Real property – Crown lands – Queensland –
administration – appeal from the Planning and Environment
Court – where the applicant refused a development application
made by the first respondent for a hard rock quarry in Yandina
– where the first respondent successfully appealed to the
Planning and Environment Court and the development permits were
granted with strict conditions – where the proposed quarry
was surrounded by mixed rural and acreage living – where the
applicant contends that the primary judge erred in granting the
application based on the construction of the relevant planning
documents and the assessment of amenity impacts on the proposed
quarry – whether the primary judge erred
Facts: This was an application for leave to
appeal against a decision of the Planning and Environment Court to
allow an appeal by Parklands Blue Metal Pty Ltd against
Council's refusal of its development application for a hard
rock quarry at Yandina.
The Planning and Environment Court had adjourned the appeal so
that conditions consistent with the judge's reasons could be
formulated and attached to the development permits.
Council alleged that the primary judge erred in law:
in the construction and application of the relevant planning
in considering late and irrelevant issues and assertions not
included in the Council's reasons for refusal of the
in improperly using the joint expert reports;
in failing to deal with aviation issues;
in not refusing the development application in the absence of
Parklands' commitment to an upgrade of the haul route from the
in assessing blasting impacts;
in assessing need; and
in failing to provide adequate reasons.
In relation to the issue of the construction of the relevant
planning instruments, Council contended that the primary judge
erred in finding that the use of the proposed quarry site for
extractive industry had been supported by relevant planning
controls for more than 30 years and that the present planning
strategy for the site was to preserve the resource and permit its
extraction subject to appropriate management of impacts. Council
argued that the judge's starting position was that the quarry
should be approved and that his role was to impose conditions to
manage its impacts and that this fundamental error had permeated
all of the judge's subsequent reasoning.
In relation to the judge's use of the joint expert reports,
Council argued that the judge misconstrued points of agreement in
joint expert reports and failed to consider qualifications to
opinions expressed by experts in those reports.
In relation to the haul route issue, it was common ground
between the parties' experts that the proposed quarry could not
proceed in the absence of an upgrade of the proposed haul route
which included a Council controlled road. The primary judge found
that an upgrade was essential for both traffic safety and amenity
impacts and found that, if the parties could not resolve the
matter, a conditions hearing should take place as to its
Decision: The Court held (by McMurdo P with
Gotterson JA and Dalton J concurring), in refusing leave to appeal
It was clear that the primary judge had identified all relevant
planning provisions and key planning concepts and fully apprehended
that the important planning concepts including the balancing up of
the maintenance of a high standard of environmental amenity against
community need for extractive industry on the proposed quarry
The primary judge was conscious of the fact that the appeal was
by way of hearing anew. This did not preclude consideration of the
Council's reasons for refusing Parklands' development
application as a starting point in identifying the issues in the
The judge's reasons adequately dealt with aviation
The Council had not demonstrated any legal error in the primary
judge leaving the resolution of the haul route issue to the
None of the contentions in relation to the blasting issue were
The Council had failed to prove the judge erred in assessing
the question of need or in not providing adequate reasons. The
judge's reasons appropriately dealt with the evidence relating
to each issue identified by the Council and the submitters in the
appeal before him.
The Council had not demonstrated any error of law on the part
of the primary judge.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Warranties can be risk-shifting mechanisms when the party giving the warranty is not the party at fault for the defect.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).