Planning and Environment Court of Queensland dismisses appeal against proposed development of quarry in the Cassowary Coast hinterland having regard to an existing extraction approval

In brief

The case of Bronco Dino Pty Ltd & Ors v Cassowary Coast Regional Council & Anor [2023] QPEC 15 concerned an appeal by three submitters (Submitters) to the Planning and Environment Court of Queensland (Court) against the decision of the Cassowary Coast Regional Council (Council) to approve a superseded planning scheme application for a development permit for a material change of use for a basalt quarry and for an environmentally relevant activity (Proposed Development) on a partly cleared and partly vegetated parcel of land in the Cassowary Coast hinterland (Subject Land).

The Court considered the following issues and whether there were any relevant matters under section 45(5)(b) of the Planning Act 2016 (Qld) (Planning Act):

"(a) impacts on the ecological function of surrounding areas of ecological value from blasting, noise, dust, and groundwater;

(b) whether the quarry could be operated efficiently (given its relatively small size and depth of overburden covering the hard rock resource);

(c) whether there is sufficient area for stockpiling, acoustic bunds, and stormwater management (sediment pond and water storage); and

(d) whether acoustic measures to mitigate noise will be effective, and can be practically implemented."

The Court held that the Proposed Development will not have an unacceptable adverse impact on surrounding areas of ecological value and can be operated efficiently. The Court dismissed the appeal and approved the Proposed Development subject to conditions.

Background

The Subject Land benefits from an existing development approval for an extractive industry use (Extraction Approval) consistent with the designation in the relevant superseded planning scheme (Planning Scheme) and an associated environmental authority permit for an environmentally relevant activity, being extracting and screening. The Court noted that the assessment of the Proposed Development starts from a position favouring approval because of the existence of the Extraction Approval and environmental authority permit (see [10] to [13]).

The Court identified the principle differences between the Extraction Approval and the Proposed Development and that the additional blasting causes a change in the proposed land use from an "extraction" to a "quarry" use (at [50]). In this regard, the Court endorsed the approach taken in the case of Carbone v Esk Shire Council [2006] QPEC 16; [2006] QPELR 496 "…that in assessing the impacts of the proposal, the relevant comparison was between what may occur under the existing approval on the one hand, and on the other, the likely impacts if the proposal were to go ahead" (see [54] and [55]).

The Submitters alleged that the Proposed Development contravened assessment benchmarks in the Planning Scheme and the following State planning instruments (at [74]):

• The State Planning Policy 2016 (SPP 2016), which was in effect at the time the development application was properly made.

• The Far North Queensland Regional Plan 2009-2031 (Regional Plan), which was in effect at the time the development application was properly made.

• The State Planning Policy 2017 (SPP 2017), which came into effect after the development application was properly made.

In particular, the Submitters asserted that the Proposed Development would have indirect adverse impacts on the ecological function of the surrounding areas of ecological value from blasting, noise, dust, and groundwater.

Court does not find non-compliance with the relevant assessment benchmarks

The Court relevantly held as follows in respect of compliance with the relevant provisions in the Planning Scheme, SPP 2016, SPP 2017, and Regional Plan associated with ecological value:

• Section 1.2.2 of the Strategic Framework in the Planning Scheme, which sets out strategies for ecological sustainability, is not an assessment benchmark "…but rather summarises what later parts of the scheme seek to achieve" (at [111]). Thus, it is not necessary to assess the Proposed Development having regard to section 1.2.2.

• The Proposed Development complies with the Desired Environmental Outcomes in section 3.1.1(2) and section 3.1.1(4), which relate to the protection and enhancement of ecological systems, environmental qualities, and scenic landscape values, and the maintenance or enhancement of the quality of waters, because the "…approval of the quarry would cause no further direct loss of the relevant vegetation community represented in the remnant patch" (at [121]), conditions could be imposed to achieve compliance (at [146]), and dust and noise impacts will not have an unacceptable adverse impact on the protection of ecological values and processes (at [142]).

• The Submitters' allegations of non-compliance with Specific Outcomes SO5, SO6, and SO7 of the Shire Wide Measures, Natural Area Code in the Planning Scheme which relate to the maintenance, protection, and enhancement of riparian and coastal corridors lacked merit because the corresponding Probable Solutions were achieved (see [158] to [166]) and "[c]ompliance with the Probable Solution is one way of achieving the corresponding Specific Outcome" (at [160]).

• The Proposed Development complies with items 2 and 6 of the purpose statement of the Rural Zone Code in the Planning Scheme, because expert evidence supported a finding that any impact on the quality of the agricultural land could be rehabilitated and there are no unacceptable impacts on the ecological function of the areas of ecological value surrounding the Subject Land (see [170] to [173]).

• The Subject Land is a sufficient area and dimension to comply with the requirements of the Extraction/Quarry Code in the Planning Scheme (Extraction/Quarry Code) relating to the nature of the use, impacts on amenity, the protection of environmentally sensitive areas, ground or surface water quality or quantity, and rehabilitation (see [174] to [197]).

