Queensland Rail v Cooloola Shire Council
[2006] QPEC 50
•19 May 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: | Queensland Rail v Cooloola Shire Council & Ors [2006] QPEC 050 |
PARTIES: | QUEENSLAND RAIL (Appellant) AND COOLOOLA SHIRE COUNCIL (Respondent) AND THE STATE OF QUEENSLAND (Co-Respondent) AND MEL RYAN AND SUSAN RYAN (First Co-Respondent by election) JOY PRIDDY, BRUCE PRIDDY & JUSTIN PRIDDY (Second Co-Respondent by election) AND J.G. PRIMROSE (Third Co-Respondent by election) AND JUNE WARREN (Fourth Co-Respondent by election) AND CHRIS MYERS (Fifth Co-Respondent by election) AND STEVEN WALKER AND MICHELLE WALKER (Sixth Co-Respondent by election) AND AURELIO NARDINI (Seventh Co-Respondent by election) AND COLIN SAPWELL (Eighth Co-Respondent by election) AND TREVOR DARLINGTON AND ELLEN DARLINGTON (Ninth Co-Respondent by election) AND A.E. PRATER AND B.E. ATKINS (Tenth Co-Respondent by election) AND VIVIENNE TEMPLE AND STEPHEN HYSLOP (11th Co-Respondent by election) AND CHRIS SPARY (12th Co-Respondent by election) AND AKRAM MALIK (13th Co-Respondent by election) AND TRAVESTON RESIDENTS’ ASSOCIATION INC. (14th Co-Respondent by election) AND CHIEF EXECUTIVE OF THE DEPARTMENT OF THE ENVIRONMENTAL PROTECTION AGENCY (15th Co-Respondent by election) |
FILE NO/S: | D290 of 2005 |
DIVISION: | Planning and Environment Court |
PROCEEDING: | Application |
ORIGINATING COURT: | Gympie |
DELIVERED ON: | 19 May 2006 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 2 to 9 May 2006 |
JUDGE: | Judge J.M. Robertson |
ORDER: | [1] Appeal allowed. Matter adjourned to enable the parties to negotiate appropriate conditions consistent with these reasons. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – disused quarry, whether proposal conflicts with Strategic Plan, the extent to which weight should be given to the Integrated Planning Act Plan and Draft State Planning Policy dealing with Key Resource Areas, issues of amenity (noise, dust), traffic, environmental issues and effect of proposal on Key Resource Area. Legislation: ss. 4.1.52 and 6.1.30 of the Integrated Planning Act 1997 ss. 4.4(5) and 4.13(5A) of the Local Government (Planning and Environment) Act 1990 Cases Weightman v Gold Coast City Council [2002] QCA 234. |
COUNSEL: | Mr M. Hinson with Mr D. O’Brien (for the appellant) Mr S. Ure (for the respondent) Ms J. Brien (for the co-respondent) |
SOLICITORS: | Hopgood & Gamin Lawyers (for the appellant) King & Company Solicitors (for the respondent) State of Queensland (for the co-respondent) The co-respondents by election for themselves (Mr Lambert as spokesperson) |
Queensland Rail (QR) appeals against a decision of the Cooloola Shire Council (Council) made on 19 July 2005, to refuse its application for a development permit for a material change of use for a construction and demolition (C&D) waste landfill at a site within QR owned land approximately 2.5 kilometres east of the Bruce Highway at Meadvale and 13 kilometres south east of Gympie which land in the past has been used by it as a quarry. QR worked the quarry for many years for the extraction of ballast material for track construction work. The evidence suggests that since work ceased both QR and the Council have on occasions accessed stockpiles of extracted material from the site, but extractive use has not occurred since the mid 1990’s.
The site contains a large hill, the southern side of which is now the disused quarry face. The main face of the existing quarry is positioned within Lot 1 on SP10275 and faces south west. The quarry is the site of the proposed landfill. It contains a very high section of exposed earth left from the working face of the quarry, which is made up of a number of benches and steep vertical sections. An area at the base of the quarry is open ground which has a generally degraded appearance. The quarry area contains a number of operational features such as a sediment control pond and various loading facilities for rail and trucks. Overall, the quarry site is a very visible element in the local landscape and contrasts with the otherwise vegetated and rural aspect.
The current road access to the quarry site is via Tandur Road which joins the Bruce Highway at the Matilda Service Station at Tandur.
