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Boral Resources (Qld) Pty Limited v Gold Coast City Council[2015] QPEC 13

Boral Resources (Qld) Pty Limited v Gold Coast City Council[2015] QPEC 13

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Boral Resources v Gold Coast City Council [2015] QPEC 13

PARTIES:

BORAL RESOURCES (QLD) PTY LIMITED (CAN 009 671 809)

(Appellant/Applicant)

v

GOLD COAST CITY COUNCIL

(Respondent)

and

STOP THE GOLD COAST QUARRY ASSOCIATION INC

(First Co-respondentby Election)

and

IAN ROBERT KENNEDY

(Second Co-respondent by Election)

and

HAMMERCALL PTY LTD

(Third Co-respondent by Election)

and

GWINGANNALIFESTYLE RETREAT AND SPA PTY LIMITED CAN 102 346 181

(Fourth Co-respondent by Election)

FILE NO/S:

3084/14

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

10 April 2015

DELIVERED AT:

Brisbane

HEARING DATES:

16, 17 October, 7 November, 8, 9, 10 December 2014, further submissions received to 30 January 2015

JUDGE:

Rackemann DCJ

ORDER:

  1. The appeal proceed notwithstanding any non-compliancewith provisions of the Sustainable Planning Act with respect to notice of appeal and non-compliance with provisions of the State Development Public Works Organisation legislation in relation to notification of the Environmental Impact Statement

CATCHWORDS:

PLANNING AND ENVIRONMENT – proposed large hardrock quarry – JURISDICTIONAL ISSUES – where not all submitters were served – where proposal was designated as a significant project under the State Development and Public Works Organisation Act 1971 – where public notice carried out pursuant to that Act – whether failure to serve should be excused – whether public notice deficient – whether s 440 of the Sustainable Planning Act available to excuse non–compliance with notification under the SDPWOA – whether discretion ought be exercised – whether determination of an issue under the Water Act is required

COUNSEL:

DR Gore QC and J Lyons for the Appellant

R Litster QC for the Respondent

Solicitor for the Third Co-respondent by election

SOLICITORS:

HopgoodGanim for the Appellant

McCullough Robertson for the Respondent

Aylward Game Solicitors as town agents for McDonald Balanda and Associates for the First and Fourth Co-Respondentsby election

A Abaza for the Third Co-respondent by election

Contents

Introduction.....................................................................................................................................4

The issues.........................................................................................................................................5

The Water Act issue.........................................................................................................................7

Service of the appeal.....................................................................................................................12

Notification under SDPWOA..........................................................................................................17

(e) A brief description of the project.......................................................................................19

(f) Location of the project.........................................................................................................23

(g) Protected matters for the project......................................................................................24

Other alleged deficiencies........................................................................................................26

i.  The form of submission.........................................................................................................26

ii.  The comment v submission issue........................................................................................27

iii.  The directing to the EIS issue...............................................................................................28

iv.  The proponent issue.............................................................................................................29

Consequence of non-compliance.............................................................................................29

(i) Is non-compliance excusable?...............................................................................................31

(ii) Should non-compliance be excused...................................................................................38

Annexure 1 – Public notice – Draft terms of reference..............................................................45

Annexure 2 – Public notice – Environmental impact statement...............................................46

Annexure 3 - Initial Advice Statement – project description......................................................47

Introduction

  1. [1]
    This appeal, which was filed on 11 August 2014, is against the respondent’s refusal of a development application under the Sustainable Planning Act 2009 (SPA) to facilitate a large quarry development on the Gold Coast.  The proposed development, the subject of the appeal, was designated as a significant project under the State Development and Public Works Organisation Act 1971 (SDPWOA). Consequently, public notification was given and submissions were made pursuant to the provisions of the SDPWOA, rather than the provisions which would otherwise have applied under the SPA.
  2. [2]
    By an application in this proceeding, first returnable in October 2014, the appellant, sought the following:
    1. orders and directions in relation to compliance with the requirements of the State Development and Public Works Organisation Act 1971 for the public notification of the EIS for the development the subject of this appeal;
    2. orders and directions in relation to compliance with the requirements of the Sustainable Planning Act 2009 (as modified  in operation by the State Development and Public Works Organisation Act 1971) regarding the giving of notice of the appeal (and excusal of any non-compliance);
    3. orders and directions about the conduct of the appeal, including:
      1. (a)
        identification of the issues in dispute;
      2. (b)
        disclosure;
      3. (c)
        the appointment of a Judge to “case manage” the appeal; and 
      4. (d)
        a review by the Court of the conduct of the appeal.
    4. Such further and other orders as the Court considers appropriate.
  3. [3]
    The third co-respondent by election (Hammercall) is the only party which opposes the application.  It contends that the appeal cannot proceed, for jurisdictional reasons.  

The issues

  1. [4]
    The appellant’s application first came on for hearing on 16 October, but the matter was adjourned to the following day to give Hammercall the opportunity to fully identify its jurisdictional points.  On 17 October 2014 orders were made for a number of issues, identified by Hammercall, to be set down for hearing and determination on 7 November 2014.  There were some 13 issues at that stage, which were addressed in the second outline of submissions for Boral dated 6 November 2014.
  2. [5]
    On 7 November Hammercall purported to rely on issues which went beyond those previously identified.  The hearing was adjourned and Hammercall was ordered to provide a list of its further issues, which it did on 17 November 2014.  The effect of this was to add some 23 further issues (HNI-1 to HNI-23) to those which had earlier been identified.  Those were addressed in Boral’s third outline dated 5 December 2014.  On 4 December, Hammercall filed a document which raised a further nine issues (HNI-24 to HNI-32), which were then addressed in Boral’s fourth outline dated 8 December 2014.  
  1. [6]
    On 8 December (the first day of the adjourned hearing of the jurisdictional issues) Hammercall provided a further outline of argument which raised new issues and proceeded, during the hearing on 8 and 9 December, to raise others.  This resulted in Boral’s fifth outline, dated 10 December 2014, addressing three further issues (HNI-33, 34 and 35).
  2. [7]
    On the last day of the hearing (10 December) the solicitor for Hammercall provided further written submissions which, on their face, purported to abandon all bar six issues.  Four of the remaining issues (HNI 5, 6, 7 and 8) relate to the notification of draft Terms of Reference (TOR) carried out pursuant to the SDPWOA and, in particular, the alleged failure of the notification to state the location of the project, the description of the project or the protected matters for the project.  An issue remained in relation to service of the notice of appeal (HNI-21), which Hammercall ultimately did not pursue beyond leaving it as a matter for the court to be satisfied about.[1]  The other issue related to the Water Act (HNI-1).  
  3. [8]
    In the course of the hearing on 10 December however, the solicitor for Hammercall said that the further written submissions abandoning all other issues, should not be read as abandoning all of the initial 13 issues, addressed in the second of the appellant’s outline of submissions of 6 November 2014, or the three issues addressed in the appellant’s fifth outline of submissions.  Of those, the following remained:[2]
    1. (a)
      the adequacy of public notification of the Environmental Impact Statement (EIS) under the SDPWOA and, in particular, the alleged failure of that notification to state the location of the project, the description of the project and the protected matters for the project;[3]
    2. (b)
      other issues with the public notification of the EIS, relating to the submission form to which a potential submitter was referred, the invitation to comment rather than just submit, directing the reader to the EIS, and identify the proponent;
    3. (c)
      the service of the appeal issue[4] (which is also the subject of issue HNI-21);
  1. (d)
    an issue about lot 901 (HNI-33), insofar as it affects the description of the project issue;[5]
  2. (e)
    a procedural fairness issue[6] (HNI-34), but only insofar as it is alleged that public notification was defective; and 
  3. (f)
    a further description of the project issue[7] (HNI-35).
  1. [9]
    The position with respect to the issues addressed in Boral’s fourth outline (HNI-24 to HIN-32) was not entirely clear.  When first asked about whether any of them were “still in”, the solicitor for Hammercall responded “That I would need to – I don’t believe so…” but when asked later said “these issues on – go to exercising discretion in the 440 matter…”[8] which plainly indicates that they were no longer pursued as independent jurisdictional challenges but rather only as affects the extent of the excusatory power.  The exercise of discretion under s 440  relevantly relates to issues concerning service of the notice of appeal and non-compliance with the provisions of the SDPWOA in relation to public notification.  Those are matters dealt with later.
  2. [10]
    How each of issues HNI-24 to HNI-32 (by which Hammercall challenged the significant project declaration, the adequacy of the EIS in relation to soil testing and the Coordinator General’s report) relate to those discretionary matters is unclear[9] and was not further explained.  The points are, in any event, flawed for the reasons set out in Boral’s fourth outline. 
  1. [11]
    Following the last day of the hearing, on 10 December 2015, I gave leave to the parties to make further submissions as to whether or not non-compliance with the public notification provisions of the SDPWOA may have an invalidating effect on a subsequent development application and any related appeal to the court. This resulted in Boral’s sixth outline, as well as submissions from Hammercall dated 22 December 2014, which were the subject of Boral’s reply submissions dated 30 January 2015.
  1. [12]
    As is pointed out in Boral’s reply submissions, Hammercall’s submissions dated 22 December 2014:
    1. (a)
      referred to issues (with apparent reliance on them) which it had previously abandoned or narrowed; and
    2. (b)
      raised two new arguments not relating to the issue on which leave was granted.
  2. [13]
    As to the abandoned or narrowed issues:
    1. (a)
      in paragraph 1 of its submissions (on p. 2) Hammercall makes the submission:

“There is no application to extend the time for the decision stage of IDAS which commenced 30 December 2013, under s.38 of the SDPWO Act 1971 or to extend the time for the filing of the Notice of Appeal.”

However that submission relates to issue HNI-22, which was abandoned on 10 December;[10]

  1. (b)
    in paragraph 1 of its submissions (on p.2), Hammercall also made the submission: 

“There is no application by Boral to be relieved of obligation to publicly notify under section 297 of the SPA the application made on 9 May 2014 to Council.”

That submission appears to relate to issues which have been abandoned.  Further, section 297 of the SPA relates to the public notification stage of IDAS which in this case did not apply, for the reasons discussed later.

  1. (c)
    in paragraph 18 of its submissions, Hammercall made the submission:

“… are the denials of procedural fairness also to be excused on some further application by Boral under s 440 of the SPA?”

However, that submission relates to issue HNI-34, which was narrowed to be no more than a reliance on the alleged defects in the public notification, which are discussed later.

  1. [14]
    As regards the new arguments:
    1. (a)
      The first new argument raised by Hammercall refers to the distinction between the jurisdiction of a court and the powers of a court; the issue is to be to the effect that there is no jurisdiction conferred on the court by s 346 of SPA to excuse non-compliance with ss 29 and 23 of the SDPWOA or s 34 of the Regulation.  That is addressed later, in the context of discussing s 440 of the SPA. 
  1. (b)
    The second new argument raised by Hammercall arises out of the evidence of Ms Farr (of the Council) that “if a submission did not include an address or name, I treated it as not properly made”; Hammercall appears to submit that this involved excluding some ‘properly made’ submitters and that there is no jurisdiction to excuse their exclusion.  That is dealt with later in discussing service of the notice of appeal. 

The Water Act issue  

  1. [15]
    Section 266 of the Water Act 2000 is concerned with obtaining permits for excavating or placing fill in a watercourse, lake or spring.  Section 266(2A)(b) of the Water Act requires any application for excavation or placing of fill to include the written consent of the registered owners of land adjoining the watercourse, lake or spring where the activity is to take place.  Hammercall claims to be such an owner.
  2. [16]
    Mr Neil Collins was Boral’s hydraulic consultant for the development application the subject of this appeal and the EIS process under the SDPWOA.  The appellant contends, on the basis of his reports, that the quarry project does not involve excavation, or placing of fill, in any watercourse and so no permit under the Water Act is necessary.  It also disputes that Hammercall would be an owner whose consent would be necessary in any event.  Hammercall disagrees.  The debate includes whether a sediment basin feeding into an unnamed tributary of Oyster Creek triggers the requirement for a permit.  Hammercall’s position is that, if the Court were to conclude that the appeal should otherwise proceed (contrary to Hammercall’s primary position), then the court would proceed to determine this issue.  
  1. [17]
    This is not an issue which goes to the competence of the current appeal.  Indeed the solicitor for Hammercall acknowledged that this point is “definitely not”[11] a jurisdictional issue.  As was submitted for the appellant, even if it were assumed that Hammercall’s contention is correct, the consequence would be that the project could not proceed until and unless the appropriate permit was sought in the proper way.  Such a permit has not been applied for to date and none is sought in the context of the present appeal.  
  2. [18]
    The solicitor for Hammercall confirmed that his client would wish to have a declaration that its consent would be required if and when a permit is sought under the Water Act. [12]  When it was suggested to him that the issue is hypothetical at this stage, he responded that “It’s got that flavour to it”[13], but pointed to IDAS form 21 (other works in a watercourse) which formed part of the development application documentation.  As Mr Gore QC pointed out, however, it is apparent from what appears on that form that no permit to undertake works in a watercourse was sought as part of the application for a material change of use permit.  The proposed work was described as “provision of points of discharge to the watercourses that exist on the site – works will be to the top of bank, not the water”.  The details of construction materials was given as “cannot be confirmed as part of this MCU application.  Details will be provided as part of future OPW” (which is obviously an abbreviated reference to a future Operational Works application).  
  3. [19]
    The validity of the development application the subject of the current appeal is not affected by the circumstance that an additional permit, pursuant to the Water Act, might (arguably) also be required.[14]  This does not create a basis for the Court to refuse to entertain the subject appeal or an imperative to determine that matter at this stage.

Service of the appeal 

  1. [20]
    By reason of s 482(1)(a)(iv) of the SPA, Boral was required to give a copy of the notice of appeal to any ‘principal submitter’ whose submission had not been withdrawn.  That notice was required to be given within 10 business days after the appeal was started.[15]  A ‘submitter’ is defined in Schedule 3 of the SPA as, for a development application, a person who properly makes a submission about the application.
  1. [21]
    A ‘principal submitter’ is defined as follows:

principal submitter, for a properly made submission, means– 

  1. if a submission is made by 1 person–the person; or
  2. if a submission is made by more than 1 person–the person identified as the principal submitter the submitter whose name first appears on the submission.
  1. [22]
    The expression ‘properly made submission’ is also defined in the SPA.  
  2. [23]
    Because the subject project was a significant project for the purposes of the SDPWOA, there was public notification of the EIS pursuant to section 33 of that Act.  Section 34 of the SDPWOA provided for the making of submissions in response to that notification.  When the development application was being processed, the notification stage of the IDAS, pursuant to the SPA, did not apply, but a properly made submission about the EIS was taken to be a properly made submission about the development application under the IDAS provisions of the SPA.[16]
  1. [24]
    The expression “properly made submission”, for the purposes of the SDPWOA, is defined in s 24.  As with the definition in the SPA, it requires, amongst other things, that the name and address of each person who made the submission to be stated.  Accordingly, the only persons who were required to be given a copy of the notice of appeal were those who had made a properly made submission in relation to the EIS.[17]  The relevant council officer, in compiling the list of submitters, rightly regarded those submissions which did not include an address or a name as not properly made.[18]
  2. [25]
    Part of Hammercall’s argument was that anyone who had written a letter, completed a feedback form, signed a petition or made a submission at any stage, whether or not to the Co-ordinator-General, should have been served with a copy of the notice of appeal.  That is incorrect.  Similarly, there is nothing untoward about a failure to serve those who made ‘submissions’ that were not within the time or did not conform otherwise to the requirements of a properly made submission. 
  3. [26]
    Service of the appeal was not an easy task in this case, given the great numbers involved.  The material demonstrates that the appellant, through its solicitors, has gone to considerable lengths in an attempt to effect service.
  4. [27]
    The council’s decision notice, dated 18 July 2014, attached a catalogue of each of the submitters.  The catalogue contained the names and addresses of almost 4000 submitters.  The catalogue was subsequently provided in an electronic form, to assist the appellant to organise service. 
  1. [28]
    Between 12 August 2014 and 18 August 2014 a copy of the notice of appeal, together with a covering letter, was sent to each submitter by ordinary post.[19]  This resulted in 220 items of returned mail, representing a return rate of a little over 5%.
  2. [29]
    In addition to attempts to effect service on the individual submitters by post, the appellant caused steps to be taken to publicise the commencement of the appeal.  In that regard, advertisements were placed in the Courier Mail and the Gold Coast Bulletin on Saturday 16 August 2014, advising that Boral had commenced an appeal in the Planning and Environment Court at Brisbane.  These notices provided contact details and information for persons who had made a properly made submission during the public notification of the EIS, including details of how the grounds of appeal could be viewed online and as to their right to elect to become a party to the appeal.
  3. [30]
    Subsequently, the appellant’s solicitors undertook the following steps in relation to the returned mail:
    1. (a)
      checked the name and address information on the correspondence against the details recorded in the catalogue;
    2. (b)
      checked the name and address information on the correspondence against the name and address information identified on the relevant submissions (where the solicitors had a copy of the submission made by the person named);
    3. (c)
      checked whether the correspondence had also been sent by email transmission and whether the solicitors received notification that the email transmission had been unsuccessful;
  1. (d)
    where any discrepancies were identified in the name and address information, the correspondence was re-addressed as necessary and re-sent by regular post;
  2. (e)
    where there was no discrepancy with the name and address information and the correspondence was also sent by email transmission without notification that such transmission was unsuccessful, no further action was taken; and
  3. (f)
    where there was no discrepancy with the name and address information and the submitter did not provide email address details, no further action was taken.
  1. [31]
    There were, following those steps, only 70 pieces of returned correspondence which were unable to be successfully re-sent by post or email transmission.  That represents fewer than 2% of submitters.  They were composed of as follows:
    1. (a)
      correspondence returned to HopgoodGanim marked ‘return to sender’ (27 in total);
    2. (b)
      correspondence returned to HopgoodGanim marked ‘insufficient address’ (11 in total); and
  1. (c)
    correspondence returned to HopgoodGanim marked ‘address unknown/left address’ (32 in total).
  1. [32]
    In the course of October 2014, the solicitors for the appellant undertook, or attempted to undertake, various searches and enquiries to find alternative ways of giving notice (albeit late) to those submitters.  Following those endeavours there remained only 38 submitters (fewer than 1%) whose notice had been returned to sender and who had not been able to be contacted otherwise by the appellant’s solicitors.
  2. [33]
    This significant effort to effect service on thousands of submitters, both within time and subsequently, involved approximately 203 hours of time on the part of the appellant’s solicitors.  All of that effort resulted in only four notices of election being filed.  The vast majority of those served did not elect to become a party to the appeal.
  3. [34]
    The material shows that:
    1. (a)
      the non-compliance affected a small proportion of submitters;
    2. (b)
      notices were sent to the addresses nominated in the submissions.  The appellant can hardly be blamed if the addresses supplied by the submitters were incomplete, incorrect, or if the submitters allowed them to become superseded without making arrangements for mail to be on-forwarded to them.  As Robin DCJ observed in Demiscto Pty Ltd v Brisbane City Council & Ors[20], the definition of a properly made submission “requires that the submitter give an address; there is little point in the exercise if the address given cannot be used for service”;
  1. (c)
    the appellant has gone to great lengths to communicate with those submitters whose notice was returned and has been successful in giving notice to most of them;
  2. (d)
    the appellant arranged publication of a notice in the newspaper; and
  3. (e)
    there is no evidence of any particular persons who have been prejudiced by the non-compliance.
  1. [35]
    Insofar as there has been non-compliance by reason of a failure to have effected service on all submitters and/or within time, I am comfortably satisfied that any noncompliance ought be excused pursuant to s 440 of the SPA which provides as follows:

440 How court may deal with matters involving noncompliance

  1. (1)
    Subsection (2) applies if the court finds a provision of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with.
  2. (2)
    The court may deal with the matter in the way the court considers appropriate.
  3. (3)
    To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application. 

I would also, to the extent necessary, have extended the time for service on those served late.[21]

Notification under SDPWOA

  1. [36]
    Hammercall took issue with the public notification which was carried out pursuant to the SDPWOA. The Co-ordinator General was required to publicly notify the draft terms of reference (TOR) in 2011.[22]  The proponent was required to publicly notify the EIS in 2013.[23]  Section 33(1) of the SDPWOA required public notification of the EIS to notify the following:
    1. (a)
      where a copy of the EIS is available for inspection;
    2. (b)
      where a copy of the EIS may be obtained at a stated reasonable cost;
    3. (c)
      that submissions may be made to the Coordinator General about the EIS; and
    4. (d)
      the period (the submission period), set by the Coordinator General, during which a submission may be made.
  1. [37]
    Section 34(1) of the Regulation to the SDPWOA (the Regulation) required the public notification to state each of the following:
    1. (a)
      the project’s title;
    2. (b)
      the proponent’s name;
    3. (c)
      the name of the entity intending to take the action the subject of the project;
    4. (d)
      if the proponent and designated proponent are not the same entity – the designated proponent’s name;
    5. (e)
      a brief description of the project;
    6. (f)
      the location of the project; and
    7. (g)
      the protected matters for the project.
  2. [38]
    Hammercall contends that the notification was inadequate.  Its solicitor identified the three items of importance for present purposes[24] as (on Hammercall’s case) that notification did not properly state (using the sub-paragraph numbering from the provision):
    1. (e)
      a brief description of the project;
    2. (f)
      the location of the project; and
    3. (g)
      the protected matters for the project.
  3. [39]
    Boral disputes that public notification was deficient in these or other respects but says that any non-compliance ought be excused pursuant to s 440 of the SPA.  The public notice of the TOR and of the EIS are annexures 1 and 2 respectively to these reasons.

