In brief

The case of Mary Valley Community Group Inc & Anor v Gympie Regional Council & Ors [2018] QPEC 58 concerned two proceedings made to the Planning and Environment Court commenced by a submitter, being an appeal and an originating application with respect to a quarry on land at Traveston, which is approximately 19 kilometres South of Gympie. 

The land is in the Rural Zone and the relevant planning scheme is the Gympie Regional Council Planning Scheme 2013 (Planning Scheme).

The originating application sought declaratory relief on the basis that a development permit for operational work facilitating the operation of a hard rock borrow pit on the land was void. 

The appeal was against the Gympie Regional Council's (Council) decision to approve a development application made by the Applicant for a quarry and a concrete batching plant on the land.  

In respect of the originating application for declaratory relief, the Submitter argued that the establishment of a borrow pit amounted to a material change of use and was not capable of being approved by the Council as operational work.

The Court rejected the Submitter’s argument. The Court found that the relief sought had no “practical outcome” (at [34]) and refused the originating application.

In the appeal, the Submitter argued that the proposed development conflicted with the provisions of the Planning Scheme and ought to be refused. 

The Court held that on balance the proposed development did not conflict with the Planning Scheme and even if it did there were sufficient grounds to warrant the approval of the batching plant, despite any conflict. 

Originating application

The Applicant argued that the Council was not capable of approving the development permit for operational work because the development was in fact a material change of use, as there was a material change to the intensity and scale of work on the premises. 

Originating application - was there a breach of the conditions of the development permit? 

The Submitter argued that the Applicant had breached several conditions of the development permit for operational work. 

The Submitter alleged that the Applicant began the operational work the subject of the development permit before the development approval. The Applicant accepted this allegation, however, the Applicant turned to the provision in the Planning Scheme that permitted 5000 tonnes of material to be removed from rural zoned land without a development approval. The Applicant submitted that it had removed approximately 5000 tonnes of material and did not remove an amount in excess of that amount. The Court accepted the Applicant's argument as there was no evidence to oppose it. 

The Submitter argued that the Applicant failed to satisfy a condition of the development Permit, which required the closure of a section of road in close proximity to the Bruce Highway. The Applicant claimed that the breach had occurred because the Department of Transport and Main Roads had failed to provide the Applicant with the required designs. The Court accepted the Applicant's evidence.

The Submitter argued that the Applicant failed to satisfy the condition of the development permit regarding landscaping. The Applicant submitted that part of the land had been resumed, which had impacted the ability to landscape the area in the required time. The Court held that the resumption of land had significantly hindered the ability of the Applicant to meet the condition and found that this was a minor omission.

The Submitter argued that the Applicant carried out building work without a development approval. The Applicant accepted that it did carry out minor building work without a necessary development approval. The Submitter additionally argued that the Applicant failed to satisfy the condition of the development permit regarding the implementation of a remediation plan. The Applicant accepted that it did not comply with this condition. The Court established that the failure to satisfy these two conditions was a significant breach. 

The Submitter lastly argued that the Applicant had conducted a blast without the relevant approval. The Court held that the Applicant did not require an approval to carry out a blast, however, the Court found that the Applicant had failed to give the required notice. The Court held that this, although a serious omission, was an oversight and was not deliberate misconduct. 

In conclusion, the Court held that where the Applicant had breached the conditions of the development permit for operational work, such breaches were "relatively minor in the scheme of things" (at [55]). The Court found that there was no evidence to suggest that the Applicant intended to breach the conditions or act in an unlawful manner. The Court concluded that the breach of conditions did not have sufficient weight in the declaratory proceedings. 

Originating application - was the development a material change of use or operational works?

The Submitter argued that the blasting, quarrying and crushing of 100,000m3 of rock and the use of that in concrete and constructing works on the land authorised by the development permit for operational work was not operational work under section 10 of the Sustainable Planning Act 2009. The Submitter argued that the development was "the start of a new use on the premises" amounting to a material change to the use of the land (at [29]). On this basis, the Submitter argued that the Court should determine that the borrow pit was unlawful as it was used as a "dry run for the quarry…in anticipation for the quarry" (at [31]). 

The Court had serious reservations about whether to grant the relief sought by the Submitter. The Court did not ultimately consider whether or not the development permit for operational work was lawful. The Court held that the Applicant had sought the development permit for operational work in good faith and it was not a "dry run" for the quarry. The Court held that the Applicant sought the development permit so that it could meet a requirement imposed on it to construct a membrane to separate soil from the water table. The Court further held that the relief sought achieved no practical outcome as the borrow pit was no longer in use.