The proposal for the waste landfill involves processing and recycling of non putrescible waste and filling for over 100,000 but not more than 200,000m³ per annum. It is intended that the operation would involve the progressive filling of the quarry void with the waste. The proposal includes land intended for access, buffer, stormwater management and water supply purposes for the proposed development.
The uncontested expert evidence estimates the total capacity of the void at 350,000m³ while the analysis undertaken by Mr Jon Norling, urban economist indicates that a rate of 50,000m³ per annum is realistic from a market perspective, whereas the application contemplates 60,000m³. The traffic engineers adopted a rate of fill of 65,000m³ per annum thus the estimated operational life of the land fill enterprise is between 5.5 and 7 years.
As the proposal includes environmentally relevant activity (ERA) the Environmental Protection Agency (EPA) was a concurrence agency in relation to that component. It issued a decision notice on 14 June 2005, approving the proposal subject to certain conditions. It participated in the appeal, and its conditions were modified slightly in the course of the appeal.
The proposal contemplates access to the site via Woondum Road, which will require construction of a new road on QR land surrounding the site, roughly along the route of the old railway line. As often happens in these appeals, the proposal has been refined during the court process to deal with issues as these arise.
The application was lodged in November 2004 under the previous planning scheme (the transitional scheme) and attracted 69 submissions and a petition all adverse to the proposal. A new scheme prepared under the Integrated Planning Act (IPA) (the IPA scheme) was introduced on 31 March 2005.
It follows that the application is to be assessed by reference to s. 6.1.30 of the Integrated Planning Act which requires the application to be decided under ss. 4.13 (5A) of the Local Government (Planning & Environment) Act 1990 (“the repealed Act”).
Section 4.13(5A) of the repealed Act provides:
“The local government must refuse to approve the application if –
(a) the application conflicts with any relevant strategic plan or development control plan; and
(b) there are not sufficient planning grounds to justify approving the application despite the conflict.”
The effect of s.4.4(5A) which is in identical terms to s. 4.13(5A), was considered by the Court of Appeal in Weightman v Gold Coast City Council [2002] QCA 234 at 14 as follows:
“Sufficient planning grounds
The proposal must be refused in such a situation if there are not sufficient planning grounds to justify the approval despite the conflict. The discretion, as White J observed in Grosser v Council of the City of the Gold Coast, is couched in negative terms, that is, the application must be dismissed unless there are sufficient grounds. This is a mandatory requirement. If there is a conflict then the application must be rejected unless there are sufficient planning grounds to justify its approval despite the conflict. The primary judge wrongly held that it was directory only.
In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s. 4.4(5A)(b) of the P&E Act, the decision-maker should:
1. examine the nature and extent of the conflict;
2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”
Pursuant to s. 4.1.52 of the IPA, the appeal is by way of hearing anew, and the court must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate. Pursuant to s. 4.1.50, QR bears the onus of proof.
The application was refused on grounds that it conflicted with the relevant provisions of the transitional planning scheme in relation to issues of amenity, traffic, lack of planning need and strong community opposition, and on the basis that it did not comply with the Draft State Planning Policy – Protection and Extractive Resources (DSPP), and the relevant provisions of the IPA scheme.
The dispute was referred to mediation which was not successful in achieving settlement but which did confine the issues. These were:
“1. No benefit to community.
2. Not a suitable site for landfill and selection of site was without due process.
3. Toxic materials in the landfill/content of C&D Waste (including incidentals) and their potential impact taking into account the geotech properties of the site.
4. Toxic leachate and impacts on ground water and surface water of Six Mile Creek.
5. Flooding – escape from the site of materials.
6. The nature and extent of on-going monitoring of impacts.
7. The adequacy and accuracy of impact studies, including appropriateness of range of studies.
8. Volume/tonnage of landfill proposed.
9. Nature, location and extent of development on the site/lack of detail.
10. (a) Sound impacts.
(b) Noise impacts.
11. Traffic-adequacy and safety of proposed access route.
12. Restricting exploitation of the resources in the Key Resource Area.
13. Dust as per Council objection.
14. Environmental issues:
(a) Composition of dust.
(b) Toxicity – transport of toxicity off site.
(c) Impact on fauna.
