Queensland Court of Appeal orders a rehearing in respect of an appeal against the refusal of a temporary works camp, which is again refused after the rehearing

In brief

The case of QCoal Pty Ltd & Anor v Isaac Regional Council [2022] QCA 237; (2022) 254 LGERA 228 concerned an application for leave to appeal to the Queensland Court of Appeal (Court of Appeal) in respect of the decision by the Planning and Environment Court of Queensland (Court) in the case of QCoal Pty Ltd & Anor v Isaac Regional Council [2021] QPEC 60; (2023) QPELR 116 in which the Court dismissed an appeal against the decision of the Isaac Regional Council (Council) to refuse a development application for a development permit to make a temporary works camp permanent and to expand the temporary works camp to accommodate 600 people and 650 rooms (Development Application).

The Court's decision is summarised in our May 2022 article.

The Applicants applied for leave to appeal on the grounds that the Court erred in law in the following three ways:

1. The interpretation of the relevant planning instruments.

2. The finding that the Applicants bore an onus of proof in the negative.

3. An error in reasoning in respect of the consideration of "need".

The Court of Appeal rejected the Applicants' first two arguments but held that the Court did err in law in respect of its consideration of "need".

Background

The Council granted a development approval to the Applicants to establish a temporary works camp to house 30 percent of the workers for a maximum of four years. The Council subsequently refused a development application which sought to make the works camp permanent and to house 98 percent of the workers (Proposed Development).

On appeal to the Court of Appeal, the Applicants argued that there was a strong need for the Proposed Development, and that it complied with the relevant assessment benchmarks. The Court refused the appeal and held that the Proposed Development was not the preferred accommodation model, and that there was suitable land and infrastructure in the nearby town of Glenden to satisfy the needs of the workers.

Court of Appeal upholds the Court's interpretation of the planning instruments 

The Applicants argued that the Court made errors in law in interpreting the Nebo Shire Plan 2008 (Nebo Planning Scheme), and in particular the overall outcome in section 4.2.3.2(i) of the Rural Locality Code and Desired Environmental Outcome DEO(16).

The overall outcome in section 4.2.3.2(i) of the Rural Locality Code relevantly contemplates residential uses "…only where they cannot be practically located in an Urban Locality, are located, designed and operated so as not to adversely affect or restrict the operation of rural uses and associated buildings, structures and/or infrastructure. In such cases, there location should desirably be adjacent to an Urban Locality…".

The Applicants argued that the definition of "residential uses" does not include a works camp. The Court of Appeal understood the Applicants' position to be that the definition "…is intended to be exhaustive and not, as is the usual case where the expression 'includes' is used in a definition, intended to add to the ordinary meaning of the defined term" (at [54]).

The Court of Appeal held that "...the better view is that the word 'includes' is to be understood in this case as being used in order to add to the ordinary meaning of the defined term. The term 'Residential Uses' should be understood as including a works camp and there is no apparent reason for excluding a works camp from that provision of the scheme" (at [57]).

DEO(16) relevantly provides as follows:

"The urban localities accommodate a range of uses, new coal mining workers camps, associated services and residential types and lot sizes to reflect community needs. Isolated workers camps, that is not within or adjoining the urban localities or Coppabella, are not envisaged within the Shire unless located adjacent to mines in locations not able to be conveniently serviced by accommodation within an urban locality or within Coppabella."

The Applicants argued that the Court erred in interpreting the overall outcome to include adjoining land (at [49]).

The Court of Appeal held that the effect of Desired Environmental Outcome DEO(16) is not to be considered in isolation from the other parts of the Nebo Planning Scheme and the relevant provisions in the Mackay, Isaac and Whitsunday Regional Plan (Regional Plan) (at [50]). In this context, the Court of Appeal held that the intent of Desired Environmental Outcome DEO(16) "…was that there should be a workers camp beyond an area within or adjoining an urban locality only where the camp was adjacent to the mine and the mine could not be conveniently serviced by accommodation within or adjoining an urban locality" (at [51]). 

