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Vella's Plant Hire Pty Ltd v Mackay Regional Council & Anor

 

[2019] QPEC 60

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Vella’s Plant Hire Pty Ltd v Mackay Regional Council & Anor [2019] QPEC 60

PARTIES:

VELLA’S PLANT HIRE PTY LTD (ACN 103 957 820)

(Appellant)

v

MACKAY REGIONAL COUNCIL

(Respondent)

and

ARTHUR NOONAN

(Co-respondent by election)

FILE NO:

BD1446/2018

DIVISION:

Planning and Environment Court

PROCEEDING:

Hearing of an appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

20 November 2019

DELIVERED AT:

Brisbane

HEARING DATES:

21, 22, 23, 24 and 28 October 2019

JUDGE:

RS Jones DCJ

ORDER:

1.The appeal is allowed.

2.I will hear further from the parties, if necessary, as to any consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where the appellant applied to the respondent council for a development permit for a material change of use – where the approval was recommended subject to appropriate conditions – where the material change of use was for the construction of a temporary quarry – where the respondent council refused that development application – where the appellant appeals that decision – where the co-respondent by election is an adjoining land owner to the subject site – where the respondent council changed its position on the application by the commencement of the hearing – where the issues whether the application should be approved subject to appropriate conditions

NEED – where the appellant intends to extract 200,000 tonnes of general fill in a one year period – where uncertainty exists about the need for general fill in the locality – whether projects in the locality requiring general fill will proceed – whether there is a demonstrated need for general fill in the locality – whether other existing quarries are capable of satisfying need for general fill in the locality

CONDITIONS – whether the development should be approved subject to appropriate conditions –whether three environmental corridors need be implemented – whether a farm dam need be constructed – whether the discharge point from diversion drains under the current proposal ought to be changed

Legislation

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

Sustainable Planning Act 2009 (Qld)

Cases

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16

Brookside Estate Pty Ltd v Brisbane City Council & Anor [2019] QPEC 33

Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132

K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9

United Petroleum Pty Ltd v Gold Coast City Council [2018] QPEC 8

COUNSEL:

Mr K Wylie for the appellant

Mr J Ware for the respondent Council

Mr D Favell for the co-respondent by election

SOLICITORS:

Macrossan & Amiet for the appellant

McInnes Wilson for the respondent Council

Thynne & Macartney for the co-respondent by election

  1. [1]
    This proceeding is concerned with an appeal by Vella’s Plant Hire Pty Ltd (Vella) against the decision by the Mackay Regional Council (the Council) 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)”. For the reasons set out below, the orders of the court are:
  1. The appeal is allowed;
  1. I will hear further from the parties, if necessary, as to any consequential orders.

The proposed development and the decision process

  1. [2]
    The subject land is located at 92 Glendaragh Road, Glenella and is more particularly described as Lot 5 on SP241649. The total area of this land is 30.0612ha and, consistent with its rural zoning, is predominantly used for cattle grazing purposes. It would appear that some time previously the land had also been used for the growing of sugar cane.[1]At the time the development application was lodged with the Council, the land was owned by GW Galletly Pty Ltd as trustee. The proposed quarry site will be located within an area of Lot 5 which is leased by Vella from the registered proprietor. The area of the quarry (area of works) is approximately 1.5 ha.[2]
  1. [3]
    Vella operates an integrated business involved in the construction industry. It is not only a producer but also a user of quarry material in the Mackay region.[3] There is no evidence however, that Vella or any of its associated entities intended to use the fill from the proposed quarry in its business operations.
  1. [4]
    The whole of the subject land is shown in a number of exhibits.[4] The location of the proposed quarry site also appears in a number of exhibits.[5] In the Joint Expert Report (JER) of the town planners, an uncontroversial description of the land was given which I will adopt:[6]

“The site has a total area of 30.0612ha and is irregular in shape, with frontage to Glendaragh Road, and is situated at approximately 7km north-west of the Mackay CBD….

The subject site abuts a ‘Temporarily Closed Road’ running roughly parallel to the southern and eastern boundary of the site. This has the effect of splitting the subject site into two parts; one parallel to the Janes Creek riparian corridor, and the second part is north of the temporarily closed road which is where the proposed extraction will be located. Access is gained form the Glendaragh Road frontage via a bitumen sealed driveway that extends for approximately 10m to the subject land beyond which it is of formation standard only….

The subject site is currently predominately used for grazing and includes farm sheds, cane rail and remnant vegetation. At the time of application, the planning report stated it was used for cane (not grazing) and the same three additional activities of farm sheds, cane rail and remnant vegetation…looking east towards the proposed farm dam (temporary quarry), shows fencing, construction and grazing north of the fence…. The existing gravel farm access road does not exactly follow the road reserve boundary and in parts extends into the south of the temporarily closed road reserve….”

  1. [5]
    The surrounding land uses are dominated by the growing of sugar cane. Of particular significance in that context is land to the east and northeast (Lot 4 and Lot 6) which is owned by the co-respondent by election (Mr Noonan) and has been used for the growing of sugarcane. Another relevant land use was that to the north (Lot 10) which was owned by Mr A Haynes who, at the time this proceeding commenced, was the third co-respondent by election. He and the second co-respondent, Rose Noonan, are no longer parties to the proceedings. More will be said about that below. Notwithstanding the Council officer’s recommendation that the application be approved subject to conditions,[7] the Council, by vote, elected to refuse the application. As a consequence of a minor change to the application being allowed by this Court on 3June 2019, at the time this proceeding commenced before me, the Council supported the application being approved subject to appropriate conditions.
  1. [6]
    At this stage, it is convenient to identify a number of conditions which would attach to the proposed use. First is the limitation on the amount of material that can be extracted, namely 200,000 tonnes and the time limit in which that material might be extracted, namely 12 months. That is, from the date extraction begins, Vella has 12 months to remove 200,000 tonnes of material or, in the event that the 200,000 tonnes is removed before the expiration of 12 months, the approval ceases when that amount of material has been excavated.
  1. [7]
    In order to address concerns about dust and noise, an earth mound will be constructed and grassed on the northern side of the access road which will be upgraded with road base topped with non-dust generating blue metal. As I understand it, as a consequence of those conditions concerning dust and noise, Mr Haynes withdrew from the proceedings. The circumstances of the third co-respondent by election withdrawing, Mrs Rose Noonan, were not explained. There are of course a number of other conditions concerning, in particular, rehabilitation, hours of operation and, when excavation ceases, the development of a farm dam.[8] Other conditions include some minor road widening to Glendaragh Road which, of significance, is a designated haulage route.

The issues in dispute

  1. [8]
    Mr Noonan’s reasons for refusal are extensive but can be summarised as involving the following primary concerns. First, concerns about the environmental impact the proposed development would have on, in particular, land capable of being used for growing sugar cane and also Jane Creek. Second, concerns about stormwater, water quality and flooding, in particular the impacts on land use and upon Jane Creek. Third, conflict with the Council’s planning scheme. After identifying those concerns and relevant provisions of the planning scheme, it is asserted:[9]

“The various departures from the assessment benchmarks outlined above are not capable of being addressed or mitigated by conditions of approval.

The various departures from the assessment benchmarks outlined above ought be determinative in the circumstances outlined…

There is no established planning or community need for the proposed development.