15. Traffic safety, including impact on school bus route.”
Following the mediation, court directed conclaves of experts lead to a further narrowing of the outstanding disputed issues, and, at least as far as the experts were concerned, a number of joint statements on behalf of experts retained by QR and the Council. The co-respondents by election were ably represented by Mr and Mrs Lambert, of the Traveston Residents’ Association Inc. They did not retain or call any expert witnesses, rather they called a number of co-respondents and local residents most affected by the proposal, and the environmental officer from the EPA who assessed and approved the proposal on its behalf.
The Disputed Issues on Appeal
As between QR and the Council there was considerable agreement. The previous concerns relating to traffic and noise were dealt with at the expert conclaves, and Council now concedes that in relation to these issues, the application could be approved subject to the conditions put forward in the joint statements of the experts. There is also agreement between these parties that Mr Dillon’s (planner for Council) concerns that the application was premature because of the intimate link between the C&D waste disposal facility and a proposed recycling transfer station at Bli Bli in the Maroochy Shire, for which there is presently no development approval (or indeed application) could be met by the imposition of a condition linking any approval to the obtaining of that development approval.
This leaves only one real issue in dispute between QR and Council which relates to the alienation of a proportion of the rock reserve on the site required as a result of the C&D waste facility. The extent of the proposed alienation is really the only issue in dispute, as it is common ground that all relevant laws and policies, but in particular the IPA scheme and the DSPP establish this site as a key resource area for the extraction of valuable road building material. It is common ground that this site is the only viable quarry for these essential materials within a 40km radius of the city of Gympie.
As between the co-respondents by election and QR, there remain a number of disputed issues including the protection of the key resource area. I will deal with these issues first.
Noise
Mr Kamst gave evidence on behalf of the appellant. He conducted noise level monitoring at the site over a 7 day period in 2003, and in January 2006 in the vicinity of 2 of the 3 residences most affected by the proposal. In his report, he designates these homes as A, B and C. Residence A is some 700m to the south-west of the site and is elevated on a ridge, as is B which is 500m to the south. Residence C is located 400m to the south-east, and all have direct line of sight to the landfill site. Mrs Casey Lindsay lives in residence B and she gave evidence for the co-respondents as did Mr Walker who lives at a residence marked D in Mr Kamst’s report which is one of two homes close to the proposed new access road within QR land.
Mr Kamst concluded that the proposal would be able to meet relevant noise limits by reference to EPA guidelines contained in the Environmental Protection (Noise) Policy (EPP (Noise)). In his court report he used a more recent EPP than that referred to in the EPA con-currence agency conditions which were updated accordingly during the appeal hearing. His modelling indicated that 3m high acoustic barriers erected between the line of sight residences and the source of noise from the landfill site (mainly from a double muffled compactor and a front end loader) would suffice in order to meet the noise limits. He did not regard the predicted increase in noise from the 12 truck movements per day contemplated by the proposal as being significant either along Woondum Road or the proposed new private road on QR land. With the understatement of the expert he noted in his report in relation to Woondum Road that:
“While the predicted noise levels are quite low and well below the noise limit, residents may notice passing trucks”
He concluded his report:
“The proposed landfill operations would be able to meet relevant noise limits as discussed in the report by ensuring that the site management plan incorporates the following:
(i) a compactor able to achieve the sound power level indicated in Table 6.1;
(ii) erection of typically 3m high acoustic barriers (mounds or mobile barriers) located to the south of the site operations, so that direct line of sight is interrupted to the residences to the south; and
(iii) the access road should be maintained in good condition.
In addition the following are required to minimise dust emissions:
(iv) a water truck to be used on the landfill site;
(v) truck loads are to be covered;
(vi) dampen down loads prior to unloading if it is suspected that a significant amount of fine material is present.”
An earlier report prepared by Mr Kamst to support the application was referred by Council to another noise expert Mr David Moore who reviewed the findings and modelling and concluded in a letter to Council dated 24 April 2005:
“Overall I concur with the findings of the ASK Consulting Engineers report with respect to the proposed landfill operation at Meadvale. With the 3 metre high acoustic barriers in place, daytime activities at the landfill would comply with the noise limit at all of the closest residences and truck movements on the access road would only have a minor noise impact at the residences adjacent to this road.”