(e) A brief description of the project

  1. [40]
    The ‘project’ of which a brief description was required was the project which had been declared, pursuant to s 26 of the SDPWOA, as a significant project for which an EIS was required.  That project was described in the declaration as “the Gold Coast Quarry Project, as defined in the Initial Advice Statement dated 8 December 2009”.  The project description in the Initial Advice Statement is annexure 3 to these reasons.  
  1. [41]
    The public notices each stated the project’s title as the Gold Coast Quarry project (which is self descriptive of its general nature).  They went on to describe it as the establishment of a quarry on approximately 65[25] or 66[26] hectares of a 220 hectare greenfield site to quarry hardrock, to produce approximately 2 million tonnes of material per annum over 40 years for use primarily in concrete, asphalt, bricks, pavers, pipes, landscaping and drainage.
  2. [42]
    Hammercall does not dispute that description, as far as it went, but contends that it was inadequate in the detail provided.  It was pointed out that it fails to refer to certain elements of the proposal or associated activities or to certain potential impacts, consequences or collateral matters.  Whilst the solicitor for Hammercall submitted that it was not for his client to draft what would have been a sufficient description, he referred to the failure of the description of the project in the public notification to refer to:
  1. (a)
    the proposal to process the material by on-site crushing, before it is transported off site;
  1. (b)
    on site sewer works;
  2. (c)
    fencing;
  3. (d)
    the possibility that lot 901 (which is not proposed to be developed but is referred to in some documentation) may not be accessible when there is blasting at the western end of the quarry pit;
  4. (e)
    impacts or potential impacts (beyond matters of national environmental significance discussed later);
  5. (f)
    the relationship between the need for this quarry and the winding down of Boral’s existing quarry at West Burleigh; and
  1. (g)
    collateral matters relating to:
    1. a claim for compensation;
    2. land required for the extension of a rail link;
    3. the redevelopment of the West Burleigh Quarry; and 
    4. a redevelopment of the remaining land at West Burleigh Quarry.
  1. [43]
    In correspondence of 22 October, Hammercall’s solicitor claimed that, as a minimum, the description ought to have included the following:

"●  extracting of greater than 1000000t per annum up to 2000000t;

  • screening and crushing up to 2000000t per annum
  • an onsite sewer treatment plant over 2300m2
  • Dam
  • Sediment pond
  • Quarry pit 65 ha to depth -61 (or -66 AHC) approximately 1.4klm long x Z wide (please confirm Z).
  • Weighbridge and Wheel Wash
  • ROM Pad
  • Laboratory
  • Disturbance Footprint in addition to Quarry Pit;
  • 47 car parks
  • Effluent Treatment Plant
  • Stockpiles
  • Fuel Storage
  • Product Load out area
  • Roads
  • Primary Secondary and tertiary crushing plant
  • “GO LINE”
  • Staff facility building
  • Ramp up haul road and overhead loading facility 
  • Secondary Scalps Shaping and Ballast and Overhead Bin receiver  Workshop for truck repairs.
  • Security Office
  • Workshop car park
  • primary stockpile;
  • primary crushing;
  • spalls scalps and benification;
  • secondary scalps;
  • secondary crushing;
  • ballast;
  • blending;
  • roadbase & scalps;
  • bin receival;
  • tertiary crushing;
  • shaping;
  • final screening;
  • product load out;
  • project stockpiles;
  • elevated product stockpiles;
  • staff parking;
  • security office;
  • fuel storage above sedimentation pond
  • Access by left turn out right turn in to and from the proposed Quarry to Old Coach Road only to Kingsmore Round-a-Bout.”  (sic)
  1. [44]
    The statutory provision does not require a statement of the impacts or potential impacts of the proposal (beyond a statement of the protected matters for the project, discussed later).  Those are to be ascertained by reference to the publicly available documents.  It does not require a description of things which are not part of the project.  It did not require the author of the notice, in describing the project in the notification, to refer to the West Burleigh quarry or to any collateral matters.
  2. [45]
    The provision also does not require a comprehensive description of the project and all of its elements and associated activities.  It does not require “particulars” of the project.[27]  It simply requires a “brief” description.  No particular level of specificity is mandated.  That is understandable, in the context of a public notice, the purpose of which is to alert the public to the TOR or EIS, as the case may be, and of the right of people to inform themselves about the detail of what is proposed by reference to the publicly available documents and to decide whether to exercise their right to make a submission.  It would not be expected that a person would decide whether or not to make a submission or to formulate its contents simply on the basis of the information contained in the public notice.[28]  
  3. [46]
    It is not the function of the public notification itself to be the source of a comprehensive description of the detail of all that is involved and how (and to what extent) there might be consequential impacts or collateral issues.  That is not required by the terms of the provision and would be neither practical nor necessarily even helpful.  Attempts to do so could overly complicate matters and put the drafter of the notice at risk of either leaving important matters out or putting in so many details that the notice becomes a maze.[29]  Hammercall’s approach is demonstrative of that.  In the circumstances, a shorthand description of the project, sufficient to alert a person who has an interest or a potential interest as to its overall nature, is sufficient to meet the requirement of a brief description of the project.[30]
  1. [47]
    That the statutory provision does not mandate a level of specificity beyond a “brief description” does not mean that the description can be entirely uninformative.  That the expression may have no constant meaning from case to case simply means that what is required in a given case will depend upon the particular project at hand. 
  2. [48]
    The description in this case alerted the reader to the essential nature of the project (i.e. a new hard rock quarry), its scale (approximately 65 to 66 hectares of a 220 ha site) and intensity (in terms of production).  Given the project at hand and the statutory context, which required the reader to be informed of how to become more fully informed by recourse to the EIS, I am satisfied that the description was adequate as a “brief description of the project”.

(f) Location of the project

  1. [49]
    Both public notices informed the reader that the project is proposed for a 220 ha greenfield site at Reedy Creek in the Tallebudgera Valley in the Gold Coast.  The public notice of the TOR added that the site is approximately 500m from the Pacific Highway.
  2. [50]
    The statutory provision does not specify how the location is to be stated.  The ordinary meaning of location, in relation to a thing, is a particular place or position where it can be located.[31]  It is not simply a broader district, suburb, neighbourhood or area somewhere within which the site of the project is to be found.
  3. [51]
    The difficulty with the statement of ‘location’ in the notices is that it did not, by street address or otherwise, inform the reader of the particular place or position of the project.  I am not critical of the decision to give the information that is contained in the notices, but it did not go far enough to be a statement of the location of the project.  There was non-compliance in this respect.

(g) Protected matters for the project

  1. [52]
    Section 34(2) of the Regulation defines ‘protected matter’ to mean:

“a matter protected by a provision of the Commonwealth Environment Act, Part 3, mentioned in section 34 of that Act”.

  1. [53]
    The expression “Commonwealth Environment Act” is defined, in s 32 of the Regulation, to mean the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA).  Section 34 of the EPBCA[32] contained a three column table and provided that:

“The matter protected by a provision of Part 3 specified in column 2 of an item of the following table is the thing specified in column 3.”

Column 3 describes ‘protected matters’ by reference to specified provisions found in Part 3 of Division 1 of the EPBCA. 

  1. [54]
    When s 34(3) of the Regulation is read with s 34 of the EPBCA, the requirement was to state, in the public notification, the thing specified in column 3 of the EPBCA relevant to the project.  The public notification carried out did not do so.  In this respect notification of the TOR simply informed the reader that: 

“The Commonwealth Government has determined that the project constitutes a controlled action pursuant to the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).”  

  1. [55]
    The public notice of the EIS stated:

“The Commonwealth Environment Minister has determined that the project may have a significant impact upon matters of national environmental significance, and will require approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth) before it can proceed.  The Minister will rely on the outcomes of the Coordinator-General’s impact assessment process, including any public submissions, in making a decision”.

