In brief

The case of Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18 concerned an appeal by Barro Group Pty Ltd (Appellant) to the Planning and Environment Court of Queensland (Court) against a decision by the Sunshine Coast Regional Council (Council) to refuse a development application requiring impact assessment seeking approval for a material change of use to re-start and materially increase the scale and intensity of a use involving the extraction of hard rock and sandstone on land situated at Beerburrum-Woodford Road, Beerburrum.  

The Court dismissed the appeal on the basis that the proposed development resulted in unacceptable traffic impacts, amenity impacts and ecological impacts.  

Subject land

The subject land holds a valuable extractive resource in the order of 15 million tonnes of high quality quarryable material, including aggregates, road-based materials and sandstone. The site has historically been used for extraction purposes, and there are two identifiable extraction pits on the site; one for gravel and one for sandstone. 

The nearest residential dwellings to the site are located approximately 1.2 kilometres to the east and south-east of the site. The site is surrounded by a forestry road network and areas of pine plantation. 

Beerburrum-Woodford Road is about 405 metres to the south of the site, and is a State controlled road. Beerburrum-Woodford Road intersects with Beerburrum Road about two kilometres to the east of the site, which is also a State controlled road. Beerburrum Road passes through the Beerburrum township, which was described as a "very low key village" (at [29]).

Proposed development

The proposed development was for the extraction of quarryable material. The operational footprint of the proposed development would be approximately 22.8 hectares, and would include facilities associated with these activities, including a site office, an amenities building and a weighbridge.  

The extraction would occur in a progressive fashion from west to east, with operating hours from 6.00am to 6.00pm on weekdays, and 7.00am to 1.00pm on Saturdays. The extraction would involve numerous activities, including drilling and blasting exposed underlying rock, transporting extracted raw material, crushing and screening of raw material and stockpiling the final product for transportation off-site. It is proposed that the extraction area be rehabilitated, where practicable. 

During the hearing of the appeal, it was accepted by the Appellant that a condition of approval for the proposed development would be to limit the maximum tonnage of quarry material hauled from the site in any rolling 12-month period to one million tonnes.

The Court recognised that the quarry is of "significant value to the community" and that "it is in the community's interest that a proven deposit of quarryable material of high quality be availed of wherever possible" (at [4]).

Issues in dispute

In addition to contending that there was no need for the proposed development at this time, the Council contended that the Appellant failed to demonstrate that the proposed development could effectively mitigate, or be conditioned to effectively mitigate or manage, the impact of:  

  • the proposed development on the safe and efficient operation of the road network; 

  • the proposed haul route on the amenity and character of adjoining development; and

  • the proposed development on the ecological values of the site. 

Traffic impacts are unacceptable

The Appellant proposed access to the extraction area via an existing unsealed forestry track.  The Council contended that the Appellant had not demonstrated that vehicle access to and from this road is safe and adequate. In particular, there was a dispute regarding whether the access would have an appropriate geometry to permit safe operation, and whether a sufficient sight distance would be achieved.  

The Court relevantly found as follows:

  • The Appellant's traffic expert did not demonstrate a deliverable proof of concept and there were shortcomings with the swept path diagrams, including that the width of the access was too narrow to permit two trucks to simultaneously enter and exit the site. 

  • The Council's planning scheme required the design of the site access to be "safe, convenient and legible". Although the Appellant contended that the design of the access is a matter for conditions, the Court stated that the information provided by the Appellant ought to be sufficient for a judgment to be made about whether the site access will comply, or can be conditioned to comply.  

  • The access ought to be treated as an intersection as a result of the Appellant having not presented evidence to demonstrate that it ought to be treated as a driveway. Of significance was that the access would need to be constructed to a standard higher than a driveway.  

  • The Court accepted the Council's traffic expert's evidence in relation to sight distance, and stated that the distance of 248 metres could not be achieved absent considerable earthworks and the clearing of vegetation along the edge of the road reserve. 

The Court concluded that the Appellant did not demonstrate that the traffic engineering impacts would be acceptable, and that the application ought to be refused for that reason alone, particularly as they go to matters of public safety.  

Haul route will have a significant adverse impact

The Council contended that the haul route for heavy vehicle trucks was unsuitable given the potential for adverse impacts on adjoining development, including the Beerburrum township. The importance of this reason for refusal was confirmed by two strategic outcomes in the Strategic Framework of the Planning Scheme, which required that there be no significant adverse amenity or environmental impacts, and that any adverse amenity impacts can be effectively mitigated. 

The proposed haul route would traverse the Beerburrum-Woodford Road and Beerburrum Road, six days per week over 15 hours, and through the main street of the Beerburrum township. The Beerburrum township was described as an "attractive main street with a high standard of amenity" that appeals to "residents, visitors and tourists alike" (at [120]).

The Court relevantly found as follows:

  • Irrespective of significant errors in the calculations used by the Appellant's acoustics expert, which were corrected during the trial, the evidence did not establish that the noise impacts from the use of the haul route would be acceptable having regard to an empirical noise assessment.  

  • The proposed development would result in one quarry truck every three minutes, assuming one million tonnes per annum is extracted. This could be higher in the event there is a campaign undertaken to meet a short-term spike in demand for hard rock resources.  

  • The impact would be appreciable and represent an adverse disturbance on the character and sense of place enjoyed in the main street of the Beerburrum township, and the impact cannot be avoided, nor can it be sufficiently mitigated and managed by conditions.  

The Court concluded that the evidence established that the increase in truck movements on the road network attributable to the proposed development will have a significant adverse impact on the character and amenity of the main street of the Beerburrum township. 

Ecological impacts are unacceptable

The proposed development would result in the clearing of 15.3 hectares of remnant vegetation, which provides habitat resources for a diversity of fauna species, including old growth hollow bearing trees.  

The Court gave considerable attention to section 3.7.2.1(c)(ii) of the Strategic Framework of the Planning Scheme, which required the following question to be examined: can the adverse impacts on the ecologically important area be compensated by the provision of a biodiversity offset that results in a net gain and enhancement to the overall habitat values of the Sunshine Coast?

The Court referred to a condition imposed by the concurrence agency that would require environmental offsets. However, the Court was not satisfied that the condition met the requisite test in section 3.7.2.1(c)(ii) of the Strategic Framework. In the Court's view, the ecological evidence established no more than that the assessment of any specific net gain or enhancement could be deferred until after an approval has issued.  

In support of this, the Court at [192] quoted evidence from the Council's town planner:

"…it would be…a leap of faith to say, 'We will offset the loss of the vegetation with some area.' We don't know where, we don't know how much.  Is it going to be in the Sunshine Coast area, in the local government area? How much of the land? How can they provide the net gain? What if the offset options they bring forward don't meet the net gain test? Then the approval's worth nothing, isn't it?"

Consequently, the Court was not satisfied that the Appellant had addressed the ecological impacts of the proposed development in a manner that demonstrated compliance with the Planning Scheme. 

Conclusion

The Court was not satisfied that the public interest in winning the proven resource should prevail in the face of the adverse amenity, character, and ecological impacts, and the non-compliance with the Planning Scheme that follows by reason of these impacts.  

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 2021.

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