When Mr Ure was cross-examining Mr Hargroder (QR’s environmental expert), he raised for the first time an issue dealing with noise which is important but which was not raised with Mr Kamst, and which was not highlighted by Mr Moore in his letter. It arose because of concerns raised by Mr Lambert about the practicality of ensuring that at all times during operations on site either a 3m earth barrier or mobile barrier be between the source of noise and the affected residences. Mr Ure made the good point that as the landfill proceeds through the stages set out in Mr Hargroder’s design, the batters will rise generally in accordance with the contours of the quarry void, and inevitably trucks on the batters constructed on compacted fill from earlier stages will be in direct line of sight to the residences A, B and C.
In my view, it is important that the site based management plan (SBMP) deal with this issue in considerable particularity. It may be that the compactor will always remain on a lower level; I am unable to say on the evidence; however it is essential that the proposal be conditioned to ensure that at all times noise generating activities of the type referred to by Mr Kamst are shielded by the 3m buffer mobile or fixed barrier as he has suggested.
I am very conscious of the concerns held by the residents most affected by the proposal in relation to noise levels. It is accepted in the cases that the concept of amenity is wide and flexible, and includes a resident’s subjective perception of his or her locality. It is understandable that Mrs Lindsay and Mr Walker are very concerned about the effect of the proposal upon their amenity in what is a quiet rural area. Having said that, the expert evidence based on the latest EPP issued by the EPA is to the effect that with appropriate conditions, the noise can be kept to an appropriate level. This is undoubtedly cold comfort to them, both of whom have tried unsuccessfully to sell their homes, but it has to be said that in the relevant laws and policies the Meadvale quarry site is identified as a key resource area for extractive industry, and although a C&D waste disposal dump is a different use, I don’t think anyone is suggesting that a resumption of quarrying would not have significant impacts on amenity.
Traffic
Mr Viney on behalf of the appellant, and Mr Beard on behalf of the Council presented a joint report to the court (exhibit 3). They argued that the proposal could be approved in relation to the traffic issue subject to the 10 conditions set out in their joint report, and with an additional condition referred to in Mr Viney’s safety audit dated 10 April 2006 (part of exhibit 3) that a maximum permissible yearly volume of waste to be carried to the site be 65,000 cubic metres. They could not agree on cost sharing issues, but I was informed by Mr Hinson and Mr Ure, and I accept, that this issue is best left to the conditions stage to be hopefully resolved between the parties.
Need
Mr Lambert makes the point that all of the 69 submissions, and the 270 signature petition were adverse to the proposal thus demonstrating that the community itself, does not see a need for a C&D waste disposal dump. Mr Lambert also relies on the evidence of Mr Spary and Mr Brunning who obtained information from the Council and Noosa, Maroochy and Caloundra Shires about the present level of need for a C&D waste disposal facility. The appellants case, based largely on the evidence of Mr Norling and Mr Vann is that need in relation to this proposal has to be assessed on a regional on sub-regional basis and not simply in relation to any demonstrated need within the Cooloolah Shire. Mr Dillon had some difficulties with the concept of this being a regional or sub-regional facility because its proposed life was approximately 5-6 years only. Mr Norling is an urban economist and a well recognised expert in the area of need assessment. As he points out in his report and his evidence, waste landfills have been hitherto traditionally owned and operated by local authorities, often utilising old quarry sites that were filled and then rehabilitated for use as public facilities such as sporting fields.
Mr Rubin gave evidence on behalf of the appellant. He describes himself as a consultant to Costal Tipper Hire Pty Ltd the proposed operator of the dump on behalf of QR. On the basis of his uncontested evidence, I accept that Coastal Tipper has an option to acquire a site at 602 Bli Bli Road, Bli Bli within the Maroochy Shire, soon to become an unconditional purchase contract, which it intends to develop in two stages. Firstly, there will be an application to Council to create an industrial subdivision, and then, in respect of part of the newly created subdivision, an application for a resource recycling facility. The application for reconfiguration was lodged on 30 June 2005, and is still in the information request stage.
The appellant and Council have agreed that any approval of the landfill project should be conditionally linked to the actual approval by MSC of the resource recycling facility on the Bli Bli land. I agree with both Mr Vann and Mr Dillon that there are strong planning grounds to have such a condition, and with Mr Norling that because such a recycling facility is strongly needed on the Sunshine Coast, if approved that will elevate the present considerable planning need for the proposed landfill so as to provide competition with the presently Council controlled landfills (4 out of 5 in the Cooloola Shire), to a strong planning need.
