvious fact that Coppabella is a most unusual form of residential community, and offers no scope for a facility of the kind sought by Transpac.

1. While the desire expressed in the planning documents to accommodate these facilities in urban areas is sound in principle, the important issue of providing worker’s accommodation to satisfy a very clear need (plainly shown in the report of Mr Brown, whose evidence was not contested) is a compelling ground to overcome any conflict springing from that aspect of the planning schemes.

1. The transitional scheme also contains broad ‘Principles’ relating to the enhancement of Environmental, Social and Economic elements within the Shire.  It cannot be said any aspect of this proposal offends them.  For reasons explored in more detail later, the development does not affect marked environmental damage; and, will not place any social burdens on the Shire.

1. The draft scheme contains DEOs[10] emphasising the preservation of existing ecological processes and natural systems, orderly economic development, and the enhancement of the cultural, economic, physical and social well‑being of residents of the Shire. Those relating to economic development do not, however, include any reference to Coppabella (but only to Nebo, and Glenden) and plainly seek to encourage new worker’s camps within or adjoining those urban localities.  As the evidence otherwise establishes, however, there are persuasive, practical reasons why these camps ought to be located in reasonable proximity to the mines they serve (eg, to save on transport costs, and reduce road use by private vehicles), and that is what will occur if this proposal is approved.

   [10]Desired Environmental Outcomes

1. It is material, too, that the draft scheme does not bring the existing MAC camp into the urban locality zone.  As inspection confirmed, this large SMQ is not truly integrated with Coppabella; and the evidence also showed that proposed future development within it (shopping facilities, a tavern and the like) will only emphasise its separation – meaning the appellant’s facility is already, in truth, the proper subject of the very criticisms it has directed at Transpac’s proposal.

1. The draft scheme should not, in any event, be given significant weight here.  While it has had quite a long gestation it has only, this year, been put out for public comment[11].  More particularly it does not, with respect, exude the impression of coming to grips with the problems identified in respect of the current transitional scheme; indeed, it already has the air of having been overtaken by events.  It has not clearly resolved its approach to the appropriate future planning strategy for Coppabella; and, does not make adequate provision for land to be placed in the urban locality zone to satisfy future needs in the Shire for the form of accommodation under discussion.

   [11]See, generally, the discussion of the weight to be given to draft schemes in Maher v Hervey Bay [2006] QPEC 098

1. As the preceding analysis shows, conflict with either the transitional or draft schemes cannot fairly be categorised as more than, at worst, minor.  Even if significant conflict with the transitional scheme did exist, I am satisfied the high level of need identified by Mr Brown constitutes a strong planning ground, sufficient to warrant approval.  That strong need has additional elements:  a requirement for Macarthur to attract a highly skilled workforce and Macarthur’s perfectly reasonable concern to offer an SMQ of a sufficiently high quality, and with appropriate facilities, to encourage and attract workers to its employ. 

1. The appellant is, finally, concerned that the proposal might cause unacceptable damage to flora and fauna and offends the provisions of the Vegetation Management Act 1999 (VMA).  These issues have taken on great complexity – involving, for example, a searching analysis of the third co-respondent’s internal concurrence agency policies, and assertions that the Department has acted in breach of its own governing legislation.  The weight of expert evidence plainly establishes, however, that the predominant ecosystem is not in truth endangered, or even the subject of concern.  The development does not carry any measurable risk of harm to natural elements having classifications of that kind.  The third co-respondent has, I am satisfied, acted in a way which accords with its announced policies and the regulations which determine those policies.  The submissions of Ms Brien, for that co-respondent, were persuasive that performance requirements for those policies can and should be met by the imposition of reasonable and relevant conditions.

1. The appellant also contended that, properly construed, s 22A of the VMA and a part of the Department’s 2005 Policy required the first co-respondent to prove no suitable alternative site could be found, before clearing could be permitted – and, that Transpac had failed to meet that test. The arguments founder on a misreading of the VMA, which distinguishes between prohibiting clearing and permitting it, subject to appropriate conditions[12]; and, upon a misunderstanding of the nature of ‘performance requirements’ in the 2005 Policy which, read sensibly, plainly permit the clearing of vegetation for the purposes of infrastructure associated with a lawful ‘material change of use’[13].

   [12]See VMA s 3(1); and Schedule definition of ‘regulate’

   [13]P R A1.3, 2005 Policy

1. One expert witness, Dr Olsen, observed the presence of a rare plant (desmodium macrocarpum) in parts of the north east section of the site, although it was not seen by two other botanists.  The evidence about appropriate steps for its preservation or transplanting was unclear but, it appears, protection can be afforded through a condition of the kind proffered by the first co-respondent in submissions after the hearing. 

1. Other appropriate conditions concerning firebreaks, also discussed in submissions, should be attached to the approval.  With the imposition of reasonable conditions the proposal is a perfectly acceptable planning outcome, and the appeal should be dismissed.