Australia: Unfairness as between developers in contributing to road upgrades

In brief - Court finds favourably for a quarrying company

The case Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors [2013] QPEC 57 involved an appeal by a quarrying company against the respondent council's refusal of a development application in respect of a material change of use of land for a hard rock quarry. The main issues in dispute were whether the proposed development conflicted with the Extractive Industry Code and the Good Quality Agricultural Land Overlay Code and, if so, whether there were sufficient grounds to justify its approval despite any conflicts.

His Honour Judge Robin QC found that there was sufficient need to overcome any difficulties associated with good quality agricultural land, but the need was not sufficient to resolve a non-compliance with the Extractive Industry Code. Nonetheless, His Honour was prepared to approve the development application on the basis that product extracted and removed from the subject site should be hauled only along sealed roads. The appeal was therefore allowed, but adjourned to enable suitable development conditions to be worked out.


This case involved an appeal by a developer against the respondent council's refusal of a development application in respect of a material change of use of land for a hard rock quarry.


Council argued that proposed development conflicted with local planning scheme
The applicant, quarrying company Mackay Resource Developments Pty Ltd made a development application for a material change of use for a hard rock quarry known as the Porters Hill Quarry over part of Lot 643 on SP22481. The land consisted of 68.21 hectares on the southern side of Barrie Lane, Homebush, about 20 kilometres south of the Mackay CBD. The current use of the land was for growing sugar cane on the southern part and for pasture. The development would remove part of the knoll in the centre of the land where cane never had been or could be cultivated due to the steepness and soil quality.

Council conceded that impacts of amended proposal were within acceptable standards
The Mackay Regional Council, with the support of some of the local residents, argued that the development conflicted with the Planning Scheme for the City of Mackay and that in light of this, there were not "sufficient grounds" to justify an approval of the development.

Mackay Resource Developments made a number of changes to the development in order to meet some of the objections. As those changes met the test of "minor change" under section 350 of the Sustainable Planning Act 2009, the appeal proceeded on the amended development proposal. Significantly, the changes overcame concerns regarding the unacceptable impacts on groundwater quality and the deleterious effects of surface run-off on the cane lands and the creek. The council effectively conceded that the impacts of the proposal, appropriately managed, would be acceptable. Further, based on expert evidence, it was accepted that noise and dust impacts from operations on the land were well within acceptable standards.

Both possible haul routes for extracted rock to require upgrading
One of the main issues was conflict with the Extractive Industry Code, particularly the identification and impacts of the proposed haul route. There were two possible haul routes for the development proposal, the first being to use Barrie Lane east to connect to Homebush Road, a state-controlled road, and the second being to use the western section of Barrie Lane to access the Peak Downs Highway, another state-controlled road.

The residents who supported the council's position lived along the eastern part of Barrie Lane and apparently, use of the connection to Peak Downs Highway would not create the same community concerns as using the connection to Homebush Road. However, the western part of Barrie Lane was more problematic for traffic safety than the eastern part, as there were a couple of pronounced dips accommodating low, extremely narrow bridges across watercourses. Both routes would require upgrading of the intersections with the respective state-controlled roads.

Haul routes already in use by larger existing quarry with greater impacts
On the other side of Barrie Lane, nearly a kilometre east of the land, was the long established Kings Quarry, which had pre-existing use rights without being subject to any council control at all. Kings Quarry used Barrie Lane as its haul route to connect with Homebush Road, but there was evidence which suggested that at times trucks used the western section of Barrie Lane to access Peak Downs Highway as well. Relevantly, Kings Quarry was considerably larger than the development proposal and its impacts, including those related to truck movements along Barrie Lane, were far greater than what the proposal would cause.

Development on Good Quality Agricultural Land
Another difficulty the applicant had to confront was the requirement under the Good Quality Agricultural Land Overlay Code, being that, amongst others, development on land shown as Good Quality Agricultural Land (GQAL) did not result in land being taken out of agricultural use unless an overriding community need for the development was demonstrated and no alternative sites were available. The land was indicated, in part, on the overlay map as GQAL.

