Refaka Pty Ltd v Scenic Rim Regional Council

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Refaka Pty Ltd v Scenic Rim Regional Council & Anor [2009] QPEC 139
PARTIES:	REFAKA PTY LTD (Appellant) v SCENIC RIM REGIONAL COUNCIL (Respondent) and CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS (Co-Respondent)
FILE NO/S:	BD1834 of 2009
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning & Environment Court
DELIVERED ON:	21 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	18, 19, 20, 23, 24 November, 02 and 11 December 2009
JUDGE:	Robin QC DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	Integrated Planning Act 1997 s 1.2.2, s 1.2.3(1)(f), s 1.3.5, s 3.5.33, s 5.1.28 Local Government Act 1991 s 971 Developer appeal against Council refusal of request to change condition of a development approval – approval resulted from an impact assessable development application – approval increased permitted output of a quarry from 200,000 tonnes per annum to one million – the condition (in accordance with the development application) required removal of the increased production by rail – whether the request effectively to remove it involved assessable development requiring a development application – impacts on Council road (the designated haul route) and impacts on State-controlled roads considered – whether on a request conditions can be changed otherwise than as requested, or on added conditions – whether power of Council to levy a special rate told against a condition requiring contributions for improvement and maintaining of adjoining local roads, wear and tear to which is specially attributable to use of the ratepayer’s property
COUNSEL:	S Fynes-Clinton for the Appellant M Hinson SC with B Job for the Respondent J Brien for the Co-Respondent
SOLICITORS:	McCullough Robertson Lawyers for the Appellant Corrs Chambers Westgarth for the Respondent Crown Law for the Co-Respondent

This is an appeal against the Council’s refusal of a request made under s 3.5.33 of the Integrated Planning Act 1997 (“IPA”) that the Council change two conditions of an approval granted by it on 22 August 2008 for a material change of use authorising additional development at Bromelton Quarry which has operated in its location west of the town of Beaudesert for several years – and is to be distinguished from the North Bromelton Quarry which has recently commenced operations exploiting the same basalt rock resource a short distance to the north; it is also known as the Neilsen Quarry.

The appellant was advised by the Beaudesert Shire Council by letter of 15 July 1999 of a negotiated decision notice granting a development permit for material change of use and for operational works for extractive industry. The conditions provided that “an ultimate maximum quantity of 200,000 tonnes rock may be extracted from the site per year” and focused on unsurprising aspects such as provision for site rehabilitation and road contributions (bonds being required under both headings). Condition 19 was:

“(xix)Haul Routes – Haulage of material from the site and return trips to the site are restricted to Sandy Creek Road north of development site and the connecting Main Roads system except where prior approval has been given by Council. Application for such approval shall be in writing, and shall be assessed under the process for amending a condition under the Integrated Planning Act 1997.”

The appellant applied for a development permit for material change of use (covering also environmentally relevant activities) in February 2004 to provide for an increase in the approved extraction amount. As the summary of the application expressly made clear:

“It is proposed that all additional production from the quarry will be distributed by rail, not by road transport.”

The application culminated in the negotiated decision notice of 22 August 2008 following impact assessment (there being properly made submissions received from Queensland Rail and Mr Mark Plunkett) and involvement of the Environmental Protection Agency and the Department of Main Roads (whose successor department is the co-respondent).

The Notice of Appeal conveniently sets out details of the appellant’s request for change to the conditions in the August 2008 approval:

“9.Condition 4 of the Approval provides for the maximum annual amount of extraction and the quantity of quarry material permitted to be hauled from the site by both road/rail transport, and specifically states:
‘A maximum quantity of 1,000,000 tonnes of rock may be extracted from the site per annum. A maximum quantity of 200,000 tonnes of rock per annum shall be transported from the site by road, whilst a maximum quantity of 800,000 tonnes of rock per annum shall be transported from the site by rail.’

10.Condition 15 of the Approval details the road contribution methodology and the formula to calculate the annual contribution payable by the Appellant to the Respondent, and specifically states:
‘The Applicant shall pay to Council a contribution for the widening of Sandy Creek Road, between the quarry site entrance and the Boonah Beaudesert Road, to provide a 7.0 metre carriageway on a 9.0 metre formation fully sealed. The contribution sought shall be 30% of the actual cost of construction. That is a contribution of $250,000 indexed annually by CPI.

No other payments are sought until 0.978 x 10⁶ a tonne of material in total since the 23^rd February 1999 has been transported by road and from then an annual Road Construction and Maintenance Contribution (RCMC) of $0.0225 per tonne of material sold and/or bartered adjusted by CPI shall apply. This contribution is to be paid quarterly and be certified by an Auditor annually.’

11.The Appellant requested that condition 4 be amended to read:

‘Maximum extraction and road/rail transport rate – a maximum quantity of 1,000,000 tonnes of rock may be extracted from the site per annum. The extracted rock shall be transported from the site by either road or rail.’

12.The Appellant requested a change to the road construction and maintenance contribution in Condition 15 to increase the rate of contribution from $0.0225 per tonne to $0.0333 per tonne of material sold/or bartered adjusted by CPI.”

On 10 September 2009, Judge Wilson SC ordered the joinder as a party of the co-respondent. The July 1999 approval included a condition that Refaka compensate the Department of Main Roads for impacts identified as generated by the development by undertaking necessary works or making monetary contributions to the equivalent works value and by Condition 43 required provision of a letter from the Department confirming compliance by Refaka with its requirements prior to commencement of any new use of the land. The Department had no interest in what occurred leading up to August 2008 but has an obvious interest in Refaka’s request for a change to Condition 4 which bodes to bring about an increase to five times the tonnage of rock to be transported on State-controlled roads in the locality. The 2008 condition in respect of haul routes is identical with the 1999 condition, except for referring to “the connecting State controlled road network”.

The appellant’s quarry is the “southern operation” in the Bromelton Key Resource Area – KRA61 in State Planning Policy 2/07 Protection of Extractive Resources. Sandy Creek Road is the designated haul route from the Resource/Processing Area to Beaudesert-Boonah Road to the north which is part of the State-controlled network. Mapping in the State Planning Policy shows the separation area for the Resource/Processing Area and the centre line (but not the Separation Area) for the Transport Route.

One account of the history of Bromelton Quarry (in a report of 27 March 1998 of Mark Baker Town Planning) describes quarrying operations as commencing in the 1930s, then re-established in the late 1940s prior to the site being leased to the Council for use as a quarry in 1961. A re-zoning proposal made by CSR Limited to Beaudesert Shire Council in 1995 contemplated an output of 100,000 tonnes per annum rising to one million tonnes per annum in 15 years, product to be removed by both trucks and rail (the proposal incorporating construction of a rail siding and loading facility “on the southern flats adjoining Sandy Creek”). CSR withdrew its proposal when it and the Council were unable to reach an accommodation regarding road maintenance and contributions. The rail siding or “spur” from the standard gauge Brisbane to Sydney line now exists; it has been used for delivery of quarry product to the Port of Brisbane Authority, but in the last few years commercial opportunities for cartage of product by rail from the site apparently have not eventuated. The resource is huge, and will last for a hundred years at projected extraction rates.

The applicable Beaudesert Shire Planning Scheme 2007 lacks the enthusiasm for extractive industries encountered in some other planning schemes but 2.2.9 Local Strategies for the Bromelton Zone (identified as having the potential to become a major industrial area in the Shire) identifies as a strategy that:

“2.The regionally significant extractive industries in the Bromelton Zone are protected from incompatible development.”

Extractive/mineral resource areas, the Key Resource Area in particular, may be found dealt with in most detail in Chapter 4, Part 4 Development Constraints Overlay; development must be “compatible with existing and future extraction, processing and transportation of a Key Resource Area to ensure the resource can be developed to its full potential.” (SO15); likewise, development located adjacent to a haul route associated with a key resource area must not limit efficient operation of the haul route (SO17). The relevant zone is Rural, in which a quarry is an impact assessable use (Chapter 3, Part 3): Table 3.3.4 Assessment Table for Material Change of Use.

In respect of the 2007 planning scheme (which was in force at the date of the request), finally, the definition of extractive industry (a term used interchangeably with quarry in these reasons) should be noted:

“Extractive industry means the undertaking of dredging, excavating, quarrying or sluicing activity and any other mode of obtaining extractive materials, which is carried out within or on the land, including removal of same from a site, whether or not conducted on a commercial basis.
The term includes, as ancillary uses the storage, loading and cartage of extracted substances that are washed screened, crushed or have undergone other treatment processes or any work, administration or accounting in connection with such activity.”

