QCoal Pty Ltd v Isaac Regional Council

[2022] QCA 237

SUPREME COURT OF QUEENSLAND

CITATION:

QCoal Pty Ltd & Anor v Isaac Regional Council [2022] QCA 237

PARTIES:

QCOAL PTY LTD
ACN 010 911 234
(first applicant)
QCOAL GROUP
(second applicant)
v
ISAAC REGIONAL COUNCIL
(respondent)

FILE NO/S:

Appeal No 14693 of 2021
P & E Appeal No 1480 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Planning and Environment Court Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane – [2021] QPEC 60 (Everson DCJ)

DELIVERED ON:

25 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2022; further written submissions received 2 June 2022

JUDGES:

Morrison and McMurdo JJA and Burns J

ORDERS:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Set aside the order made by the Planning and Environment Court on 1 November 2021.

4.   Remit the proceeding to be re-heard by the Planning and Environment Court.

5.   The respondent pay the applicants’ costs of the application for leave to appeal and the appeal.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the applicants operate a coal mine 30 km from the town of Glenden – where the applicants applied to the respondent Council for approval for a permanent works camp to house their workforce on a site adjoining the mine – where the development was impact assessable, and the assessment was to be carried out against assessment benchmarks in relevant instruments – where the Council contended that according to the relevant instruments, there was no legitimate demonstrated need for the development because the applicants’ workforce could reside in the town of Glenden – where the primary judge found that in order for the applicants to succeed, they needed to demonstrate that 98 per cent of their current and prospective workforce would in all likelihood prefer to reside at or adjoining the mine site and not in Glenden – where this was not an issue identified by the parties in an agreed List of Issues – where the issue for determination was whether in the way the mine was and would be operated, it was reasonable to expect the applicants to accommodate their non-residential workers in Glenden – whether an unnecessary and irrelevant burden was imposed on the applicants –whether the primary judge erred in law – whether the appeal should be granted

Planning Act 2016 (Qld)
Planning and Environment Court Act 2016 (Qld)

Abeleda v Brisbane City Council (2020) 6 QR 441; [2020] QCA 257, cited
Currie v Dempsey (1967) 69 SR (NSW) 116, cited
R v Smith (2009) 1 Qd R 239; [2008] QCA 406, cited
YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395; [1964] HCA 12, cited

COUNSEL:

G A Thompson KC, with E J Morzone KC and K W Wylie, for the applicants
M J Batty and S J Hedge for the respondent

SOLICITORS:

Emanate Legal for the applicants
King & Company Solicitors for the respondent

1. MORRISON JA:  I agree with his Honour McMurdo JA.

2. McMURDO JA:  The applicants, which together I will call QCoal, operate the Byerwen coal mine, about 30 kilometres west of the town of Glenden and within the area of the Isaac Regional Council.  Pursuant to an approval given by the Council, in 2018 QCoal established a temporary works camp, comprising 349 accommodation units to accommodate 350 workers involved in the construction stage of the mine.  Now that mining has commenced, other accommodation needs to be found for QCoal’s workforce.

3. QCoal applied to the Council for approval for a permanent works camp on a site adjoining the mine which is made up of the existing 349 units and a further 301 rooms which would house a further 250 persons.[1]  The Council refused the application and QCoal unsuccessfully appealed to the Planning and Environment Court.[2]

   [1]Ex 7 AR 2/vol 1, p 207.

   [2]QCoal Pty Ltd and Anor v Isaac Regional Council [2021] QPEC 60 (Judgment).

4. This is an application for leave to appeal against that judgment. By s 63 of the Planning and Environment Court Act 2016 (Qld), a party may appeal such a decision only with leave and on the ground of an error or mistake in law or a jurisdictional error. For the reasons that follow, QCoal has established that there were errors of law which led the judge to conclude as he did. Leave to appeal should be granted, the appeal allowed and the case remitted to the Planning and Environment Court for re-hearing.

   Glenden

5. The town of Glenden was established in the 1980s by the mining company Glencore, primarily to support its nearby Newlands coal mine.[3]  Glencore owns what the judge described as significant residential land and houses in the town.[4]  As at 2016, there were 594 private dwellings in Glenden and approximately 68 per cent of them were unoccupied.  Further, the judge recorded, the vast majority of housing in Glenden is rented at a nominal rate.[5]  The infrastructure in Glenden includes a police station, a church, a school, various sporting facilities, a medical centre, a post office, a library, licensed premises and retail, mechanical and fuel operations.

   [3]Judgment [6].

   [4]Judgment [38].

   [5]Judgment [6].

