Transpac Capital Pty Ltd v Central Highlands Regional Council - [2014] QPEC 12

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Transpac Capital Pty Ltd v Central Highlands Regional Council & Anor [2014] QPEC 12

PARTIES:

TRANSPAC CAPITAL PTY LTD
(ACN 135 577 598)

(Appellant)

v

CENTRAL HIGHLANDS REGIONAL COUNCIL

(Respondent)

and

CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS ACT

(Co-respondent by election)

FILE NO/S:

902/2012

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

3 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2013 to 4 October 2013 and 18 February 2014 to 19 February 2014

JUDGE:

Searles DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PLANNING & ENVIRONMENT – PLANNING - Appeal against the decision of the Council of 6 February 2012 refusing a development application seeking development approval for the construction and operation of a workers accommodation village on land situated at 147 Yackam Road, Blackwater.

COUNSEL:

Appellant: A Skoien

Respondent: S Ure

SOLICITORS:

Appellant: Cooper Grace Ward

Respondent: King & Co

Table of Contents

Appeal
Council decision
The Proposal

Submitters
Planning Scheme
Legislative context
Issues in dispute

Consideration of issues

A(1) Increase in residential density
Impacts on character and amenity
Mr Powell’s opinion
Ms Elliot’s Opinion
Discussion re social consequences of increase in Residential Density
Conclusion re social consequences of increase in Residential Density

A(2) Increase in Traffic
Discussion re Increase in Traffic
Conclusion re Increase in Traffic

A(3) Noise
Joint Acoustic Reports
Points of disagreement – second joint acoustic report
Source of Noise Emissions
Road traffic noise criteria
Temperature inversion frequency
Acoustic amenity as a Reason for Council’s refusal
Ms Adams’ conclusion in individual report
Mr Savery’s individual report 19 September 2013
Temperature inversions
Outdoor recreation voice noise
Ms Adams’ supplementary acoustic report of 26 September 2013
Consideration of noise
Conclusion re noise

A(4) Light
Discussion re lighting
Conclusion re lighting

A(5) Interference with the Kelehers’ domestic water supply
Dr Johnson’s opinion
Cardno report
Conclusion re interfereance with the Kelehers’ domestic water supply
Visual Amenity
Conclusion re Visual Amenity

B – Conflict with Planning Scheme
Town Planning Evidence
Mr Schomburgk’s opinion
Mr Perkins’ opinion
Discussion re alleged conflict with Planning Scheme
Conclusion re conflicts with Planning Scheme

C – Need
Mr Brown’s opinion
Mr Coghlin’s opinion
Discussion re need
Conclusion re need

Are there sufficient grounds to justify approval?
Grounds relied upon by Transpac
Discussion and Conclusion re Sufficient Grounds

Order

Appeal

This appeal is against the decision of the Central Highlands Regional Council (Council) of 6 February 2012[1] refusing a development application (Application)[2] seeking development approval for the construction and operation of a workers accommodation village (WAV) on land described as lot 6 on RP614154 situated at 147 Yackam Road, Blackwater (Site).
[1]Exhibit 1B, pp 629-639.
[2]Exhibit 1A, pp 25-313.

The Site is presently occupied by a single dwelling and cattle yards with vegetation having been selectively cleared for grazing operations leaving scattered mature trees remaining throughout the Site. It has the usual dams, fences, cattle yards and sheds associated with such an operation. It is some 1.7 kilometres north of the dissection of Yackam Road and the Capricorn Highway. It is approximately halfway between Blackwater and Comet some 17 kilometres west of Blackwater.[3] Its only vehicular access is from Yackam Road, its only road frontage, which is sealed for some 200 metres from the Capricorn Highway intersection along the Site’s northern boundaries.
[3]Ibid, p 30.

The surrounding land is generally used for cattle grazing on medium to large acreage lots. In the immediate vicinity of the Site they vary from 39 hectares to 50 hectares. There are five homesteads in the vicinity[4] belonging to the Kelleher (two houses), Geary, Acton and Carr families. All are submitters strongly objecting to the proposal.[5]
[4]Exhibit 2, p 161, aerial photograph showing Site Surroundings and Residential Locations.
[5]Exhibit 1B, p 407.

Council decision

By a Decision Notice dated 6 February 2012[6] the Council conveyed to Transpac its decision of refusal (Decision Notice). It identified the following reasons for refusal:-
[6]Ibid, pp 629-638.

“1. The proposed WAV is inconsistent with the stated purpose of the Rural Zone, as outlined in the Rural Zone Code of the Duaringa Shire Planning Scheme 2007, Specifically:
‘4.1.2(2)(c)Rural Character, including rural and agricultural landscapes, is protected’

(a)Council considers that the Proposed WAV will significantly detract from the established rural character of the Yackam Road area through the establishment of a land use of a size and nature that is incompatible with the existing rural development in this area, thereby conflicting with the intent of Overall Outcome c) of the Rural Zone Code. This use is considered to adversely impact upon rural character due to its scale (i.e. a 869 person Workers’ accommodation village in a predominantly rural area), hours and days of operation, traffic generation, lighting and noise impacts.
‘4.1.2(2)(g)Non-rural uses such as recreational based uses, home based businesses, home host accommodation, educational or tourism related uses of a low intensity and scale, and extractive industry users occur within the Zone only as appropriate to the character and amenity of surrounding land uses and areas and need for infrastructure where the Specific Outcomes are met.’

(b)The Proposed WAV is not a use considered to be appropriate for location within the Rural Zone, being of a scale and nature inconsistent with the Overall Outcome g) of the Rural Zone Code and having the potential to adversely impact upon local amenity due its hours and days of operation, traffic generation, lighting and noise impacts.
2.The Proposed WAV is inconsistent with the stated purpose of the Caravan Park and Worker’s Accommodation Code of the Duaringa Shire Planning Scheme 2007, specifically:
‘6.5.2.b)ii)Worker’s Accommodation is located where they best serve the accommodation needs of residents’

(a)Council considers that the Proposed WAV is located in an area remote from the mine sites it intends to serve, with appropriately designated lands contained within the Urban Development Area of Blackwater being located closer to these mine sites and having greater levels of servicing that would be of particular benefit to workers’ accommodated in this facility.
‘6.5.2b)iv)Worker’s Accommodation does not adversely impact on the amenity of the area due to residential densities, traffic generation, hours of operation, built form, or associated on-site facilities.’

(b)Council considers that the Proposed WAV will significantly detract from the established amenity of the Yackam Road area through the establishment of a land use of a size and nature that is incompatible with the existing rural development in this area, thereby conflicting with the intent of Overall Outcome b) iv) of the Caravan Park and Worker’s Accommodation Code. The use is considered to adversely impact upon amenity due to its scale (i.e. a 896 person Worker’s Accommodation village in a predominantly rural area with very low residential densities), hours of operation and traffic generation, lighting and noise impacts.
3.Council considers that these conflicts cannot be adequately addressed through conditioning to mitigate the detrimental impacts to the rural character and amenity of properties in the Yackam Road area.
4.Council considers that the most appropriate location for uses of this scale and nature is within close proximity of urban services, and not in a rural environment with minimal services.
5.Council considers that sufficient lands are available within the Urban Development Area of Blackwater to contain the proposed use, without impacting upon Rural character and amenity, and thus questions the need to locate this development on the subject land.
6.Council believes that this development fails to adequately meet all requirements of ‘Statutory Guideline 05/09 – Sufficient grounds for decisions that conflict with a relevant interest’ to justify an approval, and considers that there is no urgent need that cannot be met within appropriately zoned lands contained within the Urban Development Area of Blackwater.
7.Council considers that the development is not in the public interest based on submissions received, individual and group representations and community concerns expressed with respect to the expansion of workers’ accommodation villages in the Blackwater area.”

The Proposal

Transpac tendered[7] a statement summarising the Proposal. Without setting it out in full the following are its salient features:-
[7]Exhibit 3, p 1.

(1) Of the 50 hectares Site area, the proposed WAV would occupy approximately 24 hectares. It is intended to provide needed accommodation for workers in the resources industry in, and around, Blackwater. Those workers would predominantly be mine employees engaged in shift work at mines located within about 60 kilometres of the subject Site, generally involving travel time to, or from the mines of twenty to forty minutes (no more than an hour).

(2) Unlike other workers’ accommodation facilities, the Proposal WAV is designed to provide accommodation for workers from a handful of mines on individual, long term contracts with mine operators. It is intended that this would involve contracts with one or two (no more than three) mine operators, providing for the long term allocation to each operator of a specified number of accommodation units within the workers’ accommodation village.

(3) These sorts of long term arrangements are described as “take or pay” arrangements, and they differ from short term, or multi-user, arrangements, in which accommodation units are generally available for short stays by multiple users from the resource sector (with or without the practice of “hot bedding”) and/or to the public generally (i.e. motel style).

(4) An examination of the plans of development, reveals that the Proposed WAV would involve provisions of:

(a) accommodation units in a “village” format, comprised of:

(i) 800 accommodation units for long term “take or pay” workers’ accommodation; and

(ii) 96 accommodation units for a construction camp (i.e. accommodation for workers involved in construction of the Proposed WAV);

(b) an internal area of approximately 23m², including individual bathrooms (with toilet and shower), for each workers’ accommodation unit;

(c) balcony/veranda for each worker’s accommodation unit, with reasonable separation between, and setting for, groups of workers’ accommodation units;

(d) 430 car parking spaces;

(e) bus parking and drop-off area;

(f) wet mess, kitchen, dinning hall and recreation area;

(g) 25m swimming pool;

(h) two sports fields for informal or passive recreation;

(i) squash/sports centre;

(j) separate laundry units throughout the Site;

(k) on-site sewerage treatment plan; and

(l) landscaping within the Site (including turfing), and around all edges of the Site, to provide and maintain a high level of internal and external amenity.

(5) With regard to matters concerning security and health & safety, it is noted that the Proposed WAV would involve:

(a) the provisions of a mandatory first aid room on the Site;

(b) the provision of, at least, two fully qualified first aid officers on the Site at all times (obviously in addition to any qualified mine paramedics who may be in attendance);

(c) the ability for mine operators to supply “fatigue rooms” for use by workers before, or after, individual shifts, or, before, or after, travel to, or from, the workers’ accommodation village itself;

(d) the ability for users to provide accommodation for nightshift workers on the day before their first shift;

(e) the use of a security gate to monitor access into, and out of, the workers’ accommodation village, using the existing residence on the Site as a gatehouse;

(f) the use of CCTV throughout the Proposed WAV; and

(g) the ability to introduce swipe cards for access if required, or requested by a particular user (i.e. a mine operator under a long term contract).