Approval of the proposed development would result in unacceptable impacts, including planning and environmental impacts, and the proposed development is inconsistent with reasonable community expectations.” (Emphasis added)

  1. [9]
    As the case progressed and, as a consequence of the evidence of a number of witnesses that it is unnecessary to identify at this stage, Mr Noonan’s sole remaining basis for refusal was that there was no “need” for the proposed development. That is, the other issues raised could be addressed by appropriate conditions. During final submissions Mr Favel, counsel for Mr Noonan, said in this regard:[10]

“…your Honour will gather from the exchange of written submissions that the issues have narrowed considerably…in the trial and it’s really now a question of need. In terms of ecology and hydrology to the extent that those issues were explored as your Honour rightly identified last week that it’s conceded that those matters where we are (sic) capable of conditions – or being conditioned away in the event that the court was minded to grant an approval.” (Emphasis added)

  1. [10]
    In the first co-respondent by election’s written submissions under the heading “conclusion”, need was identified as being the only basis for refusal. The following submissions were made:[11]

“The first Co-Respondent by Election submits that ultimately the Appellant falls short of demonstrating that there is a need for the Proposed Development. There is insufficient evidence of need in either the sense called up by the Planning Scheme or in a ‘community or planning need’ sense. It can be readily accept that there is a number of qualities in the locality in which the Subject Land is located. To use the Appellant’s expression there is ‘an unusually collocated number of quarries’ in the vicinity. That said, there is no evidence that those quarries (and other quarries such as the Walkerston Quarry) are unable to satisfy the demand now (or in the future) in what is a niche industry.

It is for the appellant to demonstrate (i.e. prove) that there was a need for the Proposed Development and it has failed to do so. That being so, the development application should be refused and the original decision of the Council be affirmed.

Notwithstanding the above, should the Court be inclined to approve the Proposed Development, it should be on the basis that conditions of the type referred to…above be implemented.

  1. [11]
    It is uncontroversial that this appeal is to be determined pursuant to the Planning and Environment Court Act 2016 and, accordingly, pursuant to s 45 of that Act, the onus rests on the appellant to satisfy me that the appeal ought be allowed.

Controversial conditions

  1. [12]
    It is convenient before going on to deal with the question of need to deal with three conditions that were expressly addressed by experts and counsel during the course of the proceedings. Whilst it was readily accepted by all at the bar table that it was not for me to draft a comprehensive set of conditions, I was asked to express an opinion about two in particular. The first being the need for a third environmental corridor that would run, generally speaking, in a north to south direction from the quarry site to Jane Creek. That corridor would be about 20m in width and 60m in length. The second contentious condition was that involving the water discharge point from the site into Jane Creek.
  1. [13]
    To address a number of environmental matters, the appellant retained Mr Paterson to deal with ecology, the Council retained Mr Sutherland to deal with both agriculture and environmental management and Mr Noonan relied on Mr Daniel to deal with ecology. In their first JER it was agreed between those witnesses that:[12]

If best practice environmental management was to be implemented on the site, connectivity to Janes Creek and the remnant vegetation north of the quarry site would be implemented using locally occurring native species…

Such corridors should be implemented within 12 months of the completion of the Quarrying activities.

Corridor details:

  1. (a)
    The proposed Corridors A, B and C….be 20 metres in width and be sealed with a dense shrub layer in an attempt to limit edge effects from reducing the functionality of the corridors;
  1. (b)
    The species (to be used)…

Providing the Appellant to agrees to implement rehabilitation, planting and subsequent maintenance of those corridors, to the satisfaction of Council, our issues in respect of this appeal are largely resolved.” (Emphasis added)

  1. [14]
    In that JER the habitat corridors were identified. Corridor A is the corridor that connects the southern extremity of the quarry site to Jane Creek. Corridor C is situated at the western extremity of the site and provides connection with the remnant vegetation to the north. Corridor B lays at the eastern extremity of the site and provides connectivity with the remnant vegetation to the north.[13] It is only A that is disputed by the appellant. The Council appeared to be neutral about the matter if not ambivalent.[14]
  1. [15]
    In their supplementary JER, various assessment benchmarks from the Council’s planning scheme were expressly addressed. At no stage during the JER process, including in the reports, did Mr Paterson seek to distance himself from the need for corridor A. Notwithstanding that, in his court report while maintaining that corridors B and C would be required, he went on to express the following opinion:[15]

However, corridor A…is not required by the benchmarks set in Mackay Regional Council Planning Scheme tables relevant to this application. What I mean is that in circumstances where there is no existing ecological connectivity north to south, I cannot find any requirement in the planning scheme for this development to provide such connectivity.

Corridor A…is proposed on land that is currently proposed to be grazed and has historically been used to grow sugarcane.

Further, Corridor A…will reduce the productivity of the current lot by removing an area currently available for grazing and in time the trees will cause a reduction in the productive capacity of the adjoining areas via shading and competition for water and nutrients.

Corridor A…will in time also impact on the productive capacity of a section of Lot 6…to the east of the corridor. ….” (Emphasis added)

  1. [16]
    During cross-examination, Mr Paterson agreed that nowhere in either of the JERs did he suggest anything other than that all three corridors should be implemented.[16] It would appear that the motivation for him changing his mind about corridor A was because of a report prepared by a Mr Buckley, the town planner retained by Mr Noonan. Mr Buckley expressed an opinion that the corridor unfairly impacted on the agricultural production of adjoining land.[17] During the evidence of Mr Paterson, the following exchange took place between him and the bench:[18]

Q.Mr Paterson (sic), you say in paragraph 1 you’re – paragraph 3 you’re an ecologist and an agricultural scientist and, as you said a moment ago, you (have) some 30 years experience. When you were talking about that corridor to the south which I think is A, surely it would’ve occurred to you as an agricultural scientist that there would’ve been some impact on – you know – by way of severing at least that section of land that might have been put to an agricultural use…I am just struggling with why it is that a town planner would all of a sudden raise something that you as an ecologist and agricultural scientist wouldn’t have already considered?

A.In the interests of striking a balance in the – in the JER, we – I – I was persuaded that there was a – that was a good outcome upon reading…

Q.Yes, but if it was best practice then, so why isn’t it still best practice?

A.It – it would still be best practice, but it has a – it has a – there’s a – in my first statement there I – I, you know, it’s – it’s striking a balance between agricultural ecology and the – and the development. It’s a difficult – it’s a difficult issue.”

