Planning and Environment Court of Queensland dismisses appeal against the refusal of a hard rock quarry and concrete batching plant because of unacceptable noise impacts

In brief

The case of Edith Pastoral Company Pty Ltd v Somerset Regional Council & Ors [2021] QPEC 52 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Somerset Regional Council (Council) to refuse a development application for a material change of use for an Extractive Industry (Hard Rock Quarry), Concrete Batching Plant and Environmentally Relevant Activity 16, Extractive and Screening Activities (Development Application).

The Development Application involved the use of land located at Gregor's Creek (Land) for a hard rock quarry extracting up to 10,000 tonnes per annum and a concrete batching plant (Proposed Development).

The Court considered in particular the following key questions:

• Whether the Proposed Development is a single planning unit?

• Whether the Proposed Development would result in unacceptable noise impacts?

• Whether the Proposed Development complies with the Esk Shire Planning Scheme 2005 (2005 Planning Scheme), being the planning scheme in effect at the time the Development Application was made, and what weight, if any, ought to be given to its successor planning scheme, the Somerset Region Planning Scheme (2016 Planning Scheme)?

• Whether there is a town planning need for the Proposed Development?

The Court dismissed the appeal and affirmed the Council's decision after it found that the Land was not suitable for an extractive industry use because of unacceptable noise impacts that cannot be appropriately conditioned, and that the Proposed Development is not necessary to fulfil the local demand for hard rock quarry products.

Court finds that the Proposed Development was always comprised of two planning units

The Development Application sought approval for two planning units defined in the 2005 Planning Scheme as an extractive industry (quarry) and medium impact industry (concrete batching plant). Under the Sustainable Planning Act 2009 (Qld), the two uses were not "incidental to and necessarily associated with" each other (see schedule 3). However, while the Development Application was being assessed by the Council, the Sustainable Planning Act 2009 (Qld) was repealed and the Planning Act 2016 (Qld) (Planning Act) took effect. Schedule 2 of the Planning Act defines "use" to include "an ancillary use of premises".

The Applicant argued that the Proposed Development should be assessed as a single planning unit because the concrete batching plant is an ancillary use to the quarry. If the Proposed Development is assessed as a single planning unit, then the concrete batching plant would cease to be regarded as an inconsistent use in the rural zone.

The Court had regard to the principles from the case of Caravan Parks Association of Queensland Limited v Rockhampton Regional Council & Anor [2018] QPEC 52 relevant to ancillary uses, and in particular, considered the following (at [55]):

1. "…whether there is a dominant and subservient relationship between the two uses; and

2. whether the secondary use is present not to merely co-exist with the primary use, but whether the secondary use serves the purposes of the primary use." 

The Court found that whilst the Applicant's evidence established that the concrete batching plant may receive processed hard rock from the quarry, this was insufficient to establish one use as ancillary to the other. The Court stated that at its highest the evidence established a relationship of co-location and convenience. The Court consequently held that the Development Application was to be assessed and decided on the basis that it had always comprised two planning units.

Court finds that the Proposed Development could not be conditioned to comply with the 2005 Planning Scheme with respect to noise impacts

The Court considered evidence from expert witnesses in respect of noise and found that the noise model for the Proposed Development did not demonstrate compliance with the noise criterion agreed to protect the acoustic amenity of nearby sensitivity receptors and materially understated the likely exceedances of the noise criterion and the impacts on the acoustic amenity and character of the locality.

The Court departed from the ordinary approach of assessing an application on the footing that an applicant will comply with the conditions of approval. This was because the conditions that the Applicant argued would appropriately manage noise were "onerous, impractical and unproven" (at [128]). In particular, the Court was not willing to accept impractical management conditions such as a non-concurrent operation strategy which the Applicant relied on to demonstrate partial compliance with the 2005 Planning Scheme with respect to noise.

The Court ultimately found that the Proposed Development could not be appropriately conditioned to comply with the relevant provisions of the 2005 Planning Scheme with respect to noise.

Court finds that the Proposed Development would result in non-compliance with the 2016 Planning Scheme

The Court considered the Proposed Development against the 2016 Planning Scheme as it represented the most recent statement of planning intent for the locality and had already been in force for 5 years. The Court found that the 2016 Planning Scheme's Extractive Industry Code seeks to manage impacts by ensuring the following:

• land is appropriately separated from sensitive land uses (see Overall Outcome (a) and Performance Outcome PO1) (Separation Outcomes); and

• that operational impacts of activity are appropriately managed (see Overall Outcome (b) and Performance Outcome PO7) (Operational Outcomes).

The Court found that whilst the Proposed Development could achieve compliance with the Operational Outcomes by limiting its hours of operation, it could not satisfy the Separation Outcomes because of the noise impacts established by the evidence. This non-compliance with the 2016 Planning Scheme was an important matter for the Court given the "adverse and significant amenity impacts" that would follow and the emphasis placed on an appropriate separation by the 2016 Planning Scheme (at [201]). The Court found further non-compliances with respect to noise impacts and the Overall Outcomes and Performance Outcomes PO13 and PO14 of the Rural Zone Code.

The Court found that the Land is unsuitable for an extractive industry use, which is not overcome by the Applicant's reliance on the 2016 Planning Scheme.

Court finds that there was no town planning need for the Proposed Development

The Applicant argued that population growth would increase the demand and constrain the supply of hard rock quarry products for the Somerset Regional Council area (Local Market).

The Court accepted that the Local Market was already a net importer of hard rock quarry products and that demand will increase commensurably with population. However, the Court was not satisfied that the evidence established the existing supplies were unable to accommodate the existing and future demand for hard rock quarry products. The Court emphasised that the Applicant had "no real-world evidence" (at [256]) suggestive of a supply constrained market and that the Proposed Development will be remote from the key areas of predicted population growth that will drive the increase in demand.

The Court thus found that the Applicant did not establish that there is a town planning need for the Proposed Development.

Conclusion

The Court dismissed the appeal and affirmed the Council's decision to refuse the Development Application.