(6) The construction camp would occupy approximately 1 hectare and would not be required (i.e. it would not be constructed and used) if sufficient and appropriate accommodation for construction workers can be found within the township of Blackwater. Given the nature of the supply of workers’ accommodation in Blackwater, it is expected that it will be necessary to construct and use the construction camp, which will be removed upon the completion of the construction of the Proposed WAV. The area of that construction camp would then be available for other uses, such as any additional car parking, landscaping or effluent disposal areas.

(7) If the Proposed WAV were to be located within an urban area, on a rectangular block, with provision of town water and sewer connection, with no requirement for visual screenings, stormwater retention basins, or effluent disposal, the Proposed WAV, maintaining the proposed high level of internal amenity, would require an area of approximately 18 hectares.

(8) The provision of car parking and bus facilities enables use of both cars and buses to transport workers. It is expected that workers arriving by aeroplane for shifts will be bussed to the accommodation village, while drive in/drive out workers will use their individual motor vehicles. It is expected that the split between buses and motor vehicles for transport to, and from, the mines for shift work, will be no less than 50/50.

(9) Workers would be accommodated on the Site during the period of their shift work. Those broader shifts are generally 5 days on/5 days off (or some longer period on and off). Workers arriving at, or departing from, the Proposed WAV at each end of this period would normally arrive during the course of the day: that is, they would not be arriving or departing early in the morning (i.e. not earlier than 7.00am) and they would not be arriving or departing late at night (i.e. not later than 10.00pm).

(10) Fly in/fly out workers (flying into Emerald) would ordinarily travel by bus to the Proposed WAV, while drive in/drive out workers would usually travel by car, either individually or in pairs or groups.

(11) In the ordinary course, shifts for mine workers would run from 6.00am to 6.00pm and 6.00pm to 6.00am. Accordingly, on any given day, workers on the day shift would depart from the Proposed WAV (in either cars or buses) sometime after 5.00am for the 20 to 40 minute journey, while workers on the night shift would return to the Proposed WAV (in either cars or buses) shortly before 7.00am. Similarly, workers on the night shift would ordinarily depart from the Proposed WAV sometime after 5.00pm, while workers on the day shift would return to the Proposed WAV sometime before 7.00pm at night.

(12) Obviously, there may well be some exceptions to this general pattern of traffic movement for the shift workers, but the main traffic generated by the Proposed WAV would likely follow this pattern.

Submitters

Nine submissions were received, seven of which came from owners of properties along Yackam Road. All opposed the Proposal identifying the following concerns[8]:-
[8]Exhibit 1B, p 407. See also joint social planning report 2(2), p 10.

(a) Large concentration of workers in a rural area of the community (disturb tranquillity, perceptions of safety and security);

(b) Inconsistency of the development with the planning scheme and the Rural Zone provisions;

(c) Development density;

(d) Negative impact on adjoining animal husbandry operations;

(e) Concerns regarding the use of the facility (and effect on the landscape) when no longer needed by the resource sector;

(f) Loss of amenity including visual impacts, lighting, noise impacts and loss of quiet lifestyle;

(g) Traffic impacts resulting from a significant increase in traffic flows;

(h) The effect of stormwater (overland) flow, including water quality, onto neighbouring properties;

(i) The duplication of recreational facilities which already exist within Blackwater;

(j) The ‘drain’ on emergency services from Blackwater.

Planning Scheme

The relevant Planning Scheme is the Duaringa Shire Planning Scheme (Scheme). The Site and its locality are located in the Rural Zone one of the three zones in the Scheme, the others being the Town Zone and Village Zone.[9]
[9]Exhibit 5 Scheme Zoning Map 1.

Legislative context

The application, having been made on 26 July 2011, its assessment was and this appeal is governed by the Sustainable Planning Act 2009 (SPA). Under s 493(1) Transpac bears the onus of establishing that the appeal should be upheld. The Proposal is impact assessable given that it is a Residential Use Class not specifically referred to in Table 4.1.1(1) “Assessable Categories and Relevant Assessment Criteria for the Rural Zone – Making a material change of use”.[10] As such it is to be assessed under s 314 of SPA and decided in accordance with s 326.
[10]Ibid, p 35.

Section 326 relevantly provides:-

“326 Other decision rules
1.The assessment manager’s decision must not conflict with a relevant instrument unless:-
(a) …
(b)there are sufficient grounds to justify the decision, despite the conflict; or
(c)…

2. In this section –
Relevant instrument means a matter or thing mentioned in s 313(2) or 314(2), other than a State planning regulatory provisions, against which code assessment or impact assessment is carried out.
The Scheme is a relevant instrument within s 314(2)(g).

Issues in dispute

The disputed issues are:-

(A)Impacts on the character and amenity of the surrounding area and uses resulting from:

(1) increase in residential density;

(2) increase in traffic;

(3) increase in noise;

(4) increase in light; and

(5) interference with the Keleher’s domestic water supply.

(B)Conflict with the Scheme including:-

(1) the purpose of the Rural Zone Code;

(2) Specific Outcomes of the Rural Zone Code;

(3) the purpose of the Caravan Park and Worker’s Accommodation Code insofar as it relates to workers’ accommodation;

(4) Specific Outcome S6 of the Caravan Park and Worker’s Accommodation Code.

(C)Whether or not there is a need for the Proposal.
(D)In the event of a conflict with the Scheme whether there are sufficient grounds within s 326(1)(b) of SPA to justify approval of the Proposal notwithstanding the conflict.

Apart from the above issues, Transpac raises the issue of appropriate extent of upgrade works which would be required for Yackam Road from the land to the intersection of the Capricorn Highway in the event the appeal is allowed.

Consideration of issues

Impacts on character and amenity

A(1) Increase in residential density

Social Planning Evidence

Evidence was given by social planning experts Mr Powell (Transpac) and Ms Elliott (Council). They provided a Joint Report and individual reports.[11]

Mr Powell’s opinion

[11]Exhibit 2(2), p 1 (Joint Report); Exhibit 2(3), p 21 (Mr Powell) and Exhibit 2(4), p 1 (Ms Elliot).

Mr Powell, as does Ms Eliot, bases his opinion on what they both see as an accepted way of life in mining communities for temporary workers whose main residences are elsewhere and who require accommodation during their work shifts. This phenomena is, in Mr Powell’s view, a recent response to the changes in the mining sector labour market. The potential impacts from fly in/fly out/drive in/drive out (FIFO/DIDO) workers will be present regardless of the locality or type of accommodation. If single persons quarters (SPQs) were not available to accommodate these workers who, generally speaking, are on substantially higher salaries, they would crowd out the lower income groups in the community in competing for existing accommodation.

Mr Powell says of the Proposal that it is fundamentally consistent with the broad patterns of the way of life in Blackwater which is inextricably linked with the mining industry. For at least 10 years it has had a culture of temporary mining personnel.

He thinks that on balance, the Proposal will deliver a positive outcome to the community by way of direct and indirect employment, increased spending patterns, and reduction of housing price pressures. As to social cohesion, he accepts the reality that temporary workers can not integrate too strongly with the community regardless of where they live. That is a function of their working conditions, long shifts and limited duration of employment in the locality. But, he says, evidence from other mining communities suggests that any impact from the mining sector employees and their accommodation on the town’s stability has not been disproportionate. Anti-social or illegal activity has not risen above what would be expected from general population growth. Further, stringent alcohol and drug testing regimes imposed by mining companies strongly mitigates against these workers being involved in crime against the person including sexual assault. In short, this Proposal will not adversely affect the character of Blackwater.

Important factors seen by Mr Powell are the proposed sporting and recreation facilities, gymnasiums, ironing rooms and liquor services available to residents, the scale of which he sees as appropriate.

Mr Powell summarised his views on the concern expressed by local residents as to the behaviour of the future residents of the proposed development. He thinks they will be addressed by effective management of onsite resident behaviour and communication with local residents as to the operations of the development to include proper processes for issues of concern to be reported and addressed.

In conclusion the Proposal is unlikely to lead to any perceptible level of anti-social or illegal behaviour and is unlikely to result in any significant additional demand on local policing or health services.

Ms Elliot’s Opinion

As I mentioned, Ms Elliot accepts the reality that the existence of accommodation villages of the type proposed are a part of life in Blackwater. Her objection is that the Proposal fails to address the community’s reasonable expectations that any such developments will only be approved in appropriately zoned areas so as to avoid negative social impacts, and will harmonise with the local environment and amenity. In her view, the location of the proposed development does not accord with the community values expressed in Section 1.3.6 of the Draft Strategic Framework for Land use in the Central Highlands which provides:-

“Council supports well designed and located Worker’s Accommodation. These facilities will not however be supported where they are simply an alternative to development within the urban areas to accommodate the increasing demand for accommodation of operational workers who need permanent accommodation solutions.”

Ms Elliot does not agree with Mr Powell that the Proposal will ease housing pressure in Blackwater. She says the cost of housing in Blackwater has decreased significantly in the 12 months prior to the Joint Report and there is present availability of housing for rental and purchase in Blackwater.

Ms Elliot considers the facility would increase demand on police emergency services and health services with those personnel having to travel some distance to the village, thereby reducing services available to the township.

As to residential amenity, her opinion is that the development of 896 rooms with a licensed outlet will negatively impact the amenity, quiet enjoyment and perceptions of security of the residents in Yackam Road. Further it would detract from the rural values of the area and make no positive contribution to the residential amenity of Blackwater. Its location, 17 kilometres west of Blackwater, will not support social integration or provide any benefit of access to facilities by local residents.

Ms Elliot referred to the 2012 Blackwater Progress Association Community Survey which concluded that the top five issues of concern to the community were:-

· No housing for ordinary people due to mining work;

· The town will end up a single persons camp;

· The number of camps will increase;

· Infrastructure will wear out; and

· Public spaces will not be maintained.

That survey, according to Ms Elliot showed that 90% of residents thought that there should be a cap on the number of camp beds in or near Blackwater and that as to where they should be located the strongest response was that they should be in mine sites and in designated camp areas.

As to the residential amenity of the area, Ms Elliot said the noise and high activity levels particularly in the early morning and early evenings would affect the rural character amenity and lifestyle of the Yackam Road neighbourhood. Ms Elliot said the freedom and safety of local children and other family members to move around the neighbourhood is currently protected by the closeness of the community. Ms Elliot noted that to place a high density housing facility for up to 900 non-local part-time residents would irrevocably damage the local lifestyle given the noise and traffic and the impingement on the locals’ privacy and feelings of security.