  1. [17]
    Based on the evidence of Dr Daniel to the effect that there was a functional connection between the site and Jane Creek and that corridor A was not required by the planning scheme, Mr Wylie, counsel for Vella, submitted that it was not necessary.[19] It may well be the fact that the planning scheme does not require corridor A and that it may involve, one way or another, the severance and/or sterilisation of agricultural land. However, I am still not persuaded at this stage that that environmental corridor would not be a reasonable and relevant condition to impose. The reason for that is, I find it difficult to understand, given Mr Paterson’s qualifications and experience why, if the problems he now identifies were in reality matters of concern, that was not addressed in either the first JER or the supplementary JER. Also, notwithstanding his change of heart in respect of that particular corridor, he still accepted that its retention would be “best practice” and would provide an environmental benefit. That said, the opinion that I have expressed would not prevent the parties from discussing the matter further.
  1. [18]
    In the written submissions made on behalf of Mr Noonan, it was also submitted that if this court were to allow the appeal it should be subject to two other conditions in particular. First, the relocation of stormwater overflowing from the dam such that it does not flow onto the land belonging to Mr Noonan. Second, that there be a condition requiring the construction of a farm dam at the end of 12 month period, regardless of whether the quarry reaches the 200,000tonne threshold.[20]
  1. [19]
    Mr Noonan relied on the evidence of a Mr Daly to deal with the issues of water quality, storm water and flooding. Those matters were clearly of great concern to him and his son, Joseph Noonan. In his statement, Joseph Noonan concluded:[21]

“I am concerned the severity of flood events which causes damage to people, property and areas of environmental significance will be increased because of the proposed development. In particular:

  1. (a)
    the proposed development’s farm dam may overflow during the wet season and cause damage to my Land and low lying residential areas;
  1. (b)
    the proposed development’s diversion drains will cause additional water to be discharged across my Land harming the sugar cane production; and
  1. (c)
    the proposed development will affect the water table.”
  1. [20]
    I have no doubt that the concerns expressed by Mr Noonan and his son are genuinely held. However, the evidence of the engineers called to address these matters satisfies me that there is no evidence to support the concerns about impacts on the water table and the concerns about overflow events during the wet season are not warranted. Finally, subject to appropriate conditions being imposed, the concerns about the discharge of water from diversion drains can be adequately dealt with.
  1. [21]
    The only remaining issue in respect of the latter is where the discharge point ought be. Under the present proposal, low flow is designed to discharge via a rock lined spillway to an existing under-road culvert and then discharge into Jane Creek via an existing drain.[22] According to Mr Daly, that discharge point should be relocated further to the west.[23] One of the primary reasons why he advocated the relocation of that discharge point was that, in his opinion, any discharge channels should be wholly located within Lot 5. The existing drainage arrangement leaves the subject land and then crosses Mr Noonan’s property, Lot 6, before it drains into Jane Creek. The second concern was that expressed about the capacity of the existing drainage system to cope with rainfall events, a matter that was dealt with in some detail in his court report.[24]
  1. [22]
    Having regard to the very detailed and carefully considered examination of rainfall events and their consequences carried out by Mr Della, I do not consider there is any rational basis for Mr Daly’s concerns about the ability of the dam to cope with discharge or drainage in heavier rainfall events. After considering a comparison of the cumulative volume of discharge rates, it was Mr Della’s opinion that the construction of the “farm dam” would not increase the discharge of water to the existing drain.[25] I found Mr Della to be a thoughtful and impressive witness whose evidence was not shaken in any way during cross-examination. On the other hand, Mr Daly often seemed to take an extreme or unrealistic approach as to how this dam should be assessed. By way of but one example, he considered that it ought be treated, if not in the same then in a very similar way, to lakes constructed in residential areas.[26] There is simply no basis for comparison between any such lake and a farm dam.
  1. [23]
    In conclusion on this topic, I am satisfied that there would be no engineering or other scientific basis for an alternate point of discharge. That said, the issue of whether the drainage outlet ought be contained wholly within the subject land is not, in my view, an irrational consideration but it is one that I will leave to the parties to resolve.
  1. [24]
    As to the final matter, there can be no doubt that, when the extraction of material is completed a working farm dam would be left on the site, was a material factor relied on in favour of approval of the proposed development both at the application stage and in these proceedings.[27] In the event that excavation having commenced and the 12 month period expiring but only a proportion of the extracted material has been removed, the farm dam, at least to the size contemplated, would not result. That that would occur is not only not within the contemplation of the appellant and/or the Council, it would also be an unreasonable outcome in my view. Accordingly, at least on the material before me at this stage, the imposition of a condition of the type proposed by Mr Noonan would not be an unreasonable one. At the end of the day though, it will be a matter for the parties or this court to resolve at a later stage.

Need

  1. [25]
    The following matters are uncontroversial. First, the proposed development is impact assessable. Second, the subject land sits within the rural zone of the Council’s planning scheme and, within that scheme, extractive industry of the type proposed is contemplated. Third, to succeed in this proceeding Vella has to satisfy the court that there is sufficient need for the material to be extracted. In the JER of the town planners, Mr Perkins and Mr Jewell, relied on by the Council and Vella respectively, reported that they “accept that if a need for the proposed development cannot be established in this Appeal then the proposed development should not be approved….”.[28]
  1. [26]
    Pursuant to the Council’s Rural Zone Code, a number of purposes are set out in s 6.2.17(3). These include that uses within the rural zone will predominantly involve rural activities. And, while extractive industry uses can be “accommodated” within the zone, that use is not to diminish the productive capacity of land for rural activities, nor have unacceptable environmental impacts, nor result in unacceptable landscape and amenity outcomes.[29]
  1. [27]
    Unsurprisingly, the assessment benchmarks reflect those objectives in Performance Outcomes (PO)3 for which no Acceptable Outcome (AO) is identified.
  1. [28]
    A prescribed purpose of the Extractive Industry Code is stated to be achieved by a number of identified outcomes including, pursuant to s 9.3.6.1(2)(a), that the extractive industry “fulfil a demonstrated need”.[30]
  1. [29]
    The requirement to demonstrate need is also one of the assessment benchmarks for extractive industry under the Extractive Industry Code. PO1 and the AO1 relevantly provide under the heading “need”:[31]

PO1

AO1

The extractive industry fulfils a demonstrated need for the resource in development projects in the region. (Emphasis added)

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

  1. (a)
    type of resource to be extracted and the nature of its use in development projects in the region; and
  1. (b)
    proposed rate of extraction; and
  1. (c)
    market demand for the resource.

(Emphasis added)

  1. [30]
    In respect of the type of resource to be extracted, it was identified in a Quality of Materials Report as “general fill” (class A).[32] As to the use of the material, it was identified as being for the “purpose of general fill”.[33] In a very general sense, the proposed rate of extraction has been identified in that operations will cease upon the first of the following events occurring. Either the extraction of 200,000 tonnes of material or the expiration of a period of 12 months from the commencement of excavation. I should note here that no issue was taken with the identification of the proposed rate of extraction by Mr Noonan.
  1. [31]
    Turning then to the real question to be resolved, namely, is there a demonstrated need for general fill in the locality?[34] However, before going on to deal with the evidence on this topic, it is appropriate to deal with a number of matters first. First, there was some debate about what the meaning of “demonstrable” meant for the purposes of OO(2)(a) and PO1. In United Petroleum Pty Ltd v Gold Coast City Council,[35] His Honour Judge Rackemann of this Court observed:

“There was some debate as to what constitutes a ‘demonstrable need’ for the purposes of PC12 and, in particular, whether even a low level of need, as found by Mr Leyshon, would meet that description. The ordinary meaning of demonstrable is something which is capable of being shown or logically proved. That says nothing of the strength of what is shown or proved. A need does not have to be particularly strong to be a demonstrable need. The provision ought however, consistently with the ordinary principles of construction, as they are applied to planning schemes, be interpreted as referring to a real or substantive (rather than trivial, immaterial, minor or insignificant) need which is capable of being shown or logically proved.” (Emphasis added)

  1. [32]
    On behalf of Mr Noonan it was not contended that United Petroleum was wrongly decided, instead it was submitted that it could be distinguished. In final addresses, Mr Favell said:[36]

“In that case, it’s uncontroversial that what was called up by the planning scheme was a requirement of demonstrable need, which his Honour Judge Rackemann found to mean something capable of being shown or logically proved….

