Court conditionally extended the operation period for a long standing quarry

In brief

The case of Holcim (Australia) Pty Ltd v Bundaberg Regional Council (No 2) [2014] QPEC 29 concerned an application made by Holcim (Australia) Pty Ltd in the Planning and Environment Court to conditionally extend the operation period for a long standing quarry located east of Bundaberg.

The court, with the support of the Bundaberg Regional Council, allowed the application and made an order that condition 1.2 of the town planning consent permit be amended to extend the operation period.

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

CSR Limited, the previous operator of the quarry, obtained from the Planning and Environment Court a town planning consent permit for the operation of the quarry on the subject land. The permit included a condition which restricted the term of the operation to a 15-year period (condition 1.2). The quarrying operations on the subject land initially were to cease from 13 April 2009. However, following further proceedings in the court, condition 1.2 of the permit was amended to permit quarrying activities on the subject land to continue until 12 April 2014.

Holcim made an application to the court under section 369 of the Sustainable Planning Act 2009 seeking a further extension of time for the quarrying operations. The extension was sought primarily due to a drop in production caused by the economic downturn over the previous four years.

By an order of the court made on 1 April 2014, the operation of condition 1.2 of the permit was effectively extended until such time as Holcim’s application was heard and finally determined by the court. The council supported Holcim’s application.

The court observed that a successful application by Holcim 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

The court, 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, 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 entites described as as "concurrence agencies" at the time the permit was issued as those agencies were a creation 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 not be likely to cause a person to make a properly made submission objecting to the proposed extension

The court noted that the need for an extension of time was not a result of any untoward conduct on the part of Holcim while the rate of excavation was dictated by Holcim’s own commercial interests.

In considering 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 had regard to the following facts and circumstances:

• the subject land was identified as a key resource area by the State,
• all extractive and processing activities would cease by 30 November 2014 and during that period, no blasting was to be undertaken and processing activities were to be conducted at a location away from existing and future residential development and in an area which would, to a material extent, be screend by large areas of stockpiling,
• the only significant activities that could be undertaken on the subject land from 30 November 2014 would be those associated with the transportation of material from the existing stockpiles and the ongoing rehabilitation of the subject land, and it would be in the public interest for those activities to be undertaken on the subject land,
• there was experts’ evidence which suggested that the extractive and processing activities would only have minor negative impacts on amenity, given the location of the areas yet to be quarried and the relevant processing plant and equipment.

The court was overall satisfied that it was not likely that the proposed change would cause a person to make a properly made submission objecting to the proposed change.

The court also relevantly observed that in the event that Holcim’s application were to fail, the council would likely grant a further development approval even if limited to only the removal of existing stockpiled material and site rehabilitation.

In the circumstances, the court allowed Holcim’s application and ordered that condition 1.2 of the town planning consent permit be amended to read: