(Margaret McMurdo P and Gotterson JA and Dalton J - 22 May
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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 instruments;
- in considering late and irrelevant issues and assertions not included in the Council's reasons for refusal of the development application;
- 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 quarry;
- 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 maintenance.
Decision: The Court held (by McMurdo P with Gotterson JA and Dalton J concurring), in refusing leave to appeal with costs:
- 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 site.
- 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 appeal.
- The judge's reasons adequately dealt with aviation issues.
- The Council had not demonstrated any legal error in the primary judge leaving the resolution of the haul route issue to the conditions stage.
- None of the contentions in relation to the blasting issue were made out.
- 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.