And that just stems almost from a dictionary definition. In my submission, here the test – well, the wording is different, to start. It calls for demonstrated need. In my submission, the need being capable of being demonstrated – sorry – I’ll start again. Here the test calls for something greater than need being capable of being demonstrated, in my submission. It calls for the need having in fact been demonstrated. I don’t think it’s controversial, but to that extent can I just hand up this dictionary definition that illustrates the point.

But what we say is – your Honour will no doubt look at it in due course, but, effectively, demonstrable means able to be shown or made evident, whereas demonstrate calls of (sic) evident or demonstrated. We say what it means, because of the wording of the planning scheme, it’s calling for something higher than capable of being demonstrated. What it’s really saying is you’ve got to demonstrate the need, and the bar is higher than, in my submission, it was in the United Petroleum case. Your Honour, the appellant beared the onus of showing the planners rightly identified it’s an important thing in this case.” (Emphasis added)

  1. [33]
    With respect, I am unable to accept that submission. In the extract of the shorter Oxford English Dictionary handed up by Mr Favel, “demonstrable” is defined to mean “able to be shown” or “made evident…able” to be “proved conclusively”. “Demonstrate” is defined to mean, among other things, “to point out, indicate, set out, make known by outward indications; manifest, show; show evidence of”. Clearly this case does not require need to be proved conclusively but on the balance of probabilities. The extract from the Macquarie Dictionary handed up by Mr Ware, counsel for the Council, defined “demonstrable” to mean “capable of being” demonstrated and “demonstrate” to mean, among other things, “to make evident by arguments or reasoning; prove…to manifest or exhibit”.
  1. [34]
    To my mind, in the context of this planning scheme, nothing turns on whether the word “demonstrable” or “demonstrate” or “demonstrated” is used. As Judge Rackemann observed in United Petroleum, the ordinary meaning of demonstrable is something which is capable of being shown or logically proved i.e. demonstrated. In Gold Coast City Council v K&K (GC) Pty Ltd,[37] the Court of Appeal was concerned with the expression “demonstrable need” within the relevant Performance Criterion of the scheme under consideration. That Court did not appear to draw any meaningful distinction between a demonstrated need and a demonstrable need.[38] That is hardly surprising where the only difference between a demonstrable and a demonstrated need is that the former has yet to be validly established and in the latter it has. A demonstrable need becomes a demonstrated need once that validation has been carried out or established (demonstrated).
  1. [35]
    I will now turn to the evidence on the question of need. Vella relied on the evidence of Mr Norling, an economist with experience in quarrying matters, to support the existence of a need for the extracted material. No other expert witness was called to address the topic. However, as identified above, Mr Noonan did express an opinion that the proposed quarry was not needed because a quarry located at Mandarana Road, Yakapari has “excess material which could provide the material for the Mackay Ring Road Project”.[39] While I have no reason not to accept Mr Noonan’s evidence on that point, of itself it does not provide any determinative evidence on the topic. In my view, consistent with the approach adopted by Mr Favell, the question of whether there is a demonstrated need depends on the weight that ought to be given to the evidence of Mr Norling.
  1. [36]
    It is appropriate to note at this stage that during the course of the cross-examination of Mr Norling, the question of whether there was any evidence to establish that there was sufficient material available in the proposed quarry to meet the 200,000 tonne criteria was raised. While raised during the course of the proceeding, that matter was not pursued by Mr Favell. Instead it was, in effect, stated that Mr Norling’s evidence left an unacceptable level of “uncertainty surrounding the Proposed Development, in the sense of the market it might serve…”.[40] In the context of this submission, it was also contended that due to the level of uncertainty involved, the precautionary principle ought be applied by reference to s 5 of the Planning Act 2016. In my view, there is no scope for the operation of the precautionary principle in the circumstances of this case. Pursuant to s 5(2)(ii), the precautionary principle where enunciated therein is concerned with the lack of full scientific certainty in circumstances where there are threats of serious or irreversible environmental damage. That situation does not arise here.
  1. [37]
    Turning then to the evidence of Mr Norling, he prepared two reports, both of which are contained in the one Exhibit.[41] In his first report, after referring to a number of projects[42] and, in particular, the Mackay Ring Road Project Stage 1, Mr Norling reported:[43]

“There is a strong economic need immediately for 80,000t of Class A Embankment Fill at the northern end of the Mackay Ring Road Stage 1 Project, with CPB Contractors advising that this is a current requirement that cannot be filled by quarries or other extraction sites in this area. There is likely to be additional demand for Class A Embankment Fill as the Mackay Ring Road stage 1 progresses and when other nearby roads commence, such as Stage 2 of the Mackay Ring Road and the Walkerston Bypass.

There is also a strong planning need for the proposed Application to be approved for the following reasons:

  1. (a)
    Approved quarries and other extraction sites are unable to supply this particular material at this location;
  1. (b)
    The proposed Extractive Industry is consistent with the intent of the Rural Zone;
  1. (c)
    The proposed Extractive Industry would not diminish the productive capacity of land…; and
  1. (d)
    The application would result in an approved rural outcome by creating a farm dam to improve the productive capacity of the land for rural activities.

Conclusion

It is my opinion that there is a strong planning need for the proposed Extractive Industry to be approved on the subject site and it is considered relevant that Extractive Industry is consistent with the intent of the Rural Zone.“

  1. [38]
    The opportunity to satisfy the “immediate” need for 80,000 tonnes of fill for Stage1 of the Mackay Ring Road has passed. Accordingly, Mr Norling was required to provide a second report. In respect of the first stage of the Ring Road Project, in his first report he reported that he had been advised that the contractors had been unable to find an appropriate source for the embankment fill required.[44] In his second report, MrNorling noted that for reasons he was not aware of, somehow the contractors were able to overcome the haulage road issues that he had been advised about when preparing his first report and were able to obtain suitable fill from another source.[45] The inference sought to be drawn from the cross-examination by Mr Favell being that the source of supply of fill material was flexible.
  1. [39]
    In paragraph 9 of his second report, Mr Norling reported a number of current and likely future demand sources for embankment fill of the type that would be produced from the proposed development. These projects included:
  1. (a)
    83,000 tonnes of fill required for the Mackay Northern Access Upgrade Project;
  1. (b)
    A proposed residential development at 34 Holts Road, Beaconsfield that required up to 68,000 tonnes of clean fill;
  1. (c)
    The Walkerston Bypass for which, according to Mr Norling, design and planning was well advanced with construction expected to occur in late 2020. In respect of this project Mr Norling notes that the subject quarry would be located approximately 12 km from the eastern end of that project;
  1. (d)
    The Mackay Ring Road Stage Two;
  1. (e)
    The Mackay Ring Road Stage Three.
  1. [40]
    Mr Norling concluded his second report by saying:[46]

“It is my opinion that a strong planning need remains for the proposed Extractive Industry to be approved on the subject site and it is considered relevant that Extractive Industry is consistent with the intent of the Rural Zone. It is considered particularly relevant that the subject site is located centrally to several major projects in Mackay, that the topography of Mackay limits the quantum of low-grade fill that can be obtained through the normal construction process of cutting and filling, and the relative high cost of transporting low-grade fill.”