The definition in the previous planning scheme (in force when the 2004 development application was made) was:
“Any premises used or intended to be used for dredging, excavating, quarrying, sluicing and any other mode of obtaining extractive materials which are within or on the land, including removal from the site, whether or not conducted on a commercial basis…”

As at the date of the request, the use is defined to include not only removal of product from the site but also “cartage”, the Oxford English Dictionary Online entry for which is:

“The process of conveying by cart; the price paid for this.
1428 in Health Grocers’ Comp. (1869) 6 For chalke and stoon and cartage £18 11s. 5d. 1755 N. Magens Insurances I. 327 Cartage of the Sugars from the Keys to the Warehouse. 1878 F. Williams Midl. Railw. 297 The proposed line would free the streets … from enormous amounts of cartage.”

“Cart” may be taken to cover the vehicles that carry the appellant’s product. There are other use definitions which extend the notion of a use beyond extraction or harvesting, etc. to include removal from the relevant property, specifically for Commercial Groundwater Extraction and Forestry.[1] It is notorious that quarrying is necessarily associated with heavy use of and impacts upon roads. The 1985 Council of the Shire of Beaudesert Town Planning Scheme (Exhibit 25, pages 59-60) established in Division IV – Industrial Development – Extractive Industry requirements for all extractive industries whether or not development approval was required to be obtained in respect of the use. The objectives in s 11(2) included to (b) reduce the impact of extractive industries on public infrastructure to a reasonable level; and (c) require reasonable contributions to offset the effect of extractive industries on public infrastructure. By (5)(a) the conditions contained in a development approval were seen (according to a list of examples) to extend to: (x) require the operator to make specified contributions to the local government towards the maintenance or improvement of roads or other public infrastructure used in connection with an extractive industry. The appropriateness of development conditions devised by reference to the increased use of roads occasioned by development has long been recognised: Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 53 ALR 632, 635 per Gibbs CJ.

[1]A similar definition of extractive industry was considered in Queensland Construction Materials Pty Ltd v Redland City Council & Ors [2009] QPEC 085 at [53].

Should the Appellant have applied for a material change of use?

On 31 August 2009 the Council filed in this appeal an application seeking a declaration pursuant to s 4.1.21 of the IPA that the appellant’s request to change conditions of its development approval to facilitate an increase in the volume of extracted material to be transported by road constituted a material change of use for the purposes of the IPA and was one which could not be lawfully made or approved pursuant to s 3.5.33 “as assessable development in the form of a material change of use would arise” and an order under s 4.1.22 that the appeal be struck out. On the return date, 10 September 2009, orders were made advancing the appeal generally towards determination (and for the joinder of the co-respondent). The parties made the judgment (of which I make no criticism) that it was preferable to proceed in that way, notwithstanding that the appeal might be resolved in the end in the way sought by the Council’s application. The unexpected unavailability of a witness on 2 December 2009 led to the court time being devoted to the legal arguments relevant to this issue. The appellant successfully resisted Mr Hinson SC’s request that the court decide the issue then and there (which might lead to the peremptory dismissal of the appeal).

The issue raised is a simple one, also novel in IPA jurisprudence. The unavailability of s 3.5.33 unless it can be said that “(1) …(b) no assessable development would arise from the change [of condition requested]” has proved to be inconvenient and confusing, and threatened to emasculate the provision, although I have not shrunk from seeking to make it useful by applying a broad, purposive approach: Habitat Development Group Pty Ltd v Sunshine Coast Regional Council [2009] QPEC 37; Dimensions Property Group Pty Ltd v Brisbane City Council [2009] QPEC 41; Collard v Brisbane City Council [2009] QPEC 62. The appellant’s argument does not require recourse to any innovative doctrine that may be revealed by such decisions. It simply points out that what happens on its site, if the change eventuates, is relevantly exactly what happens (or is authorised by the current development permit to happen) there. The only difference is that product which might have been shipped off the site by rail, transported in open “containers” from stockpiles in the quarry by truck would no longer (after proceeding through the weighbridge on-site) be taken to the rail spur and there transferred by crane to rail wagons, but by use of the trucks and/or trailers loaded at stockpiles would proceed from the weighbridge (as the road consignments presently do) to the boundary of the site along what is called the Old Council Quarry Road to Sandy Creek Road and points beyond. In one aspect, the appellant’s case is that use of public roads by it, its customers or anyone else, is a “common law” or similar entitlement: the roads should not be regarded in any sense as a developer’s site.

The Council contend that the change represents assessable development, in which case a development application should have been made. A s 3.5.33 request is not a development application: Kenlynn Property Syndicates Pty Ltd v Noosa Shire Council [2002] QPELR 552, [14]. See also Aqua Blue (Noosa) Pty Ltd v Noosa Shire Council [2003] QPELR 82, [14]: the outcome is not a development permit or approval. Section 1.3.5 of IPA is relied on:

“material change of use, of premises, means—
(a) generally—
(i) the start of a new use of the premises; or
(ii) the re-establishment on the premises of a use that has been abandoned; or
(iii) a material change in the intensity or scale of the use of the premises;

…”

and especially (iii). There are various ways in which the Council’s position can be supported. It could be argued that there is assessable development in the change from production for transport by rail to production for transport by road. A use of the quarry site which disgorges one million tonnes of rock in heavy trucks per annum into Sandy Creek Road is very different from one which disgorges 200,000 tonnes, or nothing. There is also the intensification of the use in respect of the last part of the Old Council Quarry Road as it approaches Sandy Creek Road and a potential 400% increase in the rock, trucks, etc exiting the site onto the Council’s road. An application by the appellant for a material change of use would have been impact assessable and required public notification, affording members of the public an opportunity to make submissions. The IPA specifically provides at s 1.2.3(1)(f) that advancing its purpose includes providing opportunities for community involvement in decision making. Entities exercising functions or powers under IPA are enjoined to do so in a way that advances its purpose by s 1.2.2. The Council’s catalogue of IPA purposes to be advanced went well beyond s 1.2.3(1)(f):
“20.IPA’s purpose is primarily to seek to achieve ecological sustainability by managing the process by which development occurs; and managing the effects of development on the environment (including managing the use of premises) (s 1.2.1(b) and (c)). Advancing the purpose includes ensuring that decision-making processes take account of short and long-term environmental effects of development at local, regional, State and wider levels; apply the precautionary principle; seek to provide for equity between present and future generations; avoid, if practicable, or otherwise, lessen, adverse environmental effects of development; and apply standards of amenity, health and safety in the built environment that are cost-effective and for the public benefit (s 1.2.3(1)(a), (b), and (c)). Associated with that are the concepts of amenity and (traffic) safety. They are matters to which the Planning Scheme provisions raised in this appeal direct specific attention.”

Mr Fynes-Clinton, supported by the opinion of the planner Mr Reynolds, submits that the spread of issues canvassed in the appeal in respect of which the court is assisted by experts who presented contending views relating to their fields of expertise is such that all issues which members of the public might have raised as submitters have been covered. He may or may not be right. There may well be circumstances in which in an appeal in this court a party provides an opportunity for persons who are not parties (who may not even have been submitters with the potential to become parties) may have their say in the court. There appears to be no restriction in IPA as to the impacts of proposed development that may be considered in an impact assessment process, whether that occurs in the usual way for a development application under s 3.5.5 and s 3.5.14, or occurs for a request like the appellant’s, to whose assessment s 3.5.33(7) applies. The difference is that, for a request, there is no provision for interested members of the public to make submissions about it (or even be informed of the request); there is no way in which they can acquire standing as parties able to control presentation of a case. On the face of things, s 3.5.33(7) is a poor substitute for the public notification stage that would apply for a development application. In this case, it is no substitute at all; there were no relevant submissions to do with impacts on and from use of roads when approval was sought successfully for the increase in extraction amounts. As the letter of Grassman & Associates Pty Ltd of 16 February 2004 lodging the development application emphasised, “all of the additional material will be transported from the site by rail transport”. There were only two submissions; the one by Queensland Rail was calculated to ensure that there was no inappropriate interference with the railway; the other one read:

“As residents of Sandy Creek Road at Josephville, my family and I live within earshot of this quarrying operation and wish to convey our concerns regarding the expansion of output from this facility.
While we are not against the continuation of this facility we are worried about some factors which may result from the approval of the expanded output from the quarry.
In particular we are concerned regarding
―   Noise from the quarrying operation. As neighbouring properties are within close proximity to this facility, noise from the site will be an ongoing issue.
―   Dust control, the increase in output will result in larger quantities of dust being emitted from the site as we have seen over recent times.
―   Hours of operation. As residents, we purchased in the area with the understanding that this was a rural residential area with a small quarry operation close by. While we understand the operation of the quarry is beneficial to the local area we are concerned about the impact of increased hours of operation at this facility.
―   Traffic increase on Sandy Creek Road. This Road is currently in a poor state of repair particularly closer to the quarry operation, with the sides of the bitumen being quite dangerous to smaller traffic as they cannot safely stay up on the bitumen when heavy trucks approach. Increasing the heavy vehicle traffic volume will only make the matter much worse than it already is.
―   Heavy traffic using Sandy Creek Road South of the quarry. The residential area of Sandy Creek Road at Josephville has already been subject to an increase in heavy traffic due to industry in the area, and further increasing this traffic volume would have a significant impact on the rural aspect of our area.
Thanks again for the opportunity to respond to this proposal, and we ask that the Council please consider the rural residential lifestyle of the people close to this operation when making your decision on this matter.”

