(Dorney QC DCJ - 23 July 2015)
Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors  QPEC 32
Appeal – subsequent, separate hearing of determination of conditions – quarry in rural area
Facts: This was a hearing about the conditions to be imposed on a development approval for a quarry, following a successful appeal by the Appellant (MRD) against Council's refusal of its development application.
The development application had sought a material change of use to enable land in the Mackay area to be used as a quarry. The proposed quarry was to be located on Barrie Lane which, at its eastern end, adjoins Homebush Road (which is a State controlled road) and, at its western end, adjoins the Peak Downs Highway (which was, also, a State controlled road).
On 26 December 2013, Robin QC DCJ allowed the appeal but adjourned it to enable "suitable" conditions to be worked out (Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors  QPEC 57).
At the time the development application was made, the Integrated Planning Act 1997 (IPA) was in force. The issue for the Court at this hearing were whether the conditions sought to be imposed by Council and the Department of Transport and Main Roads (DTMR) were reasonable and relevant for the purposes of s. 3.5.30 of the IPA.
Following the merits hearing, Council and the DTMR had provided draft conditions. A draft judgment containing the final versions of all conditions sought by the respondents had been tendered at the conditions hearing.
The dispute by MRD centred around:
- the DTMR's requirement that it upgrade the intersection of Barrie Lane and Homebush Road (Condition 3 of the DTMR's amended response);
- the Council's requirement that it upgrade Barrie Lane (in Condition 12);
- the 6 year currency relevant period imposed by Council;
- whether the word "grid" could be included after the words "wheel shaker" in Council conditions 7 and 13;
- the Council's requirement for geotechnical certification of slope stability; and
- Council's requirement for acoustic certification of plant and equipment.
Condition 3 of the DTMR's amended response required the installation of a "central splitter island", directed at ensuring haulage trucks did not cut the corner when turning right and the provision of a "swept path assessment" in order to demonstrate to the DTMR's satisfaction that the agreed design vehicle could safely manoeuvre through the intersection without compromising the safety of other road users.
The applicant wished Conditions 7 and 13 to require the installation of a "wheel shaker grid" rather than merely a "wheel shaker", so that a cattle grid could be incorporated.
In relation to Condition 12, Council's traffic expert gave evidence in favour of the view that Barrie Lane was presently unsuitable as a haul route for the proposed quarry traffic.
In relation to the relevant period, MRD sought 8 years so as to be "in line with other developments".
The arguments presented by MRD did not expressly assert that any of the disputed conditions were not relevant, any of the disputed conditions were an unreasonable imposition or any of the disputed conditions were not reasonably required. Nor was it argued that the conditions were unlawful. The evidence was at least principally to the effect that MRD was being treated differently from other developers.
Decision: The Court held:
- The character of a condition of a development approval is the "community price" a developer must pay for a development approval and is a "vehicle for minimising adverse effects" of permitted development.
- Traffic safety was an important matter which the Court does not disregard lightly and, in dealing with matters of traffic safety, it may well be that a conservative approach is warranted.
- In dealing with the issue of financial cost, it had long been held that the economics of any development were immaterial.
- The DTMR's Condition 3 was a condition which was reasonably required. It was also relevant and not an unreasonable imposition because it was necessary for safety reasons, ensured that an appropriate level of traffic safety was maintained, would result in a traffic safety benefit for the safety of all road users and the condition had not been disputed by MRD's own traffic expert at the merits hearing.
- It was preferable to have the reference to a "wheel shaker" accompanied by the additional qualifier "(which may include an incorporated grid)".
- There was no basis for concluding that the evidence of Council's geotechnical expert should be rejected. The certification condition was relevant to, and not an unreasonable imposition on, the proposed quarry and its use and was also reasonably required in respect of the proposed development.
- The requirement for acoustic certification of plant and equipment were both relevant to, and not an unreasonable imposition on, the proposed quarry and its use. It was reasonable to require it in respect of the proposed development.
- A period of 6 years was both relevant to, and not an unreasonable imposition on, the proposed quarry, particularly in circumstances where the Site was rural land, containing good quality agricultural land in respect of which rural uses were performed. It was important that existing planning for the general area, as well as future planning for it, were not prejudiced by a particularly long period before there was an actual start.
- All of the respondent's proposed conditions satisfy at least one of the tests of the lawfulness, applicability and "suitability" as set out in s. 3.5.30 of the IPA. Accordingly, MRD had not discharged its onus in establishing to the relevant satisfaction the exclusions and modifications that it had sought to the proposed conditions.
- Considering the outcome, it was appropriate that there be no order as to costs. Nevertheless, particularly since MRD was no longer represented by solicitors or counsel, because of the principle of procedural fairness, a short period for any costs submissions to be made should be allowed.