  1. [41]
    A number of difficulties with the projects identified by Mr Norling are immediately apparent. As to the project identified in sub-paragraph (a), Mr Norling reported that Vella had been in communication with the contractor, CPB Contracting, about the issue of fill. However, Mr Norling reported that that contractor at the time of writing his report, was only “hopeful of being awarded this contract”. The consequences of that contractor not being awarded the contract were not addressed. It was submitted on behalf of Vella that his evidence was that the contractors were confident it would in fact win the contract.[47] That submission is seriously weakened by the fact that that evidence came from an unnamed source and it was Mr Norling’s own opinion that there was no certainty that the contractor would in fact win that contract.[48]
  1. [42]
    In respect of the projects identified in sub-paragraphs (d) and (e), as to the first, as Mr Norling reported, the state government has yet to commit to that project and in respect of the second it is dependant upon the second stage being completed.[49]
  1. [43]
    The extent of the uncertainty surrounding Stage 2 of the Ring Road became even more apparent during Mr Norling’s oral evidence. According to him, there were two “main hurdles”. First, the State committing to funding the project. Second, the completion of the planning and design stages.[50] He also accepted that he could not rule out the possibility of that demand not being there at the time the proposed quarry was in operation.[51] Stage 3, being dependant upon the completion of Stage 2 and further funding, must be an even more uncertain potential market. Having regard to the matters identified, I consider the projects identified in paragraphs 9(a), (d) and (e) of Mr Norling’s second report to provide at best, only an indication of the potential for demand. They are not themselves demonstrable of demand.
  1. [44]
    Turning then to the residential development at 34 Holts Road, Beaconsfield, Mr Norling reported that Vella operatives had been in discussions with the owners of that land which is located approximately 6.5 km from the proposed quarry. During his cross-examination it was suggested that there was in fact no approval over that land for a residential sub-division. Mr Norling’s response was that it was his recollection that there was such an approval but that he did not have any documentation to support that recollection. He also, by implication, accepted that he might have been wrong “in the sense that there was an application for residential on that site, but it hasn’t been approved”.[52]
  1. [45]
    It was submitted on behalf of Vella that, while challenged about the existence of an approval for subdivision, his evidence about the underlying demand for fill for this project was not challenged.[53] That submission misses the point. If there is uncertainty about the existence of the project there must necessarily be uncertainty about the associated demand for fill. The latter does not exist in the absence of the former. The same observation can be made about the submissions made in respect of the Ring Road Stages 2 and 3.[54]
  1. [46]
    It became quite clear during the course of his cross-examination that Mr Norling was relying to a very significant extent on what he was told about the Holts Road project by those involved with Vella. It was open for Mr Wylie to call a witness from that company, or indeed any witness with knowledge of the matter, to give evidence about it but that was not done. In the circumstances, I am again unable to accept this “project” as providing any meaningful evidence of demand.
  1. [47]
    Turning then to the Walkerston Bypass Project, on its face, it appears to be a genuine source of demand, expected as it is to commence in late 2020. The difficulty with this project is that at its closest point to the proposed quarry, it is some 12 km away. During the course of his cross-examination, Mr Norling acknowledged that when dealing with low-quality and low-cost material such as is involved here, the distance of 12 km was starting to put the proposed quarry out of economic range.[55]
  1. [48]
    On balance, I consider that the evidence insofar as it is concerned with the Walkerston Bypass provides evidence of a potential for demand but only to a limited extent. Of itself, it is insufficient to meet the standard of a “demonstrated need” for the purposes of the planning scheme. On behalf of Vella, it was again submitted that “whilst Mr Norling properly acknowledged that this project was further from the site that (sic) other projects…. his evidence as to the underlying need or demand - - - was not challenged”.[56] That submission understates the extent of Mr Norling’s concession about the economic range of supply. Also, it again misses the point. If it is uneconomical to transport fill from the proposed quarry there is a real risk that an alternate site for fill will be found as was the case for Stage 1 of the Ring Road Project.
  1. [49]
    In this context, it also has to be kept in mind that the Walkerston Bypass Project was not one of the more imminent projects identified by Mr Norling[57] and while the closest point to the proposed quarry is 12km, thereafter it extends further to the west.[58] No doubt these matters, and possibly others including more suitably located sources for fill, caused Mr Norling to rank this project third in his priorities.[59]
  1. [50]
    In addition to those submissions made concerning this project, it was also said that the need for general fill for this project was not challenged “nor were other sites potentially capable of fulfilling that need identified by the Co-Respondent, such evidence being capable of adduction by lay evidence.[60] I am not sure that I fully understand this submission. If, as I suspect, it is proposing that if Mr Norling’s evidence about demand and the capacity to meet that demand by other quarries was to be challenged, then Mr Noonan should have called evidence to that effect. If that is the thrust of the submission it is wrong in that the onus rests on Vella to satisfy the court that there is a demonstrated need. If the submission does not mean what I take it to mean, then I am afraid that I simply do not understand it.
  1. [51]
    In paragraph 8 of his report, MrNorling identified that in meeting the need for fill for the Mackay Ring Road Stage 1 Project, material was sourced from a number of quarries including that supplied by a “borrow pit” operated by Vella, a small quarry on the southern side of Mackay and, as far as I understand it, the balance sourced from the Mandarana quarry. The so-called borrow pit turned out to be a quarry Mr Norling accepted as being known as the Walkerston quarry operated by Vella or a related corporate entity.[61] It can be readily inferred from the demand source mapping tendered on the part of Vella[62] that a quarry at Walkerston would be materially closer to the Walkerston Bypass Project than the proposed quarry. Mr Norling’s evidence was then to the effect that he assumed that the amount of material that could be extracted from that site had been exhausted but only in the sense of there being a limit on the amount that could be extracted annually. He did not rule out the possibility that more material was capable of being extracted from that quarry.[63] He also accepted that if suitable material was available from the quarry at Walkerston that would be a preferable source for fill and a clearly relevant consideration.[64]
  1. [52]
    On the evidence as it presently stands, it is impossible to know whether the Vella quarry at or near Walkerston, or any other quarry in the vicinity, would be able to provide fill for this Bypass project. If the answer was in the affirmative the tyranny of distance would seem to make it less likely that the proposed quarry would be a source. If the answer is in the negative, then it may be more likely to be a source.
  1. [53]
    Again it was open to call a witness from or with knowledge of the quarry at Walkerston but that did not happen. Accordingly, I am left in the position where the only inference reasonably open is that the project is unlikely to be supplied with fill material from the proposed quarry.
  1. [54]
    During re-examination Mr Norling gave further evidence about the Ring Road Project Stage 2. His evidence was to this effect. The transport/traffic issues underlying the entire project from stages 1 through to 3 remain unchanged. While the Federal Government has committed its share of the funding, the commitment at a state level was “a matter of government priorities and the allocation of their scarce resources. That’s the uncertainty, your Honour, not – not that the … underlying need is dissipated. That’s not the case”.[65]
  1. [55]
    Turning for the moment to the submissions made on behalf of the Council concerning need, it was submitted that Mr Norling’s opinion should be accepted for several reasons. By way of conclusion it was then said:[66]

“It is submitted, consistent with Mr Norling’s evidence, that there is a strong planning need for the proposal.