Discussion re social consequences of increase in Residential Density

Transpac, in its submissions, sought to discredit Ms Elliot’s evidence suggesting that she had no actual experience of the operation of such accommodation facilities and she was predisposed to a gender imbalance against men who she, it is said, regarded as more likely to act in an anti social or criminal way. When one carefully reads the transcript passages relied upon by Transpac those allegations are not made out. She acknowledged, but did not embrace, those views as being held by some in the community. Ms Elliot, as with Mr Powell, put forward her genuinely held views as to the impacts she thinks the Proposal will have upon the local area given the density of development accommodating up to 800 workers and 96 construction workers at full capacity. As to the views expressed by both Ms Elliot and Mr Powell as to the likely behaviour patterns of such a large amount of workers in one facility both speculated to some extent as one would expect.

Mr Powell referred to the experience of Transpac Capital’s other accommodation villages where anti social or illegal conduct incidents had been almost non existent. He did not source that information. However, whatever the previous experience of Transpac may be, I am concerned here with the present proposed facility. I accept that, of necessity, such a facility will have to be run strictly given the number of people involved. The facility will perhaps not be run as strictly as a military camp but will utilised the same type of rules regulating hours of operation of liquor outlets and standards of behaviour. In the end it seems to me that the people occupying the facility will be hard working people who enjoy some relaxation after work but whose work will not allow of excesses in relation to alcohol or drugs which may lead to anti-social conduct. That is not to say there will not be some incidents of unacceptable behaviour at times. The residents will be neither like cloistered clerics nor Borstal boys but people with the usual behavioural patterns.

Conclusion re social consequences of increase in Residential Density

As to any unacceptable risk of anti-social or illegal behaviour resulting from the density of the Proposal I am not persuaded that that would be a necessary concomitant of the Proposal. As to impacts on the amenity and the suitability of the location of the Proposal those issues will be discussed later.

A(2) Increase in Traffic

Traffic evidence was given by Mr Viney (Transpac) and Mr Holland (Council).[12] They also provided two individual statements each.[13] The second report of Mr Holland responding to Mr Viney’s second report will be marked exhibit 45.
[12]Exhibit 2, p 36 (First Report), p 42 (Second Report).
[13]Exhibit 3, p 65 and Exhibit 36(c) (Mr Viney); Exhibit 4, p 32 and Exhibit 45 (Mr Holland).

In the second joint traffic report of 16 July 2013[14] Mr Holland estimated that for the proposed 896 accommodation units (including the construction personnel) traffic movements would be as follows:-
[14]Exhibit 2(2), p 42.

Hour of the day	Vehicle movements
0500-0600 hrs	200-280
0600-0700 hrs	130-140
0700-0800 hrs	40-120
1600-1700 hrs	90
1700-1800 hrs	70-270
1800-1900 hrs	220-340
1900-2000 hrs	120-220
Total	870-1370

Mr Viney in the same report estimated the following:-

Time	Vehicles leaving camp	Vehicles arriving at camp
AM
4.00-4.30	28 including one bus
4.30-5.30	140 including six buses
5.30-6.00	28 including one bus
6.00-6.30	28 including one bus
6.30-7.30	140 including six buses
7.30-8.00	28 including one bus
PM
4.00-4.30	28 including one bus
4.30-5.30	140 including six buses
5.30-6.00	28 including one bus
6.00-6.30	28 including one bus
6.30-7.30	140 including six buses
7.30-8.00	28 including one bus
Total	392	392

That gives a total movement during those peak hour times of 784 vehicles which Mr Viney said could be expected to vary plus or minus 25%.

In his individual report of 17 September 2013[15] Mr Viney said that the above mentioned estimates by Mr Holland in the second Joint Report showing a range of traffic movements 370-540 in the morning and 500-920 in the evening were inaccurate and inordinately high, in that he, makes no allowance for:-
[15]Exhibit 3, p 65.

· The difference between the Proposal and other types of workers’ accommodation villages;

· The occupancy level of workers’ accommodation;

· The intention that the Proposal will not be a multi-user, short term accommodation facility akin to a giant motel, but rather a facility for exclusive use by employees, consultants and workers employed by just a handful of mines;

· No hot bedding, which I take to mean the policy of attempting to have the individual rooms occupied for as many hours of each day as possible; and

· Buses will transport up to 50% of the mine employees.

On that basis, and relying upon information provided by Transpac as to estimated future occupancy levels and bus usage Mr Viney reviewed his opinion and set out his changed view on vehicle movements as follows:-

“

Total units 800	Occupancy level[16]	Usage[17]	Car/Bus occupancy[18]	In/Out
Low estimate for vehicle usage	70%	60 % by bus	1.4/car
	560 Occupied units	224 workers by car	160 cars	80 cars
		336 workers by bus	11 buses	6 buses
		336 workers by bus	171 total
Likely estimate for vehicle usage	75 %	50% by bus	1.2/car
	600 occupied units	300 workers by car	250 cars	125 cars
	600 occupied units	300workers by bus	10 buses	5 buses
High estimate for vehicle usage	80%	40% by bus	1.0/car
	640 occupied units	384 workers by car	384 cars	192 cars
		256 workers by bus	9 buses	5 buss
		256 workers by bus	393 total

[16]Transpac Capital estimates 70% occupancy. VTE inspection at Coppabella recorded 71% occupancy.

[17]Transpac Capital advice is that 50% is the appropriate proportion of staff that would travel to mine sites by bus. This is also the typical rate for mines in this area and is used in most impact assessment reports.

[18]Occupancy level of 1.3/car observed by VTE at Coppabella inspection.

(Additions in fourth column added)

Mr Viney says the above figures show total vehicle generation each morning and evening to be between 171 and 393 movements. They are to be compared with Mr Holland’s figures of 870 to 1370 outlined above. Based on advice from Transpac and following mine site observation at Transpac’s Coppabella accommodations, Mr Viney estimates the total vehicle generation each morning and evening to be around 260 vehicles.

Discussion re Increase in Traffic

There does not appear to be any dispute between the parties as to the upgrade of Yackam Road and the intersection in the event that approval is granted. The main concerns of Council go to the impact on the amenity of the area of the increased traffic and accompanying noise on the Site and on Yackam Road.

Whatever figures one prefers, those of Mr Holland or Mr Viney, the increase in traffic on, to and from Yackam Road is going to be dramatic and well in excess of the current very low traffic on the road.

Conclusion re Increase in Traffic

My conclusion is that whatever figures are accepted the volume of traffic in this Low Density Rural Area is going to dramatically escalate upon approval of the Proposal.

A(3) Noise

As to the impact of noise from activities on the Site and traffic on Yackam Road the acoustic experts Ms Adams (Transpac) and Mr Savery (Council) provided 315 pages of reports constituted by two Joint Reports of 4 July 2013 and 5 August 2013 respectively, an individual report each, both dated 19 September 2013, and the supplementary report by Ms Adams of 26 September 2013.[19] There was little agreed between the experts.
[19]Exhibit 2, pp 55 and 114 (two Joint Reports); Exhibit 3 pp 100 and 197 (two Adams reports) and Exhibit 4, p 39 (Savery report).

Joint Acoustic Reports

Subsequent to the first Joint Report the experts asked for more information from the traffic experts and, upon receiving that, met again and prepared the second Joint Report. Ms Adams’ individual report summarises the points of disagreement in the second Joint Report and the position taken by each of her and Mr Savery on each of those issues.

Points of disagreement – second joint acoustic report

The outstanding issues between the experts in the second report were:

(a) The assessment criteria for camp traffic on nearby public roads;

(b) The acceptability of adding the noise from campsite activities including that from the operation of plant and traffic onsite to the traffic on public roads at the submitters Kelleher and Geary receptors;

(c) Irregularity of occurrence of temperature inversions;

(d) The application of sleep disturbance criteria for areas surrounding the campsite;

(e) The assessment of acoustic impact upon amenity raised by the Council as a ground of refusal of the application; and

(f) The issue of the attenuation of generator noise by the installation of a barrier or bund along the northern side of the generator. This issue, Ms Adams said, was not raised by Mr Savery in the first Joint Report.

Source of Noise Emissions

The second report proceeded on the basis of the following agreed noise sources in the first Joint Report:

(a) Mechanical plant and equipment noise from:

(i) Kitchen plant and equipment;

(ii) Sewerage treatment plant equipment;

(iii) Generators used during construction until mains power is supplied to the Site and in the case of any power failure during operations;

(iv) Air conditioning units for accommodation or administration offices, wet mess, dining facility and gymnasium;

(b) Vehicle noise:

(i) Vehicles (4WDs), small trucks, cars and buses moving on the Site access road and in the car parking areas including voices, doors closing and engines starting;

(ii) Service vehicles, delivery trucks and waste collection vehicles; and

(iii) Vehicles approaching and departing the Site along Yackam Road, entering and exiting the Capricorn Highway at the intersection.[20]

[20]Exhibit 2, p 60, first Joint Report [23]-[24].

The report relied upon traffic data provided by the traffic expert, namely that the travel times for vehicles at change of shift would be from 4 a.m. to 8 a.m. and 4 p.m. to 8 p.m. with maximum traffic flows ranging from 540 trips (morning) to 920 trips (evening) according to Mr Holland and 392 trips for both morning and evening according to Mr Viney.

Road traffic noise criteria

Ms Adams and Mr Savery agreed in the first Joint Report[21] that the existing background noise in the area comprised natural sounds from insects, birds, dogs, farm animals, rustling tree leaves when windy as well as man made sounds form vehicles on the Capricorn Highway, coal trains, vehicles on Yackam Road, farm vehicles and mining activities under still or down wind conditions. The only constant man made noise source was the traffic on the Capricorn Highway.
[21]Ibid, p 61, paras [28]-[29].

For traffic travelling along Yackam Road Ms Adams adopted 50 dBA Leq (1 hour) for night time and 55 dBA Leq (1 hour) for daytime. As to the sleep disturbance criterion for nearby receptors, she proposed 52 dBA Leq A max outside receptor bedrooms at night based on the internal criterion of 45 dBA plus 7 dBA across a partially open window.

Mr Savery, on the other hand,[22] considered that the cumulative impact of all camp noise sources, namely Site plant and equipment, people in vehicles onsite and vehicles on Yackam Road should be assessed against the agreed non-continuous noise criterion of Leq, adj 10 min 28 dBA. Further he proposed that any increase in traffic noise level on Yackam Road at night be limited to less than Leq 10 dBA above the average background noise level at night and to less than 15 dBA above the average background noise level during the day and evening period. As to sleep disturbance criterion he proposed less than L Amax 45-55 dBA outside bedrooms at night.
[22]Ibid, p 68, para 49.