6. When the Byerwen project was approved by the Coordinator-General, it was assumed that 30 per cent of workers at the mine would live in Glenden, of whom 45 per cent would be workers with families, 22 per cent workers living with their partners and 33 per cent who would be living alone.[6]  The travel time between the proposed development and Glenden is less than half an hour.[7]

   [6]Judgment [4].

   [7]Judgement [7].

7. The applicants own land in Glenden, for which they obtained development approvals in 2013 that would have permitted up to 56 dual-occupancy units and 45 houses to be constructed on 47 freehold allotments on a subdivision of the land.  Those approvals had lapsed by the time of the hearing.  More recently,[8] in relation to other land in Glenden, QCoal obtained development permits for 12 multiple dwellings, but that development did not proceed.  The judge said that no explanation had been given for QCoal having not taken advantage of these approvals and permits.[9]

   [8]In 2020.

   [9]Judgment [38].

8. The judge found that had those approvals and permits been acted upon, QCoal could have accommodated an estimated 170 workers permanently in Glenden.[10]  Moreover, he said, there was “significant freehold land adjoining the urban area of Glenden” which could be used for a works camp although there was no evidence of an attempt by QCoal to secure any of the land for that use.[11]

   [10]Judgment [39].

   [11]Judgment [40].

9. A small number of QCoal’s workforce is accommodated in Glenden.  There was evidence in QCoal’s case that QCoal makes 17 houses available in Glenden for workers, all of which are occupied, and preference is given to families and couples.  At the time of the hearing there were five employees on a waitlist for that accommodation.  There were also some workers accommodated at the Glenden Motel, which has 50 rooms and operates as a works camp.[12]

   [12]Judgment [31].

   The Byerwen Mine

10. The judge found that it is QCoal’s intention to accommodate 98 per cent of its workforce within the proposed development at the mine.[13]  That finding was based upon what was said in a joint report of social planners, where the authors referred to a document described as the QCoal Works Camp Needs Assessment which was written in June 2019.  According to the social planners, that document referred to an estimated workforce of 550, 98 per cent of whom would be residents of the works camp and the remainder who would commute daily to the mine.  That finding, as to an intention to accommodate 98 per cent of the workforce at the mine, is challenged by QCoal as unsupported by the evidence.  A question of whether there was any evidence to support the finding is one of law, however what appears in the paragraph of the joint report to which the judge referred did constitute some evidence.  It might be noted, however, that in the following paragraph of that report, the authors referred to the 2019 Assessment as also stating that the number of people working at QCoal’s mine and living in Glenden was expected to continue to increase, if and when further housing became available, and that QCoal supported Glenden’s growth in a planned and sustainable way, ensuring that the social and infrastructure services in the town were supported rather than overloaded.[14]

    [13]Judgment [4], [31].

    [14]AR 2/vol 1, pp 221-222.

11. Nevertheless, it is apparent that QCoal proposed this development so as to be able to accommodate most of its workforce at a site adjoining the mine.  There was evidence, by the Executive General Manager of Planning and Operations of QCoal, that there was a clear preference by mine workers to reside in coastal locations, and to work in the mine on a fly in, fly out basis.  The witness referred to changes in industry practice, including changes to rosters of 12 hour shifts for seven days, with the following seven days off work.  By the time of the hearing, that rostering was in place.

12. In response to a submission by QCoal that the 12 hour shifts would leave workers with little time to utilise facilities in Glenden, the judge said that there was no evidence before him to demonstrate that shifts could not be shorter, should workers be accommodated in Glenden.  He also said that there was no evidence before him that shifts of 12 hours were essential to QCoal’s mining operation.[15]

    [15]Judgment [43].

    The assessment benchmarks

13. QCoal’s appeal to the Planning and Environment Court was enabled by s 229 and Schedule 1 of the Planning Act 2016 (Qld). Consequently, the appeal was a Planning Act appeal as that term is used in the Planning and Environment Court Act, and ss 45 and 46 of that Act governed the appeal. By s 45(1)(a), QCoal had to establish that the appeal should be upheld. By s 46(2), s 45 of the Planning Act applied to QCoal’s appeal as if the Planning and Environment Court were the assessment manager for the development application.

14. The proposed development was to be assessed by an impact assessment, so that by s 45(5)(a)(i) of the Planning Act, the assessment was to be carried out against the assessment benchmarks in the categorising instrument for the development.[16] There were two such instruments, namely the Mackay Isaac and Whitsunday Regional Plan (the Regional Plan) and the Nebo Shire Plan 2008 (the Nebo Scheme), which was the planning scheme in effect when the development application was made. At the time of the hearing, the site remained in the rural zone pursuant to the Isaac Regional Planning Scheme (the Isaac Scheme). By s 60(3) of the Planning Act, the Court was to decide whether to approve all or part of QCoal’s application, to approve all or part of it upon development conditions or to refuse the application.

