The case of Boral Resources (Qld) Pty Limited v Gold Coast City Council  QCA 75 concerned an application to the Court of Appeal for leave to appeal a decision of the Planning and Environment Court to refuse a development application for a development permit for a hard rock quarry located in the Tallebudgera Valley Reedy Creek area of the Gold Coast.
The Court acknowledged that the case involved important questions regarding the interpretation of section 18.104.22.168(10) of the Council's City Plan 2016 (City Plan) and, for this reason, the Court granted leave to appeal. However, the appeal was ultimately dismissed.
We have previously reported on the original decision of Boral Resources (Qld) Pty Ltd v Gold Coast City Council  QPEC 23 in our June 2017 edition of Legal Knowledge Matters which can be accessed here.
Grounds of appeal
The Applicant sought leave to appeal against the decision of the Planning and Environment Court on the basis that the primary judge had made errors of law by failing to correctly apply the City Plan.
Relevantly, the Applicant argued as follows (at ):
1.The primary judge incorrectly interpreted the City Plan, particularly in the following respects:
(a) not affording a "practical" and "common sense" meaning to the relevant provision of the City Plan;
(b) the characterisation of koala habitats as a matter of environmental significance; and
(c) the provisions concerning nature conservation were given significant weight to the extent of overriding section 22.214.171.124(10) of the City Plan.
2.The primary judge failed to apply section 25 and section 36 of the Sustainable Planning Act 2009 (SPA) and therefore wrongfully concluded that there was a conflict with the Gold Coast Planning Scheme 2003 (2003 Planning Scheme).
3.The primary judge made an error in law in concluding that there were no sufficient grounds to approve the development despite conflicts with the City Plan.
4.The primary judge failed to give adequate reasons for his decision with respect to the following:
(a) section 126.96.36.199(10) of the City Plan;
(b) the nature and extent of the "matters of environmental significance"; and
(c) there being no "sufficient grounds" to justify approval despite its conflict with the 2003 Planning Scheme and the City Plan.
5.there being no "sufficient grounds" to justify approval despite its conflict with the 2003 Planning Scheme and the City Plan.
6.As a consequence of the aforementioned errors of law, the primary judge therefore incorrectly decided that the Applicant's proposal was in material conflict with the City Plan and that there were no sufficient grounds to justify approval despite the conflicts.
Proper construction of section 188.8.131.52(10) of the City Plan
The Court dismissed grounds of appeal two to six on the basis that they had no merit. However, the Court found significance in the interpretation of section 184.108.40.206(10) of the City Plan and granted leave to appeal in respect of this ground of appeal.
Section 220.127.116.11(10) of the City Plan relevantly provides that in non-committed extractive resource areas at Reedy Creek, operations are only to be extended into the area if the following can be demonstrated:
(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.
The Applicant submitted that the primary judge, firstly, did not give a "practical, common sense" meaning to the provision and instead a limited interpretation was applied, and, secondly, necessary words such as "appropriately" or "to an acceptable level" were not interpolated into the provision. The Applicant relied upon the decision of Lockyer Valley Regional Council v Westlink Pty Ltd (2011) LGERA 63 at , in particular the oft quoted "planning schemes should be construed broadly, rather than pedantically or narrowly, and with a sensible, practical approach."
The Court rejected the Applicant's first submission and held that the primary judge had determined that section 18.104.22.168(10) of the City Plan was a provision that should not be construed or applied too strictly.
With respect to the Applicant's second submission, the Court found that it was not necessary for the words "appropriately" or "to an acceptable level" to be interpolated into the provision in order for it to operate sensibly and practically.
The Court conceded that the primary judge may have made an error of law in characterising the koala habitat as a matter of State Environmental Significance as the City Plan only classifies areas with essential habitat. However, the Court concluded that even if there had been an error, it did not constitute a ground to approve the development application, as the clearing of the 65 hectares of koala habitat could not sensibly be reconciled with the purposes of the City Plan.
The Applicant also submitted that the primary judge had afforded significant weight to sections 3.7.1(4) and 22.214.171.124(4) of the City Plan such that they overrode section 126.96.36.199(10) of the City Plan.
Relevantly, section 3.7.1(4) of the City Plan states that "matters of environmental significance within biodiversity areas are protected in situ" and section 188.8.131.52(4) of the City Plan states that "in biodiversity areas, matters of environmental significance including vegetation and habitat for native flora and fauna are protected in situ...".
The Applicant argued that there is a conflict between the requirements for protection in sections 3.7.1(4) and 184.108.40.206(4) of the City Plan, and the allowance for extractive resource operations in non-committed areas in section 220.127.116.11(10) of the City Plan, and that the conflict should be resolved in favour of section 18.104.22.168(10) of the City Plan, overriding sections 3.7.1(4) and 22.214.171.124(4) of the City Plan.
The Court found that although section 126.96.36.199(10) of the City Plan is specific to allowing extractive resource operations in non-committed areas, it did not mean that the application of section 188.8.131.52(4) of the City Plan should be displaced and ignored for the benefit of the former. The Court held that the requirement to protect koala habitat in sections 3.7.1(4) and 184.108.40.206(4) of the City Plan could co-exist with section 220.127.116.11(10) of the City Plan. Consequently, the Court held that there was no conflict between the provisions.
Therefore, whilst the Court granted leave to appeal, it ultimately dismissed the appeal and ordered that the Applicant pay the costs of the application and the appeal.
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 2020.