In brief

The case of Vella’s Plant Hire Pty Ltd v Mackay Regional Council & Anor [2019] QPEC 60 concerned an appeal to the Planning and Environment Court against the Mackay Regional Council’s (Council) refusal of a development application for a development permit for a material change of use.

The Applicant made a development application for a temporary quarry that would operate for 12 months and remove up to 200,000 tonnes of material from the subject land. At the end of the excavation, the quarry would become a dam. 

The Council’s officer had recommended to the Council that the development application be approved, however, the Council decided to refuse the development application. After a minor change to the development application, the Council was willing to approve the development application subject to conditions. 

The third Co-respondent by election (Co-respondent) argued that the development application ought to be refused based on several arguments. However, at the end of the hearing the Co-respondent’s sole argument was that the development would conflict with the Mackay Regional Council’s Planning Scheme (Planning Scheme), given that there was no demonstrated need for the proposed development. 

The Court found that there was a demonstrated need for the proposed development and that the proposed development would benefit future agricultural activities on the subject land and therefore allowed the appeal.

Background 

The appeal was against the Council’s decision to refuse a development application for a development permit for a material change of use for “farm works (dam) and temporary quarry for the removal of up to 200,000 tonnes of material (temporary use 12 months)”. 

The Applicant sought to build the quarry on land that was predominantly used for cattle grazing, but had previously been used to grow sugarcane. The Council originally refused the development application, but subsequently proposed to approve the development application subject to conditions, including that the material was to be extracted within 12 months. The conditions also addressed dust and noise concerns, rehabilitation of the subject land, operating hours, the widening of a road on the haulage route, and the development of the proposed dam at the end of the excavation. 

The Co-respondent maintained its opposition due to concerns in relation to environmental impacts on the subject land and on stormwater, flooding issues and water quality issues. However, after hearing the evidence of witnesses the Co-respondent’s reason for opposition was narrowed to the lack of a demonstrated need for the proposed development. 

Disputed conditions 

The Applicant disputed two conditions relating to an environmental corridor and a water discharge point. 

Environmental corridor 

The Applicant disputed a condition of the development approval requiring a third environmental corridor. 

The Joint Expert Report and the Supplementary Joint Expert Report both concluded that it was best practice for three environmental corridors to be implemented. However, at the hearing, the Applicant’s expert refined his opinion and asserted that the Planning Scheme did not require the third environmental corridor, but that it would still be best practice to have all three. 

The Court found that the condition requiring the third environmental corridor was a reasonable and relevant condition as it would have environmental benefits and was best practice. 

Water discharge point 

The Co-respondent asserted that a new water discharge point ought to be constructed and located solely on the subject land. The Co-respondent was concerned that the additional drainage impact created by the proposed development would be unable to be met by the existing drainage arrangement. 

The Court found that having regard to the existing drainage arrangement and expert evidence it was satisfied that there was no scientific or engineering basis for an alternative discharge point to be required. 

Demonstrable need 

The Court then went on to consider the main point of contention, being whether there was a demonstrable need for the proposed development. Under the Planning Scheme, the subject land is in the rural zone which accommodates an extractive industry use. The Extractive Industry Code identifies demonstrated need as an assessment benchmark, and relevantly states as follows: 

PO1 – The extractive industry fulfils a demonstrated need for the resource in development projects in the region” 

AO1- The need for an extractive industry is demonstrated through a report which details the: 

a) type of resource to be extracted and the nature of its use in development projects in the region; and 

b) proposed rate of extraction; and 

c) market demand for the resource.“ 

Definition of demonstrable need 

The Court first considered what constitutes a demonstrable need. In United Petroleum Pty Ltd v Gold Coast City Council [2018] QPEC 8 (United Petroleum case), the Court found that “[a] need does not have to be particularly strong to be a demonstrable need”, and that it should be interpreted with reference to being “a real or substantive (rather than trivial, immaterial, minor or insignificant) need which is capable of being shown or logically proved”.

The Co-respondent submitted that the question of demonstrable need in this case could be distinguished from the United Petroleum case. It was submitted that the Planning Scheme set a higher standard than that stated in the United Petroleum case, for the reason that the Planning Scheme required a “demonstrated need” rather than “demonstrable need”. 

The Court rejected this submission and held that nothing turns on whether the term used in the Planning Scheme is “demonstrated” or “demonstrable”. It was therefore held that demonstrated need is to be proved on the balance of probability, and is not to be conclusively proved. 

Demonstrable need for the proposed development

At the hearing, the Co-respondent argued that there was no need for the quarry as there was already another quarry located in the area that could fulfil the need for local projects, and that the expert evidence was uncertain regarding the market for the proposed quarry.

The Applicant’s expert evidence was that there were five separate projects that would require embankment fill. However, each project came with its own hurdles, including uncertainty about whether the projects would contract with the Applicant and a lack of certainty of State Government funding. One project was located closer to another quarry that could potentially meet the project’s demands and the proposed quarry would be out of the economic range for the project. 

The Applicant’s expert evidence was that there was a demonstrated need which was more than medium but not critical, and the Applicant argued that such evidence should be preferred as the expert was the only economist to give evidence and is well regarded in the industry.

The Court found that there was a demonstrable need, but disagreed with the Applicant’s expert assessment of the need being more than medium but not critical. The Court found that after ruling out the project that was out of economic range and taking into consideration the uncertainties surrounding the other projects, there was a moderate to medium need. The Court found that due to the flexibility in the commencement of the proposed excavations, the Applicant could wait to operate the quarry until actual demand arose. 

Other relevant considerations

In assessing any other “relevant matters” under section 45(5)(b) of the Planning Act 2016, the Court considered the report of the Applicant’s economist expert and a Joint Expert Report which set out the planning need for the quarry. The reasons included the following: 

(a) the use of the land for the extractive industry is consistent with the intended purpose of the rural zone; 

(b) the proposed development’s impact on the subject land would only be temporary and would not diminish the land’s rural productive capacity as the land is currently not being utilised for such a purpose;

(c) the dam would support the rural outcome through improving the productive capacity for rural activities; 

(d) impacts such as noise and dust would be mitigated through conditions; 

(e) the proposed development would not impact on the farming operations on the surrounding land; and

(f) the proposed development would not impact the safe and efficient operation of the area’s road network. 

The Co-respondent’s town planner asserted that there were concerns around the proposed development’s potential environmental impacts, amenity and agricultural impacts and that by allowing the proposed development the subject land would be unavailable for agricultural use.

The Court found that the subject land was not good quality agricultural land, and that the environmental, amenity and agricultural impacts could be addressed through conditions. The Court also held that the quarry would only marginally impact the subject land’s productive capacity, and would result in a dam that would benefit the future activity carried out on the subject land. 

Conclusion

The Court held that the appeal should be allowed and that it would hear further from the parties if consequential orders were needed.

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.

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