    [16]Judgment [9].

15. The judge cited the following observations of Mullins JA in Abeleda  v Brisbane City Council,[17] as to the task of the decision maker under s 60(3):

    “[42] …The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.

    [43]In view of the fact that s 60(3) of the Act reflects a deliberate departure on the part of the Legislature from the two part test under s 326(1)(b) SPA, it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved. The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the factors in favour of approval (or approval subject to development conditions) have to be balanced with the factors in favour of refusal of the application. The weight given to each of the factors is a matter for the decision-maker in the circumstances, particularly having regard to the purpose of the decision in the context of the Act and the obligation imposed on the decision-maker under s 5(1) of the Act to undertake the decision-making in a way that advances the purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41.”

    [17](2020) 6 QR 441; [2020] QCA 257.

16. The Regional Plan, by Principle 5.5.1, provided:

    “5.5.1        The long-term viability of resource communities is sustained by enhancing liveability, providing diverse housing and employment options and accommodating the needs of the resource sector.

    …

    Opportunities to capture this growth and invest in advancing the liveability and long-term sustainability of these communities will be a major driver in decision-making for these towns and villages.

    …

    Recognising the legitimate interests of communities in maximising the benefits of locally retained and resident workforce (sic) should be seen as a key priority.”

17. After referring to that provision, the judge referred to these provisions of the Regional Plan:

    “5.5.1The long-term viability of resource communities is sustained by enhancing liveability, providing diverse housing and employment options and accommodating the needs of the resource sector.

    …

    5.5.7[p]lanning for workers’ accommodation and infrastructure must address the impacts of the site’s eventual closure.

    …

    7.1.1Land and infrastructure are used efficiently, taking into account costs of servicing, projected demand on/from existing urban infrastructure and employment.

    7.1.2Urban growth is consolidated in a compact settlement pattern within areas identified for this purpose.

    …

    7.1.4Development is located and sequenced to make the best use of existing infrastructure, and ensure efficient and cost-effective investment in new infrastructure.

    …

    7.1.8A range of lot sizes and housing types is provided within urban areas to cater to diverse needs, including resident and non-resident workers.

    …

    7.1.10Promote and accommodate growth in areas where existing and planned infrastructure and services can accommodate it.

    …

    7.4.1Housing meets the needs of the community, considering all lifecycle stages, varying demands, and economic circumstances.

    …

    7.4.4Encourage settlement in mining communities by providing sufficient urban land supply and diverse housing stock that can adequately accommodate predicted population growth.

    7.4.5Provide a mix of dwelling types and sizes to attract long-term residents and a sustainable population in resource communities. This accommodates different family types, dynamics and housing needs.

    7.4.6Provide housing and accommodation for temporary residents and employees involved in industrial development, mining and construction, and seasonal work.

    …

    7.4.8Facilitate the location of non-resident worker accommodation to ensure access to services and community integration, and social cohesion with the existing community.”

18. The judge considered that “there is a strong theme running through the Regional Plan”, which he observed took precedence over the Nebo Scheme and the present Isaac Scheme,[18] “to consolidate urban growth and efficiently utilise land and infrastructure”.  He said that it was intended by the Regional Plan that a mix of dwelling types be provided and that non-resident worker accommodation was located “to ensure access to services and community integration, and social cohesion with the existing community”.[19]  QCoal’s submissions do not challenge that interpretation of the Regional Plan.  Its arguments are that there were errors in the interpretation of relevant provisions of the Nebo Scheme.

    [18]Planning Act 2016 (Qld), s 8(4)(b).

    [19]Judgment [28] quoting from the Regional Plan at 7.4.8.

19. The Nebo Scheme divided the local government area into two localities, namely the Urban Locality and the Rural Locality.[20]  The Urban Locality in the Nebo Shire comprised what were described as the localities of Nebo and Glenden, as delineated in maps within the scheme.  The Rural Locality constituted the balance of the Shire.  The Nebo Scheme divided each locality into zones.

    [20]Judgment [19].

20. The Nebo Scheme contained codes setting out criteria for the assessment of development.  There was a code for each of the urban and rural localities.  There were also codes for certain defined uses and use classes and codes of general application, but none of them is presently relevant.