Court of Appeal finds that the Applicants' complaint is of an error of fact

The Applicants argued that the Court erred in holding that the Applicants had the onus of proving that there was not suitable land in and adjoining Glenden, which required the proof of a negative (at [60]).

The Court of Appeal overserved that the Court "…[w]as not persuaded as to the unavailability of suitable land in Glenden, but nor was [the Court] persuaded that suitable land was available in Glenden" and that the Court "…made no finding that [the adjoining areas] were or were not suitable for the purpose" (at [64]). The Court of Appeal relevantly held as follows (at [65]):

"[The Court's] reasoning in these respects could not be criticised upon the basis that [the Court] found facts for which there was no evidence. Rather, the complaint would have to be that [the Court] ought to have gone further, and made the findings for which [the Applicants] contended. That would be a complaint of an error of fact, not of law."

Court of Appeal finds that the Court erred in assessing the reasonableness of workers living in Glenden

The Court found that "one essential plank" to the Applicants' argument was that 98 percent of the current and prospective workers would in all likelihood prefer to reside at the Proposed Development rather than in Glenden. The Applicants argued that such reasoning was in error for the following reasons (at [66]):

"(a) [the Court] proceeded upon a misunderstanding of [the Applicants'] evidence;
(b) the issue was not one which was identified by the parties in an agreed List of Issues; and
(c) the issue imposed upon [the Applicants] an unnecessary and irrelevant burden."

The Court of Appeal rejected the first limb of the Applicants' argument as it did not pertain to an error of law. The Court of Appeal was however satisfied that there was substance in the second and third limbs and found that the Applicants did not contend that 98 percent of the workforce would in all likelihood prefer to reside at the mine, as was the finding of the Court (at [67]). The Court of Appeal held that "…the preferences of a percentage of the workforce were irrelevant to any issue…" and could not be considered essential to the Applicants' argument (at [68]). The Court of Appeal held that the relevant issue "…was whether in the way the mine was and would be operated, it was reasonable to expect the [A]pplicants to accommodate their non-residential workers in Glenden" (at [69]).

Court of Appeal remits proceeding back to the Court

The Court of Appeal held that the Court erred in law, and such errors were material to the judgment of the Court. The Court of Appeal therefore granted the application for leave to appeal, allowed the appeal, set aside the order made by the Court, remitted the proceedings to be re-heard by the Court, and ordered that the Council pay the Applicants' costs of the application for leave to appeal and the appeal.

Court dismisses the appeal at the remitted hearing

The Court in the case of QCoal Pty Ltd & Anor v Isaac Regional Council (No 2) [2023] QPEC 18 re-heard the appeal against the Council's refusal of the Development Application to determine "…whether…the [Development Application] should be approved or refused having regard to whether, in the way the Byerwen Mine was and would be operated, it is reasonable to expect the [Applicants] to accommodate their non-residential works in or adjacent to Glenden…" (at [16]).

The Court held that there is a significant need for accommodation for the workers at the mine, but that the Applicants have not discharged their onus in that it has not been proved that the need cannot be met in Glenden in accordance with the relevant assessment benchmarks (at [20]).

The Court remained unpersuaded by further evidence adduced by the Applicants and held that the Proposed Development is inconsistent with the assessment benchmarks in the Regional Plan, the Nebo Planning Scheme, and the Isaac Regional Planning Scheme 2021, an approval would be determinantal to the utilisation of social and administrative infrastructure at Glenden, and it is reasonable to expect the non-residential works to be accommodated in or adjacent to Glenden (see [33] and [34]).

Conclusion

The Court of Appeal ordered that the proceeding be remitted to the Court for rehearing and required the Court to determine whether it is reasonable for the Applicants to be expected to accommodate their non-residential workers in Glenden. The Court, following the rehearing, held that such expectation is reasonable and thus dismissed the appeal.