The Court therefore dismissed the originating application. 

Appeal proceedings

The Submitter appealed against the Council's approval of the proposed development on the basis that the proposed development conflicted with the Planning Scheme. The Court considered potential conflicts with respect to noise, air quality, visual amenity, ecology, and the potential of good quality agricultural land. 

Noise and air quality

The Applicant's expert considered the potential negative impacts on amenity that might be caused by noise and air quality by the quarry and batching plant. The Submitter did not lead any expert evidence on this matter. The Applicant's expert witness stated that there was no acoustic or air quality reason for the proposed development to be refused and that the proposed operations would fully comply with the criteria set out in the Planning Scheme, Environmental Protection (Noise) Policy, and Environmental Protection (Air) Policy. The Court accepted the evidence of the Applicant's expert witness and held that the proposed development did not cause impacts upon noise and air quality.

Visual amenity

The Court accepted the evidence of the Applicant's expert that the proposed development would not cause any adverse impacts on visual amenity.

Ecology and bushfires

The Applicant's expert opined that the proposed development would not result in any unacceptable adverse impact to ecology and would not adversely impact on the bushfire risk. In response, the Submitter did not lead any expert evidence on this matter and made a submission which criticised the use of overlays and the failure to provide for a buffer area. The Court found the Submitter's submission was of no substance, and accepted the evidence of the Applicant's expert. 

Good quality agricultural land

The Applicant's expert gave evidence that the proposed development would not compromise good quality agricultural land or other viable rural activities. The Submitter did not lead any expert evidence on this matter.

The Court was satisfied that the Applicant's expert evidence was fundamentally sound and addressed the issue at hand. The Court, therefore, concluded that there was no conflict. 

Proposed quarry not in conflict with the Planning Scheme

The Court accepted that quarries are contemplated within the Rural Zone under the Planning Scheme. The Court was satisfied that any adverse impact on amenity or the environment at large as a result of the proposed quarry use could be addressed by the imposition of conditions and held that the proposed quarry use was not in conflict with the Planning Scheme. 

Batching plant not in conflict with the Planning Scheme

The Court held that there was a clear conflict with the Planning Scheme in respect of the batching plant because, under the Planning Scheme, it is a "High Impact Industry Use" and is ordinarily located in an Industrial Zone and not a Rural Zone. 

The Court held that the batching plant would have marginal consequences in that although the batching plant would introduce a non-rural use, such intrusion would be insignificant. The Court held that the batching plant would not detract from visual amenity.

The Court was satisfied that there were sufficient grounds to approve the batching plant use, despite any conflicts with the Planning Scheme.

The Court also held that there would be a material benefit to the community because it would introduce competition and employment benefits. Finally, the Court held that the batching plant would not be inconsistent with reasonable community expectations as it is a relatively small component of a heavy industrialised use of the land.

The Court held that there were sufficient grounds to warrant the approval of the batching plant, notwithstanding any conflicts with the Planning Scheme. 

Court was satisfied there was an economic need for the proposed development

The Court considered at length whether there was a need for the proposed development. 

The Applicant's expert opined that there is a demand for the proposed development as it would introduce competition to the area, would ensure reduced transportation costs due to the co-location of the quarry and batching plant and convenience to road infrastructure, and would be conveniently located to future infrastructure projects on the Sunshine Coast and Gympie.

The Submitter's expert gave evidence that there was no demand or need for the proposed development because there is an adequate supply and production capacity of hard rock quarries located in the study area, the co-location of a quarry and batching plant is inconsistent with a short shelf life of ready-mixed concrete, there was no evidence of a lack of competition, and there were no meaningful community benefits as there is not a clear market demand. 

The Court found inconsistencies with the conclusions made by the Submitter's expert and preferred the evidence of the Applicant's expert. The Court held that the co-location of a quarry and batching plant would materially contribute to meeting an existing need and introduce choice and competition to the market. The Court also held that due to the co-location of the batching plant and quarry, the Applicant would also be in a position to better control costs. The Court was, therefore, satisfied that there was an economic need for the proposed development.

Conclusion

The Court dismissed the appeal and upheld the Council's decision to approve the proposed development and dismissed the originating application.

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.​

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