21. The Nebo Scheme stated that it sought to achieve outcomes according to this hierarchy:

    (a)desired environmental outcomes;

    (b)overall outcomes for, and purpose of, a code;

    (c)specific outcomes for a code;

    (d)probable solutions for a specific outcome, or acceptable solutions for complying with a self-assessable code.

22. Part 2 of the Nebo Scheme was headed Desired Environmental Outcomes.  It listed 19 outcomes of this kind, as well as stating some facts and circumstances which were relevant to the outcomes.

23. The desired environmental outcomes numbered (12) through (19) were preceded by text which included the following:[21]

    “All townships in the Shire and Coppabella are now playing an important role as an accommodation base for workers in the coal mining industry, with an active approach by Council for requiring new workers camps to be located within or adjoining the urban localities or within Coppabella. Nebo in particular is within easy road access to the regional centre of Mackay for higher shopping and services and to coastal tourist areas for recreation.

    The resident population of the Shire is around 2,500 people. Grazing, agriculture and coal mining are the major employment sectors for residents of the Shire.

    The urban localities of Nebo and Glenden have standard urban infrastructure and are the primary urban focal points of the Shire, albeit with differing functions. Nebo is the main administrative civic and educational focus of the Shire, whilst Glenden is the primary residential accommodation area for the coal mining industry.”

    [21]AR 2/vol 1 p 79.

24. The outcome numbered (16) (“DEO(16)”) was as follows:

    “The urban localities accommodate a range of uses, new coal mining workers camps, associated services and residential types and lot sizes to reflect community needs. Isolated workers camps, that is not within or adjoining the urban localities or Coppabella, are not envisaged within the Shire unless located adjacent to mines in locations not able to be conveniently serviced by accommodation within an urban locality or within Coppabella.”

25. It was common ground that the proposed development would involve an “isolated workers camp” within the meaning of that provision, the site not being within or adjoining Glenden.[22]  Consequently, according to DEO(16), the development was not “envisaged within the shire” unless it was located adjacent to QCoal’s mine (which was the case) and the mine was “not able to be conveniently serviced by accommodation within an urban locality.”  Notably, the text of that proviso did not refer to a location not able to be conveniently serviced by accommodation within or adjoining an urban locality, raising an issue to which I will return.

    [22]Or the place described as Coppabella.

26. Part 3 of the Nebo Scheme was headed Assessment Categories for Development.  Table 3-1 within part 3 was applicable.  Classes of use were listed in a column of that table, namely residential uses, rural uses and commercial uses, with specific uses within each class also listed.  The class of residential uses included the specific use of “Works Camp”.  The assessment categories for that use were according to the zoning of the land concerned.  In the rural zone, the use of a works camp was categorised as “impact assessable (consistent use)”, whereas in the residential zone, the use was categorised as “impact assessable (inconsistent use)”.

1. It is common ground that the proposed development involved a works camp as the term was defined in the Nebo Scheme as follows:

   “[A]ny premises used for the purpose of providing accommodation to workers associated with major developments. It includes ancillary uses such as kitchen, dining hall, amenity buildings, and recreation and parking facilities, which cater exclusively for the residents of the worker’s accommodation. The term does not include accommodation units, caravan park, community purposes, multiple dwelling or temporary worker’s accommodation or any other facility, which is separately defined.”

   That definition appeared within a definitions clause which was headed “Residential Uses”.

2. Part 4 contained the locality codes.  In the Urban Locality Code, clause 4.1.3.2 stated the overall outcomes sought by that code, and they included the following:

   “Urban Localities accommodate population, mining workers accommodation and rural residential growth in the Shire, to the exclusion of the Rural locality”.

3. Clauses 4.1.4 and 4.1.5 provided for consistent and inconsistent uses in the Urban Locality, as follows:

   “4.1.4Consistent Uses in the Urban Locality

   4.1.4.1Specific Outcomes

   (a)Consistent uses within the Urban Locality are consistent uses within the applicable zone;

   (b)Uses and works are of a type and scale appropriate to the Urban Locality and other associated uses and works.

   4.1.5Inconsistent Uses in the Urban Locality

   4.1.5.1Specific Outcomes

   (a)Inconsistent uses within the Urban Locality are [in]consistent uses within the applicable zone.”[23]

   [23]It was agreed, as the judge noted, that there was a typographical error which should be corrected as I have done in cl 4.1.5.1(a).

4. In the Rural Locality Code, there were like provisions for consistent and inconsistent uses.[24]

   [24]Clauses 4.2.4.1 and 4.2.5.1, again corrected for the same typographical error.

