Australia: P&E Court considers the reasonableness and relevance of conditions imposed upon a quarry

Last Updated: 4 October 2017
Article by Ian Wright, Nadia Czachor and Daniel Tweedale

IN BRIEF

The case of Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors [2017] QPEC 35 concerned an appeal by the Applicant for a development approval against conditions imposed by the Council, in respect of a development permit for a material change of use for an extractive industry (quarry) at Yandina.

The issues in dispute related to the relevance and reasonableness of conditions for the following:

  • the timing of a haul route upgrade;
  • the standard to be adopted for the construction of the haul route;
  • the financial responsibility for the upgrade and the ongoing maintenance of the part of the haul route that was owned by the Respondent;
  • aviation safety.

The Court found in favour of the Council in respect of all conditions, save in respect of aviation safety.

TIMING OF THE HAUL ROUTE UPGRADE

The Applicant had previously agreed that the haul route should be upgraded to the appropriate standard before the use commenced and this was common ground between the parties. The issue in dispute, however, related to what constituted commencement of the use in the context of the development permit for a material change of use for an extractive industry.

The Council's argument relied on the definition for a "material change of use" and "use" under the Integrated Planning Act 1997, being the relevant assessment framework at the time, whereas the Applicant relied on the definition of "extractive industry".

In considering the issue, the Court had regard to the decision of the Queensland Court of Appeal in McDonald v Douglas Shire Council [2003] QCA 203 where it was held that in determining whether a use has commenced, one must "look at the approval, identify the particular use envisaged by that approval, and ask has that particular use commenced. Recourse to the general definition of use ... is therefore [in the Court's view] unhelpful".

The Court found that this construction of "commencement" favoured the Applicant, namely that the use commenced when an "extractive industry", as defined in the Council's planning scheme, commenced.

Nonetheless, in the exercise of its discretion as to what conditions should be imposed, the Court had regard to traffic safety and amenity impacts and, on that basis, held that conditions which required the haul route to be fully and adequately upgraded in the "preparation phase" were reasonably required as a consequence of the development.

STANDARD OF THE HAUL ROUTE UPGRADE

It was common ground between the parties that certain sections of the haul route were flood prone. A report prepared by the parties' flood experts offered three options to overcome the flooding issues.

The first option, which was preferred by the Respondent, involved the construction of a concrete floodway. The second option involved the construction of a raised road pavement on a fill embankment. Neither parties preferred this option as it was generally accepted that it was was not economically viable.

The third option, which was preferred by the Applicant, involved among other things, the construction of surface and sub-surface drains.

The Council argued that the third option was wholly unsatisfactory on the basis that it increased the risk of damage to the haul route immediately after flooding events and therefore, while the least expensive in terms of capital costs, required higher maintenance costs. In response, the Applicant proposed to restrict heavy vehicle movement on the haul route for a period of time proceeding a flood event.

The Court was satisfied that the third option was a reasonable response to the flooding issues associated with the haul route, subject to the further qualification as to restrictions of usage immediately after flood events.

COST OF THE HAUL ROUTE UPGRADE

The Council's planning scheme revealed their intention to allocate $1.95 million for upgrading and sealing of the haul route within 10 years. To that end, the Applicant contended that its forward planning expenditure should in some way be offset against its primary responsibility to pay for the upgrade.

The Court, in finding that the evidence was not conclusive that the $1.95 million would be spent, held that the major user and beneficiary of the haul route would be the Applicant and, in that regard, it was not unreasonable for it to bear the whole cost of constructing the haul route.

Likewise, in respect of maintenance, the Court held that because the majority of the maintenance and repairs to the haul route would be occasioned by vehicle traffic generated by the development, the conditions requiring the Applicant to pay for all maintenance costs were reasonable, relevant and not an unreasonable imposition on the Applicant.

AVIATION SAFETY

The issue of aviation safety concerned blasting protocols and their impact on airport operations. To address the issue the Council imposed a condition that the Applicant undertake an aeronautical study to properly inform the terms of the blast protocol. The Applicant contended that no aeronautical study was necessary as the risks were too remote.

The Court agreed with the Applicant that on the basis of the aeronautical experts' evidence the risk was remote and that the condition should be removed.

Ian Wright Nadia Czachor
Planning government infrastructure and environment
Colin Biggers & Paisley

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