Other Planning Issues
The co-respondents’ submission and court exhibit 11 does raise issues relating to visual amenity and character impacts. In this regard I accept the joint evidence of Mr Vann and Mr Dillon that the site has a very limited visual character and that impact on the landscape character raised no significant problems for the proposal. The proposal will involve the rehabilitation of the site approximating the contours of the quarry area prior to it being mined, and both planners agreed that this is a positive feature of the proposal in terms of its contribution to the landscape character of the area. Mr Kamst also dealt with dust which I am satisfied can be managed in accordance with the conditions agreed between the party, and it is agreed that odour issues do not arise because of the nature of the waste to be dumped, and in light of the relevant EPA conditions.
Environmental Issues
As noted, the EPA as concurrence agency has approved the proposal subject to conditions which are contained behind tab 30 in volume 2 of exhibit 1. The environmental experts Mr Hargroder and Mr Sanders provided a joint report to the court (exhibit 8) which included a detailed SBMP in accordance with one of the EPA conditions. As they identify in their report, the environmental report lodged by QR with the original application lacked a sufficient level of detail to satisfy environmental concerns raised by Council and the co-respondents.
It is quite common that the IDAS process will extract much more detail than was available with the original application, and that, in turn, the appeal process will elicit even more detail. The co-respondents by election were very concerned about the control of contaminated water from the site. Probably because of the process I have just described, it did appear that Mr Lambert had not fully appreciated that the proposed SBMP is stringent enough to ensure that contaminated water is limited, so as to ensure that the leachate sump provided in Mr Hargroder’s plan will not overflow, a fundamental condition in the EPA conditions. This is because it is proposed that as the site is filled, and on a very regular basis, the compacted waste will be covered so that water falling on covered waste will run off as normal storm water, and only rain falling on exposed waste will leach down to the sump.
Mr Lambert on behalf of the co-respondents by election called a former neighbour of the quarry who had lived there at a time when the quarry was operating. He had also worked on the site. He gave evidence about fauna such as koalas, and, indeed as part of the joint report with Mr Hargroder, Mr Sanders acknowledged that the forests and waterways surrounding the quarry provide fauna habitat and contained various fauna. As he notes, habitat loss will be minimal because the site footprint occasioned by the previous use will not change significantly, and within the site footprint vegetation is minimal and fauna habitat value is low because of the previous use for extractive purposes. He notes that once the landfill is completed the site will be restored to a much more acceptable state than at present and may extend the fauna movement corridor accordingly.
Subject to the imposition of appropriate conditions in accordance with EPA requirements and the joint report, there are no environmental issues that would justify refusal, a conclusions with which Mr Chessels also agrees.
The Key Resource Issue
In the transitional planning scheme, the site is included in the rural zone. In the Strategic Plan it is within 3 preferred dominant land uses, namely Environmental Significant Area (ESA), Good Quality Agricultural Land (GQAL) and Rural. The area of the proposed landfill is within the ESA while the internal access road is mainly with the GQAL designation. The proposed use is not specifically defined in the transitional planning scheme and therefore requires impact assessment.
Council submits that the proposal is squarely in conflict with the provisions of the Strategic Plan and in particular s. 1.11.1 which relates to the General Strategy for the Extractive Resources designation and which provides:
“This strategy aims to ensure that important extractive resources including those currently worked, and known areas of potential importance can be efficiently exploited. It is also intended to prevent incompatible land uses from establishing in proximity to identified resources.”
The problem with that robust submission is that in the transitional planning scheme the site is not identified as part of the Extractive Industries Resources designation, although in the IPA Plan and the DSPP, the importance of the hill area on the site as an important extractive industry resource area is recognised. There is no applicable Development Control Plan for the site. It is obvious however that the transitional planning scheme does recognise the need for extractive resources to be utilised, and although this site has not been included in that designation, the existence of the disused quarry is a pointer in that regard.
In the IPA scheme, the site is shown in the “Rural Planning Area” and is covered by the Rural Planning Area Code. Under Specific Outcomes and Probable Solutions for the Rural Zone SO1 “A wide range of uses, including extractive industry, are consistent uses if located in the rural zone.” In the Overall Outcomes to the Resources Area Code at 7.9.3 the following overall outcomes identify the following (relevant outcomes):
“… (b) resources or areas identified as having significant value as economic resources are protected from development or the effects of development that may significantly diminish those values in terms of:
(i) irreversible alienation; or
(ii) encroachment of incompatible uses; or
(iii) loss of productivity; or
(iv) accessibility.”