5. The Rural Locality Code contained provisions as to residential uses within that locality which included the following:

   “4.2.3.2The overall outcomes sought by the Rural Locality Code are the following:

   …

   Residential Uses

   (i)Residential uses, only where they cannot be practically located in an Urban Locality, are located, designed and operated so as not to adversely affect or restrict the operation of rural uses and associated buildings, structures and/or infrastructure. In such cases, there location should desirably be adjacent to an Urban Locality (section 4.2.8);

   …

   Extractive Resources

   (n)Extractive industry and coal mining operations, with associated haul routes, are effectively separated from, and protected from encroachment by, any sensitive uses, in particular residential uses (section 4.2.8);”

6. The term “Residential Uses” was defined in clause 7.1.1 as follows:

   “The term includes the use of premises for accommodation units; bed and breakfast accommodation; caravan or relocatable home park; dependant person’s accommodation, dwelling house; home-based business; home occupation, multiple dwelling; oversized shed(s), retirement housing and tourist accommodation.”

7. There is an issue (to which I will return) as to whether the term “Residential Uses” as there defined, and as used in clause 4.1.3.2(f), included a works camp.

8. The judge described the Isaac Scheme as containing a “planning strategy evident in the provisions of the Regional Plan and the Nebo Planning Scheme ….”.[25]

   [25]Judgment [26].

9. In s 3.2.2 of the Isaac Scheme, it is stated that urban settlement does not occur outside nominated towns including Glenden, and in s 3.3.1.3, it is stated that non-resident workforce accommodation is provided in response to a legitimate demonstrated need.[26]

   [26]Judgment [26].

   Reasons of the primary judge

10. Having set out those provisions of the Regional Plan and the planning schemes, the judge listed the issues for determination in the appeal as involving firstly “whether the site is in an appropriate location for the proposed development having regard to the above provisions of the relevant assessment benchmarks.”[27]  The judge said that he was also asked to consider:

    (a)whether there was a need for the development having regard to a number of matters;

    (b)whether the development would have acceptable or unacceptable impacts on Glenden;

    (c)whether the development would have positive or negative social impacts on workers;

    (d)whether the development made appropriate use of suitable infrastructure;

    (e)the weight that should be given to the Isaac Planning Scheme.

    [27]Judgment [27].

11. Having stated those issues, the judge made the statement, to which I have referred earlier at [18]. He said that this theme was reflected in the Nebo Scheme. Read as a whole, this made it clear that the “…nomination of a Works Camp as an impact assessable (consistent use) in Table 3-1[28] is not intended to override the clearly expressed statements in the desired environmental outcomes that a Works Camp is not envisaged other than within or adjoining an urban locality, unless it is in a location not able to be conveniently serviced by accommodation within an urban locality.”[29]  He said that this intent was confirmed in those provisions of the Locality Codes.[30]  He said that this theme was continued in the Isaac Planning Scheme, which was relevant in demonstrating a consistent and continuing policy evident in the Regional Plan and the Nebo Scheme.[31]

    [28]See paragraph [28] above.

    [29]Judgment [28].

    [30]Ibid.

    [31]Judgment [29].

12. The judge accepted that there was a “significant need for accommodation for both existing and prospective workers employed at the mine”.[32]  He said that “[w]hat is contentious is whether the [applicants] have discharged the onus of proving that this need cannot be met in Glenden as contemplated by the assessment benchmarks referred to above.”[33]

    [32]Judgment [31].

    [33]Ibid.

13. The judge then continued by saying that there were “two essential planks” to QCoal’s argument for the development at the mine site.  The first was “that this is the preferred accommodation model for existing and prospective workers.”  The second was that there was no suitably zoned land in Glenden which was available to QCoal to meet its need for workers accommodation.[34]

    [34]Judgment [32].

14. The judge said that the first plank required QCoal to prove that “98 per cent of its current and prospective workforce would in all likelihood prefer to reside at the proposed development rather than in Glenden …”, which, he concluded, QCoal had failed to do.  He referred to the environmental impact statement in support of the application for approval of the mine, which, as noted earlier,[35] assumed that 30 per cent of mine workers would live in Glenden.  There was other evidence, to which the judge also referred, of existing employees at the mine showing “a considerable level of demand for accommodation in Glenden”.  Whilst he seemed unpersuaded by that other evidence, the judge said that the evidence of QCoal’s Executive General Manager, that there was “a clear preference for mine workers to reside in coastal locations”, did not of itself prove a need for 98 per cent of the existing and prospective workforce to reside at the mine.[36]

    [35]See paragraph [5] above.

    [36]Judgment [33].