Josephville is located 5km or so south of the quarry. The author may have overlooked or lacked confidence that the expanded output was not to be transported by road. He put in a word for Sandy Creek Road sufficient to require the Council (now the court) to have regard to impacts there in considering the request, although the application that attracted the submission could not have affected Sandy Creek Road (except perhaps in minor ways such as increased use by site employees driving to and from work). No one said a word about the State-controlled roads, particularly in the heart of the town of Beaudesert, and it would have been completely irrelevant to do so, as there would be no impacts in that location.

Desired Environmental Outcomes and the Road System

Chapter 2 of the Beaudesert Shire Planning Scheme 2007 in 2.1.1 identifies the Desired Environmental Outcomes as “(c) the basis for the Planning Scheme measures” as well as being an expression of the Strategic Framework and based on ecological sustainability established by the IPA. The second category of DEOs is (2) Economic, whereby development:

“(a)Protects both the urban and the rural economic bases of the Shire;
…
(e)Protects and maximises the availability of regionally and locally significant extractive and mineral resources in areas appropriate for such development and avoids conflicts with their extraction, processing and transportation;
…
(h)Provides for an efficient, safe, well-located and legible transport network that is an integral part of the Shire’s land use pattern and which supports the social and economic needs of the community; and
(i)Provides for the efficient use and safe operation of existing and planned future infrastructure including water supply, sewerage, the transport network, stormwater, parks and energy infrastructure…
…
(o)Protects and enhances existing and planned community infrastructure and associated facilities throughout the Shire.”

One might note that under (3) Social, development for housing “(a)(v) maximises opportunities for the efficient use of infrastructure …” and that generally: “(d) the health and safety of the people, the amenity and sense of community they enjoy … are maximised”. The scheme definition of Community Infrastructure leads to IPA Schedule 10 which in turn makes reference to Schedule 5 Community Infrastructure, Item (m) of which is State-controlled roads. Item (o) leads one back to transport infrastructure mentioned in the Schedule 10 definition of development infrastructure. By that definition, inter alia:

“development infrastructure means―
(a)land or works, or both land and works for―

…
(ii)transport infrastructure (including roads, vehicle lay-bys, traffic control devices, dedicated public transport corridors, public parking facilities predominantly serving a local area, cycle ways, pathways, ferry terminals and the local function, but not any other function, of State-controlled roads); or
…”

By this circuitous route, one comes to appreciate that if impact assessment is required, the matters to which regard must be had in carrying out that assessment include relevant impacts on the State-controlled and local road systems; the assessment manager’s decision under s 3.5.14 must not compromise the achievement of the DEOs or conflict with the planning scheme in that regard (subject to what s 3.5.14 permits).

It has already been noted that the impact on roads of activities such as the appellant’s looms large. State or local authorities bear the responsibility and incur the expenditures required to provide a safe, efficient road system for the general public. What is required of them in that regard will be directly related to the extent of use of roads by heavy vehicles (for purposes of the appeal); the court understands that, generally, the approach is that “light” vehicles do not damage roads. I speculated during the hearing that the operators of heavy vehicles are forced to make contributions in recognition of the greater wear and tear they cause on roads, through high registration fees, and the like, likewise through fuel taxes, all or some of which may be used towards funding construction and maintenance of roads. I retain my concern that those in the position of the appellant or its clientele ought not have to pay twice over on the same account and that it may be a cause for concern that the general run of road users get a “free ride”. Others, like the appellant, are at risk of being required to pay as part of the price of a development approval that might be sought. The justification for payments being required is that the approved development necessitates Council or State expenditure on roads, which in the first instance may be seen as both occasioned by and benefiting the developer only. For local roads, in particular, the Council is at risk of being committed to expenditure to keep the roads open and safe (here, Sandy Creek Road) at considerable expense and without sufficient concomitant benefits to the Shire. The scenario contemplated is that quarry product will be carried 3.2km along Sandy Creek Road to the State-controlled network and then to more or less remote locations probably having nothing to do with the Shire to get to the end customers. One would not expect significant local employment or other equivalent benefits to follow from the appellant’s activities commensurate with the scale and impacts of them.

Does s 3.5.33 confer a power to impose conditions?

In principle, it is unattractive to contemplate that a developer such as the appellant might escape being subjected to conditions satisfying the tests of relevance and reasonableness in s 3.5.30 of IPA because of the process utilised here of seeking a change of condition in an existing approval, rather than a conventional material change of use application being made – when the practical consequences of success would be the same in the real world, and considerable. Mr Hinson (for the Council) submits that there is doubt as to the Council’s or the court’s power to impose conditions of the kind recognised in (say) s 3.5.15(2)(d) and s 3.5.30 that might be encountered in a conventional development application, as opposed to a request under s 3.5.33, where the power to change or cancel conditions may not include a power to attach new ones. He contrasts the assessment manager’s power to impose appropriate conditions where a development approval is given pursuant to a development application, also the power to “approve different variations from those sought” in s 3.5.14A(1)(b). Section 3.5.33 is silent in these respects. The ease with which the legislature might have conferred in it a power to impose conditions in the decision upon a request points to there being no such power: Friends of Hinchinbrook Society Inc v Minister for Environment & Ors (1997) 93 LGERA 249, 287 and on appeal (1997) 95 LGERA 229 at 244 per Hill J, the other members of the court concurring, at 244 and 253. As to conditions under IPA, Mr Hinson submitted:

“13.Conditions may be imposed on a development approval: s 3.5.11(1)(b). Conditions are part of a development approval: s 3.5.11(6)(a), s 3.5.29 and the Schedule 10 definition of “development approval”. They have no independent existence. A development approval as defined is a decision notice or negotiated decision notice that approves development applied for in a development application. A decision notice and negotiated decision notice are the means by which a decision on a decision notice is given. A decision notice is required to state the conditions of approval: s 3.5.15(2)(d).”

In the present context, the better view is that the decision maker, or “entity” under s 3.5.33 may not impose or affect conditions otherwise than in accordance with the request. The flexibility which is obviously to be desired in practice might be available in the sense that the request can be changed to conform with what suits the developer and the assessment manager (and now the court).

Mr Fynes-Clinton’s submission was that the power to decide the request

“carries with it the power necessary for its performance or execution. Ubi aliquid conceditur, conceditur etiam et id sine quo res ipsa non esse potest.” (per Lockhart J, Re Sterling (1980) 44 FLR 125, 130)

and that the request to change (effectively dispense with) Condition 4 was accompanied by an invitation to mitigate the consequences by adjusting Condition 15 (regarding contributions). It was submitted by him that the court has, if anything, wider powers, given s 4.1.54(1) of IPA:
“(1)In deciding an appeal the court may make the orders and directions it considers appropriate.”

and that:
“20.None of this involves imposing “conditions on conditions”. It is about moulding the Court’s final order changing the conditions of the existing development permit to reflect the form which those changed conditions should properly take, having regard to the evidence and the Court’s findings.
21.Overlaying all of this is s 4.1.52(1) which provides that an appeal to this Court is by way of hearing anew. Subsection 4.1.52(2) then imposes certain restriction by way of qualification of subsection (1), but only where “the appellant is the applicant or a submitter for a development application, or is a person who has applied for approval of a proposed master plan”. The Appellant is not one of those persons, and the present appeal is therefore a hearing anew, not subject to the limits imposed by subsection (2).” (Draft written submission of 2 December 2009)

Mr Fynes-Clinton accepted that his client could reformulate its request once the court’s views became known. It is common enough in this jurisdiction for general conclusions to be published to the parties, who may then reconsider their stances accordingly, in advance of pronouncing the final outcome of a proceeding. But for his adverse view of a major office space component of the proposal before him, Judge Rackemann would have followed that course in Metroplex Management Pty Ltd v Brisbane City Council & Ors [2009] QPEC 110.

