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In brief

The case of Boral Resources (Qld) Pty Ltd v Bundaberg Regional Council [2014] QPEC 32 concerned an application made by Boral Resources (Qld) Pty Ltd in the Planning and Environment Court. This application sought approval under section 369 of the Sustainable Planning Act 2009, to change a condition concerning the operation period permitted for well-established quarrying activities carried out by Boral, on the basis that the change constituted a "permissible change" for the purpose of section 367 of the Sustainable Planning Act 2009.

The court held that it was likely that a change which would enable the quarry to continue to operate at its current capacity and under its current operating regime would cause a person to make a properly made submission objecting to the proposed change. Therefore, the court found that the proposed change was not a "permissible change". However, after taking into account the effect of an outright refusal of Boral’s application, the court decided not to dismiss the application without first giving the parties the opportunity to consider the reasons for its decision.

As such, the court adjourned the hearing and ordered that should neither party provide notice for relisting the matter by 4 pm 27 June 2014, Boral’s application would be dismissed.

The court had to satisfy itself that the proposed extension of the operation period was a permissible change under section 367 of the Sustainable Planning Act 2009

Boral became the owner of the land and operator of the quarry in 2004. A town planning consent permit was given in respect of the land for the quarry operation by the Planning and Environment Court on 22 March 1999. The permit included a condition which restricted the term of the operation to a 15 year period (condition 1.2), meaning that quarrying would have had to cease on 23 March 2014.

Boral made an application to the court under section 369 of the Sustainable Planning Act 2009 seeking an extension of time for the quarrying operations.

By an order of the court following an application on 13 March 2014, condition 1.2 of the permit was extended until such time as Boral's application was heard and finally determined by the court.

Initially, the Bundaberg Regional Council (as the relevant authority) opposed the relief sought by Boral as it wanted to be satisfied about the mitigation of potential ongoing negative impacts on the amenity of nearby residents. However, sometime between its initial opposition and the hearing of Boral's application, the council changed its position and no longer opposed the relief sought.

The court observed that a successful application by Boral would not create a new approval but result in a change to a condition of the permit. In determining whether the proposed change to the permit was a "permissible change" under section 367 of the Sustainable Planning Act 2009, the court had to be satisfied that the proposed change would not, because of the change:
  • result in a substantially different development
  • require referral to additional concurrence agencies if the application for the permit was remade
  • be likely to cause a person to make a properly made submission objecting to the proposed change if the circumstances allowed
  • cause development to which the permit related to include any prohibited development.

The proposed extension of the operation period would not result in a substantially different development or involve any prohibited development

By reference to the decisions in Firefast Pty Ltd v Ipswich City Council & Ors (2006) QPEC 76 and Cemex Australia Pty Ltd v Bundaberg Regional Council (2009) QPEC 20, the court was satisfied that the proposed change to condition 1.2 of the permit for the purpose of extending the operation period would not result in a substantially different development or involve any prohibited development.

The proposed extension of the operation period would not involve additional concurrence agencies

The court observed that there were no entities described as "concurrence agencies" at the time the permit was issued as those agencies were created under the repealed Integrated Planning Act 1997.

Having regard to the nature of the proposed change to condition 1.2 of the permit, the court was satisfied that no issue involving additional concurrence agencies arose.

The proposed extension of the operation period would likely cause a person to make a properly made submission objecting to the proposed extension

In determining whether the proposed change to condition 1.2 of the permit would likely cause a person to make a properly made submission objecting to the proposed change, the court considered what the legislature’s intention was when it chose to use the word "likely".

The court was of the view that what was intended by the legislature was for the responsible entity to decide whether a proposed change would be liable to or prone to provoke a submission. It should not be limited to circumstances only where the responsible entity was satisfied that it was "more likely than not" or "probable" such as better than 50% that a submission opposing the change would be made.

The court adopted the construction applied by Justices Mason, Wilson and Deane in the High Court decision of Boughey & R (1986) 161 CLR 10 that the word "likely" should be construed "to convey the notion of a substantial – a real and not remote chance regardless of whether it is more or less than 50%".

Even if the proper test was that it had to be probable that a submission would be made, the court nonetheless found that it was more likely than not that the proposed extension of the operation period would cause a person to make a properly made submission, having regard to the following facts and circumstances:
  • there was a significant number of submissions, given the location of the quarries and the proximity and densities of the surrounding residential areas;
  • based on the submissions, quarrying was clearly a matter of real concern to a number of surrounding residents and in particular, a number of submitters raised expectations about the remaining operational period of the existing quarries;
  • the quarrying operation would still have a negative impact on the amenity of the surrounding residential areas, despite there being minimal complaints and council’s support of the proposed extension;
  • although residents might not have complained about the existing operation which had a fixed end date, the situation could change where the operation and its associated impacts on the amenity would continue for a further five years.
Holcim (Australia) Pty Ltd, which was another quarry operator in the area, also made an application to the court seeking a conditional extension of the operation period for its permit. In that case, Holcim successfully obtained the extension. The court remarked that Holcim’s situation was significantly different to Boral's as the term of Holcim’s actual quarrying (with no blasting) and processing operations would cease by 30 November 2014, whereas Boral’s operation would continue to at or near mid-2019 if the proposed extension was granted.

Case adjourned to allow parties to consider reasons for the court’s decision

The court observed that an outright refusal of Boral’s application would likely lead to a successful development application which might not be limited to site rehabilitation only, but might also permit the quarry operations to continue for a further period up to five years. Accordingly, the court decided not to dismiss Boral’s application outright, but to first give the parties the opportunity to consider the reasons for its decision.

Therefore, the court adjourned the hearing and ordered that should neither party provide notice for relisting the matter by 4 pm 27 June 2014, Boral’s application would be dismissed.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​