15. Further, by reference to this first plank as he saw it, the judge accepted evidence, set out in the joint report of the social planners, to the effect that non-residential workers who are accommodated in this way face a number of “potential challenges and impacts”, including a sense of separation from families and friends causing damage to relationships, and a sense of isolation and loneliness and fatigue caused by long shifts and demanding physical work.[37]  The judge accepted the evidence of the social planner who was called in the Council’s case that the proposed development would effectively deny to any worker the opportunity to live locally and to bring their partner and family with them.[38]

    [37]Judgment [34].

    [38]Judgment [36].

16. There is a significant question of whether that reasoning was relevant, to which I will return.

17. As to the “second essential plank” in QCoal’s case, the judge was unpersuaded by evidence that QCoal had conducted unsuccessful negotiations with Glencore to purchase its “significant” residential land and houses in Glenden.[39]  He noted also that QCoal had obtained the development approvals and permits to which I have referred.[40]

    [39]Judgment [38].

    [40]Ibid.

18. Moreover, the judge said, there was “significant freehold land adjoining the urban area of Glenden which could be utilised for a Works Camp as contemplated by s 4.3.2 of the Nebo Scheme and there is no evidence of any attempt by the applicants to secure any of this land for a Works Camp.”[41] This was an apparent reference to clause 4.2.3.2(i) of the Nebo Scheme which is set out earlier at [30].

    [41]Judgment [40].

19. For these reasons, the judge concluded that QCoal had not discharged an onus of demonstrating that there was a “latent unsatisfied demand to accommodate 98 per cent of their proposed workforce which is not capable of being adequately met in and adjacent to Glenden …”.[42]

    [42]Judgment [41].

20. The judge rejected QCoal’s argument that the length of the current shifts, being 12 hours, would not leave workers much time to utilise facilities in Glenden.  In his view, that was answered by the absence of evidence that demonstrated that shifts could not be shorter than 12 hours should workers be accommodated in Glenden.  The judge said that there was no evidence that shifts of this length were essential to the mining operation, and that they appeared to be just “a preference from an organisational perspective based on the industrial model [QCoal] has adopted”.  Further, the judge said, there was evidence which established that on their current shifts, workers living in works camps do utilise recreational facilities in Glenden.[43]

    [43]Judgment [43].

21. The judge summarised his conclusions as follows:

    “[45]    The proposed development is inconsistent with the relevant provisions of the Regional Plan and the Nebo Planning Scheme. The planning strategy underlying these provisions is also reflected in the Isaac Planning Scheme which recently came into effect. The appellants seek to establish a Works Camp in a location convenient to them with minimal infrastructure in circumstances where they have not demonstrated that their existing and prospective workforce cannot be housed nearby, in and around Glenden, as contemplated by the relevant assessment benchmarks. It is only a 30-minute bus journey from the site. The consequences of approving the proposed development would be detrimental to the ongoing utilisation of the significant social and administrative infrastructure which is already located in Glenden. This is not an appropriate planning outcome. The failure of the proposed development to offer a significant choice to prospective workers to accommodate them with their families a short bus ride from the mine is likely to have a negative impact on certain workers.

    [46]The appellants have not discharged the onus of establishing that the appeal should be allowed, the effect of which would be to locate 98 per cent of their current and prospective workforce at a Works Camp at the mine rather than, at the very least, offering to accommodate a significant number of their workers in Glenden as contemplated by the relevant assessment benchmarks.”

    QCoal’s arguments

22. The first errors of law suggested by QCoal are in the judge’s interpretation of the Nebo Scheme, and more particularly the provisions of DEO(16) and the overall outcome which is clause 4.2.3.2(i) of the Rural Locality Code.  Each of those provisions appears to have been interpreted by the judge as providing that the works camp could not be developed in their rural locality unless the mine could not be serviced by accommodation within an urban locality or in an area adjoining an urban locality.

23. The terms of DEO(16) are set out earlier.[44]  As already noted, the proviso within that provision does not expressly refer to an alternative of accommodation within an area adjoining an urban locality.  QCoal contends that the judge erred in interpreting the proviso to include adjoining land.

    [44]At [23].

24. It is correct to say that the proviso within DEO(16), considered in isolation, could not be interpreted to include adjoining land.  However the proviso is not to be considered in isolation from the balance of DEO(16), the text which preceded DEO(12) through (19), other parts of the Nebo Scheme and the relevant provisions of the Regional Plan.

25. Within DEO(16), a distinction was drawn between isolated workers camps and other camps.  The former, which were described as camps not within or adjoining the urban localities, were not envisaged within the shire unless the proviso was satisfied.  The other camps, namely camps within or adjoining urban localities, were thereby recognised as developments which were envisaged within the shire.  The evident intent was that there should be a workers camp beyond an area within or adjoining an urban locality only where the camp was adjacent to the mine and the mine could not be conveniently serviced by accommodation within or adjoining an urban locality.

26. That interpretation is fortified by one of the statements appearing above DEO(12)-(19), as follows:

    “All townships in the Shire and Coppabella are now playing an important role as an accommodation base for workers in the coal mining industry, with an active approach by Council for requiring new workers camps to be located within or adjoining the urban localities or within Coppabella.”

    (Emphasis added.)

27. The other provision which QCoal says was misinterpreted by the judge was clause 4.2.3.2(a) of the Rural Locality Code.  The argument is about the meaning of the term “Residential Uses” in this provision.  I have set out at [32] the definition of that term in clause 7.1.1 of the Nebo Scheme.  It is submitted that the term, as there defined, does not include a works camp.

28. QCoal submits that although the definition employs the expression “includes”, it is to be interpreted as if it employed the word “means”.  In other words, it is said that this is a definition which is intended to be exhaustive and not, as is the usual case where the expression “includes” is used in a definition, intended to add to the ordinary meaning of the defined term.  In favour of that argument is the fact that the definition makes specific reference to things which would be within the ordinary meaning of “residential uses”, most notably a “dwelling house”, which could be an indication that the word “includes” has the same effect as “means and includes”.[45]

    [45]YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395; R v Smith [2008] QCA 406 [1], [20]-[21], [30], [33]; [2009] 1 Qd R 239, 240, 243-244, 245.

29. Against that argument, the uses are in each case terms which are defined by clause 7.1.1, so that it is not clear that each is used in the definition of Residential Uses in a way which corresponds with their ordinary meanings.

30. Further, the interpretation of this definition must be considered in context.  A contextual indication which is against QCoal’s argument is that each of the definitions in clause 7.1.1, including the definition of works camp, appears under the heading “Residential Uses”.

31. In my opinion, the better view is that the word “includes” is to be understood in this case as being used in order to add to the ordinary meaning of the defined term.[46]  The term “Residential Uses” should be understood as including a works camp and there is no apparent reason for excluding a works camp from that provision of the scheme.  Instead, if applied to works camps, it is consistent with DEO(16).

    [46]See also Pearce and Geddes, Statutory Interpretation in Australia (2019) at [6.5].

32. Further, it is notable that it is the Urban Locality Code, and not the Rural Locality Code, which states an overall outcome of accommodating “population [and] mining workers accommodation and rural residential growth in the Shire” and “to the exclusion of the Rural Locality”.

33. In summary, QCoal’s argument as to the suggested errors in the judge’s interpretation of these two provisions should be rejected.

34. The next argument for QCoal is that the judge erred in holding that QCoal had the onus of proving the unavailability of suitable land in and adjoining Glenden.  QCoal contends that the judge effectively required it to prove a negative, namely that there was no suitable land which was available.  If that is a correct characterisation, it does not follow that QCoal did not bear an onus of proof.

35. In civil litigation, the burden of proof lies on a plaintiff to prove a fact which is an essential element of the cause of action, and the burden is on the defendant to prove a fact alleged by it, not as a denial of an essential ingredient in the cause of action, but one which would constitute a good defence to a claim which, prima facie, the plaintiff has.[47] In the present context, however, QCoal did not sue upon a cause of action. QCoal had a statutory entitlement to have the Planning and Environment Court assess its development application and to decide it in one of the ways prescribed by s 60(3) of the Planning Act.  As the assessment manager of this application,[48] the Court considered the application against the assessment benchmarks, and it could also consider any other relevant matter, such as a planning need or the current relevance of the assessment benchmarks in the light of changed circumstances.[49]

    [47]Currie v Dempsey (1967) 69 SR (NSW) 116 at 125 cited in Cross on Evidence Australian Edition at [7065]; see also [7070].

    [48]Planning and Environment Court Act 2016 (Qld), s 46(2)(a).

    [49]Planning Act 2016 (Qld), s 45(5).

36. The parties agreed[50] that the Court was to consider whether there was a need for the proposed development having regard to, amongst other things, the availability of suitable land in and adjoining Glenden and the reasonableness or otherwise of QCoal having to locate its workforce in Glenden (as opposed to only those workers choosing to live there). Neither party seems to have suggested that those two questions were relevant in the operation of the provisions of the Nebo Scheme, most specifically DEO(16). In the same way, the judge considered those issues as “relevant matters” within s 45(5)(b).