The site is included in a number of overlay maps including Overlay Map OM7 which is a map of extractive resource areas and haul routes. The site is within an area described as “Extractive Resource of State or Regional Significance” and a further area described as “Extractive Resource of State or Regional Significance Buffer Area”. The Resource Areas Code contains the following specific outcomes for extractive resources areas:
“Development near identified extractive resource area and the transportation route associated with the extractive industry is compatible with, and:
(1) permits the efficient winning of the entire extractive resource by
(a) protecting the ongoing operation or expansion of existing extractive operations and associated uses and works; and
(b) protecting potential extractive operations and associated uses and works; and
(2) permits the safe and efficient transport of materials to and from extractive operations sites and the effective distribution of materials to the market from the extractive operations site; and
(3) does not result in an increase in the extent or degree of adverse effects on the amenity of residents or land users in the vicinity of extractive resources, extractive operations and transport routes.”
Mr Vann does not think that the proposed use is defined in the IPA scheme, but Mr Dillon favours “Public Utility”. Nothing turns on this, as it is common ground that under the transitional scheme it is impact assessable development. Given the date of commencement of the IPA scheme, I think that considerable weight should be afforded to its provisions in the assessment of the proposal.
The DSPP seeks to maintain the long term availability of major extractive resources through local government planning schemes and to effect the assessment of development in the vicinity of the resources. This policy was subject to formal public consultation in October – December 2004, and the Department of Natural Resources and Mines (DNRM) is currently working through public responses to enable it to be finalised.
The policy promotes the concept of Key Resource Areas (KRA) which will be required to be shown on planning schemes.
The site is included in the associated guidelines to the DSPP as KRA88 – Meadvale Key Resource Area. Mr Vann has reproduced this map as figure 11 to his report. As he notes, the map recognises the hill on the subject site as the key resource, and includes a separation area around this that would appear to include a number of the closest homes.
As I have noted, as a result of the conclave there remained really only one major planning dispute between QR and the Council. Mr Dillon expressed the issue succinctly in the summary and conclusion to his report:
“… I consider that the potential sterilisation of part of the hard rock resource which is identified as KRA88, a resource of State significance (in the draft SPP) … (is) sufficient for the applications refusal on town planning grounds alone.”
In his report he in turn relies on the evidence of Mr Chessels who gave evidence on this issue on behalf of the Council:
“… I am advised by Michael Chessells, Environment Manager for Cardno (Qld) Pty Ltd, that it would not be possible to extract all of the remaining rock resource from the northern portion of the hill (KRA 88) in the event that the waste landfill activity proceeds as applied for, because it would be necessary to retain a ‘rock core’ through the centre of the hill (KRA 88) for reasons of stability and safety..
If it is correct that part of the rock resource is unable to be extracted because of the waste landfill activity then this would result in –
(i) sterilisation of part of an extractive resource of State significance;
(ii) conflict with the ‘Outcome Sought by the draft State Planning Policy – Protection of Extractive Resources’ in that it will preclude the maintenance (protection) of all the hard rock extractive resource; and
(iii) conflict with Specific Outcome 7.9.5(1) of the Code for Extractive Resources in the Cooloola Planning Scheme (March 2005) which seeks to extract the entire extractive resource.”
Mr Vann deals with the issue in his report:
“It is understood that the concern in this respect is that the utilisation of the existing quarry void for landfill purposes will result in alienation of part of the Key Resource Area identified in the draft State Planning Policy, due to the need to retain an area of material between the landfill and any future quarrying area.
This aspect is addressed in the report of Alan Robertson of Tennent, Isokangas Pty Ltd, which establishes it is not feasible to continue any future extraction by moving northwards from the existing quarry face for geotechnical and environmental reasons; and that in any event, this would not result in any significant proportion of the resource being lost.
In the writer’s experience, it is rare that the whole of an extractive resource, even those identified as key resource areas in the draft State Planning Policy, are able to be fully utilised, as practical considerations such as local impacts, on-site operational constraints and the like will always provide some restriction.
It is considered that the subject site would experience the same types of restrictions in terms of future utilisation of the resource irrespective of this proposal.”