  1. [56]
    The expression “matters of national environmental significance” is not found in the description of protected matters in s 34 of the EPBCA.  That expression is found in the heading to Division 1 of Part 3 of the EPBCA, suggesting that the subject matter of the following sections are matters of national environmental significance.  It is, however, the relevant particular matters, later picked up in s 34, which are to be stated in the notification.  
  2. [57]
    In this case, the determination that the project was a controlled action pursuant to the EPBCA was on the basis of its potential impact on listed threatened species and ecological communities.  The list of protected matters in s 34 of the EPBCA includes the following:

3   subsection 18(1) 

a listed threatened species in the extinct in the wild category 

4   subsection 18(2) 

a listed threatened species in the critically endangered category 

5   subsection 18(3) 

a listed threatened species in the endangered category 

6   subsection 18(4) 

a listed threatened species in the vulnerable category 

7   subsection 18(5) 

a listed threatened ecological community in the critically endangered category 

8   subsection 18(6) 

a listed threatened ecological community in the endangered category

8   subsection 18(6) 

a listed threatened ecological community in the endangered category

8A   subsection 18A(1) or (2) 

a listed threatened species (except a species included in the extinct category of the list referred to in section 178 or a conservation dependent species) and a listed threatened ecological community (except an ecological community included in the vulnerable category of the list referred to in section 181)

  1. [58]
    As Mr Gore QC pointed out, there is nothing which limits the “protected matters for the project” to those relied upon for the controlled action determination.  Although the TOR referred to a relatively contained list of species,[33] the EIS included a “Matters of National Environmental Significance Report” which referred to a larger number of threatened species and ecological communities.
  1. [59]
    The public notification was required to state the relevant protected matters, as specified in column 3, rather than just state that the project had been determined to constitute a controlled action and/or that the Minister had determined that the project may have a significant impact upon “matters of national environmental significance”.  That might mean, that in the context of a particular project, the public notice becomes lengthy, but that is the consequence of what the provision requires.  There was non-compliance in this case.

Other alleged deficiencies

i. The form of submission

  1. [60]
    Section 33(i) of the SDPWOA requires public notice of the fact that submissions may be made to the Coordinator General.  The public notice of the EIS in this case went further, in assisting those who might wish to make a submission as to how they could do so.  In particular, the notice of the EIS provided as follows:

“How to make a submission

  1. Read the EIS
  • Download the EIS atwww.goldcoastquarry.com, or 
  • view a printed copy between 29 April 2013 and 11 June 2013 at:
  • Robina Library, Robina Town Centre Drive, Robina
  • State Library of Queensland, Cultural Centre, Stanley Place, South Bank, Brisbane
  • National Library of Australia, Parkes Place Canberra
  1. Read the fact sheet on making a submission, then complete and sign the submission form.  Both are available at www.dsdip.qld.gov.au/gcq or at the above locations.
  2. Send your submission to one of the following:

Email: [email protected] 

Post: The Coordinator-General

c/- EIS project manager – Gold Coast Quarry

Coordinated Project Delivery

Office of the Coordinator-General

PO Box 15517

City East Qld 4002 Australia

Fax: +61 7 3225 8282".

  1. [61]
    Hammercall’s complaint is this information was misleading, because there is no requirement for a submitter to use the department’s submission form.
  2. [62]
    The point is more technical than substantive.  The statutory provision did not require the notice to direct persons as to how to make submissions, so it is difficult to see why the matter complained of amounts to non-compliance with the relevant section.  In any event, by doing so and by referring the reader to the freely available fact sheet and a form which could conveniently be used, the public notice was only likely to assist those who might have intended to make a submission.  There is no suggestion that the Coordinator General would only accept submissions made on the form provided and the evidence is to the contrary.[34]  For those reasons I would readily excuse any non-compliance in this respect (the discretion to do so is discussed later).

ii. The comment v submission issue

  1. [63]
    Hammercall points out that the public notice refers to inviting people to “comment” on the EIS rather than simply to make a submission.
  2. [64]
    The word “comment” appears only once in the public notification advertisement for the EIS which relevantly provides (underlining added):

“The EIS was prepared by Boral.  You are invited to comment on the EIS, including the project’s potential environmental impacts and the measures proposed to manage those impacts.  The CoordinatorGeneral will consider your submission as part of his evaluation of the project’s environmental impacts.”

  1. [65]
    While it would be better to consistently use the word “submission”, it is apparent from the above extract that the word “comment” is not used to the exclusion of, or to divert attention from, the word “submission”.  Indeed it is apparent from the public notification advertisement that:
    1. (a)
      the word “comment” appears once;
    2. (b)
      the words “have your say” appear two times;
    3. (c)
      the word “submission” or “submissions” appears ten times;
    4. (d)
      one use of the word “submission” is in bold typeface that is of a larger size than the standard text size used for the majority of the notice (including where the word “comment” is used); and
    5. (e)
      the notice concludes with the section under the bold heading “How to make a submission”.
  2. [66]
    The public notice did, as it was required to do, inform the reader of the right to make a submission.  In context, neither of the references to “comment” or “have your say” detracted or distracted from that.  Hammercall’s challenge to public notification on this ground fails.  I would also have been prepared to excuse non-compliance had I concluded to the contrary.

iii. The directing to the EIS issue

  1. [67]
    Hammercall alleges that the public notice directs attention elsewhere by referring to the EIS on the website and that the volume of material available in the EIS makes it difficult to locate certain information.
  2. [68]
    It is difficult to understand the basis of Hammercall’s complaint on this issue.  Given the large amount of material generated for a project such as the quarry project, it is entirely appropriate that attention is directed to where the material can be located. 

Indeed, section 33 of the SDPWOA requires notice of:

  1. (a)
    where a copy of the EIS is available for inspection; and 
  2. (b)
    where a copy of the EIS may be obtained for a stated reasonable cost.
  1. [69]
    In this case notice was given of three locations where a physical copy of the EIS was available for inspection and the internet site where it could be downloaded free of cost.
  2. [70]
    The EIS was broken down into different chapters with headings (including appendices) and sub-headings, which is likely to make it easier to navigate, at least in the physical form.  It was also available in a ‘word searchable’ PDF format.  As it happens, Hammercall’s submission used the headings for the different parts of the EIS (including the executive summary and various appendices).  It is true, as was demonstrated in the course of the hearing, that the electronic version of the EIS is not as easy to navigate as one might like, but that is not a matter of non-compliance.

iv. The proponent issue

  1. [69]
    Hammercall allege that the public notice is defective for not stating directly the “proponent” as required by s 34(1)(b) of the Regulation.  The notice identified that Boral was the entity “proposing to establish” the quarry.  There is nothing in this point. 