Need for the development
A further issue was whether there was sufficient need to overcome any conflict with the local planning scheme. In this regard, according to the applicant's expert, the land contained marketable resources of rock of the quality the company or its associates would require for their own use and for sale of surplus and that there was a market for the production. The council, however, argued that need was not shown, nor an ability of the proposal to meet the asserted need. It was suggested there were other quarries which could supply at going rates to meet the demand.


New development proposals must comply with current planning regime
In relation to the traffic impacts associated with the proposed haul route, His Honour Judge Robin QC observed that the development proposal would simply add, arguably modestly, to impacts already inflicted on the community by Kings Quarry. His Honour noted, however, that such an observation would not assist Mackay Resource Developments as, by applying for an approval for a new development, "it must face up to a new, more demanding planning regime that has been put in place".

Accordingly, the court would be required to impose reasonable and relevant conditions which would appropriately address the impacts of the development proposal.

Unfairness between quarry operators in contributing to road upgrades
In this instance, use of Barrie Lane as contemplated would worsen an already unsafe situation unless it was upgraded (which included road sealing). Whilst His Honour recognised the unfairness of Mackay Resource Developments having to pay to ameliorate the impacts of Kings Quarry's operations, His Honour went on to state that:

... it is established that unfairness as between "developers", which may arise according to whether they come into the field sooner or later, is not a factor in determining the appropriateness of conditions, even though fairness may be a factor in determining whether a condition fairly and reasonably "relates" to a proposed development and is reasonably required by it (Ajana Park Pty Ltd v Mackay City Council [2009] QCA 404 at [30]).

Court's finding in relation to Good Quality Agricultural Land
In relation to the issue of GQAL, His Honour agreed with Mackay Resource Developments that if there was any conflict with the Good Quality Agricultural Land Overlay Code, it was purely technical. In dealing with the question of "overriding need", His Honour stated: approach is that "overriding need", that is not overwhelming or unquestionable need, but simply enough to outweigh the consideration that the relevant acres or hectares will be lost, temporarily or even permanently, should be shown in context of GQAL being protected. That is the only requirement for the appellant to show need - as opposed to opportunity to help its case by demonstrating need.

Was the development proposal in the public interest?
In considering whether the need for development constituted a "sufficient ground" to justify approval, His Honour recognised that a "ground" must be a matter of public interest and would not include the personal circumstances of an applicant, owner or interested party.

His Honour found that there were grounds of public interest served by the development proposal in that, apart from the undeniable benefit of another supplier of quarry products adding to competition and theoretically keeping prices lower, the proposal would help maintain the cane tramways which not only have historical and cultural significance, but were used by hundreds of growers behind Mackay Sugar. Further, the cane tramways represented a point of interest for local people and visitors and by and large, the community.

Court determined that haul route must be provided along sealed roads
Overall, His Honour found that need demonstrated by the development proposal outweighed the GQAL-related issues, but was not sufficient to overcome the conflict with the local planning scheme arising out of the traffic impacts. The relevant question for determination by His Honour was whether other grounds put forward by Mackay Resource Developments outweighed the traffic concerns arising from the intended use of Barrie Lane.

His Honour was not persuaded that the need for the proposal nor the "absence of adverse impacts" grounds collected by the company's town planning expert were sufficient to overcome non-compliance with P2(i) of the Extractive Industry Code, which required that the haul route be provided along sealed roads.

His Honour was of the view that it should be a condition of the approval that product extracted and removed from the land should be hauled only along sealed roads.

Court left council to determine which haul route should be used
His Honour again noted his unhappiness about imposing such a condition as a matter of fairness vis-ŕ-vis the other users of the road i.e. by Kings Quarry. His Honour accepted Mackay Resource Developments' willingness to contribute to roadworks in proportion to the impact the development proposal would have as being entirely reasonable, but observed that there was no way the court could make an outcome along those lines come true in reality.

His Honour was not prepared to make an order as to which haul route was to be used, given that both routes had their own problems, but left that to the council to determine taking into account both amenity and safety issues.

His Honour therefore allowed the appeal and adjourned it to enable Mackay Resource Developments and the council to work out a suitable conditions package, including the requirements of the Department of Transport and Main Roads, with an opportunity being given to the concerned residents to submit their views on the conditions package.


The appeal was allowed but adjourned generally to enable suitable development conditions to be worked out.

Ronald Yuen Phoebe Bishop
Planning and environment
CBP Lawyers

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