It follows therefore that it is necessary for me to examine carefully the evidence of Mr Chessels and Mr Robertson on this issue.
The geological report of Mr Simeon (exhibit 10A and attached scientific data) upon which both of these witnesses rely is also relevant.
Mr Robertson is a very experienced mining engineer. His experience over 30 years has been predominately in the open cut, quarry and underground mining industry. He has been involved on behalf of QR since 2004 when his company was engaged to assess the site which involved a major review of the geology and a five hole drilling programme. Mr Simeon, a geologist was engaged and he in turn had 3 of the drill samples analysed by Geochempet Services of Maleny. One of Mr Robertson’s tasks was to advise QR as to its options, one of which was to recommence extraction from the existing quarry. It is common ground between all parties that the quarry area contains significant portions of acid forming rock due to the presence of pyrite in fractures in the rock, and the fracture zone containing pyrite was readily visible on inspection. For this reason, and for reasons relating to safety issues (because of the height of the existing quarry banks), and impact on the amenity of nearby residents, he recommended that QR not continue to extract from the present quarry area. A second drilling programme conducted in March 2005 in the area to the north west of the existing quarry identified a significant resource where acid mine drainage did not appear to be an issue. This programme also identified sediments of Kin Kin beds to the south of the existing quarry, which are not suitable for use as construction materials.
Based on the March 2005 drilling programme Mr Robertson identified a 4 million tonne quarry in the northwest area which, in his opinion could be considerably extended by deepening the proposed base and extending the base to the west. In his oral evidence Mr Robertson opined that resource could be extended to a 16-20 million tonne resource, and an operation of 80-100 years of potential production.
The real factual issues (as between Mr Robertson and Mr Chessels) are identified in Mr Robertson’s court report in which he expresses the opinion that (as a result of the landfill operation proceeding) there will be
“… only limited loss of Resource by using the current quarry as a landfill. This is because:
· The zone of arsenic pyrite exists in the face and at depth – further quarrying will result in deleterious material which is not suitable for use as ballast or fill and therefore poses a problem for disposal.
· Most of the quality material associated with the Resource is to the north of the existing quarry. This is shielded by the proposed landfill area and will thus result in less impact (to south) of the proposed quarry to the north.
· An extension of the existing quarry face to the west would result in the excavation of the low quality soft Kin Kin sediments (siltstones, mudstones and shales).”
It is common ground that the landfill proposal will necessarily involve the alienation of a “core” between the existing quarry face and the other side of the hill. Mr Robertson in cross-examination was referred to Mr Chessels’ estimate that approximately 1.8 million tonne would be alienated by the proposal. He had not done the calculation; I infer because he was not prepared to “guess” at it because of a lack of evidence, but he accepted it was within the range “somewhere between plus or minus 40 percent”. I accept Mr Robertson’s evidence that approximately 50% of this “core” based on the first drilling programme which included a sample of this area, would be material affected by acid rock problems. He was firmly of the opinion, based on his experience, that this rock would not be suitable for any construction purposes because of the high level of sulphides (3%) identified in the sample from the quarry face by Geotemtech. Mr Chessels in turn relied on a reference in the Geochempet tests (prepared by Mr Joyce) which was annexed to Mr Simeon’s report which said in relation to this sample:
“Sulphidic rock of the type represented by the supplied sample 2 is predicted to be suitable for use as a source rock for rip rap and rail ballast: The sulphidic rock is not recommended for use as road base (except perhaps for use in unsealed roads), as concrete aggregate or as bituminous sealing aggregate.”
Mr Joyce is a scientist, and of course, neither he nor Mr Simeon gave evidence. Mr Robertson disagreed with this opinion. He said anything above 1% sulphide would be suspect and rock that contained 3% would not be accepted by MRD which is one of the major purchasers of road making materials. Mr Chessels’ enquiries amounted to asking a number of unnamed quarry owners whether there would be a market for such materials and was told there would be because the rock could be mixed with other neutralising materials to reduce the acid. He was not familiar with MRD guidelines.
To be fair to Mr Chessels, he is not a mining engineer; he is an environmental scientist, and he was retained only in February 2006 to review the QR application and supporting material. He makes it clear that in any event his modelling and analysis of the potential loss of rock in the core was “rudimentary” only.