    [50]By the Agreed List of Issues, exhibit 23, paragraph 2.

37. There was at least an evidentiary burden upon QCoal to adduce evidence which raised those issues of the availability of suitable land in Glenden and the reasonableness of requiring it to locate its entire workforce in Glenden.  QCoal certainly discharged that burden.  In my opinion, the judge was correct to hold that QCoal had to go further, by proving that unavailability or that unreasonableness if the issue was to matter in favour of QCoal.  Put another way, if the judge was left undecided as to whether there was suitable land available in Glenden, that could have provided no support for the outcome which QCoal sought.  And ultimately it was for QCoal to establish that its appeal should be upheld.[51]

    [51]Planning and Environment Court Act 2016 (Qld), s 45(1)(a).

38. The judge was not persuaded as to the unavailability of suitable land in Glenden, but nor was he persuaded that suitable land was available in Glenden.  He accepted evidence that the approvals and permits, which at times QCoal held, would have enabled QCoal to provide some of the required accommodation upon its own land in the town.  But he did not find that the mine could be serviced entirely by accommodation on land which QCoal owned.  He was not satisfied that QCoal had pursued the possibility of acquiring suitable land from Glencore; but nor did he hold that Glencore’s land was available for this development.  As for areas adjoining Glenden, his findings extended only to the fact that there were two adjoining rural freehold properties.  He made no finding that they were or were not suitable for the purpose.[52]

    [52]Nor could he have done so upon the evidence relevant to them, which seems to have involved only title searches.

1. His reasoning in these respects could not be criticised upon the basis that he found facts for which there was no evidence.  Rather, the complaint would have to be that he ought to have gone further, and made the findings for which QCoal contended.  That would be a complaint of an error of fact, not of law.

2. I come then to the QCoal arguments described in its outline of submissions as the “Need errors”.  The judge said that one essential plank to QCoal’s argument was that 98 per cent of its current and prospective workforce would in all likelihood prefer to reside at the mine site rather than in Glenden.  QCoal submits that there were three errors in that reasoning, namely:

   (a)it proceeded upon a misunderstanding of QCoal’s evidence;

   (b)the issue was not one which was identified by the parties in an agreed List of Issues;[53] and

   (c)the issue imposed upon QCoal an unnecessary and irrelevant burden.

   [53]        Admitted in evidence as Exhibit 23.

3. The first of those suggested errors does not involve an error of law. However there is substance in the second and third complaints.  This issue was not one which the parties had presented for the Court’s determination.  QCoal did not contend that 98 per cent of its current and prospective workforce would in all likelihood prefer to reside at the mine.  QCoal did contend that it was unreasonable to expect it to locate its entire workforce in Glenden, as opposed to only those workers choosing to live there.  But that was quite a different issue.

4. The preferences of QCoal’s workforce would matter to QCoal.  It might be assumed that its proposal for this development at the mine site was made upon an understanding that this would be acceptable to sufficient of its workforce (and those representing their interests as employees) as to make it worthwhile for this development proposal to be pursued.  But the preferences of a certain percentage of the workforce were irrelevant to any issue, let alone being an essential plank of QCoal’s case.

5. The judge made no finding of the reasonableness or otherwise of requiring QCoal to locate the entirety of its workforce in or adjoining Glenden.  He apparently accepted evidence that there were “potential challenges and impacts that could be experienced by non-residential workers”, and appeared therefore to question the merits of the way in which the mine was being operated.  However, that was not an issue which the parties had included in the List of Issues which they presented to the Court.[54]  The issues for determination were not whether QCoal’s workforce should be non-residential or whether the workers should have shorter shifts.  It was whether in the way the mine was and would be operated, it was reasonable to expect the applicants to accommodate their non-residential workers in Glenden.

   [54]Exhibit 23.

6. In my respectful opinion, the judge thereby erred in law.  These were errors which, it plainly appears from the Reasons for Judgment, were material to the judge’s ultimate conclusion.

7. They require the judgment to be overturned. On the findings of the judge which do stand, this Court could not make the assessment required by s 45. The case must be reheard in the Planning and Environment Court.

   Orders

8. I would order as follows:

9. Grant leave to appeal.

10. Allow the appeal.

11. Set aside the order made by the Planning and Environment Court on 1 November 2021.

12. Remit the proceeding to be re-heard by the Planning and Environment Court.

13. The respondent pay the applicants’ costs of the application for leave to appeal and the appeal.

14. BURNS J:  I agree with the reasons and proposed orders expressed by McMurdo JA.