Even if a strong need was not made out on the evidence (it is submitted it is), ‘demonstrated need’ as required by overall outcome (2)(a) and PO1 of the Extractive Industry Code has been established. As determined by the cases referred to earlier in these submissions, demonstrated need does not have to be particularly strong, rather it needs to be something more than trivial, immaterial, minor or insignificant. On any view it is apparent there is demonstrated need for the proposal….” (Footnotes omitted)

  1. [56]
    In support of that conclusion, five specific matters were addressed which make up the “several reasons” which the Council said supported the conclusion made. The first was that Mr Norling was the only economist who gave evidence on the question. That can be accepted but it is by no way determinative. The second matter was that Mr Norling was highly qualified and well regarded and very experienced in matters of economics. Again, that can be accepted but it is not determinative. Third, he was not shaken in cross-examination and, notwithstanding making a number of concessions, “he did not change his view”. That a witness does not change his opinion in the face of cross-examination is far from a determinative consideration. A witness who maintains his opinions in the face of an ineffective cross-examination is likely to have his evidence accepted. On the other hand, a witness who maintains his opinions notwithstanding that they have been exposed as being erroneous, may be unlikely to have his evidence accepted. The fourth matter was Mr Norling’s scale of demand from one to seven. One being effectively at the extremely low end and seven being at the critical stage. I will return to this part of Mr Norling’s evidence in a moment. The fifth matter was that he acknowledged that the classification of the type of material that would be extracted was a matter for experts in another field. I just do not understand how this bolsters Mr Norling’s evidence. He is an economist, not a geologist or a soil scientist.
  1. [57]
    Returning then to Mr Norling’s scale of demand, this was a topic raised during cross-examination by Mr Favell. He asked Mr Norling to explain this scale, which was to the effect described above but even in more dramatic terms where, at seven, it was “life and death”. When effectively asked how he would rate the level of need in the circumstances of this case, his evidence was that it was a five out of seven, being a need that was more than medium but not critical.[67]
  1. [58]
    Having regard to the evidence on the issue of need, I do not consider that anything like a strong level of demand has been established (i.e. 5/7). Insofar as the Walkerston Bypass Project is concerned, given its distance from the proposed quarry and its proximity to the Walkerston quarry, I am unable to give it much weight for the reasons given. That said, even ruling out that project and taking into account all of the uncertainties surrounding the other projects identified by Mr Norling, I do not think it could be reasonably said that there would be no or only a marginal or insignificant level of demand for fill from this quarry during its lifetime. That is, excavation does not have to commence until the latent demand became actual demand. In this context, it is also not an entirely irrelevant consideration that Mr Norling’s evidence about the limitations on sources of this type of fill in the Mackay area was not seriously challenged.
  1. [59]
    It follows, for the reasons given, that I am unable to accept the submission made on behalf of Mr Noonan that Mr Norling’s evidence failed to go “anywhere near demonstrating a need (whether it be community, economic or planning) for the Proposed Development”.[68] The issue of timing to which I referred above was addressed in the submissions prepared by Mr Favel. In those submissions it was said:[69]

“….as Mr Norling’s reports illustrate the predominate market for fill of the type that the Proposed Development would offer comes in the form of public infrastructure projects (i.e. road expansions). That in itself might not be a problem when one considers need on a general level. However, the restrictions that come with the Proposed Development mean the timing with respect to the quarrying of 200,000 tonnes of fill needs to marry up with the timing of the infrastructure projects for it to have any utility at all. On the evidence, there is a real prospect that the projects referred to by Mr Norling will not be serviced by the Proposed Development because they will not have come online in the 12 month window in which quarrying occurs. If that was to occur, then the life of the quarry might need to be extended until the market arrives. That in turn would delay the implementation of the farm dam (and the benefits that are said to go with it). …” (Emphasis added – footnoted omitted)

  1. [60]
    While parts of this submission might be accepted, the occurrence of the event highlighted is unlikely. While the limitations on quantum (200,000 tonnes) and the time in which the material can be extracted (one year) places serious limitations on the extent of any future quarrying activities, it also provides a level of flexibility. In circumstances where no time limit as to the currency period of the development approval is stated in the approval itself then, pursuant to s85(1)(a) of the Planning Act 2016, a part of a development approval lapses, relevantly here, six years after the approval starts to have effect. That gives Vella a level of flexibility in that while it would be necessary to carry out a number of preparatory steps (e.g. noise and dust buffering and road works) before extraction commenced, contrary to the proposition advanced, it is more likely that excavation would not start until an end user was known rather than start the one year clock and hope for a project.
  1. [61]
    Obviously the impact assessment process and the carrying out of any preliminary works have to be completed in a timely way to be ready to meet demand as it arises. Not to have had those preparatory steps completed prior to supply opportunities arising in the region may lead to them being missed.
  1. [62]
    During oral submissions, Mr Favell made the legitimate point that even if projects that might demand fill of the type proposed to be extracted existed, that does not necessarily mean a demonstrated need has been shown. If existing quarries were capable of satisfying that need, there is no sound planning basis for the development of one more quarry.[70] I can readily accept that proposition, however, it is tolerably clear from a fair reading of Mr Norling’s report that in reaching his conclusions about need, he has taken the supply side of the equation into account at least to some extent. In his first report he referred to the low proportion of quarry production for general fill material in the Mackay region and explains the reasons why that is.[71] In his second report while acknowledging that fill material could be sourced from most locations having a low clay content, he observes that the topography of the Mackay district limits the volume of low-grade fill that can be obtained through the normal construction process of cut and fill. That is, suitable fill material often cannot be sourced from the place where construction is occurring.
  1. [63]
    In conclusion on this topic, the evidence satisfies me that it is more likely than not that the current latent demand for the type of material to be extracted will emerge during the lifespan of the proposed development and that a demonstrated need has been established. Although, for the reasons given, I consider that demonstrated need falls below a strong need. It, more likely than not, would fall somewhere in the order between moderate to medium. Even if at that level, the demonstrated need falls sufficiently above it being a marginal, trivial or insignificant level.
  1. [64]
    For the sake of completeness, I should note here that the town planners expressed views about the issue of need however, their evidence can be readily disposed of on this topic. First, it is clear that Mr Jewel and Mr Perkins relied on what they were told or what was reported by Mr Norling.[72] Mr Schomburgk, who was not called to give evidence, expressed a number of concerns as to the question of need however, those concerns existed as at the preparation of the JER of the town planners which was concluded on 6 September 2019. That is, before Mr Norling’s second report. Unsurprisingly then, Mr Schomburgk does not express an opinion about the contents of the second report. Finally, in respect of Mr Buckley, it was his opinion that there was no public interest warranting a positive outcome. That opinion appears to be couched in terms of even accepting that there was a level of need for the proposed development, the balancing act required a conservative approach which fell in favour of maintaining the agricultural base of the region and the environmental aspirations of the planning scheme.[73] That balancing act is discussed under the following heading.