It is unnecessary to embark here on investigating whether anything the appellant may wish to propose in future is “minor change” for s 4.1.52 purposes. It is of interest to note the submission (by reference to Parcel One Pty Ltd & Ors v Ipswich City Council& Ors [2007] QPELR 474) that the “salient feature” the request is the “proposal to increase road quarry traffic by 800,000 tonnes per annum” (draft submissions paragraph 25) and the concession that the projected new traffic is not:

“… unregulated by the IPA. It is generated from the subject land, to which the existing development permit attaches, as will the modified permit if the present request is granted. If its impacts are unacceptable, the present request will be refused.”

That these impacts are unacceptable is the court’s conclusion in this appeal. Other things being equal, the appellant might have been given the opportunity to seek an infrastructure agreement with the other parties here: cf Metroplex [148]-[157]. An infrastructure agreement would produce the necessary assurance that roadworks required would be in place to accommodate the increased quarry traffic and render the impacts no longer unacceptable. The court can acknowledge the happy effects of an infrastructure agreement reached, and act accordingly, but cannot order any party to make one.

As to the so-called “conditions on conditions” point, I prefer the position taken by Mr Hinson for the Council; he was supported by Ms Brien for the co-respondent. An inability to impose appropriate development conditions may have a bearing on the Council’s issue about the suitability of proceeding under s 3.5.33.

Conclusion on the Council’s “preliminary point”

Mr Fynes-Clinton emphasises that the s 1.3.5 definition fixes on what happens on “the premises”, which one would ordinarily take to be the quarry site, and not the road(s) beyond:

“5.In terms of what will occur on the subject land, there is therefore no “material change of use”. It could not be suggested that the proposed change involves any other form of “development” on the subject land.
6.Therefore, the proposed change to condition 4 involves no new “development” and, a fortiori, does not give rise to “assessable development”. IPA s 3.5.33(1)(b) is satisfied.
7.The substantial increase in expected road quarry traffic does of course give rise to material new impacts from the approved development. The very purpose of the assessment process under s 3.5.33 is to consider those impacts, and decide whether they are or can be made acceptable. If not, the request will be refused on its merits.
8.However, any suggestion that a proposal to change conditions gives rise to “assessable development” merely because the operation with the changed conditions has materially different impacts from the operation under conditions previously imposed is a suggestion which confuses concepts and leads to legal error.
9.In that regard the issue to focus on is that of what will actually change. What will change is that public roads, being Sandy Creek Road and components of the State controlled road network, will be used, for their public and otherwise lawful purpose, to a materially greater extent than under the existing conditions. To the extent that there is any new use, using that term in its generic sense, it is the new and increased use of public roads for the precise purpose for which they are dedicated to public use.
10.It is well settled that use of public roads for their otherwise lawful purpose is not “development” or a use of land under the IPA: Gibway Pty Ltd v Caboolture Shire Council [1987] 2 Qd R 65. That case concerned a rezoning application under the LGA 1936, but a similar view was expressed specifically under the IPA in Kenlynn Hospitality Pty Ltd v Bundaberg City Council [2007] QPELR 37. See also Bon Accord Pty Ltd v Brisbane City Council [2008] QPEC 119 and Stockland Property Management P/L v Cairns City Council & Ors [2009] QCA 311 McMurdo P Keane JA Wilson J 16/10/2009.”

The authorities all involve special facts, such as the road being one to be provided on private land. The exceptional one, requiring consideration, is Kenlynn Hospitality Pty Ltd v Bundaberg City Council & Ors [2006] QPELR 37, where it was said:

“[31]It would be a dramatic development to hold that an application could not be approved, and conditions could not be imposed requiring anything to be done, unless the application itself had sought approval for the development the subject of the conditions. Most development applications relate to proposals which envisage the use of land, which is dedicated as road (including footpaths), for access by pedestrians and vehicles and many are approved on conditions (the content of which are unknown when the application is made) requiring external works. It would be a dramatic development if, in all such cases, the applicant was required to include the road in the application (or suffered that fate if it prepared a plan showing the external works it was prepared to construct, if required to do so by condition), even if the development within the road was otherwise exempt from assessment against the planning scheme. Further the State, as the owner of the land, would effectively hold something of a right of veto as to whether such an application could be made, since the consent of the State, as owner of the land constituting the road, would be required.”

The Judge’s view of the proposal under consideration had earlier been made clear:
“[26]I do not consider that the pick-up/set-down facility is an integral part of the material change of use. It is a desirable facility to assist the control of traffic in the street adjacent to the use.”

Here lies the point of distinction. The haulage arrangements for extracted materials are integral to the use of “quarry” in my view, and this is underlined by the planning scheme definition of extractive industry.

The Council’s submissions regarding the traditional exclusion of roads designed to carry associated traffic arising from development applications (unless something is to be constructed on them) were:

“56.The land the subject of the 2004 application did not include the land comprising the haulage route. Had the haulage route been over private land, that land should have been the subject of the application: Pioneer Concrete (Qld) v Brisbane City Council (1980) 145 CLR 485 and Bon Accord Pty Ltd v Brisbane City Council (2008) 163 LGERA 288 at 296 [20].
57.The haulage route in this case is over roads controlled by the Council and State-controlled roads. Such roads were not zoned under the now superseded Planning Scheme, and development on unzoned land was not regulated by that Scheme.
58.The position is different under the 2007 Scheme. Under s 1.4.11 if a road is not included in a zone on the Zone Maps it is deemed to be included in the adjoining zone. The land in a road is now subject to the development tables for the relevant zone.
59.The 2008 approval of the 2004 development application is effective to authorise the use of the roads for extractive industry to the extent of transporting 200,000 tonnes per year. At the time that application was properly made:
(a)making a material change of use of the 4 lots for extractive industry was assessable development because that land was in a zone in which such a material change of use (from 200,000 tonnes per year to 1 million tonnes per year) was impact assessable;
(b)there was no material change of use of the roads because no additional road transport above the 200,000 tonnes per year authorised by the 1999 development approval was proposed.

60.The current request to change conditions seeks authority to transport an additional 800,000 tonnes per year by road. Those roads are now zoned, and subject to regulation by the 2007 Scheme. The use of zoned land (roads) for removal of extractive materials and the cartage of extractive substances is a use for the purpose of extractive industry. The use of such roads to transport 800,000 tonnes per year is a material change in the intensity or scale of the use of those roads for the transport of 200,000 tonnes per year. Making that material change of use is assessable development under the development tables for the relevant zone.”

The planners, Mr Reynolds for the appellant and Mr Ovenden for the Council, presented opposed opinions regarding the exclusion of the public from a role in the present controversy because recourse was had to s 3.5.33. Mr Ovenden was troubled by the exclusion, Mr Reynolds was not, opining that everything that members of the public might have raised has been covered in the appeal by well qualified experts presenting both sides; except the public don’t participate, there was no difference as regards the assessment and decision process; his view was that no “assessable development” (confining the inquiry to the quarry site) was involved. Mr Ovenden saw:

“… transportation and cartage of material as being inextricably linked to the quarry operation – to extractive industry operation, and further in relation to that I see a major point of difference is that there is certainly activity within the site itself at the entrance to the site in conjunction with the weighbridge that leads me to believe there is a change in intensity and a change in the characteristics of the use.”

He relies, and I think correctly, on the definition of the use as bringing in the removal/cartage aspect as part of the use.

Mr Hinson and Mr Fynes-Clinton differed as to whether the planning scheme definition of a use could affect the application of s 1.3.5. I have concluded that it can, and here does. It is a traditional function of planning schemes to identify and define uses. In the context of a quarry, there is little difficulty in the concept of the use (of the relevant “premises”) being a new or materially changed one if the mode of transport from the premises becomes road, rather than rail. (It was common ground that the changes, as far as the roads are concerned, would be “material”.)

What would be the situation if, say, a condition in a development approval for a use of manufacturing or assembling large numbers of big (noisy) trucks requiring that they were to be tested on a track within the site were sought to be amended to permit testing on public roads? (I assume that the cessation of onsite testing would not be a material change of use, as a reduction in scale or intensity.) What would be the situation if a condition in a quarry or other approval limited operations to between 6am and 6pm and it was sought to be changed to permit operations between 6pm and 6am (perhaps exclusively)? Could it be said that what happens on the site is unchanged although the impacts off the site (or the implications of them) would be massively different? What would be the situation if a condition of approval of a waterfront quarry requiring cartage off site by water was sought to be changed to permit removal by road?