• The Proposed Development complies with the biodiversity State interest in Part E of the SPP 2016 in that it identifies potential impacts and manages the identified impacts by "protecting from" or "otherwise mitigating" the identified impacts (at [199]). The Proposed Development also complies with the biodiversity State interest in Part E of the SPP 2017 because it "avoids significant impacts" on the matters of national environmental significance and "maintains ecological processes and connectivity" (at [203]).

• The biodiversity conservation land use policies in Part E of the Regional Plan, which seek to ensure that "urban development" adjacent to areas of "high ecological significance" or "general ecological significance" is located, designed and operated to avoid adverse impacts on the area's ecological values, do not apply because the Proposed Development is not for "urban development" as defined in the Regional Plan (see [205] to [212]).

Court finds the Proposed Development will not result in dust impacts that would adversely impact the ecological function of surrounding areas of ecological value

The Court considered whether the Proposed Development will result in off-site dust impacts that would adversely impact the ecological function of surrounding areas of ecological value and accepted the evidence of the air quality experts that the dust deposition rates upon land external to the site predicted by dispersion modelling were far below the thresholds identified in the literature for detrimental effects on vegetation and that the high rainfall recorded in the region is likely to mitigate the effects of dust deposition on vegetation (see [215] to [218]).

Court finds that issues related to noise do not warrant refusal of the Proposed Development

The Court accepted the following evidence in relation to its consideration of whether the Proposed Development will result in off-site acoustic impacts which would adversely impact upon the ecological function of surrounding areas of ecological value (see [224] to [226]), and held there will be no unacceptable adverse impact (at [229]):

• In respect of mobile diurnal species, any impact will be of a small scale due to blasting infrequency and the proposed revegetation "…would provide an enduring benefit that significantly outweighed the minor, localised short-term negative impacts…".

• In respect of mobile nocturnal species, "…to the extent that the species may use the remnant patch as a forage habitat at night, it will not be affected, and proposed habitat revegetation will provide tangible long term benefits for that species".

• In respect of non-mobile species, the longer-term ecological benefits of the proposed rehabilitation outweigh the relevant minor, localised and short-term negative impacts arising from blasting.

In respect of noise, the Court also considered the appropriateness and practical implementation and effectiveness of the acoustic measures identified by the acoustic experts.

The Court was satisfied that matters related to noise could be appropriately managed by the imposition of conditions (at [247]) and that the Proposed Development can operate as intended and meet the noise criteria agreed upon by the acoustic experts (at [257]).

Court finds that issues related to stormwater or groundwater do not warrant refusal of the Proposed Development

In relation to issues related to stormwater and groundwater, the Court accepted expert evidence that there are no stormwater management issues that cannot be addressed by engineering assessment, especially having regard to the Applicant's acceptance of a condition requiring the preparation and submission of an updated stormwater quality management plan as part of the development application for operational work (at [261]).

The Court also accepted evidence that existing groundwater sits at a level below the hard rock basalt to be mined and that the Proposed Development will not generate unacceptable adverse impacts on stormwater and groundwater external to the Subject Land (at [288]). Thus, the Court rejected the application of the precautionary principle because the evidence did not support a finding of serious or irreversible environmental damage (at [290]).

The Court concluded at [293] that, in terms of ecological impacts generally, the Proposed Development complies with the relevant assessment benchmarks and any impacts will be sufficiently mitigated by the proposed conditions of approval.

Court finds the Proposed Development is efficient and that there is sufficient area for stockpiling, acoustic bunds, and stormwater management

The Submitters asserted that implications regarding the efficiency of the Proposed Development arise by virtue of section 3.1.2(6) of the Desired Environmental Outcomes and Specific Outcome SO1 of the Extraction/Quarry Code, and contended that the Proposed Development is not an "efficient" extraction or quarrying of material with respect to the use of the word in Specific Outcome SO1 because it is "overburden-driven", the quality of hard rock and basalt has not been adequately assessed, and the processing areas and working areas for stockpiling are too small (at [308]).

The Court accepted the evidence of the geological expert nominated by the Applicant who opined that the basalt in the Subject Land was ideal for quarrying and the production of construction materials (see [317] to [320]), and found that the overburden extracted may be sold for use as construction materials (at [337]).

In respect of the area for stockpiling, acoustic bund, and stormwater management, the Court held that there is no suggestion that the area is of insufficient size for the conduct of the quarry operations (at [346]).

The Court was satisfied that the Proposed Development could operate as intended and did not contravene any of the relevant assessment benchmarks (see [350] and [351]).

Court finds that no other relevant matter warrants refusal of the Proposed Development

The Submitters relied on numerous matters under section 45(5)(b) of the Planning Act which the Submitters alleged support a refusal of the Proposed Development. The Court considered these matters but did not find that any warranted refusal of the Proposed Development (see [354] to [380]).

Conclusion

The Court held that the Applicant established that the appeal ought to be dismissed and accordingly dismissed the appeal.