As to noise criteria for traffic on the Capricorn Highway, Ms Adams proposed adoption of the Department of Main Roads’ traffic limit of 63 dBA Leq 10 (18 hour) for the highway and 55 dBA Leq (1 hour) for Yackam Road traffic at night time and day time respectively. Mr Savery’s view on that was to limit the increase in traffic noise level for traffic on the Capricorn Highway between 4 a.m. to 7 a.m. to less than Leq 5 dBA above existing Capricorn Highway traffic noise levels.

As to the Kelleher and Geary receptors[23] Mr Savery proposed at the cumulative noise level from all camp operations noise including traffic onsite and on Yackam Road be limited to the non-continuous camp noise criteria of 28 dBA at night, 32 dBA during the day and 31 dBA for evening periods on the basis that both traffic and camp noise will be perceived to be coming from the general direction of the camp by those two northern receptors.
[23]Ibid, p 96 – Aerial map locating all receptors.

Ms Adams disagrees with the approach of Mr Savery and questions his proposed limitation on traffic noise of 5 to 15 dBA above existing traffic levels and questions its scientific basis and where that criteria has been successfully applied before. Further, Ms Adams said Mr Lavery’s cumulative approach to sound readings is flawed because noise originating from a beneficial asset such as a road has a very different defined criteria from noise from a specific site such as the camp site. He answered that criticism as will be seen later

Temperature inversion frequency

Ms Adams agreed with Mr Savery that temperature inversions typically occur in cooler months at dusk and in the late night/early morning when ground conditions are cool, skies are clear and upper level air is warmer than the ground. It was also agreed that under temperature inversion conditions assumed by noise modelling, the noise emission level may increase by up to four dBA. Mr Savery expressed the view the temperature inversions will occur frequently at the Site on clear, early mornings and that noise level increases under temperature inversions may be up to 10 dBA greater than normal day time conditions, under strong inversion conditions.

Ms Adams says she has seen nothing from Mr Savery to support his calculation as to the frequency of inversion events or the ensuing likely increase in noise levels. Rather she relies upon the work of Mr Andrew Martin, her firm’s air quality manager and senior scientist, whose modelling work evidenced that temperature inversions would not produce increases of 10 dBA as Mr Savery asserts but rather would be more likely to be of the order of 6 dBA under the extreme conditions in question.

Acoustic amenity as a Reason for Council’s refusal

In Ms Adams’ view the Proposal will not adversely impact upon the existing noise amenity of properties in the Yackam Road area. Agreement was reached in the first Joint Report that camp operations, excepting camp traffic noise, can readily comply with the agreed night noise criteria of 28 dBA. But Ms Adams says camp vehicle noise on-site can also readily comply with agreed day time and night time noise criteria she and Mr Savery agreed in the first Joint Report. Ms Adams says also that traffic associated with the Site, in addition to existing traffic levels on public roads, readily comply with the 50 and 55 dBA criteria for night and day respectively. The only exceedance of the (outside receptor bedrooms) 52 dBA sleep disturbance criteria in her view is at the Carr residence that results from traffic on Yackam Road but she says the maximum noise levels experienced at the Carr residence is in keeping with that which is already experienced from Yackam Road traffic. Further the exceedance of 52 dBA in the evening will be associated with buses only and in the morning mainly buses with minor exceedance of 1 dBA above the 52 dBA under stable conditions for some 4WD vehicles.

Ms Adams’ conclusion in individual report

Ms Adams concluded that there was no reason to refuse the Application because all noise amenity issues can be appropriately dealt with by conditions identified in the second Joint Report. Amenity of the properties in the Yackam Road area will not be adversely impacted by the Proposal with the exception of the Carr residence which, as outlined above, will experience some minor exceedances of the 52 dBA sleep disturbance criteria which is already experienced from existing traffic on Yackam Road.

Mr Savery’s individual report 19 September 2013

Subsequent to the second Joint Report Mr Savery decided to remeasure the vehicle pass-by noise levels of vehicles on Yackam Road travelling at 100 kilometres per hour to see whether the noise levels on the rough surface of Yackam Road were representative of those noises from vehicles travelling on a relatively smooth road surface, those latter measurements were the subject of the Joint Report process. He explained that noise from vehicles travelling at 100 km/h is predominantly generated by tyre-road surface interaction which varies depending on the road surface; the rougher surfaces producing higher noise levels than the smoother.

The noise levels upon re-measurement were found to be higher than previously measured with the maximum noise level increased by 4.6 dBA and the sound exposure level by 7.5 dBA. Mr Savery said this translated to increased vehicle pass by noise levels predicted at the Carr and Acton receptors.

This meant that the maximum pass-by noise levels for the Carr and Acton receptors indicates that sleep disturbance is likely to occur during vehicle and bus pass-by events prior to 7 a.m. on a daily basis under favourable meteorological conditions of still, temperature inversion, light and prevailing wind directions. The levels will be higher at the Carr receptor because it is closer to Yackam Road and the prevailing wind direction is from the south/south-east more in the direction of Carr than Acton. As to the number of sleep disturbing noise events, this will depend on the number of vehicles travelling Yackam Road each hour prior to 7 a.m. On Mr Viney’s prediction of 90 vehicles per hour, there would be a peak sleep disturbing noise level every 36 seconds over a three hour period. That would increase to as little as every 13 seconds if one adopts Mr Holland’s traffic prediction count between 5 a.m. and 7 a.m. Again, if one adopted the shortened travel time assumption in Transpac’s summary of Proposal[24] of two hours for vehicles departing the Site for work and arriving on the Site after work, resulting in the same number of vehicles being moved in a shorter period, the sleep disturbance events will increase.
[24]Exhibit 3, p 1, para 7.

Mr Savery also updated his earlier cumulative noise levels based upon the above pass-by sound exposure levels using the traffic experts’ traffic flow figures which resulted in non-compliance at the Keleher 1 receptor with the 28 dBA non-continuous noise criterion for each hour between 5 a.m. and 7 a.m. under identified still, downwind or temperature inversion conditions irrespective of which of Mr Viney’s or Mr Holland’s predicted traffic volumes was adopted.[25] Comparison of the predicted noise levels and the background noise levels indicates that traffic noise from the camp and Yackam Road will be audible at Keleher 1 receptor from 5 a.m. to 7 a.m. on a daily basis for all of the meteorological conditions modelled. In Mr Savery’s opinion this audible non‑complying noise from the direction of the camp will be perceived at the Keleher receptor as an adverse impact upon acoustic amenity. The same will result in the afternoon and evening between 5 p.m. and 7 p.m.
[25]Ibid, p 43-44 – tables 3 and 4.

Temperature inversions

Mr Savery next dealt with temperature inversions, relying upon an air quality assessment report for the Minyango Project south of Blackwater dated April 2013.[26] That report concluded that during the night time the atmospheric conditions are generally neutral or stable (class D, E and F) and a table was produced showing the distribution of stability classes for the Minyango site. The report contained the following table:[27]
[26]Exhibit 4, p 61.
[27]Exhibit 4, p 125. Katestone environmental table A1 reproduced as Table 7 in Mr Savery’s report at Exhibit 4, p 46.

“Table 7 Frequency distribution of surface atmospheric stability conditions for the project site (reproduction of Table A1 in the Katestone report)

Pasquill-Gifford stability
class Classification Frequency (%)

A Extremely unstable 1

B Unstable 7.4

C Slightly unstable 13.8

D Neutral 39.9

E Slightly stable 10.2

F Stable 27.7

Mr Savery also relied upon a Noise and Vibration Assessment of the Minyango Project dated 9 April 2013 carried out by Bridge Acoustics. This report used the meteorological data prepared by Katestone Environment as the basis for its assessment of acoustic propagation from the Minyango Project operations. The report contained the statement[28] that considering combined evening and night periods from 6.00pm to 7.00am in which temperature inversions can occur, analysis of the CALMETs data indicate Class F inversions occur:-
[28]Ibid, p 159, para 4.1.3.

· 25% of the time in summer;

· 61% of the time in autumn;

· 53% of the time in winter; and

· 37% of the time in spring.

Mr Savery relies upon those findings to support his contention, not accepted by Ms Adams, that temperature inversions occur frequently in the area, increasing noise levels.

Outdoor recreation voice noise

Mr Savery then dealt with the issue of the recreation voice noise which may occur from the two sporting fields, swimming pool, basketball court and barbeques. The relevant noise level relating to the basketball court was considered in the first Joint Report but Mr Savery did further work on predicting male voice noise when “very loud” or “shouting” under the day and evening/night meteorological conditions for each of the recreation facilities using the range of meteorological conditions for the time periods Afternoon and Night scenarios/Day scenarios.[29] He concluded that, although the predicted voice noise levels generally complied with the non-continuous noise criteria agreed in the first Joint Report, the noise of voices may be audible at times at the Keleher 1 receptor depending on the time of day, the meteorological conditions and the nature and location of the recreational activity and background noise level at the time. In Mr Savery’s view if the predicted voice levels equal or exceed those background noise levels when the wind is in a south/south east direction there is potential for those voices to be heard at Keleher 1 location which would be regarded as an adverse impact on the existing acoustic amenity at that point.

Ms Adams’ supplementary acoustic report of 26 September 2013

[29]Ibid, p 216.

In response to Mr Savery’s reworking of Yackam Road traffic noise measures. Ms Adams carried out her own measurements of that noise on 23 September 2013 the day after Mr Savery’s report. The aim of her study was to find the real noise emissions from Yackam Road and to that end she used the following vehicles:- a mine spec 4WD, a 53 seat Volvo bus (2004 model) and a Ford utility.

In the course of the noise measurements of those vehicles Ms Adams observed other vehicles travelling along Yackam Road namely:-

· Triple B truck;

· Water truck;

· Three drill rig trucks;

· Approximately five other 4WD vehicles;

· One car; and

· Land Cruiser utility – up and back along Yackam Road.

From her inspection of Yackam Road she concluded that it was very unlikely that traffic going to the Site would pass the Carr residences at 100 km/h because:-

(a) When driving from the highway past the Carr residence one crests a small hill which would mean reaching speeds typically of a maximum of 90 km/h when driving for the conditions;

(b) The bus she observed coming off the Capricorn Highway past the Carr residence was travelling at about 70 to 75km/h;

(c) The 4WD when driving towards the highway similarly only reach 80 to 90 km/h due to the impending hill and then the immediate intersection;

(d) The bus when travelling towards the highway typically past the Carr residence at 70 km/h with a maximum of 80 km/h, slowed for the intersection; and

(e) Kangaroos observed along Yackam Road in the road corridor caused a further reduction in speed.