Other considerations in the interpretation of s 3.5.33 were advanced by Mr Hinson in written submissions:

“23.That s 3.5.33 is not intended to apply to circumstances like the present is reinforced by the reference in s 3.5.33(7)(b) to submissions “about the application”. The application for the 2008 approval was very specific about future truck movements and associated impacts. That is what the community considered. An application which contemplated the haulage by truck of all 1 million tonnes would have been a very different one.
24.That highlights the proper construction of s 3.5.33. In the context of the IPA as a whole, the section cannot have been intended to remove or restrict the right of members of the public, including for example the various residents who expressed concerns to Mr Savery (Report, s 4.6), and concurrence agencies to consider and comment upon changes to the conditions of development approvals in circumstances where those changes might affect them or their interests. It similarly cannot have been intended to deprive the decision maker of the benefit to assess submissions received or concurrence agencies’ views.
25.Similarly, the section would not be intended to deprive a relevant concurrence agency of an entitlement to consider a change to an approval in respect of which it has a direct interest.
26.It might be observed that the change which Refaka seeks has involved considerable input from numerous experts in various disciplines in these proceedings. The effort and complexity associated with that stands in direct contrast to the fact that s 3.5.33(5) allows an assessment manager only 20 business days to determine a change.
…
52.It is also extremely difficult to envisage that, in different circumstances, the Court would allow Refaka to make the change it now seeks under s 4.1.52(2)(b).
53.Similarly, the change would not be a “minor change” if an application had been made pursuant to s 3.5.24.[2]
54.In those circumstances, if IPA is to be construed in a manner such that its provisions achieve harmonious goals (Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355), s 3.5.33 would not facilitate Refaka making a change which it could not achieve during a development application, by way of a change to an approval, or in the context of an appeal. That approach is reflected in the following statement in the context of a s 4.1.52 change:
‘the requirement, in s 3.2.9 and 3.5.24, that both the Assessment Manager and, if they are involved, referral agencies have the opportunity to consider changes plainly reflects a statutory intent that alterations to development proposals cannot avoid the strictures of the IDAS process, and must always receive all necessary and proper consideration before approval, or refusal. It is compelling that s 4.1.52(2)(b) reflects a like purpose, and falls within the same statutory context: that is to say, the proponent of a development proposal may not, the legislature intends, circumvent due consideration by all parties interested under the IDAS process by making anything other than minor changes after the matter is before the Court’. (Macquarie Leisure Operations v Gold Coast City Council [2007] QPELR 418 at [23])”

[2]I think this proposition is incontrovertible. Refaka would be in a difficulty under (c) of the definition of “minor change” in Schedule 10. It should be noted that s 3.5.24(1)(a) would require the co-respondent to be informed of the request. The interaction of ss 3.5.24 and 3.5.33 (each of which declares itself unavailable if the other applies) has been problematic for developers. Cf Parmac Property Pty Ltd v Redland City Council & Anor [2008] QPEC 120, Dimensions Property Group (supra).

In my opinion there would be assessable development occurring if the request succeeded, a development application ought to have been made for a material change of use.

A way of testing this conclusion may be to ask whether a development application could have been made. In Lagoon Gardens Pty Ltd v Whitsunday Regional Council [2009] QPEC 66, it was determined that a purported “application” under s 3.2.1 of the IPA was not such an application at all, because it did not apply for “development” as contemplated by IPA. In final written submissions handed up on 11 December 2009, Mr Fynes-Clinton responded to the challenge of submitting that it would be impossible for a development application for material change of use to be made, rather than the request that was made:

“45.A proposition that a road intended to be used for its otherwise lawful purpose by traffic generated from a new development is part of the land which must be included in the application produces absurd outcomes:-
(a)as the use of roads for their dedicated purposes does not “involve” a State resource under s 3.2.1(5), consent of the State as owner of the road would be required under s 3.1.2(2) for any development which is a substantial generator of traffic, giving the State an absolute right of “veto” over any and every such application;
(b)conditions of approval for any such development would run with the ownership of the land and therefore be binding on and enforceable against the State as its owner under IPA s 5.1.28; and
(c)any such applicant would need to identify in the application every part of the road network both near to and far from the subject site which will be used by the new traffic, at least down to a de minimis level, giving rise to endless possibilities for intractable dispute about whether a particular application is a properly made application.

46.Such an approach would rapidly render the IPA application process unworkable for any development which is a substantial generator of new traffic.
47.Obviously, if a particular road is to be used for some purpose or in some way other than in exercise of the common law rights to pass and repass, and to access the road for that purpose from adjoining property, different conditions apply. In that context and where the planning scheme regulates development on roads (such as the current Beaudesert scheme does) the road area to be used for such a purpose must be identified and included in the application. The Appellant, however, proposes no “use” of the roads other than the exercise of the common law right to pass and repass which it shares with every other person.
48.The Council’s contrary assertion is based primarily on the definition of “Extractive Industry” in the planning scheme but the definition does not bear the meaning attributed to it by the Council. It refers to extractive activities “carried out within or on the land”, and goes on to include “removal of same from a site”. All that definition is saying is that those parts of the operation, within or on the land, which are directed to removal of the finished product, as distinct from its extraction and processing, form part of the defined activity. The defined activity thus includes the activities of trucks loading finished product and moving off the site.
49.The reference to “cartage” in the second paragraph of the definition is to be understood in that context.
50.If there were thought to be any ambiguity in the definition on this point, thus requiring the Court to choose between competing interpretations, the absurdities which result from the interpretation contended for by the Council require the Court to choose the interpretation which flows naturally from the words actually used (“within or on the land”), and also avoids those absurdities.
51.Therefore, the proposal by the Appellant to introduce additional traffic onto the dedicated road network does not constitute new development or a new use of land.
52.The issue can be tested in the converse: if the Appellant were to make application for a new development permit for material change of use, as the Respondents assert that it should, what would it apply for? In terms of rights it does not already have, what it would be applying for is the right to use Sandy Creek Road and the State controlled network beyond for their dedicated purpose in order to move an additional 800,000 tonnes of quarry material in that particular way. As the authorities just cited demonstrate,[3] that is not a form of development application which is known to law.
53.This is not to suggest for a moment that the introduction of that new traffic is something which is unregulated by the IPA. It is generated from the subject land, to which the existing development permit attaches, as will the modified permit if the present request is granted. If its impacts are unacceptable, the present request will be refused …”

[3]See [26], item 10.

The court’s conclusion is that the Council is correct; such a development application ought to have been made. It is appreciated that there may be issues about owner’s consent and the like where the “premises” are a road to be used in ways for which, in a sense, the owner’s “consent” is a given, but it is not necessary to resolve them here. The quarry site constitutes promises where the use will change (arguably materially), so that a conventional development application could be made by reference to that site. It is difficult to imagine that anyone would contend the application was not recognisable as an application, because no approval was needed for what was proposed. In those circumstances, I would not expect that the written consent of the owner of associated public roads had to be provided.

The conclusion on what Mr Fynes-Clinton called the “threshold issue – whether the application was misconceived at its base” (Transcript 1-43) that the court ought to make the orders sought on the Council’s application filed 31 August 2009 may well prove erroneous. Against that possibility, consideration should be given to some other issues litigated.

Do difficulties about conditions defeat the appeal?

The next issue, according to Mr Fynes-Clinton (T1-43) was:

“A threshold merits issue which is that, regardless of considerations about works which might be done or conditions for contribution which might be imposed, regardless of those things, the extent of additional traffic to the State-controlled network and amenity impacts in that regard are such that, on its merits, the application ought to be refused before it even gets to questions of contributions or works to mitigate events.”

It seems to me there is an anterior issue if, for one reason or another, conditions may not be imposed on the granting of relief which the appellant seeks to manage inappropriate impacts on the State-controlled roads, or, come to that, on roads controlled by the Council. Mr Fynes-Clinton asserted, but Mr Hinson (for the Council) denied that there existed power to accede to a s 3.5.33 request conditionally. I have accepted the Council’s position, the consequence of which is that the request (assuming it to be a valid one) must be rejected out of hand unless reformulated in a way acceptable to the court – which, for the time being, means a way acceptable to the Council. If it has the conditions power under s 5.1.2 of IPA available at all, Mr Fynes-Clinton contends that the provision does not authorise monetary contributions. The co-respondent’s equivalent powers come from IPA s 5.2.28 and s 6.1.31. The appellant asserted (T2-31) that “neither of those provisions gets the Department in”.

