Australia: 45/12 Boral Resources (Qld) Pty Ltd v Gold Coast City Council & Ors [2012] QPEC 53 (Robin QC, DCJ - 21 September 2012)

Planning and Environment case updates – August and September 2012 cases

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Integrated Planning Act (IPA) s 3.2.1(5) - Integrated Planning Regulation 1998 Schedule 10 Items 14,15 - Sustainable Planning Act 2009 (SPA) s 820 – Water Act 2000 definitions of "water" and "watercourse" – Conditions appeal by developer quarry operator – preliminary issues as to whether application "properly made" – Pimpama Creek, a watercourse, constituted a boundary of the site – course of creek changed (apparently imperceptibly) since boundaries surveyed – watercourse diverted by works by appellant (or a predecessor – co-respondents contended proposal involved State resources, by taking water and/or quarry material, either under the proposal or under Council's imposed conditions- issues whether certain gullies were water courses on the site – "lapsing" issue whether failure to start quarrying on one or two lots pursuant to entitlements was fatal to the current development application for expansion – issues whether existing licences under the Water Act were appropriate and whether relevant.

Facts: This was a hearing of preliminary points relating to whether the development application sought and subsequently appealed by Boral (Appellant) was 'properly made' for the purposes of assessment by the Gold Coast City Council (Respondent) and by the court under the Integrated Planning Act 1997(IPA).

The Appellant, lodged a development application on or about March 2008 to expand its established quarry located at Upper Ormeau Road, Kingsholme and sought development permits for:

  • Material change of use for extractive industry and various Environmentally Relevant Activities (ERA's); and
  • Clearing of native vegetation under the Vegetation Management Act 1999; and
  • Development of premises on the Environmental Management Register.

On 20 October 2011, the Respondent issued a Negotiated Decision Notice approving the application subject to conditions.

On 21 November 2011, the Appellant filed a Notice of Appeal in the Queensland Planning and Environment Court against conditions imposed in Council's Negotiated Decision Notice in respect of the monitoring of vehicles on-site, hours of operation and road traffic noise attenuation.

A number of Co-Respondents elected to join the Appeal including Mr Lehmann.

Mr Lehmann made assertions through a letter dated 21 December 2011 that the proposal would remove a watercourse in the northeast of the site and of which no evidence of state resource entitlement within Schedule 10 of the IPA had been provided. Mr Lehmann also stated that the evidence of resource entitlement in relation to the Pimpama River which formed a boundary of the site was incorrect, and had not been authorised.

On 31 January 2012, Mr Lehmann filed his first affidavit, which was accepted by the court as being broadly divided into six parts:

  1. whether there was, in the north western section of the site, a "watercourse" within the meaning of the Water Act 2000 (WA) ("the North-West Gully Allegation");
  2. whether changes to the alignment of the Pimpama River were such that the development application proposed work within a part of the "watercourse" that was comprised by the Pimpama River, and required a resource entitlement under the Integrated Planning Regulation 1998 (IPR) ("the Pimpama River Allegation");
  3. whether the particular resource entitlement provided by Boral in relation to the Pimpama River was the correct resource entitlement ("the Pimpama River Resource Entitlement Allegation");
  4. whether the development application relied upon industrial water licences for the taking and interfering with water in the Pimpama River ("the Water Licence Allegation");
  5. whether other gullies on the site were "watercourses" ("the Other Gullies Allegation"); and
  6. whether the development application relied upon an existing approval which had lapsed by virtue of development under that approval only having commenced on one of two related lots (Lots 43 and Lot 1) ("the Existing Approval Allegation").

On 12 July 2012, the Court ordered that the preliminary points of law requiring determination were the issues set out in Mr Lehmann's first affidavit of 31 January 2012 and this formed the basis of the preliminary hearing.

Decision: The Court held, that:

  1. With regard to the North-West Gully Allegation, the evidence of the Appellant's expert that the gully in the north-west section of the site was not a watercourse was persuasive.
  2. With respect to the Other Gullies Allegation, it was accepted that Boral had the onus of proof and that the evidence satisfied the responsibility that Boral had established that the Pimpama Creek was the sole relevant watercourse.
  3. In relation to the Pimpama River Allegation-
    1. It was not possible to identify any ambulatory boundary location as the "legal" boundary to supplant surveyed boundaries in registered plans;
    2. The entire processing area disturbance footprint fell completely inside the boundary of lot 43; and
    3. In the circumstances the issue created no problem under section 3.2.1(5) of the IPA for the Appellant.
  1. In respect to the Pimpama River Resource Entitlement Allegation,
    1. the reference to watercourse had the effect that the quarry material (which the fill may otherwise constitute) must be taken from a location which was a watercourse at the time of taking and it was not enough that the location may have been a "watercourse" historically, or that the location may have been mapped in registered plans as a creek or the like.
    2. The Water Act definition governed; it effectively made issues of the existence, location and dimensions of watercourses ones of fact, rather than of mapping (or of history);
  1. The present decision established no more than that the Appellant's conditions appeal may proceed to a hearing, that it arose from a development application that was properly made which the Council and the Court could assess and

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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