Other relevant matters

  1. [65]
    Pursuant to s 45(5) of the Planning Act 2016, an impact assessment is described as an assessment that:
  1. (a)
    must be carried out –
  1. (i)
    against the assessment benchmarks in a categorising instrument for the development; and
  1. (ii)
    having regard to any matters prescribed by regulation for this subparagraph; and
  1. (b)
    may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.
  1. [66]
    In his first report Mr Norling, after dealing with economic need, went on to say that there was a strong planning need for the following reasons:[74]
  1. (a)
    Approved quarries and other extraction sites are unable to supply this particular material at this location;
  1. (b)
    The proposed extractive industry is consistent with the intent of the rural zone;
  1. (c)
    The proposed extractive industry would not diminish the productive capacity of land for rural activities due to the disturbed area not being utilised for rural production; and
  1. (d)
    The application would result in an improved rural outcome by creating a farm dam to improve the productive capacity of the land for rural activities.
  1. [67]
    Mr Norling did not set out those reasons in his second report but said that the “planning need remains”.[75] Clearly a reference to the matter referred to above.
  1. [68]
    Under the heading “relevant matters”, in their JER the town planners expressed a number of views insofar as they go to the issue of demonstrated need. I do not intend to deal with that aspect of their evidence as that topic has already been disposed of. By way of summary, Mr Jewel and Mr Perkins considered that:[76]
  1. (a)
    The proposed Extracted industry and acceptable use in the Rural zone, particularly given that the Planning Scheme does not provide for an extractive industry zone and criteria under the Rural zone code can be met;
  1. (b)
    The proposed development and therefore its impacts, will be temporary in nature and post extraction will create a farm dam that may increase rural production;
  1. (c)
    The proposed development, if appropriately conditioned, is compatible with its rural setting and will not compromise or inhibit farming operations on the balance of the subject land or surrounding sites;
  1. (d)
    The proposed development will not interfere with the safe and efficient operation of the surrounding road network…;
  1. (e)
    Any potential amenity impacts in terms of potential noise, dust, and air quality emissions can be mitigated….;
  1. (f)
    Subject to the opinions of the environmental and ecology experts, any potential environmental impacts can be mitigated by the design of the development….
  1. [69]
    As I have already indicated, Mr Buckley considered that the balancing act warranted refusal of the proposal primarily because of its impact on the agricultural base of the region and the environmental aspirations of the planning scheme.
  1. [70]
    The current assessment regime can be contrasted with that under the predecessor to the Planning Act, the Sustainable Planning Act 2009. That Act required, in the event of conflict with the planning scheme, the refusal of the development application unless there were sufficient grounds to warrant approval notwithstanding the conflict. In Ashvan Investments Unit Trust v Brisbane City Council & Ors,[77] Williamson QC DCJ observed that in respect of the discretion to be exercised under s47 of the Planning and Environment Court Act 2016 that, discretion “does not require the Court to refuse a development application in circumstances where ‘conflict’ is established with an adopted planning control, and there is an absence of ‘sufficient grounds’.”[78] His Honour went on to observe:[79]

Dispensing with the so-called two part test means that non-compliance with assessment benchmarks, which include planning schemes, no longer has assumed primacy in the exercise of the planning discretion. … in this way, the discretion conferred by s.60(3) of the PA admits of more flexibility for an assessment manager (or this Court on appeal) to approve an application in the face of non-compliance with a planning document in contrast to its statutory predecessor. This, the Explanatory Notes state, is to allow a ‘balanced decision in the public interest’ to be reached, based on an assessment of the merits of an application having regard to established policy and other relevant considerations.”

  1. [71]
    Those observations have been accepted and applied by this Court on a number of occasions.[80]
  1. [72]
    This flexibility permits, if not demands, the balancing of competing outcomes. That is, in my view, the fact that a demonstrated need in the region has been established does not automatically mean that the proposed development ought be approved. As identified above, Mr Buckley expressed a number of concerns about environmental impacts, amenity and impacts on agriculture that could occur and would militate against approval. For reasons it is unnecessary to expand upon, his concerns about amenity and negative impacts on the environment are capable of being addressed by the imposition of appropriate conditions attaching to the approval. As much was established by a raft of witnesses called to deal with ecology, soil quality, water quality and stormwater etc. Also as identified above, pursuant to s6.2.17.2(3) of the Rural Zone Code, insofar as Extractive Industry is concerned, while recognising that the rural zone also accommodates intensive rural activities and extractive industry, it will do so in circumstances where the development does not:
  • Diminish the productive capacity of land for rural activities;
  • Result in adverse impacts on the environmental sensitive land uses;
  • Result in visually obtrusive development that detrimentally impacts on the rural amenity and landscape character of the area.
  1. [73]
    While Mr Buckley was prepared to “readily acknowledge there are positives” and to accept that amenity and environmental issues might be able to be dealt with, he nonetheless considered that the balancing act, while finely balanced, tipped in favour of refusal.[81] On a number of occasions Mr Buckley referred to the need to balance the respective positives and negatives associated with approval. During the course of cross-examination by Mr Wiley the following exchange took place:[82]

Q.So is it your view that to establish the necessary level of planning need, one is required to disprove all other sites?

A.Not necessarily. Need is – look, as no doubt you’ve heard from others, it’s not a – it’s not like that table you took me to with the water levels. It’s not a two axes (sic) and a graph where you can sort of go up community benefit on one side and distance from the quarry to the other and get a sweet point that meets. There are – the balancing exercise is very imprecise. But it is – it is all analysed within the context of what the scheme says and the framework around which those decisions are made.”

  1. [74]
    Mr Buckley was then primarily concerned that, by introducing the quarry, it would make that land unavailable for agricultural purposes. It was his opinion that it would interfere with the agricultural base of the region. Given the level of demand to which I have referred I, like Mr Buckley, consider this to be a finely balanced case. While I am satisfied, as was Mr Favell, that amenity and environmental issues can be addressed by appropriate conditions, that need not be the case insofar as impacts on rural activities are concerned. This land would be sterilised for agricultural purposes for not only the period of excavation but for ever thereafter. This then requires a consideration of the agricultural significance of the land to be effected.
  1. [75]
    In the JER of those experts concerned with agriculture and environmental management, it was identified that the land affected was “not good quality agricultural land and represents part of a former cane paddock covered by exotic weed species”.[83] In his individual report, Mr Paterson was of the opinion that the cleared and previously farmed land was no longer “deemed suitable” for sugar cane production. And that while some of the land had historically been used to grow sugar cane, more recently it has been used for grazing purposes.[84] That evidence is, broadly speaking, consistent with the evidence of Mr Noonan, a very experienced cane farmer. It was his experience and familiarity with the land that sugar cane could be grown on the land and it had been used for that purpose “for at least 49 years of the 61 years with which I have had this close familiarity”.[85] Consistent with the observation of Mr Paterson, for in the order of the last 12 years the land has been used for grazing and not sugar cane.
  1. [76]
    Unfortunately, while it has been identified that the land is not of good agricultural quality, the only evidence that might explain why it is now deemed unsuitable for sugar cane production was that of Mr Sutherland concerning run off from the elevated basalt areas to the north.[86] That said, the various aerial photographs and plans tendered during the course of the proceeding show that not all of the land that would be effected by the quarry would be capable of the growing of sugar cane.
  1. [77]
    As I have said, this is a finely balanced case, however, I have reached the conclusion that that balance tips in favour of approval for the following reasons. First, while the demonstrated need for the quarry material could only be described as moderate, it could not be described as insignificant or inconsequential. And, having regard to a number of the physical characteristics associated with the land, I have reached the conclusion that during the construction and excavation phases and thereafter, the productive capacity of the balance land would be only marginally impacted and, in fact, there could be beneficial consequences.
  1. [78]
    Turning then to the physical characteristics of the land insofar as it may contribute to agricultural productivity. The first consideration is that the quarry itself will only occupy approximately 1.5 ha. Also, not only is that 1.5 ha not good agricultural quality land but so is a significant proportion of the land surrounding it. Another matter that would be likely to impact on the efficient farming of the land is that the southern most part adjoining Jane Creek is severed from the balance by the temporary road running in an easterly direction from Glendaragh Road to Lot 6 owned by Mr Noonan. Also, the evidence of Mr Sutherland, together with that of Mr Della concerning water quality, leaves me satisfied that the farm dam that would be created at the end of the excavation period would not only benefit the current grazing activity being carried out on the land, but would also introduce the potential for the growing of feed for the cattle and also other crops.[87] Finally, on this topic, from the time excavation commences the maximum period for which it can extend is only 12 months. That is an unusual outcome for a quarry where the excavation period can often extend over many years if not decades.
  1. [79]
    For the reasons given the orders of the court are:
  1. The appeal is allowed;
  1. I will hear further from the parties, if necessary, as to any consequential orders.

Footnotes

[1] Exhibit 2, V1, p 20.

[2] Ibid.

[3] Exhibit 10, p 11 at para 21.

[4] Exhibit 1, pp 3 and 4.

[5] Exhibit 1, p 11; Exhibit 1A.

[6] Exhibit 6, pp 7-9.

[7] Exhibit 2, V2, p 323.

[8] Recognised as such is the Council’s strategic mapping. And in Exhibit 6, pp 16-17, paras 42-44 in the Extractive Resources and High Impact Activity Overlay mapping. It is also a state Government KRA Transport Route.

[9] Exhibit 2, V3, p 682.

[10] Transcript (T) 4-2 ll 35-43.

[11] Co-Respondent by Election’s written submissions, at paras 55-57.

[12] Exhibit 7, p 2, at paras 13-17.

[13] Exhibit 7, p 27.

[14] Council’s written submissions, p 21, at para 85.

[15] Exhibit 9, p 4, at paras 10-13.

[16] T1-73 l 17-19.

[17] T1-74 ll 13-17.

[18] T1-74 ll 27-42.

[19] T4-32 ll 3-47.

[20] Co-Respondent by Election’s written submissions, at para 5(b).

[21] Exhibit 19, para 17. Exhibit 19 is the first co-respondent by election, Arthur Noonan’s, statement.

[22] Exhibit 1, p 13.

[23] Exhibit 11, “Exhibit D”.

[24] Exhibit 17, p 9.

[25] Exhibit 11, p 32.

[26] E.g. Exhibit 11, p 17, para 51.

[27] As to the former: Exhibit 2, V1, p 33. As to the latter: Exhibit 6, p 62, para 211 per Mr Perkins and at p 66, para 229(b) per Mr Perkins and Mr Jewell.

[28] Exhibit 6, p 52, para 165. See also at p 68, para 238(h).

[29] Exhibit 3, V1, p 65, s 6.2.17.2(3)(a)(iii).

[30] Exhibit 3, V1, p 116, s 9.3.6.2(2)(a).

[31] Ibid, s 9.3.6.3.

[32] Exhibit 2, V2, pp 282-288.

[33] Ibid, p 218.

[34] Need is not defined in the planning scheme.

[35] [2018] QPEC 8, at [81].

[36] T4-8 ll 20-42.

[37] [2019] QCA 132.

[38] Ibid, at para [20].

[39] Exhibit 18, at paras 31 and 32.

[40] Co-Respondent by Elections written submissions, para 35.

[41] Exhibit 10. Note: the paragraphs of Mr Norling’s first report were renumbered so that paragraphs 12-51 now read as paragraphs 1-39.

[42] Exhibit 10, p 13, para 34.

[43] Ibid, p 14, paras 37-39.

[44] Exhibit 10, p 13, at para 35.

[45] Ibid, p 3, para 8.

[46] Ibid, p 4, at para 11.

[47] Vella’s written submissions, at para 33.

[48] T1-48 ll 11-24.

[49] Exhibit 10, p 3, at para 9 (e).

[50] T1-53 ll 32-46.

[51] T1-54 ll 1-4.

[52] T1-50 ll 27-37.

[53] Vella’s written submissions, at para 35.

[54] Ibid, at paras 38 and 39. The same can be said about the Council’s written submissions at paras 53 and 54.

[55] T1-51 ll 37-47. T1-52 ll 1-18.

[56] Vella’s written submissions, at para 35 and 36.

[57] T1-29 ll 30-34.

[58] See Exhibit 20.

[59] T1-55 ll 9-38.

[60] Vella’s written submissions, at para 36.

[61] T1-56 ll 4-15.

[62] Exhibit 20.

[63] T1-57 ll 27-38.

[64] T1-58 ll 15-34.

[65] T1-63 ll 23-43.

[66] Council’s written submissions, at paras 58-59.

[67] T1-59 ll 30-47l; T1-60 l 1.

[68] Co-Respondent by Election’s written submissions, at para 32.

[69] Ibid, at paras 33-34.

[70] T4-6 – T4-7.

[71] Exhibit 10, p 13 at paras 31-33.

[72] Exhibit 6, pp 64-66 and 68.

[73] Ibid, p 66, para 231.

[74] Exhibit 10, p 14, at para 38.

[75] Exhibit 10, p 4 at para 11.

[76] Exhibit 6, p 66, at para 229.

[77] [2019] QPEC 16.

[78] Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16, at [41].

[79] Ibid, at [51].

[80] Brookside Estate Pty Ltd v Brisbane City Council & Anor [2019] QPEC 33. K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9 (note: this matter went to the Court of Appeal where the leave to appeal was granted and the appeal allowed. However, no adverse comments were made in respect of Kefford DCJ’s observations concerning Ashvan).

[81] T2-64 ll 7-15.

[82] T2-71 ll 32-39.

[83] Exhibit 7, at para 5.

[84] Exhibit 9, at paras 7 and 11.

[85] Exhibit 18, at para 33.

[86] T3-53 ll 7-46.

[87] T3-40 ll 35-37; T3-41 ll 1-43; T3-52 ll 23-33 per Mr Sutherland.

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Editorial Notes

  • Published Case Name:

    Vella's Plant Hire Pty Ltd v Mackay Regional Council and Arthur Noonan

  • Shortened Case Name:

    Vella's Plant Hire Pty Ltd v Mackay Regional Council & Anor

  • MNC:

    [2019] QPEC 60

  • Court:

    QPEC

  • Judge(s):

    Jones DCJ

  • Date:

    20 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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