There is little point in considering the Department’s situation, unless the Council, is satisfied on some basis which authorises use of Sandy Creek Road to get quarry product on to the Department’s roads. As things stand, there is no prospect of the court formulating conditions that will ensure Sandy Creek Road is appropriately reconstructed, as it will have to be before additional quarry traffic should be permitted to use it. Mr Beard’s opinion in this regard is accepted. It follows that the appeal must fail on the basis that there is no way open to the court of ensuring that the impacts of the request being acceded to are acceptable.

It may happen that the conclusion about the extent of the court’s power to impose conditions not requested by the appellant is wrong. Accordingly, it is appropriate to give some consideration to the various issues as to which the court heard from expert witnesses.

Should this appeal reach the stage of identifying the quantum or rate of contributions for the necessary upgrading and maintenance of Sandy Creek Road, the court has the benefit of contending expert evidence of Mr Reid, for the appellant, and Mr McAnaney, for the Council. Each was unashamedly concerned to advance the most advantageous outcome for his client. It may be more correct to say of the latter that he was concerned to ensure the Council would not be out of pocket. The Council’s previous estimate of the cost of upgrading Sandy Creek Road (in 1999) was massively too low. At many points, it is a case of exercising the best judgement that one can at this stage, bearing in mind that the arrangements set in train will last for two decades. As is the case for the State-controlled roads, it is unknown what mix of vehicles will be used for cartage of quarry products; the appellant has no cartage operation of its own, but engages contractors. The court understands that the usual situation will be one of the customers arranging transportation. That points to the desirability of detailed conditions that might require the appellant to give instruction to drivers, for example, to ensure that noise impacts are attenuated.

The mix of vehicles used may affect the amount of wear caused to the roads.

Sandy Creek Road is presently a deteriorating sealed carriageway of six or seven metres width with gravel shoulders. The court accepts the evidence that increased use by heavy trucks transporting an additional 800,000 tonnes of rock per annum necessitates the reconstruction of the relevant 3.2km section between Bromelton Quarry and the Beaudesert-Boonah Road to produce a pavement depth of 800mm with a width of 9m, of which two lanes of 3.5m each must be sealed. A few hundred metres at the entrance of the Neilsen quarry has been reconstructed, but to what standard is unknown. In fact, the quality of the existing road is not reliably known, although the surface deterioration is obvious. One of the complications is the possibility that, before too long, Neilsens may seek to increase their production by one million tonnes per annum, necessitating reconstruction to a higher standard (Mr McAnaney suggested this might mean an additional 50mm of pavement depth). This all goes to establish the good sense of the proposition that the quarry operators ought to negotiate an infrastructure agreement with the Council which will ensure (whereas conditions for making of payments will not) that the required construction actually takes place. Arrangements should be made to ensure that the appellant gets appropriate recompense should new contributions from Neilsens eventuate. Contributions to cover continuing maintenance are a separate issue for consideration.

Mr Reid and Mr McAnaney appear to accept that the cost of reconstructing the 3.2km section of Sandy Creek Road will be $1.1 million per kilometre, based on experience with a recent job enjoyed by Mr Reid. There is an issue as to what credit the appellant ought to get for contributions it made over the last 10 years[4] aggregating $250,000, being its 30% share of the estimate (now seen to be grossly inadequate) of the cost of getting Sandy Creek Road into a condition appropriate to carry the appellant’s established 200,000 tonnes per annum, Neilsens’ approved 400,000 tonnes per annum and the usage of another (non-quarry) operator of heavy vehicles in considerable numbers (Bush). Except for a very short section at the Neilsen access and to the north of it that work has not been done. There should undoubtedly be a credit for $250,000. I am not persuaded that the $250,000 payment exempts the appellant from further liability, given that its responsibility was measured as 30% of that of the identified major users combined on the basis of tonnages of 200,000 per annum, which will increase to one million.
[4]The total was said to have been reached in December 2008. It can hardly be said that the Council had the money in hand, but did not improve the road.

Mr Reid contends that, although it is impractical to construct a single pavement supporting opposing lanes of traffic (and no-one would ever do it), it is only the appellant’s proposed use of the northbound lane that requires increasing the depth of pavement, so that a notional severance ought to be effected, limiting the appellant’s contribution to reconstruction to what would be required for the northbound lane. The lighter, empty vehicles proceeding to the quarry to be loaded do not require the thick pavement. Mr Reid says the public (not the appellant) will gain the benefit of a better road heading south, that it is reasonable for the public to bear the cost. One can see the force of the argument, but it should not be accepted. The public have no need for that improved road; if it comes about, it will be to meet the needs of one or both of the quarries. Further, Mr McAnaney explained that the full 9m width is needed to spread the load of the laden vehicles proceeding to Beaudesert-Boonah Road.

Next, he and Mr Reid disagree as to the rate per kilometre per annum that should be charged for continuing maintenance of Sandy Creek Road. Both proceed by reference to Main Roads figures for identified roads in the wider locality under its aegis, Mr McAnaney uses $4,000, allocated to the Beaudesert-Nerang Road, Mr Reid prefers $2,500, allocated to the Beaudesert-Beenleigh Road. There are much higher allocations to other roads. Mr McAnaney concedes that ongoing maintenance on the southbound lane of Sandy Creek Road will require less expenditure than the northbound side and accordingly proposes an aggregate $6,000 per kilometre. The rate per tonne which the appellant proposed be included in existing Condition 15 was said to be the Neilsen rate. (The time for the appellant to begin paying the Road Maintenance Contribution has long passed.) Mr Reid had second thoughts and, for reasons he gave, proposed a rate lower by about a third. One factor was a change in the mix of trucks postulated, based on Refaka’s recent experience over the last year. What will happen in the future can be no more than an educated guess. The appellant is not going to be in control, relevantly. Its final position was to stick with the proposal as put in the request.

Mr Reid was involved in negotiations between Neilsens and the Council for a formula which he says has resulted in Neilsens paying $24,000 per annum for 20 years for their 400,000 tonnes per annum. The appellant, as he says, has already paid $250,000 for an annual quantity of 200,000 tonnes. What is proposed by the Council, he says, will continue to disadvantage the appellant into the future. What is required is to arrive at a suitable road contribution. It may be that Neilsens have got away too lightly in the past. It remains to be seen whether the Council will allow that to happen again. While deliberate or effective discrimination among competitors in an industry should be seen as undesirable (even bearing in mind that the appellant goes from being a half-Neilsen to two and a half Neilsens), I do not think it is a good argument that a poor outcome for the Council and its ratepayers in the past ought to be perpetuated by the court’s endorsing a bad outcome for the future now. My own experience in the court strongly suggests that, when it comes to the point of roadworks being actually carried out, earlier estimates of the cost are almost certain to be exceeded. CPI increases are usually inadequate to cover escalation in the cost of roadworks; there is said to be a difficult index for road construction. I cannot see any justification for imposing on the Council the cost of the works necessary to fit and maintain its road for the use and benefit of the appellant and its more or less remote customers. It is the Council which would have to do the work, if any is ever done, at its cost at the relevant time.

There is a certain unreality about the court acting on estimates proffered on behalf of the appellant as to what the costs fairly attributable to the appellant might be (which Mr Reid has conceded are less than what the Council will have to spend). Both Mr Reid’s and Mr McAnaney’s approaches are reasonable, given their different points of view. The former supported the appellant’s case that only $100,000, the cost of incorporating an extra 50mm of pavement in 3.1km of road where reconstruction will cost millions, ought to be paid, as an addition to the $250,000 in Condition 15. The extent of shifting of costs to the Council is gross. Under the request, the appellant’s quarry will generate 65% of the traffic on Sandy Creek Road north to the Neilsen quarry, 51% north of that. Driven to a decision, I think that Mr McAnaney’s opinion is to be preferred. Again, this goes to show the soundness of the Council’s evidence that the realistic solution lies in an infrastructure agreement acceptable to both parties, which will see the necessary works done and maintained. For reasons set out above, the court is not moved by Mr Fynes-Clinton’s offer, on instructions, to enter into an infrastructure agreement limiting its contribution for upgrading Sandy Creek Road to $100,000.