Consequence of non-compliance

  1. [72]
    For the reasons given, the public notification under the SDPWOA was deficient in not stating the location of the project or the protected matters for the project.  Those are two of the things which ‘must’ be stated in order to comply with s 34 of the Regulations in relation to public notification.  Giving public notification is, in turn, something which ‘must’ be done under the SDPWOA.  Hammercall pointed to the language in submitting that the provisions were mandatory, rather than directory, that even substantial compliance was not sufficient and that the process was fatally flawed, with the consequence that the development application is also fatally flawed and the court has no jurisdiction to hear the appeal.
  2. [73]
    It was submitted, on behalf of the appellant, that any non-compliance can and should be excused, pursuant to s 440 of the SPA.  The respondent also submitted that the court may excuse non-compliance pursuant to that section. 
  3. [74]
    Section 440 is extracted earlier.  It is in broad terms, providing the court with a wide discretion in dealing with matters of non-compliance.  Such a power is, of course, important in the context of dealing with development applications, their consideration and determination.  Experience shows that this is an area where there would otherwise be considerable scope for the triumph of procedural technicality over substantive merit, to the frustration, rather than achievement, of the purpose of the legislation.  
  4. [75]
    The current excusal provision, found in s 440 of the SPA, follows a process of evolution (from its predecessors under superseded legislation[35]) in which the legislature has acted over time to broaden the scope of the excusal power and to remove constraints which were found in earlier provisions.  The evident purpose of the provision is, as stated in the explanatory notes to s 440, “to ensure a person’s rights to hearings are not compromised on the basis of technicalities concerning processes.”  An unduly narrow construction of its terms would only serve to frustrate that purpose.
  5. [76]
    It was pointed out, on behalf of Hammercall, that the appellant’s application did not expressly seek such an order in this respect[36] and the appellant had not sought to amend its application.  The application did, however, seek “such further and other order as the court considers appropriate”, relief under s 440 was clearly sought in the course of the (extended) hearing of the application and Hammercall had every opportunity to address the matter including as to whether the relief was potentially available and whether, as a matter of discretion, it should be granted.

(i) Is non-compliance excusable?

  1. [77]
    It was submitted, for Hammercall, that “the breach of the substantive requirements of s.29 and s. 33 of the SDPWO Act 1971 and s.34 of the Regulation are not made subject matter of jurisdiction under s. 436 (1) or s.456 of SPA or any jurisdiction conferred on the court by the SDPWO Act 1971.”
  2. [78]
    By reason of s 436, of SPA, this court has the jurisdiction given to it under any Act.  The jurisdiction conferred on the court includes the jurisdiction to hear an appeal under the SPA, such as that instituted by the appellant.  Where that jurisdiction has been purportedly engaged, the court must, of course, consider any jurisdictional issues, including relevant allegations of non-compliance with provisions said to be prerequisites to the jurisdiction to entertain the proceeding.  By reason of s 440 the court may deal with matters of non-compliance where the non-compliance is with a provision of SPA or of another Act in its application to SPA and has the power to do so “in the way court considers appropriate”.  
  3. [79]
    There is, therefore, a distinction between non-compliance issues which arise solely under, and with respect to, other legislation in respect of which the court has no jurisdiction and non-compliance issues which, although arising under other legislation, concern the application of the provisions of that other legislation to the SPA.  The court may deal with the latter pursuant to s 440 of SPA, even though there might be no excusal provision which relates specifically to non-compliance with the provisions of the other legislation (in this case, the SDPWOA).
  4. [80]
    It was submitted, on behalf of Hammercall, that the ‘decision’ to publicly notify in breach of the requirements of the Regulation involved jurisdictional error, which cannot be excused pursuant to s 440 of the SPA.[37]  Plainly, error in public notification is one of the very things to which excusal provisions such as s 440 are directed.
  5. [81]
    Insofar as the availability of s 440 of SPA to excuse non-compliance with a provision of the SDPWOA and the Regulation[38] is concerned, the question is whether the noncompliance is with a provision in its application to the SPA.  That requires an identification of how the relevant provision applies to SPA. 
  6. [82]
    There is a statutory link between the process under the SDPWOA and development assessment under the SPA.  The SDPWOA was amended in 1999, following the enactment of the Integrated Planning Act 1997 (IPA), which was the predecessor of the SPA.  It was the IPA which first introduced the Integrated Development Assessment System (IDAS), which was subsequently carried over into SPA.  The introduction of IDAS saw a number of approval mechanisms under other legislation ‘rolled in’ to the development assessment system under the SPA.  
  7. [83]
    The 1999 amendments substantially amended Part 4 of the SDPWOA by introducing:
  1. (a)
    the declaration of significant project process (Division 2);
  2. (b)
    an EIS process for a significant project (Division 3);
  3. (c)
    provisions which dealt with the relationship with IPA for a project which required a development approval (Division 4);
  4. (d)
    provisions which dealt with the relationship with the Mineral Resources Act (MRA) (Division 5);
  5. (e)
    provisions which dealt with the relationship with legislation other than the IPA or the MRA but which required the preparation of an EIS or something similar (Division 6);...
  1. [84]
    Some sections of the SDPWOA have since been renumbered.  Some relevant amendments were also made in 2001, 2005 and 2009.  The particular provision of the SDPWOA which deals with the relationship between that Act and the SPA for a development application for material change of use or requiring impact assessment is s 37 which provides:
“Applications for material change of use or requiring impact assessment
  1. (1)
    To the extent the application is for a material change of use, or requires impact assessment, under the Sustainable Planning Act, or both—
  1. (a)
    the information and referral stage and the notification stage of IDAS do not apply to the application; and
  1. (b)
    there are no referral agencies, under the Sustainable Planning Act, for the application; and
  1. (c)
    a properly made submission about the following is taken to be a properly made submission about the application under IDAS—
  1. (i)
    a draft EIS or draft IAR for the project;
  1. (ii)
    any additional information required for the project that was publicly notified under section 34C(3); and
  1. (d)
    despite paragraph (b), until the development approval applied for has effect—
  1. (i)
    the Coordinator-General’s report for the EIS or IAR for the project is taken to be a concurrence agency’s response for the application under IDAS; and
  1. (ii)
    the Coordinator-General may exercise any power of the entity that, other than for paragraph (b), would have been the concurrence agency for the application.
  1. (2)
    Subsection (1)(c) does not apply if the application involves only a material change of use requiring code assessment under the Sustainable Planning Act.

…”

  1. [85]
    That applies if a project under the SDPWOA involves development requiring an application for a development approval.[39]  It should be noted that there is nothing in the provisions of the SDPWOA, integrating its process with the development application process under the SPA, that expressly excludes the operation of s 440 of the SPA.  
  2. [86]
    It may be observed that a properly made submission about the EIS, made pursuant to the public notification requirements in the SDPWOA, is expressly taken to be a properly made submission under the IDAS provisions of the SPA.  Section 37(1)(a) does not however, in terms, provide that the notification carried out pursuant to the SDPWOA is taken to be notification pursuant to the SPA.  Instead, public notification under the SPA is simply not required.  The question is whether, in those circumstances, non-compliance with the notification provisions of SDPWOA can be said to be non-compliance with those provisions in their application to SPA. 
  3. [87]
    Whilst s 37 of the SDPWOA does not expressly make the validity of a development application process under the SPA and the jurisdiction of the court to entertain an appeal subject to the performance of public notification under the SDPWOA (where those provisions apply), that is a necessary implication, at least in relation to public notification of the EIS.  So much is consistent with the approach of Boral, the Council and Hammercall, each of which contends or accepts that non-compliance with the notification provisions of the SDPWOA in relation to the EIS may (subject to any argument about s 440) deprive the court of jurisdiction to entertain the appeal.  
  4. [88]
    Whilst the notification stage under the IDAS does not apply, the balance of s 37 of the SDPWOA makes it clear that public notification of the EIS and, in particular, the submissions which flow from public notification, are integral to the development application process under SPA.  It is just that the relevant public notification and resultant submissions of relevance to the development application under the SPA will be that which was done under the SDPWOA.  
  5. [89]
    The purpose of public notification is to inform people of the project and of their rights, including their right to make a submission.  Properly made submissions about the EIS, made pursuant to the SDPWOA are, by virtue of s 37(1)(c), taken to be properly made submissions under IDAS and must therefore be considered in the decision stage of IDAS.  Further, the Coordinator General is required to consider such submissions under the SDPWOA process in preparing a report which is then taken to be a concurrence agency response under IDAS (the effect of which is provided for in s 325 of the SPA[40]).  Public notification of the EIS is the necessary anterior step, which gives rise to the submissions which, in turn, are integral to the subsequent stage of the IDAS process under the SPA, which results in a decision which is appealable to the court.
  6. [90]
    Whilst s 37 states that the public notification stage of IDAS does not apply, that is obviously in the context of the public notification process under the SDPWOA and with a view to integrating the SDPWOA process with IDAS in a way that avoids unnecessary and undesirable duplication.  In effect, if not in terms, the notification and submission process under the SDPWOA is utilised in lieu of requiring another such process to be engaged in under the SPA provision.  That is evident from the statutory regime in any event, but is also consistent with  the explanatory motes to the 1999 amendments which stated, in part, as follows (underlining added):