The result of those speeds provided an associated difference in noise between a 4WD travelling at 90 km/h to the same vehicle travelling at 100 km/h of 2.1 dBA. Ms Adams then set out a table comparing the measurements from this survey with Mr Savery’s most recent measurements and her own September measurements:-

Vehicle type	Joint Reports 1 and 2 Lmax dBA	Mr Savery Sept measurements Lmax dBA	Ms Adams Sept measurements Lmax dBA
4WD	105.6	110.2	105
Bus	111	117	104

Ms Adams says that her survey shows that:-

(a) The noise levels from both bus and 4WDs at the Acton residence will comply with 52 dBA sleep disturbance criterion;

(b) The bus noise levels of the Carr residence will comply/equal the 32 dBA sleep disturbance criterion;

(c) The 4WD noise levels will exceed the 52 dBA criterion by 2 to 4 dBA depending on the intensity of the met conditions;

(d) This would readily comply with the recommended internal sleep disturbance criterion of 45 dBA with windows closed; and

(e) With windows closed the expected internal noise would be in the order of 34 to 36 dBA in the Carr residence.

Consideration of noise

There is significant disagreement between Ms Adams and Mr Savery. Accepting that, Transpac submits that the evidence of Ms Adams should be preferred to that of Mr Savery given that his views are based on a worst case traffic assumption and further that there is no basis for finding that there will be any significant adverse noise impact from the Proposal. Having said that Transpac sensibly accepts that there will be susceptible noise generated which will alter the acoustic environment in the locality but says that impacts on amenity or character there from would not be significant.

Transpac also points to the fact that the locality is a rural area not rural residential so that various noises of various volumes and durations result during the day from activities for instance quad bikes, 4WD motor vehicles, trucks, bull dozers or the like so that in all the circumstances there is no real basis for concluding that noise from the Proposal would constitute a significant adverse impact upon character or amenity of the area.

Transpac attacked Mr Savery’s approach to noise on the basis there was no warrant for his consideration of cumulative noise levels. It is true that Mr Savery agreed in cross-examination[30] that there was no policy he followed in relation to that approach but he made it clear he considered there was a proper basis for the approach when he said:-

“… there is no policy. That is to. There is no standard. But in reality, the biggest industry in the State: the biggest issue for them is accumulating noise from multiple sources, some of which are fixed, and some of which are varying across large areas, and it is happening today as we speak. This is real. It does happen. No it’s not in a policy; it’s not in a guideline in terms of being able to say, yes, here is the document. But the reality is that on a daily basis, people in my profession are assessing the accumulative impact from multiple things from the same operator.”

[30]T4.57.34 – T4.58.25.

Likewise, the Council attacked Ms Adams’ evidence[31] and said that, in reviewing Mr Savery’s data on the Carr residence[32] she failed to appreciate the wind conditions between Class G (stable – almost no breeze blowing) and Class F (a stable south east breeze). Council indentified that Ms Adams’ sound pressure levels during her Yackam Road testing failed to comply with Vehicle Standard (Australian Design Rule 28/01 – External Noise of Motor Vehicles) 2006.[33] Council says that a graphic prepared by Mr Savery in response[34] showed that her calculations failed to take the correct location of the noise source on the road into account.
[31]Exhibit 3, p 100 Ms Adams’ report, para 54.
[32]Exhibit 2, p114, table 14 Joint Report.
[33]Exhibit 12.
[34]Exhibit 13.

In relation to the evidence of Mr Savery that on a number of days the noise generated by vehicles travelling along Yackam Road between 5.00am and 7.00am may be a few deciles too loud, Transpac provides that a suggestion from its traffic engineer Mr Viney to reduce the speed on Yackam Road from 100 km/h to 80 km/h would address that problem. It was also said that the court should approach the matter on the basis that if the speed limit was reduced all motorists using the road would comply with the law. I think anyone who has driven on a bush road would find that assumption questionable.

Conclusion re noise

I have dealt in some detail with the issue of noise setting out each of the experts’ views. When two experienced experts such as Ms Adams and Mr Savery differ on so many issues, it is not always an easy matter to determine which evidence is to be preferred. In this case, on balance, I prefer the evidence of Mr Savery and accept his conclusions in relation to the impact of noise which will be generated by the Proposal being Site generated and traffic generated onsite and on Yackam Road. Given the sheer scale of the Proposal I consider it appropriate to err on the side of the more conservative approach to noise impacts. Put another way, if it transpires that Mr Savery’s predictions materialise, the residents nearby will be more than minimally affected by the Proposal.

A(4) Light

The only lighting evidence was provided by Ms Adams, Transpac’s acoustic expert who is also a lighting expert. In her report[35] an aerial photograph[36], depicts the Site and the location of the Keleher, Geary, Carr and Acton residences.
[35]Exhibit 3, p 12.
[36]Ibid, p 20, Appendix C.

Ms Adams said a landscaped two metre high mound was to be constructed to provide a landscaped buffer along the northern side of the Site providing visual and lighting shielding for the residences to the north. In the course of preparation of her report Ms Adams visited the Terowie Camp located at Moorvale Mine via Coppabella which she said is a similar workers’ accommodation camp to that proposed. Her inspection involved considering the variety of light sources associated with that camp’s operation. They included bollard lighting throughout the accommodation areas and floodlit areas internally around central facilities and the car park. She concluded that the Terowie Camp did not emit light in the form of glare and its light did not spill past its boundary.

The proposed lighting sources are understood by her to be similar to those inspected at Terowie, namely bollard lighting throughout the accommodation areas, some floodlit areas internally within the centre of the camp, around central facilities and the car park, and headlights from traffic entering and exiting the Site.

She explained that obtrusive light, due to its intensity, direction or spectral attributes, causes annoyance, discomfort, distraction or a reduction in the ability to see essential information. Spill light is that which falls outside the boundaries of the Site.

In formulating her opinion on lighting Ms Adams had regard to the layout of the proposed facility[37] developed by Transpac after consideration of submitters’ comments, Australian Standard AS4282 – control of the obtrusive effects of outdoor lighting, and the proposed construction of the two-metre high landscaped earth bund/mound to provide a visual barrier for the Keleher 1 residence.
[37]Ibid, p 19.

Ms Adams concluded that the fixed lighting associated with the camp will not have an impact at the nearest residential receptors if AS4282 is complied with. Vehicle head lighting on entry to or exiting from the Site will have no adverse impact on any residences as none are located across Yackam Road near the Site entrance. Ms Adams recommended that the following conditions should attach to an approval:-

“Lighting condition 1: lighting minimisation
All lighting associated with the subject workers’ camp is to achieve the technical parameters, design, installation, operation and maintenance of outdoor lighting compliant with the requirements of AS4282 – Control of the obtrusive effects of outdoor lighting.”

Discussion re lighting

Transpac, understandably, submits that, as Ms Adams was the only lighting expert, her evidence should be accepted namely that, whilst the lighting would be noticeable in the locality, it would not create any significant adverse impact on any existing use or unreasonable impact upon the character of the area. Council pointed to Ms Adams’ acceptance[38] that the area around the Site was rural with nil lighting at night time, nil street lights or any other man made light sources besides those associated with the Site residents and surrounding rural residences.
[38]Ibid, Ms Adams Report, p 12, para 21.

Council said Ms Adams’ evidence that the Proposal, when completed would not present, from the outside, as an island of light or as a lit area of some hectares in a sea of darkness, defied human experience and common sense. I must say I agree with that. It is, to my mind, clear from the nature and scale of the Proposal that it will be seen for some distance in the evening as a glow contrasted against the blackness of the surrounding bush. Short of encasing the entire camp with a roof and blackening the windows it is inconceivable that it will not radiate a glow into surrounding areas.

Conclusion re lighting

I believe the lighting will have an impact on the amenity of the area though I accept it will not be a large impact. It will however announce its presence every evening after dusk and change the existing ambience of the area. That light need not be obtrusive in the technical sense.

A(5) Interference with the Kelehers’ domestic water supply

Flooding evidence was given by Dr Johnson (Transpac) and Mr Collins (Council) who provided two Joint Reports[39] together with individual reports,[40] both dated 24 September 2013.
[39]Exhibit 2, p 202 (first report) and p 204 (second report).
[40]Exhibit 3, p 143 (Dr Johnson); Exhibit 4, p 352 (Mr Collins).

Dr Johnson’s opinion

Cardno report

It was agreed in the first Joint Report that Dr Johnson’s firm Cardno would carry out a flood study, which was done.[41] That report concluded inter alia that there were a number of local drainage depressions and dams on the Site, and the Site was known to experience overland flow from local stormwater runoff across the Site. The results of WBNM Modelling, an event-based hydrologic model that calculates flood hydrographs from storm rainfall hyetographs, indicated that while the Site flows may increase as a result of the proposed development, the impact on the major flow paths will be either a small reduction in peak flows (north-west) or a small increase (east).
[41]Ibid, p 161 Appendix B to Dr Johnson’s report.

Cardno reported that, if the development proceeded, there will be a requirement to fill certain areas currently subject to local flooding and inundation and to provide mitigation measures to ensure no adverse impacts to both upstream and downstream properties. Flows through the Site are predominantly shallow in nature (less than 200mm) with the central depression spilling initially in a north-easterly direction with only a relatively minor overflow to the north-west during the higher stages of a flood event, with flows in the north‑east conveyed to both the northern and eastern boundaries. Depths within the western depression reach up to 920mm and 450mm in the central depression for the hundred year ARI flood event. Finally, Cardno concluded that its modelling revealed that no adverse impacts would be experienced by areas external to the Site.

The only live issue between the parties arising out of the flooding evidence is the Council’s concern with interference with the water supply of Mr Keleher. Mr Keleher provided a detailed statement[42] and expressed concern[43] about interference with water flow on his property. He pointed out that he depended upon natural flows of runoff water into his dams for watering stock and, in drought times, for showering and washing.
[42]Exhibit 32.
[43]Ibid, para 14.

Dr Johnson in cross-examination[44] conceded that the proposed bund will block 4% of the water flow crossing the Site at the northern boundary diverting water to the east which would otherwise go into dam 2 on Mr Keleher’s property[45] but that this diversion would not be important to the wellbeing of that dam.

Conclusion re interference with the Kelehers’ domestic water supply

[44]See 6.22.16.

[45]Exhibit 4, p 366, Collins Report 3.

In my view this issue can be addressed in conditions if appropriate.