The circumstances are similar to those that confronted the court in Metroplex. The court, unable to order the parties to enter into an infrastructure agreement, would have been willing to adjourn that appeal, had it otherwise been minded to grant approval for the appellant’s very large development, to allow the parties to work out an infrastructure agreement after further necessary modelling work had been carried out, if they could. See paragraphs [148]-[157]. In this appeal, if the suitability of the appellant’s proposal came down to issues of the capacity and suitability of relevant Council and State-controlled roads, a similar outcome would be appropriate. The road authorities, in my view, are under no obligation to improve the roads they control to facilitate the appellant’s proposed greatly expanded use thereof; the court has no means of requiring the work to be done, in any event. An infrastructure agreement could incorporate provisions to accommodate more or less likely future developments such as Neilsens increasing production by one million tonnes per annum; it may be appropriate to provide a refund to Refaka of contributions paid by it which serve to accommodate increased use of Sandy Creek Road by Neilsens.

Here, the roads issue requires consideration in a wider context which takes into account the amenity of the town of Beaudesert. It is one of many country towns whose main streets coincide with State-controlled roads providing connections between places in the State. Unfortunately, for the most part, the existing and increased production of South Bromelton Quarry (like that of the Neilsen Quarry) will be carried into town in an easterly direction along Beaudesert-Boonah Road to its intersection with the Mount Lindesay Highway, where it is known as Bromelton Street and the highway as Telemon Street. Some quarry traffic would use the highway to the south, but most would head north to traffic lights at the intersection of Telemon Street and William Street which heads east to Nerang and would take a certain amount of quarry traffic connected with customers to the east; more would continue heading north along Mount Lindesay Highway which, beyond the lights, appears to be known as Brisbane Street. Brisbane Street continues south from the lights, bisecting the angle constituted by Telemon and William Streets. Traffic in Beaudesert is already congested.

The court accepts the evidence that social and amenity issues arise from the projected increase in quarry traffic. It is not simply a question of what happens in the centre. St Mary’s School is located at the corner of Bromelton and Telemon Streets around which the traffic turns. Further, the evidence shows that quarry traffic heading or coming from the east, maybe in defiance of Council development conditions precluding use of Council roads other than Sandy Creek Road, makes use of a detour to avoid the traffic lights. Thus, a loaded quarry vehicle heading east may turn left from Bromelton Street into Telemon Street, then immediately right into McKee Street, then immediately left into Brisbane Street and immediately right into Albert Street which merges with William Street (coming from the north) a little further along. The traffic pattern is that the routes of laden quarry vehicles are traversed in reverse by unladen vehicles returning to collect more product. The empty vehicles generate extra noise by way of rattling and clanking within the town. Of necessity, vehicles will be braking (often a source of disturbing, annoying noise, depending on the amount of consideration extended by drivers) for the purposes of turning or stopping when traffic signals or traffic conditions dictate. It is the noise of engines labouring to get trucks moving again and up to speed that causes concern, on top of the unwelcome fact of congestion with its implications for traffic flow and safety. The impacts are concerning whether encountered in the commercial context of the main streets (the State-controlled roads) or the residential streets constituting the “detour” where, whatever the rules might be, quarry traffic is likely to be. I accept the evidence that, as regards noise, it is engine noise that concerns the court, rather than noise generated by tyres, which is the concern on roads where speeds are high, such as the higher-level highways or motorways.

The court had before it contending bodies of evidence from acoustic engineers presenting opposite points of view as to the extent to which noise from increased quarry traffic would be noticed by those potentially affected and the acceptability of the increased impacts. I was extremely impressed with the evidence of Mr Savery and accept it. He had the advantage employing more sensitive and sophisticated sound monitoring equipment. The effect of his evidence was to convince the court of the perceptibility of increased numbers of distinguishable noise peaks associated with passage of additional quarry vehicles. Mr Savery emphasised that the benchmarks the noise experts conventionally rely on do not represent anything real: he would not go along with his “adversary’s” approach of identifying anticipated increases in noise levels of 1.8dB(A) as insignificant on the basis of benchmarks such as a Queensland Department of Main Roads benchmark of 3dB(A) increase in existing noise levels or a more stringent New South Wales standard of 2dB for increases in existing noise levels in “Environmental Criteria for Road Traffic Noise”; Mr Savery’s objections included that such standards are developed for different purposes (such as determining when new roads should have associated noise attenuation measures) and do not assist in identifying and evaluating impacts on those living or working in town and their environs of substantially increased movement of heavy trucks. One should add reference to those people “sleeping”, as the evidence suggests that, based on past experience, there would be a concerning number of heavy vehicle movements prior to quarry opening times of 6am, particularly by unladen vehicles coming in. Mr Savery expects sleep disturbance in the various locations monitored by him. He anticipates additional unacceptable noise impacts in town, and especially at the educational institution mentioned.

There are possibilities of alternative routes for quarry traffic to avoid central Beaudesert. One is Bromelton House Road, not too far east of the Sandy Creek Road intersection, which provides a connection north to the Mount Lindesay Highway from Beaudesert-Boonah Road well to the west of the town. This is a Council road, which very likely would require upgrading; the court heard no evidence about impacts on Bromelton House Road. It is likely that a major north south highway further to the west will be developed by the Department of Transport and Main Roads to facilitate industrial and other development at Bromelton. Matters are at too preliminary a stage for the court to place reliance on these possibilities.

Mr Fynes-Clinton submitted against such a condition not simply on a “right to use the roads” basis, but on the ground that s 5.1.28 of IPA did not authorise monetary contributions. The section commences:

“5.1.28 Conditions State infrastructure provider may impose
(1)A State infrastructure provider may impose a condition about either or both of the following—
(a) infrastructure;
(b) works to protect the operation of the infrastructure.

(2)The condition must be only for—
(a)protecting or maintaining the safety or efficiency of the provider’s infrastructure network; or
(b)additional infrastructure costs; or
(c)protecting or maintaining the safety and efficiency of public passenger transport.

Examples of a condition for safety or efficiency—
1a deceleration lane and entry access to a shopping centre development
2traffic signals at an intersection 1 block from a shopping centre development
3upgrading transverse drainage under a State-controlled road because of increased hard stand parking area from development
4road shoulder widening added to reconstruction of a road because of increased traffic loading to stop road edge wear
5provision of a bus stop and adjacent pull-in bay in a large residential subdivision to accommodate a public passenger transport service
6provision of a bus turning lane at an intersection for a shopping centre development because of increased traffic loading
7upgrade of traffic control devices at a rail level crossing because of increased vehicular crossings from nearby residential development

Example of a condition for additional infrastructure costs—
contribution for the construction of road works on a State-controlled road when land, not in the priority infrastructure area is developed as a large town-house estate—such as for the provision of footpaths, kerb and channel with ancillary drainage and a landscaped noise buffer

… ”

Mr Fynes-Clinton relied on the examples as indicating the scope of the section. He urged the court to revisit the view expressed in the McNab Developments Pty Ltd v Toowoomba City Council [2009] QPELR 361 that a corresponding section (s 5.1.2(1)) could support a condition requiring contributions. I was not persuaded that a different approach should now be taken.

Concerns that the Department might be treating quarry operators unequally, and are discriminating against the appellant were not pressed in light of the terms of the condition finally proposed by Ms Brien.

The condition appeared to the court to be a suitable one. It cannot be imposed however consistently with the court’s opinions expressed above which were in line with submissions supported by Ms Brien. The Department lacks standing in a s 3.5.33 scenario to impose conditions, lacking the status of a concurrence agency in the absence of a development application. The consequence is not that the appellant gains the windfall of escaping a condition that might otherwise be imposed, but that it is put in a position of being unable to show the court that the consequences of its s 3.5.33 request succeeding are acceptable.

In what he conceded was a novel argument, Mr Fynes-Clinton referred to s 971 of the Local Government Act 1993, which provides:

“971 Special rates and charges
(1)A local government may make and levy a special rate or charge on rateable land if—
(a)the rate or charge is for a service, facility or activity; and
(b)in the local government’s opinion—
(i)the land, or the occupier of the land, has or will specially benefit from, or has or will have special access to, the service, facility or activity; or
(ii)the occupier of the land, or the use made or to be made of the land, has, or will, specially contribute to the need for the service, facility or activity.

