In brief

The case of QCoal Pty Ltd & Anor v Isaac Regional Council [2021] QPEC 60 concerned an appeal to the Planning and Environment Court of Queensland (Court) by the developers of the Byerwen Coal Mine Project (Appellants) against the decision of the Isaac Regional Council (Council) to refuse a development application for a material change of use for a works camp (Proposed Development). 

The Byerwen coal mine (Mine) was approved having regard to an environmental impact statement which assumed that 30 per cent of workers would live in Glenden, 30 kilometres east of the Mine. A temporary works camp had been approved for a maximum of four years from the commencement of the use or the completion of the construction phase of the Mine, whichever occurred first. The Proposed Development was impact assessable and sought to make the temporary works camp permanent and expand the works camp to 650 rooms for up to 600 persons. As a consequence, two per cent of the workers would reside in Glenden, and 98 per cent would reside at the Proposed Development. 

The Appellants submitted that the Proposed Development complied with the relevant assessment benchmarks, and argued that there was a strong need for the Proposed Development. The Court held that the Proposed Development did not comply with the relevant assessment benchmarks and dismissed the appeal for the following reasons:

  • The Proposed Development was not the preferred accommodation model.

  • There was suitable land and infrastructure in Glenden to satisfy the accommodation needs of the workers.

Proposed Development was not the preferred accommodation model because there was no demonstrated need and was inconsistent with planning themes

The development application was properly made when the Mackay, Isaac and Whitsunday Regional Plan (Regional Plan) and Nebo Shire Planning Scheme were in effect. Prior to the determination of the appeal, the Nebo Shire Planning Scheme had been replaced with the Isaac Regional Planning Scheme 2021 (Isaac Planning Scheme). The Appellants relied on the provisions of the Isaac Planning Scheme to support the Proposed Development. 

The Appellants argued that existing and prospective workers would prefer to reside at the Proposed Development rather than in Glenden and that the Proposed Development complied with, in particular, the assessment benchmarks in section 3.3.1.3 of the Isaac Planning Scheme in that it responded to a "legitimate demonstrated need". 

The Court rejected the Appellants' reliance on section 3.3.1.3 because the Isaac Planning Scheme was not in effect when the development application was properly made. The Court held that the Proposed Development was to be assessed against the Regional Plan and Nebo Planning Scheme. The only weight given by the Court to the Isaac Planning Scheme was that it supported the planning themes of the Regional Plan and the Nebo Planning Scheme to:

  • Promote existing infrastructure and the integration of non-residential accommodation within the community. 

  • Locate a use such as the Proposed Development in an urban locality. 

Because the Proposed Development did not engage with Glenden under these planning themes, the Proposed Development "…would be detrimental to the ongoing utilisation of the significant social and administrative infrastructure…" in Glenden (at [45]). 

The Court further rejected the Appellants' argument in respect of the application of section 3.3.1.3 of the Isaac Planning Scheme and held that the Appellants did not demonstrate any need for the Proposed Development for the following reasons:

  • The evidence from the Appellants' social planner and Executive General Manager of Planning and Operations to demonstrate the need was only sampled from existing employees at the Mine and did not include prospective workers. The Court held that because the evidence was from a small sample, it was not representative of the needs of 98 per cent of the existing and prospective workers. 

  • The Proposed Development was inconsistent with the social planners' joint report which provided that residing on-site can negatively impact the social, mental, and physical wellbeing of non-residential workers. 

  • The Proposed Development would deny workers and families a choice of accommodation.

Court finds that Glenden is suitable to accommodate workers

The Appellants argued that there was no suitably zoned land in Glenden available to accommodate the workers' accommodation. For workers who do reside in Glenden, the Appellant submitted that the length of an average worker's shift would cause occupational health and safety issues for workers returning to Glenden and leave no time to utilise the local facilities. The Appellants also argued that they would suffer a loss of infrastructure from dismantling the temporary workers' accommodation. 

The Court considered the Appellants' arguments against the relevant assessment benchmarks that were given the most weight, in particular section 2.2.3 of the Nebo Planning Scheme which relevantly stated: 

"Glenden is the primary residential accommodation area for the coal mining industry… 

Isolated workers camps…are not envisaged within the Shire unless located adjacent to mines in locations not able to be conveniently serviced by accommodation within an urban locality…"

The Court dismissed the Appellants' arguments and held that Glenden was suitable to accommodate workers. The Court's reasons were as follows: 

  • The Appellants had not attempted to acquire residential housing or appropriate freehold land in Glenden. 

  • The Appellants had failed to act on development approvals in respect of three lots that they own, which could have provided permanent accommodation to 170 workers and had since lapsed. 

  • The occupational health and safety issues could be appropriately managed. 

  • A loss of infrastructure was not a relevant matter for consideration because it is a natural consequence of a temporary development approval. 

Conclusion

The Court dismissed 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 2022.

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