“The Bill amends the SDPWOA to:

…

  • Provide appropriate linkages with other legislation, particularly the Integrated Planning Act 1997 and the Mineral Resources Act 1989 to recognise the Coordinator-General’s environmental impact statement for the approval systems within that legislation;

…

In effect, the amendments to section 29 formalise in legislation an administrative process for impact assessment that has been used by the Coordinator-General for more than 20 years. The amendments also allow for the section 29 EIS to be taken to meet environmental impact assessment required under other legislation, particularly the Integrated Planning Act 1997 and the Mineral Resources Act 1989. The links between the SDPWOA and other legislation avoid duplication in processes, while providing a comprehensive whole-of-government response that includes public consultation on the EIS.

…

In Clause 7 the new Divisions 2 to 6 are inserted. Divisions 2 and 3 provide the procedures under which an EIS for a declared ‘significant project’ is conducted. The new Division 4 provides for the integration of the EIS with the IPA. Division 5 provides for the integration of the EIS with the MRA. Division 6 provides for the integration of the EIS with other legislation. These provisions ensure that advertising and consultation requirements are not duplicated, and that the person authorised under the relevant statute to make the decision to approve or reject the particular project takes the results of the assessment into account.

…

The new section 29M recognises the Coordinator-General’s evaluation report (ie. whole-of-government response) in relation to the assessment procedures for material change of use or impact assessment under IPA for that development. The section 29 EIS is taken as fulfilling requirements under the information and referral stage and notification stage of IDAS. The Coordinator-General’s whole-of-government response is deemed to be an IDAS concurrence agency’s response.”

  1. [91]
    On Hammercall’s approach, non-compliance with the public notification provisions of the SDPWOA is fatal to the development application process under the SPA and to any subsequent appeal, but the non-compliance is not with a provision in its application to SPA, so s 440 is unavailable.  The result would be that the validity of the development application process under the SPA (and the jurisdiction of this court to consider an appeal instituted pursuant to the SPA), is dependent on strict compliance with public notification requirements where public notice is given pursuant to the SDPWOA whereas it is not in relation to development applications otherwise.  
  2. [92]
    Submitters have a right to have their submissions considered under SPA s 314(3)(a), a right of appeal under SPA s 462, and a right to elect to be a party under SPA s 485(4).  In the usual case, those rights arise as a consequence of making a properly made submission in response to public notification under Chapter 6, Part 4 of SPA.  In matter such as this, those rights enure to those who made a properly made submission about a notified EIS under s 33 of the SDPWOA; which is, by s 37(1)(c), taken to be a properly made submission about the application under IDAS.
  3. [93]
    There is no reason in principle for, and no evident statutory purpose to create, a difference in approach to questions of non-compliance with the notification requirements, or the consequences of any non-compliance, when notification occurred under the SDPWOA.  Those particular statutory requirements result in the making of submissions that are taken to be submissions which have the consequences identified above.  It is difficult to see that Hammercall’s approach to the interpretation of the relevant provisions is one which achieves, far less best achieves, their evident purpose.  Rather, it leads to a manifestly unreasonable result. 
  1. [94]
    It was submitted for Boral, that the explanatory notes to the 1999 amendments to the SDPWOA could be resorted to, in order to avoid the unreasonable result, by construing s 37(1)(a) as if it said that notification under the SDPWOA is taken to be notification for the purpose of the SPA.  It is, however, unnecessary to go that far.   The preferable approach, in my view, is to construe the words “in its application to” SPA in s 440 as sufficient to extend to non-compliance with the provisions of another Act (here the SDPWOA) in circumstances where, as here, by reason of provisions linking the other Act to the SPA (here Subdivision 1 of Division 4 of Part 4 of the SDPWOA), compliance with the provision operates as a prerequisite to the validity of things done (here a development application process and subsequent appeal) pursuant to the provisions of the SPA.  That is the interpretation which best achieves the statutory purpose.  Relief under s 440 of SPA is potentially available.

(ii) Should non-compliance be excused

  1. [95]
    Having concluded that:
    1. (a)
      there was non-compliance;
    2. (b)
      the non-compliance with the notification provisions of the SDPWOA may, at least insofar as notification of the EIS is concerned, affect the validity of the subsequent application process under the SPA and the jurisdiction of this court to entertain the appeal; but that, 
    3. (c)
      relief under s 440 of SPA is potentially available, 

it remains to consider whether the discretion should be exercised favourably to Boral.