Examples for subsection (1)(b)(i)—
a rural fire services charge to raise funds for a rural fire brigade to purchase or maintain equipment to service only part of the local government’s area
a tourism promotion charge levied on land used for businesses that would benefit from tourism promotion in the local government’s area
a recreational facilities charge levied over a 2 year period to contribute to the cost of building playground facilities and amenities in a nominated park in part of the local government’s area
a cultural centre charge levied over an 8 year period to contribute to the cost of building a centre in part of the local government’s area (e.g. 1 of 2 towns in the area), with construction to start within a certain number of years after the charge is first levied
a charge, levied over a 20 year period, to repay a loan for the construction of a drainage system in part of the local government’s area, from which some land would commence receiving a benefit in a year and the remainder in a later year of the 20 year period

Example for subsection (1)(b)(ii)—
an entity that relies on road transport for its business specially contributes to the wear and tear on a local road adjoining its property and is likely to need a higher standard of road than the occupiers of other properties adjoining the road

(2)The special rate or charge may be made and levied on the bases the local government considers appropriate.
(2A)The local government may fix a minimum amount of a special rate.
(3)Without limiting subsection (2), the amount of the special rate or charge may vary according to the extent to which, in the local government’s opinion—
(a)the land, or the occupier of the land, has or will specially benefit from, or has or will have special access to, the service, facility or activity; or
(b)the occupier of the land, or the use made or to be made of the land, has, or will, specially contribute to the need for the service, facility or activity.

(4)The local government’s resolution making the special rate or charge must identify—
(a)the rateable land to which the rate or charge applies; and
(b)the overall plan for the supply of the service, facility or activity.

(4A)The overall plan must—
(a)be adopted by the local government by resolution either before, or at the same time as, the local government first makes the special rate or charge; and
(b)identify the rateable land to which the rate or charge applies; and
(c)describe the service, facility or activity; and
(d)state the estimated cost of implementing the overall plan; and
(e)state the estimated time for implementing the overall plan.

(4B)Under an overall plan, a special rate or charge may be made and levied for 1 or more years before any of the funds received by the local government from the special rate or charge are expended in implementing the plan.
(4C)If an overall plan will not be implemented within 1 year, the local government must, at or before the budget meeting for each year of the period for implementing the overall plan, by resolution, adopt an annual implementation plan for the year.
(4D)The local government may, by resolution, at any time, amend an overall plan or an annual implementation plan.
(5)The local government may identify parcels of rateable land to which the rate or charge applies in any way it considers appropriate.
(6)Subsection (1) is taken to have been complied with if the special rate or charge is made and levied on—
(a)all rateable land that, at the time of making and levying the rate or charge, could reasonably be identified as land on which the rate or charge may be made and levied; or
(b)all rateable land on which the rate or charge may be made and levied, other than land accidentally omitted.

(7)To remove any doubt, it is declared that a local government may make and levy a special rate or charge under subsection (1) for a service, facility or activity whether or not supplied or undertaken by the local government itself, including a service, facility or activity supplied or undertaken by another local government—
(a)in the other local government’s area; and
(b)under arrangements entered into, under section 59, by the local governments.”

The court was told that action taken under the section by a local government may be (and it has been) the subject of judicial review. The submission was that the Council had available a sufficient power under s 971 to protect its and its ratepayers’ interests in not being financially out of pocket from keeping Sandy Creek Road maintained in a suitable state to carry the quarry traffic. Particular reliance is placed on the example for subsection (1)(b)(ii). In my opinion, the availability of s 971 does not cut down or affect (unless a special rate or charge has already been made and levied – and accepted) the Council’s conditions powers under the IPA. (Mr Fynes-Clinton did not offer any assurance that steps the Council might take under s 971 would be accepted.) As explained elsewhere, the view has been taken, consistent with its submissions, that the Council has no conditions power in the present context.

Department of Transport and Main Roads Issues

On Day 4, evidence was taken from the traffic engineering experts. The effect of that, and the court’s assessment, is that Sandy Creek Road must be upgraded before additional traffic from the appellant’s quarry is permitted to use it as the haul route, but there is no corresponding urgent need in respect of the State-controlled roads beyond; further, however, there ought to be additional works done at some time well before maximum production is reached at the intersection of Sandy Creek Road and Beaudesert-Boonah Road to provide a so-called “seagull” treatment. That provides a dedicated acceleration lane for loaded quarry vehicles which have turned right out of Sandy Creek Road; such vehicles will necessarily slow highway traffic following and, in my judgment, to an unacceptable extent. The “through traffic” is kept to the left; the two streams of east-bound traffic merge once the quarry vehicles have gathered speed. The estimates on which the experts worked postulated 235 additional truck movements per day along Sandy Creek, 188 per day along Beaudesert-Boonah Road to the east of Sandy Creek Road, the movements being equally divided in each direction. That indicates close to 100 additional slow heavy vehicles executing the right-hand turn to go east, which will not do so with the same frequency throughout the working day, quarry traffic being characterised by “peak hours”. The longer rather than the shorter lengths of acceleration lane (that is 900m as opposed to 500m) proposed ought to be adopted, unless something more modest is agreed to be acceptable in the design phase. Assuming (contrary to what has been held) that conditions can be set, the first one proposed by Ms Brien (for the co-respondent) should be imposed.

The evidence of the civil engineering experts as to pavement matters in respect of the State-controlled roads was taken on 11 December 2010. If it matters, the court expresses a preference for the views expressed by Mr Patane. It was at odds with Mr Reid’s as to whether the appellant ought to make any contributions in respect of that side of the carriageway traversed by empty trucks proceeding to the quarry, to which relatively modest wear or damage would be caused. Exhibit 28 (an order of the court incorporating the most recent approval for the Neilsen Quarry) and Exhibit 29 (a bundle of documents in respect of other quarries) establish that the Department of Transport and Main Roads has in recent years implemented systems for exacting contributions against quarry operators. What was identified as a “reconstruction” cost[5] adopted by the Department was accepted by Mr Patane (who gave evidence for it) and, for want of any other figure, accepted by Mr Reid, in my understanding. The State-controlled roads (more correctly the relevant parts of them) where the “new” quarry traffic would constitute more than 5% (taken as the benchmark below which it is subsumed in general traffic and should not attract charges) are identified and the appellant’s percentage contribution. While Mr Reid and the appellant maintain that there ought to be no charge at all for use of State-controlled roads (a Queensland Government communication defending increases in registration fees for heavy vehicles by reference to their heavy impacts on the roads was tendered), he produced a table (which can be found at p 9 of Exhibit 14A) incorporating relevant calculations if contributions could be charged, arriving at 54.7c/tonne and that relates only to the additional 800,000 tonnes per annum. If spread over the anticipated aggregate one million tonnes per annum now contemplated, which is plainly convenient for simplicity in the charging exercise, the rate is 43.8c per tonne. Ms Brien reported to the court her instructions that her client would be prepared to accept that rate rather than the doubled one supported by Mr Patane. This was the other condition her client sought and it strikes me as a reasonable one. If the proceeding gets so far, I could impose that condition, too, in favour of the Department.
[5]Mr Patane explained that “reconstruction” includes necessary maintenance.

Appellant’s conduct

The Council pointed to certain aspects of the appellant’s conduct which it suggested were concerning. By 18 June 2007, there was a change in strategy while the 2004 development application was pending to abandon the earlier idea of amendment to propose transport of the additional 800,000 tonnes “by road or rail” and to “pursue the existing application in its current form to finality”, notwithstanding the developed intention to seek amendment of the hoped-for approval to let in haulage by road. The landowners’ consents to the “request to change an existing approval under s 3.5.33”[6] were obtained in 2007, although there was no approval until August 2008. By its solicitors’ letter of 9 January 2009,[7] confirmed by its own of 26 February 2009, the appellant intimated that it would inform the Department of Main Roads of the request, but did not do so. (It was pointed out that the Council was (successfully) pressured to abandon its idea of a preliminary hearing of its threshold point by threat of an application for costs being made.)
[6]The consents may technically be deficient as the letter mentioned in the footnote following insists that what is being changed is a condition, not an approval (under IPA s 3.5.24).
[7]The letter charges the Council with error in stating that the increase in tonnage to be hauled by road amounts to assessable development, explaining:

The appellant and its advisors may be seen as clever or inventive in devising a means of seeking requisite approvals for a four-fold or five-fold increase in the use of local roads without local people being informed or entitled to have a say. The appellant will win no accolades for being forthcoming or open about its intentions. However, it has not been shown that such considerations can have any bearing upon the way in which the court should approach the appeal.

The appeal should be dismissed.

“The Request to Council does not seek to change the use of the subject land for which approval has been granted, nor does it seek any new uses for the Land. The Request merely requests consent to change the method of haulage of quarry material from the Land.

A review of Schedule 18 IPA and the Integrated Planning Regulation 1998 (Qld) (IP Reg) does not give rise to a trigger which would make a change to the approved mode of haulage from the Land assessable development. That is, the approved use being carried out on the Land remains the same and, by reference to the legislation, a change to the mode of haulage (particularised by condition 4 of the Development Approval) does not give rise to a separate or new form of assessable development relevant to the land because a change to the mode of haulage is not a material change of use of the Land.”

[2009] QPEC 139

21 December 2009