It follows that I prefer the evidence of Mr Robertson on both these issues i.e. the extent of loss or alienation of resource by retention of a core to support the landfill, and the value of sulphide affected material, and therefore I accept his ‘rough’ estimate that retention of the core will constitute between 3.5 and 7% of the resource based on the testing done so far.
On the state of the evidence before me I am not at all convinced that quarrying the resource as recommended by Mr Robertson would eventually and necessarily lead to a mining of the top of the hill area. Certainly, the initial proposal for a 4 million tonne quarry to the north-west of the present quarry does not contemplate mining the top of the hill.
Application of Planning Instruments
Adopting the well established principles applicable to the construction of the relevant extracts of the transitional planning scheme; particularly the principle that such schemes are to be construed broadly, with a sensible practical approach, the proposal clearly does not conflict with the Strategic Plan. Despite the sites omission from the extractive industries resources designation, I accept the evidence of Mr Vann that the very existence of the quarry points to an interpretation of the transitional scheme consistent with the recognition of the need for extractive resources to be utilised. Even in the strategic aim in s. 1.11.1 for the plan relating to such resources, there is a recognition that important areas be “efficiently exploited”. Mr Robertson’s evidence, and his proposal for the first 4 million tonne quarry is entirely consistent with this aim. The effect of his evidence too is that to mine the existing quarry, which to be fair, no-one now suggests, would not be an efficient or practical use of that part of the resource.
I also accept QR’s submission, based on my preference for the evidence of Mr Robertson and Mr Vann’s expert opinions predicated on Mr Robertson’s opinions, that the proposal does not conflict with either the IPA Plan or the DSPP. In my opinion, the alienation of less than 7% and more than 3.5% of the resource will not “significantly diminish” the economic value of the resource in terms of any of the four concepts set out in 7.9.3(b) of the Resources Area Code.
Mr Ure relies on the reference in 7.9.5(1) of Specific Outcomes for Extractive Resources Areas to the “efficient winning of the entire resource.” He submits that there is a “constant theme pervading all the statutory planning documents and that is that it is important to protect the entirety of the extractive resource” with which the court is presently, in part, concerned. I agree with that statement except for the use of the words “entirety of”. It is clear to me that 7.9.5 is primarily concerned with development “near” identified extractive resources areas, and not developments “in” or “on” extractive resources areas. This is clear when one has regard to the words used and the contents of sub-paragraphs (1), (2) and (3) of 7.9.5. I also think the use of the qualifying word “efficient” is important as well, as my acceptance of Mr Robertson’s evidence, particularly in relation to the lack of value of that part of the resource that has a 3% sulphide content, must lead to a conclusion that an “efficient winning” of the resource in this case could never be “entire”. Such an interpretation is, in my opinion; consistent with a practical, balanced and sensible construction of this provision when read as part of the whole of the IPA Plan.
The DSPP seeks to maintain the long term availability of major extractive resources through local government planning schemes and assessment of development in the vicinity of such resources. The Council has sought to achieve the aims of the DSPP for the Meadvale Quarry site and surrounding KRA by provisions such as 7.9.3 and 7.9.5 of the IPA Plan. Having accepted Mr Robertson’s evidence, it follows that in my opinion the alienation of only a small proportion of viable resource in the KRA by the retention of the core abutting the landfill does not conflict with the provisions of the DSPP.
Managements Issues
I have already mentioned the importance of the SBMP in ensuring that conditions relating to amenity and environmental issues are effective. I have already mentioned the evidence of Mr Rubin. His evidence in some respects was not satisfactory in that he did not appear to have detailed knowledge of the terms of the SBMP e.g. he had not turned his mind to how the operator would manage the movement of the mobile barriers which will be an important component along with the earth barriers in achieving appropriate noise levels for the operation during hours of operation. There was also some confusion both in his affidavit (exhibit 12) and in his evidence over the exact experience of the proposed operator Coastal Tipper Hire in operating a landfill operation. I make no implied criticism of Mr Rubin because it is probable that the commercial arrangements between QR and the operator have not yet reached final detailed conclusion. I mention this merely to highlight the importance of ensuring that in the imposition of conditions the proposed operator is aware of, and bound to comply with, each and every provision in the SBMP.
Conclusion
It follows that for the reasons set out above the appeal is allowed. I adjourn the further disposition of the matter to enable the parties to negotiate final conditions consistent with these reasons.
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