In brief

The Planning and Environment Court's decision in Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2017] QPEC 23 concerned an appeal by Boral Australia against the decision of the Gold Coast City Council to refuse a development application for a hard rock quarry located in the Tallebudgera Valley/Reedy Creek area of the Gold Coast hinterland.

The Court acknowledged that the appeal was a difficult one to decide, finding that on balance it could not be satisfied that there were sufficient grounds to justify the approval of the quarry despite material conflict with the relevant planning scheme.

Subject land

The land the subject of the development application comprised 216.7 hectares of vacant land extensively covered by mature regrowth vegetation, having previously been cleared in the 1970s for historic uses, including grazing and a nursery.

The subject land was located to the west of an existing quarry owned and operated by Boral Australia which is nearing the end of its operating life. The subject land is surrounded by residential development, including both conventional lot sized residential subdivisions and larger rural residential lots.

A prominent ridgeline extending from the Springbrook Range to Burleigh Heads traverses the subject land and is a significant landform feature in the local context, along with several secondary ridgelines, two watercourses and a number of smaller associated waterways.

Proposed development

The proposed development comprised a hard rock quarry for the extraction of material used for manufacturing products in the building and construction industries. Only 65 hectares (approximately 30%) was to be the subject of actual quarrying activities and associated infrastructure, with the balance of the land to be used for buffering and environmental management purposes.

The quarrying activities would have included blasting, operating heavy machinery, processing material in crushing plants, stockpiling processed material and transportation. Extensive upgrades would have been required to the adjacent road network to accommodate the addition of up to 450 heavy haulage vehicle movements per day.

The expected life of the quarry was at least 40 years but could have extended beyond 60 years depending on demand.

Planning scheme

The planning scheme in force at the time the development application was made was the Council's City Plan 2003, under which the proposed development was an undesirable and inappropriate outcome for the subject land.

Soon after the development application was made the Council's City Plan 2016 came into force, which the Court held to be the planning scheme that should be afforded the most weight for the purpose of assessing relevant conflicts.

Under City Plan 2016, the subject land was included in the Rural Zone but was recognised as a "non-committed resource" area under the strategic framework, which relevantly provided at section 3.5.5.1(10) (emphasis added):

"(10)    In the non-committed areas at Reedy Creek … operations only extend into the non-committed areas if it can be demonstrated that:
(a)    the amenity of nearby residential land is maintained;
(b)    critical corridors are accommodated and matters of environmental significance are conserved, protected, enhanced and managed; and
(c)    the green backdrop provided by ridgelines is not reduced when viewed from major roads and surrounding residential land …
"

Evidence

The Court heard evidence from a total of 34 expert witnesses in areas relating to geology, blasting, air quality, noise, traffic, koalas, quarry management, civil engineering, visual amenity, terrestrial ecology, need (economic and community), water hydrology, aquatic ecology, soils and groundwater and town planning.

Several business people with longstanding commercial relationships with Boral Australia were also called as non-expert witnesses in respect of the economic need for the proposed development.

Conflicts

After hearing from the experts, the Court found that the proposed development should not be refused by reference to aquatic ecology, terrestrial ecology, noise (from whatever source), air quality or vibration. The Court held that that while some residents located close to the proposed development would have their amenity affected in respect of those matters, the amenity of the nearby residential land as a whole would be maintained to an acceptable level and those ecological issues alone did not warrant refusal.

Nevertheless, the Court found that there would be tangible, negative impacts on residential amenity arising from the visibility of the proposed development, blasting, the introduction of heavy traffic and, to a lesser extent, periodic dust issues. The Court held that these impacts would be a constant reminder to many of the local residents of the quarry's existence and therefore fell outside the reasonable expectations of residential amenity under both City Plan 2003 and City Plan 2016.

The Court found that no conflict arose from the loss of waterways and that any flora of significance (with the exception of koala habitat) within the area to be cleared could be relocated and replanted within the remaining buffer area. However, the impact of clearing 67 hectares of existing koala habitat trees was considered significant and could not be sensibly reconciled with the object of conserving, protecting and enhancing matters of environmental significance under section 3.5.5.1(10) of the strategic framework under City Plan 2016.

The Court held that on the whole the proposed development was in serious and significant conflict with City Plan 2003 and material conflict with City Plan 2016.

Sufficient grounds

Having found that the proposed development conflicted with the planning schemes, the Court considered whether the economic or community need for the proposed development was a sufficient ground to justify its approval despite the conflict.

After hearing from the economic experts and the non-expert witnesses, the Court found that there is a need for the proposed development. However, in respect of whether the need was sufficient to overcome the conflicts with the planning schemes, the Court observed (at [305]) as follows: 
"The determination of this contest requires an abstract form of a cost benefit analysis, made all the more difficult because on one side of the scales is the economic benefit to the community and on the other, the less tangible benefits associated with maintaining biodiversity and amenity."
 
Relevant to the Court's determination was the economic benefit to the broader south east Queensland and northern New South Wales communities from having a reliable source of good quality quarried material in that location, and the future supply and demand for that material having regard to the volume of the resource available within existing and approved quarries.

The Court found that at the earliest there might be a supply issue and therefore a more pressing need for an additional hard rock quarry from about 2031, but more likely not until about 2040.

On that basis, the Court held that the community and economic need for the proposed development was presently not sufficient to justify approval despite the conflict with the relevant planning scheme.

Outcome of the appeal

The Court dismissed the appeal and upheld the Council's decision to refuse the proposed development. Nevertheless, in doing so the Court also observed (at [326]) that there can be no doubt the "significant resource" should be protected for future exploitation when appropriate.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

Related Articles