Visual Amenity

Mr van Pelt provided a visual amenity report of 18 September 2013[46] on behalf of Transpac. He said the proposed village will be set back a considerable distance from Yackam Road which will reduce the visual impact of the development. All buildings will be single storey and under 5 metres in height though their number. The buildings will be arranged in a regular informal manner to create contrast to the existing rural environment which contains low density residential and agricultural buildings. This visual alteration he said needs to be visually absorbed by an existing component of the visual setting, for example vegetation. For that reason vegetation density on the Site must be increased to improve visual screening of the Site.
[46]Exhibit 2, p 53.

Mr van Pelt developed a Landscape concept design,[47] intended to perform three functions. Firstly to provide a visual screen for the proposed development to effectively remove views of buildings, hardstand areas and other structures. Secondly it is intended to create a pleasant green and open living environment for the occupants and finally to enhance the existing Landscape features of the Site and locality.

The Landscape design involves three broad treatment types namely; Woodland Planting, Village Edge Planting and Village Landscape Treatments.

[47]Exhibit 3, p 62, van Pelt report 8; a larger copy of the same plan appears at page 11 annexed to Transpac’s Summary of Proposal.

Mr van Pelt concluded in his report that with the above proposed landscaping treatment the Proposal would have a minimal visual impact on neighbouring properties. He said the existing environment goes some way towards screening long views in the area given the existing vegetation and distance between viewing points and the development. In addition, proposed plantings coupled with the existing open woodland vegetation across the Site would provide significant visual buffers to any development.

Conclusion re Visual Amenity

I am satisfied that any potential detrimental impact in the visual amenity of the area can be satisfactorily addressed by the proposed landscaping plant; not including the lighting issue previously dealt with.

B – Conflict with Planning Scheme
Town Planning Evidence

Town planning evidence was given by Mr Schomburgk (Transpac) and Mr Perkins (Council) who provided a Joint Report dated 8 August 2013[48] and individual reports both dated September 2013.[49]
[48]Exhibit 2, p 257.
[49]Exhibit 3, p 121 (Schomburgk); Exhibit 4, p 225 (Perkins.)

The relevant provisions of the Scheme are:-

· The Purpose of the Rural Zone Code C;

· Specific Outcome S3 of the Rural Zone Code;

· The Purpose of the Caravan Park and Workers’ Accommodation Code; and

· Specific Outcome S6 of the Caravan Park and workers’ Accommodation Code.

Those provisions provide:-

4.1.2 Assessment criteria for the Rural Zone

(1)Rural Zone Code

The provisions in this division comprise the Rural Zone Code. They are-

a) the Purpose of the Rural Zone Code – Section (2); and

b) the Specific Outcomes, Probable Solutions and Acceptable Solutions for the Rural Zone – Table 4.1.2. Rural Zone.

(2) The Purpose of the Rural Zone Code

The purpose of the Rural Zone Code is to achieve the following overall outcomes-

a) Agriculture and animal husbandry uses dominate the land uses within the Zone;

…

c) Rural character, including rural and agricultural landscapes, is protected;

…

g) Non-rural uses such as recreational based uses, home based businesses, home host accommodation, educational or tourism related uses of a low intensity and scale, and extractive industry uses occur within the Zone only as appropriate to the infrastructure where the Specific Outcomes are met.

Table 4.1.2 RURAL ZONE CODE: Specific Outcomes, Probable Solutions and Acceptable Solutions

Specific outcomes (S) for Code and Impact assessable development

Probable Solutions (P) for Code and Impact assessable development;
and
Acceptable Solutions (A) for self assessable development (Where Self assessable development does not meet the Acceptable Solutions of the applicable code, the development requires Code assessment. Refer to Section 1.2.9)

S2
Land uses and works have no significant impact on the amenity of adjoining premises or surrounding area:

1. By their design, orientation or construction materials;

2. Due to the operation of machinery or electrical equipment; or

3. Due to the emission of light, noise, vibration, ash, grit, oil, dust, waste water, waste products, or electrical interference.

P3.1
No solutions specified.

Division 5 – Caravan Park and Workers’ Accommodation Code
…
(2)The Purpose of the Caravan Park and Worker’s Accommodation Code
...
b)          Worker’s Accommodation:
i.         is provided in a manner that is of a high standard of health, safety and amenity for residents;
ii.         is located where they best serve the accommodation needs of residents;
iii.        is located and designed to be compatible with the locality in which they are situated; and
iv.        does not adversely impact on the amenity of the area due to residential densities, traffic generation, hours of operation, built form, or associated on-site facilities.

TABLE 6.5.1 CARAVAN PARKS & WORKERS’ ACCOMMODATION CODE: Specific Outcomes, Probable Solutions and Acceptable Solutions
Column 1	Column 2
*Workers Accommodation*
Site characteristics
S6 Workers’ Accommodation is: 1. located in close proximity to, or on, the site on which workers are employed: or 2. located in the town closest to the site on which workers are employed; and 3. are not visually obtrusive as viewed from public land or roads, due to the use of landscaping to screen the use.	P/A6.1 No solution specified.

Mr Schomburgk’s opinion

Although Mr Schomburgk accepts that the scale and intensity of the Proposal is such that it would not ordinarily be anticipated in the Rural Zone, he sees scale and intensity as something to be avoided only where it has off-site impacts upon the surrounding area. As to the protection of the rural character of the area he says that, having a regard to the range of conditions recommended by the various experts, the only significant change to the character of the locality will be the introduction of additional vehicles exiting and entering the Site via Yackam Road introducing new volumes of traffic.

As to that additional traffic Mr Schomburgk says it will be limited to buses and generally 4WD vehicles at specific times of the day when workers are departing for work or arriving home. This will create a spike in traffic on Yackam Road but for the rest of the day the proposed development will generate little or no traffic. On the subject of noise being managed he can see no nuisance or problem being generated by that increased traffic, even though the character of the locality will be changed in that respect.

He points also to the nature of the proposed facility servicing one or two mines with no hot-bedding so that, despite the capacity of the village, the actual occupancy at any one time will be much fewer than the 800 rooms for workers as opposed to construction workers. In other words each mine being serviced by the development will contract with Transpac for rooms for say 400 workers and given the nature of shift work, up to 30% of those workers will not be working at any one time so their rooms will be vacant.

As to infrastructure the development will be self sufficient in all respects apart from water supply, which is addressed, given that Transpac proposes to extend the Blackwater portable town water services 12 kilometres to the Site which Council has agreed to.

Mr Schomburgk believed the Purpose of the Caravan Park and Workers’ Accommodation Code is complied with as the Proposal is located where it best serves the accommodation needs of its residents, the occupants. With the concept of “best serving” the needs of residents, he says, one must take into account operational needs for them including:-

· Sleep opportunity during the day and night given the nature of the shift work;

· Minimisation of impacts on surrounding properties;

· Having workers in a single facility for ease of transport and security;

· Providing an attractive and pleasant village atmosphere; and

· Providing desirable living areas, recreational areas and facilities.

As to the sleep factor, urban settings are more likely to disturb the residents during daylight hours, evidenced by the special “black-out” windows with noise dampening for daytime sleeping in some in-town villages. He also points to what he sees as strong community feeling against having such facilities in urban centres and sees them on sites such as the present Site as ensuring that community sentiment is not inflamed.

Mr Schomburgk sees the 24 hectare Site area allowing for a more spread-out facility providing better amenity for residents compared to the more common camp-style facility. As to the location of such villages, which is addressed in Code Specific Outcome S6, Mr Schomburgk says this is a vexed issue with no one size fits all solution. He sees three locational options: existing urban centre, on the mine site or in a remote location away from town and conveniently accessible to a number of mines. In his view the best option is the third one, on a remote location, which he says best suits the accommodation needs of intended residents and avoids apparent community resistance to location of the facility in town. That view is predicated upon there being no unacceptable offsite amenity impacts.

Mr Schomburgk says that the Scheme does not prescribe an in-town location but speaks in Specific Outcome S6 of the accommodation being located in close proximity to or on the site on which the workers are employed (e.g. the mine site) or located in the town closest to the mine site. In his view that evidence is an acceptance of the remote location of such facility only if it is in the areas just specified. By parity of reasoning, Mr Schomburgk says that if the Scheme encourages such workers’ accommodation on the mine site or close to it then it seems rational that, provided off-site impacts are addressed, the present Proposal does not warrant refusal even if an in-town location was preferable, which he says it is not. It is highly unlikely, in Mr Schomburgk’s view, that a site could be found in Blackwater.

Mr Perkins’ opinion

Mr Perkins says that the sheer size of the Proposal, capable of supporting up to 896 workers, is of a scale and intensity exceeding the overall outcomes sought for the Rural zone. The Proposal will involve approximately 142 separate detached structures. It is not consistent with the rural character and low density nature of the land use in the area and that which is intended in the surrounding non-urban locality. He is pessimistic about the prospect of potential amenity impacts being appropriately resolved through conditioning given the extent of the disagreement amongst the experts on noise, traffic and social planning. But in any event he makes the following point. Even if lighting could be conditioned so as not to be obtrusive, its existence may well create a halo effect from the accommodation of outdoor light that would be inconsistent with the existing or desired rural character. That halo effect may be exacerbated by night lighting of the sports field used by residents working day shifts. I agree with him.

He agrees landscaping could be conditioned to screen the development from the Yackam Road frontage and/or adjoining property but given the sparse nature of the existing vegetation in those areas and the likely need for significant Site earthworks it may take many years for a visual screen to be suitably established. As to noise, those characteristics are likely to change over time. Finally on the issue of traffic movements, Mr Perkins says they will be well beyond that ordinarily to be expected in the locality.

As to the purpose of the Caravan Park and Workers’ Accommodation Code, Mr Perkins does not accept that 12 kilometres, being the distance from the Proposal to Blackwater, could be said to be close proximity. Nor does he accept that the Proposal is a low density development because the calculation of density against the whole of the Site is artificial. Such a large area would not be required in an urban area because for instance the effluent disposal would not have to be provided.

In Mr Perkins’ view the location of such a facility proposed in a location consistent with Specific Outcome S6 would have further benefits. Such benefits would include minimalisation of character and amenity impacts on the proposed area and more convenient access for workers to a wide range of personal services including police, ambulance and community facilities.

Discussion re alleged conflict with Planning Scheme

The Council says that the Proposal is in conflict with the purpose of the rural zone Code which speaks of uses in the rural zone of a low intensity in scale. It points to Mr Schomburgk’s acceptance[50] that there is no doubt the proposed development is of a scale and intensity that would not ordinarily be anticipated in the rural zone. In the Council’s submission the Proposal is squarely in conflict with the rural zone code and it is a major conflict.
[50]Exhibit 2, Joint Planning Report, p 257, para 6.2.2.

As to Specific Outcome S3 of the Rural Zone Code, again Council says the Proposal is squarely in conflict with it. S3 speaks of land uses to have no significant impact on the amenity of surrounding areas due to the operation of machinery or electrical equipment or the omission of light or noise.

As to the Caravan Park and Workers’ Accommodation Code, so far as it relates to workers’ accommodation, the Council provides the purpose of the Code is intended to achieve the following. Firstly, accommodation is to be located where it best serves the accommodation needs of the residents. Secondly, accommodation is to be located and designed to be compatible with the locality in which it is situated. Finally, accommodation is not to adversely impact on the amenity of the area due to residential densities, traffic generation, hours of operation, built form or associated onsite facilities.

Council argues that it could not be said that the accommodation is located where it best serves the accommodation needs of its residents because there is no evidence of who the occupiers will be. The only occupants ever suggested by the Appellant were employees of Yarrabee Mine some 60 kilometres to the north east. Council points to the evidence of Mr Eftim,[51] who is a commercial mine manager of 25 years experience, who expressed a preference for one accommodation provider to provide services for employees. Transpac is currently that provider for employees at the mines he manages. He also expressed a preference that the accommodation be no more than 15 kilometres from the mine site.
[51]Exhibit 18.

Council next says that the Proposal conflicts with Specific Outcome S6 which Mr Schomburgk concedes.

Transpac submits the Proposal would not give rise to significant adverse character or amenity impacts and well serves the needs of its proposed residents being mine workers and operators. On that basis it says the Proposal is consistent with the Rural Zone Code and the Caravan Park and Workers’ Accommodation Code. The preference in Specific Outcome S6 for WAVs to be located on or close to the worksite or in the town closest to the site is, Transpac says, simply a preferred location and a Proposal that does not comply is not necessarily in conflict with the Scheme. Under the Temporary Local Planning Instrument for the Council[52] that preference is maintained but again is no more than a preference.
[52]Exhibit 43.

Transpac relied also on s 4.1.2.2 of the Rural Code which provides that the purpose of the Rural Code is that:-

“a.         …
b.        ...
c.         …
d.        …
e.Rural uses which have significant smell, noise or other impacts are located away from towns and villages to protect the amenity of those towns and villages;
f.Both on-site and off-site impacts of intense agricultural and intensive animal husbandry are managed so as not to pose a risk to the natural environment; and
g.…”

These provisions, it is argued lead to the obvious expectation that uses which might involve considerable impacts upon amenity, such as noise, may well be located in the Rural Zone. Those expectations are consistent; it is said, with the uses for the Rural Zone set out in the Tables of Assessment. The uses include agriculture, animal carcass store, animal husbandry, road side store and stock sale yard.

Conclusion re conflicts with Planning Scheme

The concept of conflict was stated by Fryberg J in Woolworths Ltd v Maryborough City Council & Anor[53] in these terms:-

“[23]‘Conflict’ in this context means to be at variance or disagree with. It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the Scheme). Unlike ‘compromise’ in para (a), in implies no particular impact by a subject upon an object. A determination that there has been a breach of the requirement that ‘the assessment managers decision must not … conflict with the Planning Scheme’ requires the identification of the decision, the identification of some part or parts of the Scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision. …”

[53][2005] QCA 262.

I have answered, but not set out, all arguments addressed by both parties on the issue of the Scheme Conflict. I prefer the evidence of Mr Perkins to that of Mr Schomburgk. I and am more than satisfied that this Proposal is in conflict with the Planning Scheme as to the purpose of the Rural Zone Code, Special Outcome S3, the purpose of the Caravan Park and Workers’ Accommodation Code and Site Characteristics S6 of that code.

Conscious of the need to interpret Planning Scheme broadly and not pedantically[54] I consider the conflict with the Purpose of the Rural Code emanates from the following issues. Firstly, the Proposal is not an agricultural or animal husbandry use. Secondly, in relation to non-rural uses contemplated, it is not of an intensity and scale appropriate to the character and amenity of the surrounding area.
[54]See Westfield Management Ltd v Pine River Shire Council & Anor [2004] QPELR 337 at [18],

On any view of the matter the Proposal has the potential to involve up to 896 workers in a high density rural development amidst a quiet rural area. Those numbers may reduce when construction finishes and may also reduce having regard to the occupancy rates referred to by Mr Schomburgk. But even with those reduced numbers, I consider it will forever change the amenity and character of the area in terms of traffic volumes, noise and light.

For that reason it is clearly in conflict with Specific Outcome S3 of the Rural Code. It is not always necessary for lighting and acoustic codes to be breached for the amenity of an area to be adversely affected by light and noise. As was said by Durward SC DCJ in Morris Corporation Pty Ltd v Whitsunday Regional Council:[55]
[55][2012] QPELR 254 at 283.

“[257] In Broad (supra), de Jersey J (as he then was) said at page 326:

"There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses but also the residents' subjective perception of his locality. Knowing the use to which a particular site is or may be put, may affect one's perception of amenity."

…

The resident/objectors gave evidence of their actual perception and the fears they held of the effect of the development. Their fears were, I thought, sometimes overstated, even unlikely. However, I accept that the actual perception which the residents claim to have is genuinely held. That perception is one of residential amenity.

Provided that perception can be seen to be reasonably held in an objective sense, it should be given considerable weight.”

[258] Amenity is not limited to objective physical phenomena but also included valid perceptions likely to be held by an ordinary person in the locality: Bad Girls Maroochy Pty Ltd v CE Department of Tourism, Recreation & Fair Trading [2004] QCA 45.

[259] I have dealt with the evidence of residents who made statements expressing concerns about the proposed development. I do not have any doubt that the development will be readily apparent to anyone in its vicinity. However I do not consider that the perception of its presence, whether by mere knowledge or by observation of built-form, extensive landscaping or even at night time, a loom of light, will have an unacceptable impact on visual amenity in the holistic sense described.”

As to the Caravan Park and Workers’ Accommodation Code the Proposal is also at variance with the purpose of that code. I do not accept that the Proposal will best serve the accommodation needs of residents. It may well serve those needs but “best” is the superlative of good and connotes superior servicing of those needs compared with other alternatives. Without being pedantic, the use of that word “best” in the Scheme cannot be ignored. It could well have been omitted if the intention was that needs need only to be minimally met. Further the Proposal is not compatible with the locality and will adversely impact on its amenity and character.

C – Need

Need evidence was given by Mr Brown (Transpac) and Mr Coghlin (Council) who provided two Joint Reports[56] and an individual report[57].
[56]Exhibit 2, p 164 – first Joint Report; p 194 – second Joint Report.
[57]Exhibit 3, p 135 (Brown) and Exhibit 4, p 337 (Coghlin).

Mr Brown’s opinion

Mr Brown is of the view that there is a demand for WAV facilities at the present time, contrary to the view of Mr Coghlin. Mr Brown, in his report, detailed his opinion of the coal industry outlook by reference to, amongst other things fluctuating gold prices and exchange rates. Mr Brown explained that he and Mr Coghlin in their first Joint Report generated a series of base load demand estimates for WAV facilities within an agreed study area defined as a 60 kilometre radius from the subject Site. The base load represents the core demands for WAV accommodation by the dedicated mine construction and operation work forces based on the known pipeline of mining projects within the study area. That was largely gleaned from the Queensland’s Coal Mines & Advanced Projects’ publication.

Mr Brown spoke of WAV demand being what he called “peaky” resulting from extra demand for periodic maintenance, equipment failure or reinstatement works after major weather events. Any of these scenarios could lead to a significant demand for additional workers from 100 to 500 for prolonged periods of three to six months. Because of these peak demands he says there needs to be a supply buffer of WAV units to ensure accommodation needs of these peak demand personnel. In his view an appropriate balance of supply and demand would be to ensure that the base load demand does not exceed 85% of available WAV supply.

In the event of a notional oversupply, of for example 75% of base load demand, it would, in Mr Brown’s view enhance competition amongst WAV providers leading to greater range, choice and competition. He notes that of the existing supply of 3,602 WAVs approved and existing, approximately 60% are still in the approval phase. That represents 2,161 units[58] Mr Brown then says, considering the base load demand, the on-the-ground shortage of beds is in the order of 1,400 to 3,000.
[58]Mr Brown reaches a figure of 2,173. Nothing turns on it but the correct figure should be relied upon.

In the Joint Report, three WAV demand scenarios were postulated:-[59]
[59]Exhibit 2, p 167, Joint Report, para 18.

(a) Scenario Figure 1: existing mine production, existing mine expansions and all proposed mines proceed;

(b) Scenario 2: existing mine production, expansion of existing mines and proposed mines with approvals currently in place proceed; and

(c) Scenario 3: existing mine production, expansion of existing mines, proposed mines with approvals currently in place and proposed mines with completed EIs proceed.

The supplementary (second) Joint Report[60] records that for the 2013/14 year the demand for WAVs for scenario 1 was an undersupply of 817 beds, scenario 2 an oversupply of 757 and for scenario 3 an undersupply of 167. The figures were projected through to 2020/21 where the equivalent figures are shown as an undersupply of 1,470 for scenario 1, a surplus of 1,377 for scenario 2 and a surplus of 326 for scenario 3.
[60]Ibid, p 194 at 199.

In his deliberations, Mr Coghlin adopted Scenario 2 which Mr Brown considers overly pessimistic. That scenario led Mr Coghlin to conclude that there was an oversupply of non exclusive WAV accommodation. Mr Brown was also critical of Mr Coghlin considering non exclusive WAV accommodation which I take to be accommodation such as motels not dedicated exclusively to mining personnel.

Mr Brown’s stressing of the importance of considering the shortage of WAVs on-the-ground as opposed to simply approved, is supported, he says, by the fact that WAV approval times from Council have typically exceeded a year. He said the accommodation was required on the first day of mine construction not the first day of its operation and failure of a mining company to demonstrate adequate supply of accommodation for workers can impact on approval times for the mine itself with significant cost implication.

Mr Brown’s conclusion overall is that the outlook for the coal industry in the study area was positive so that the demand for WAVs is likely to increase. Presently there is a clear and obvious existing shortage of on-the-ground WAVs and their supply is integral to the ongoing operations of the industry. The supply of WAVs should exceed the base load demands to allow for the abovementioned peaks in demand to be appropriately managed.

Mr Coghlin’s opinion

Mr Coghlin identified as a major difference of opinion between him and Mr Brown, the number of new mines likely to be developed in the study area over the forecast period of 2020/21. It is common ground that there are 12 proposed mines within the study area in various stages of investigation and planning.[61] Mr Coghlin outlined the steps involved in commissioning a mine project from the initial proposal to its actual development which sometimes takes more than a decade before construction commences. For that reason he thinks that it cannot be assumed, even in a favourable industry climate, that the mine currently proposed in the study area would proceed to production within the seven year forecast period. His view is that, when looking at the demands for WAVs, one should look at the forecast demands from existing and approved demands but not from other proposed mines. In his view there are sufficient WAVs to meet the forecast demand for existing and approved mines.
[61]Ibid, p 170, first Joint Report, p 7, tab 4.

Mr Coghlin considers that taking account of the issue of demand for mines other than existing and approved, would be highly speculative given the numerous technical, regulatory and investment hurdles to be overcome before a mine proceeds. Given the uncertainties in development and timing in relation to proposed mines, there is no certainty as to when, or whether, the WAVs to serve proposed mines would be needed.

As to the current state of the coal industry Mr Coghlin believes it is facing a combination of significant economic, financial and market hurdles which have coalesced to result in extraordinarily poor current industry conditions. In support of that view he identifies a series of statements from industry leaders referring to the slow down in the number of resource projects achieving financial close reflecting a substantial deterioration in the market place within six months prior to August 2013. Mr Coghlin believes that the industry is staring down the barrel of the toughest operating environment in more than a decade because of global coal prices falling, high structural costs and the world’s highest price on carbon resulting in enforced cost cutting felt across the industry supply chain including resource communities. Further, Mr Coghlin relies on statements from a major player in the industry announced in September 2012 of a planned restructure to respond to industry wide pressures and low coal prices, high input costs and a strong Australian dollar against the US dollar. Mr Coghlin also relied on a further statement by the same company in September 2013, that current price levels are unsustainable in the medium term with close to 30% of seaborne thermal coal production being cash – cost negative. Finally, Mr Coghlin relied on a statement from another industry leader that the industry will inevitably see more grounds of cost cutting, that the decade long resources investment boom in Australia has peaked for the present and that since May 2012 8,000 jobs have been lost in the Queensland coal industry.

As did Mr Brown, Mr Coghlin considered the international market, coal price industry costs and the like to arrive at his conclusion. He said, in the long term there is likely to be considerable growth in world wide demands for coal, but it is by no means certain Queensland coal mines will be as competitive internationally in the future as they were some years ago. In his view, at least for the next several years, development of new coal mines in Queensland will be restricted because of:-

(a) depressed demand and low coal prices;

(b) high structural input costs resulting in decreasing cost competitiveness and profitability compared to international competiveness;

(c) contracts that limit the potential to reduce labour costs or increase labour productivity significantly except through increases in output per employee;

(d) significant constraints on the ability for new Queensland mines to attract investment, combined with increasing opportunity for higher investment returns in other countries; and

(e) substantial increases in the capacity and price competitiveness from overseas mines.

Those conclusions found his view that it would be highly speculative to base demand for new WAVs on mines proposed only, where the certainty of any such mine proceeding would risk significant oversupply of WAVs until the industry recovers. If, in the future, demand from existing and approved mines is forecast to exceed supply, Mr Coghlin says the extent of lead time for a new mine development would provide substantial time to plan, approve and build additional WAVs.

Discussion re need

Transpac submits that the concept of need in the planning sense involves going beyond consideration of economic need or supply and demand. It relies on two well known and useful statements on the concept from the late Skoien SJ DC. In Roosterland Pty Ltd & Ors v Brisbane City Council[62] the court said:
[62](1986) 23 APAD 58 at p 60.

“Need
Need in planning terms is a relative concept it does not connote pressing urgency, but rather relates to the general well-being of the community. A use is needed if it would, on balance, improve the services and facilities available in a locality.”

The second statement was made in Cutprice Stores Retailers v Caboolture Shire Council[63] in which the court said:-

“Need
Need in cases such as this does not mean pressing need, critical need, widespread desire, or anything of that nature. A thing is needed if its provision, taking all things into account, improves the physical wellbeing of the community.”

[63](1984) QPLR 126 at 131.

Transpac also relied upon Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors[64] a decision of Robin QC DCJ relating to a quarry case in Mackay. In that case the applicant was to derive an economic advantage from a resource on his land. The court provided that the applicant should not be denied the opportunity of exploiting that resource simply because it was argued that same resource could be obtained from other sources. By allowing its exploitation it would increase competition amongst suppliers.
[64][2013] QPEC 57.

Transpac says that in the present case the Proposal would provide a beneficial and valuable service to the mining sector with benefits flowing to both mine operators and workers. The principle benefits would be certainty of accommodation arrangements, stability and control over living arrangements and the reduction in potential adverse impacts upon surrounding areas resulting from the provisions of large numbers of accommodation units for workers in the resources sector.

Conclusion re need

I prefer the evidence of Mr Coghlin to that of Mr Brown. There is no doubt about the quality of the product offered by Transpac but when one considers, not too narrowly, the concept of need as annunciated in Rooserland and CutpriceStores Retailers I am unpersuaded that need has been established. I think Mr Coghlin’s opinion of the need issue is a more realistic assessment of the issue. Mackay Resource Developments does not alter my view.

Are there sufficient grounds to justify approval?

Schedule 3 of SPA defines grounds as follows:-

“Grounds, for s 326(1)(b) and s 329(1)(b)-
(1) Grounds means a matter of public interest
(2)Grounds does not include the personal circumstances of an applicant, owner or interested party.”

In Weightman v Gold Coast City Council & Anor[65] the Court of Appeal considered the concept of sufficient planning grounds in these words :-
[65][2002] 121 LGERA 161 at 173.

“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.
(4)The first task required of the decision-maker, as the learned primary judge recognised, is to consider the nature and extent of the conflict. The conflict may be minor or major in the nature or indeed anywhere on the continuum between those two extremes. The conflict in this case is a major one, arising as it does from an absolute prohibition on the height of any development exceeding the maximum stipulated height of three storeys.”

Grounds relied upon by Transpac

Transpac relies upon the grounds which Mr Schomburgk considered would justify approval.[66] Those grounds are:-
[66]Exhibit 2, p 281 joint planning report, para 6.7.2.

(a) There is a need for additional workers accommodation in the immediate region (if Mr Brown’s evidence is accepted);

(b) In simple terms, experienced operators such as Transpac do not propose such facilities unless there is a demand for them. That demand exists in this case;

(c) That need is unlikely to be capable of being met on any site in the Blackwater township;

(d) There are distinct advantages in having a facility such as this on a Site away from existing townships – advantages to the operators, to the future residents, to the township, and to the planning authority;

(e) The very nature of the use is that it requires a large site that is removed from the urban area, so there is no noise, lighting or other impacts to allow shift workers to sleep uninterrupted, while also being convenient to serve the mines and other major projects in the region;

(f) Many (but not all) mine workers, especially shift workers, have specific accommodation needs that are best met by purpose-built developments such as proposed here, as opposed to utilising existing or new conventional accommodation in a township (such as flats or houses), and those types of accommodation do not provide separate areas for each employee;

(g) The Site is located away from existing residential areas such that any impacts that might arise from the proposed development will not affect existing residents or other land uses;

(h) All relevant infrastructure can be provided at no cost to the Council or the community;

(i) The proposed development provides accommodation to support the mining industry and other key resource projects which play a significant role in the economy of the region;

(j) The two relevant state agencies have each provided conditions of approval for their components of the proposed development; and

(k) There is an absence of negative impacts from the Proposal.

Additionally in submissions Transpac added the following grounds to warrant approval:-

(a) The benefits to residents of the Proposed WAV, including safety and amenity benefits;

(b) The benefits to mine operators, through the provision of the Proposed WAV, including safety and efficiency benefits;

(c) Benefits to the locality (i.e. the Yackam Road residents) through changes that would be introduced by the Proposed WAV, namely:

(i) Reduction in bushfire hazard;

(ii) Introduction of additional water in the locality;

(iii) Assurance of the continuation of the existing overland flows in the locality;

(iv) Continuation of water supply across the subject land to the neighbours (i.e. the Kelehers);

(v) Avoidance of potential adverse noise, lighting and dust impacts that could arise from a rural use of the subject land;

(vi) Improvement of the state of Yackam Road;

(vii) Improvement of the intersection of Yackam Road and the Capricorn Highway;

(viii) Improvement of the local bus turn-around facility; and

(ix) Improvement in the appearance of the subject land – hence, the character of the area; and

(d) There are benefits to the Blackwater community, namely:

(i) Removal of the disliked WAV to an out-of-town location;

(ii) Preservation of urban land for urban purposes associated with the town of Blackwater itself;

(iii) Preservation of urban effluent disposal capacity (since the Proposed WAV would treat its own effluent);

(iv) Improvement of the intersection of Yackam Road and the Capricorn Highway (used generally by the travelling public, not just residents of Yackam Road); and

(v) The opportunity for unlawful workers’ accommodation premises to cease operation and/or return to catering for tourist, and other short term accommodation needs in Blackwater;

(e) All in all, therefore, there is no significant conflict between the Proposed WAV and the Planning Scheme and, to the extent that there is any such conflict, there are grounds that are sufficient to justify approval of the Proposed WAV despite that conflict; and

(f) Appropriate conditions can be imposed to ensure appropriate outcomes, including mitigation of impacts, such as conditions as to flooding and drainage, the standard of effluent treatment, provision of water supply, landscaping, upgrade of Yackam Road and upgrade of the highway intersection.

Discussion and Conclusion re Sufficient Grounds

I regard the conflict with the Scheme as a serious one. I do not consider that the grounds relied upon by Transpac either individually or collectively are sufficient to justify approval given the conflict I have found.

Order

The appeal is dismissed.

CITATION:	Transpac Capital Pty Ltd v Central Highlands Regional Council & Anor [2014] QPEC 12
PARTIES:	TRANSPAC CAPITAL PTY LTD (ACN 135 577 598) (Appellant) v CENTRAL HIGHLANDS REGIONAL COUNCIL (Respondent) and CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS ACT (Co-respondent by election)
FILE NO/S:	902/2012
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	3 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	30 September 2013 to 4 October 2013 and 18 February 2014 to 19 February 2014
JUDGE:	Searles DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	PLANNING & ENVIRONMENT – PLANNING - Appeal against the decision of the Council of 6 February 2012 refusing a development application seeking development approval for the construction and operation of a workers accommodation village on land situated at 147 Yackam Road, Blackwater.
COUNSEL:	Appellant: A Skoien Respondent: S Ure
SOLICITORS:	Appellant: Cooper Grace Ward Respondent: King & Co

Pasquill-Gifford stability class	Classification	Frequency (%)
A	Extremely unstable	1
B	Unstable	7.4
C	Slightly unstable	13.8
D	Neutral	39.9
E	Slightly stable	10.2
F	Stable	27.7