  1. [96]
    The nature and extent of the non-compliance is of relevance.  I have found that the public notification failed to state the location of the project, but it did identify the broader locality in which it was situated, namely Reedy Creek in the Tallebudgera Valley.  One would have thought that this would have put anyone with a potential interest in a new large quarry in the area on enquiry.
  2. [97]
    I have also found that the notification did not state the protected matters for the project.  It did not alert the reader that there may be impacts upon listed and threatened species and ecological communities, far less identify those species and communities.  
  3. [98]
    As Mr Gore QC pointed out, there is no little trouble or risk in descending into a species specific description of the protected matters at the public notification stage.  The statutory provisions do not provide a way to easily determine, comprehensively and with certainty, the list of protected matters.  It requires some investigation and assessment of what is present that will potentially suffer an impact.  There is always a risk of error or that other species might later be found to be relevant.  The difficulty is one which might justify a review of the drafting of the provision.
  4. [99]
    In this case the notification of the EIS did, however, alert the reader that the Commonwealth Environment Minister had determined that the project may have a significant impact upon matters of national environmental significance.  One would have thought that that would have put anyone with a concern about potential environmental impacts on enquiry.
  5. [100]
    Further detailed information about the project, including as to the subject matters of the non-compliance, was available from the EIS, which, as the notification itself told the reader, was available (free of cost) by download or by inspection of a printed copy at three location, including at the Robina Library.  
  6. [101]
    Public notification pursuant to the SDPWOA occurred in the context of other significant publicity and public information about the project.  Boral engaged a community and stakeholder consultant.  That consultant, amongst other things:
    • organised a public information session, briefings and stakeholder forums;
    • maintained a 1800 phone number and a dedicated project email and project postal address for any queries in relation to the project;
    • maintained the Gold Coast Quarry website; and
    • published newsletters and arranged media releases and media interviews by Boral personnel. 
  1. [102]
    The community information session was held on 28 November 2010 and had been publicised by an advertisement in the Gold Coast Bulletin and letterbox drops to approximately 1450 residents in the Bonogin, Burleigh Heads, Reedy Creek and Tallebudgera areas.  A report on that consultation was subsequently published. 
  2. [103]
    In the lead up to the public notification of the EIS, the consultant co-ordinated media releases about the start of the public notification period, including information about how to make a submission, provided briefings and/or documentation to the adjoining landholders and other stakeholders, monitored the project 1800 phone number and postal address and responded to emails.  During the public notification for the EIS, the consultant co-ordinated the following activities for Boral:
    1. publication of a newsletter;
    2. publication of the EIS on a new, specific Gold Coast Quarry website established for the EIS public notification period with links through to the information on the Coordinator-General’s website about making a submission;
  1. monitoring use of the Gold Coast Quarry website (which had 799 unique visits during 26 April 2014 and 11 June 2013);
  2. a three poster static display at the Reedy Creek Shopping Village, with information about the project and the EIS process and how to lodge a submission with the Coordinator-General (maintained from 26 April 2013 to 11 June 2013);
  1. media monitoring; and
  2. monitoring the project 1800 phone number and emails and postal address and responding to enquiries.
  1. [104]
    As one would expect, the project attracted significant media interest and community debate.  Many newspaper articles about the project and the public controversy about it, including as to its environmental impacts, appeared in the local media[41] and the project was discussed on radio.[42]  More than one of the newspaper articles gave a depiction of location of the site.[43]  The project, its location and potential for environmental impact, were not secret.  
  2. [105]
    The number and content of the submissions reinforces the conclusion that the areas of non-compliance were unlikely to have had any significant adverse effect.  The large number of submitters has already be referred to.  The evidence of Mr Schneider, Boral’s consultant town planner, establishes that 410 of the pro-forma submissions specifically mentioned issues associated with matters of national environmental significance and approximately 36 submissions specifically mentioned terms such as “threatened species”.  Matters of national environmental significance were also raised in the submissions made by parties to the appeal, including Hammercall.  
  1. [106]
    The submissions were not critical of the public notification and no-one has since been identified as having been adversely affected by it.  Certainly, the parties to the appeal, including Hammercall, have not been adversely affected.  They have exercised their rights, both as to making submissions (Hammercall’s was lengthy and detailed) and to elect to be parties to the appeal against refusal of the development application.  I am not persuaded that the non-compliance has resulted in any substantive denial of procedural fairness, to Hammercall or anyone else.
  1. [107]
    Hammercall’s outline of 5 November 2014 pejoratively asks “why should such a discretion be exercised in favour of such a greedy awful company and its 2,300 m2 sewer pit?”  The public notification was, in this case, paid for by Boral, but conducted by the Coordinator General.  Boral was given an opportunity to comment on the draft notice for the TOR, but not on the draft notice for the EIS.[44]  There is no evidence that the terms of the notices were drawn so as intentionally to minimise the prospect for objection and certainly no such intention can be laid at the feet of Boral, which was not responsible for the wording.  
  2. [108]
    Boral has not gained any significant advantage as a result of the non-compliance, for which it was not responsible.  Excusal would put it in a position as if there had been compliance.[45]  As has already been observed, public notification produced an avalanche of submissions, including as to environmental impact.  
  3. [109]
    It is, of course, possible to speculate that, but for non-compliance, there might have been even more submissions.  Hammercall’s outline of 5 November 2014 posed the following questions:

“What would the position be in this proceeding if the protected matters had been listed?

Would not the Durobby enthusiasts have gathered?  And others as well on the list which can only be ascertained after visiting a website referred to at page 5 of the affidavit of Mr Schneider.

Has Boral satisfied the Court that people in Tokyo saving for a holiday to see but 1 koala, or even 1 Durobby, or 1 White breasted sea eagle and ecstatic at the prospect of seeing a nesting pair, as apparently there is a nest on Lot 105, might not have joined the protest on seeing the list in “The Australian”?”

  1. [110]
    An objective and realistic assessment of the circumstances, however, leads to the conclusion that non-compliance is unlikely to have had any significant adverse effect in this instance.
  2. [111]
    Boral’s development application was refused (which is presumably what any further adverse submissions would have called for).  The fate of its proposal now rests in the court’s hands.  The respondents to the appeal include those (few) submitters who, given the opportunity to do so, elected to become parties.  Boral will need, in context of the appeal, to establish the merits of its project and meet issues of concern relied upon by any of the parties.  The project has not (by reason of any non-compliance) and will not, escape scrutiny.
  3. [112]
    In the circumstances it is appropriate to deal with the matter by permitting the appeal to proceed notwithstanding non-compliance with the public notification requirements.[46]  I would have reached that view even had I also considered that there was non-compliance with respect to the description of the project or indeed by reason of the other alleged deficiencies.
Annexure 1 – Public notice – Draft terms of reference

Boral Resources (Qld) Pty Limited v Gold Coast City Council [2015] QPEC 13

Annexure 2 – Public notice – Environmental impact statement

Boral Resources (Qld) Pty Limited v Gold Coast City Council [2015] QPEC 13    

Annexure 3 - Initial Advice Statement – project description

Boral Resources (Qld) Pty Limited v Gold Coast City Council [2015] QPEC 13

Boral Resources (Qld) Pty Limited v Gold Coast City Council [2015] QPEC 13

Boral Resources (Qld) Pty Limited v Gold Coast City Council [2015] QPEC 13

Footnotes

[1] December 2014 T 3-33.

[2] See T3-3 to 6.

[3] T3-3.  4 T3-5.

[4] See T 3-5.

[5] T3-6, T3-8. 7 T3-6, 7.

[6] T3-7. The transcript refers to the “44 matter”, but listening to the recording shows that to be an inaccurate transcription of a reference to 440.

[7] Save that HNI-28 refers to what these reasons later refer to as collateral matters not referred to in the description of the project in the public notification.

[8] And was, in any event, flawed for the reasons set out in Boral’s third outline. 

[9] T3-36.

[10] T 3-39.

[11] T 3-39.

[12] See Walker v Noosa Shire Council [1983] 2 Qd R 86.

[13] Section 482(2)(b).

[14] Section 37 of the SDPWOA.

[15] And were principal submitters. 18 Affidavit of Farr para 6.

[16] See s 39 Acts Interpretation Act 1954.

[17] (2008) QPEC 22 at [11].

[18] See s 497 of SPA.

[19] Section 29 SDPWOA – as at that time (see reprint 6D). 23 Section 33 SDPWOA – as at that time.

[20] T3-25.

[21] EIS notification.

[22] TOR notification.

[23] Cf Scurr v BCC (1973) 133 CLR 242.

[24] Cf Liquorland (Aust) Pty Ltd v Gold Coast City Council (2001) 2 Qd R 476 at [31].

[25] Curran & Ors v Brisbane City Council & Ors (2002) QPELR 58 at [15].

[26] Curran & Ors v Brisbane City Council & Ors (supra) at [17] in reaching a similar conclusion albeit in relation to different provisions. 

[27] See definitions of location and locate in the Shorter Oxford Dictionary and the Macquarie Dictionary. 

[28] At the relevant time.

[29] Third Affidavit of MR Schneider Exhibit MRS-3 pp 208-209.

[30] Schneider affidavit Ex MRS-1 pp 764 and 766, being submissions which did not use the form.

[31] See Curran & Ors v Brisbane City Council & Ors (2002) QPELR 58 at 61 for a summary of the differences between s 4.1.53 of the IPA and the provisions which applied in the case of Surr v BCC (1973) 133 CLR 242.  See also s 4.1.53 of the IPA as enacted, as amended in 2000, s 4.1.5A which was inserted in 2001 (and the observations in Stevens v Pine Rivers Shire Council [2006] QPELR 326 at 330 (fn 11) and now s 440 of the SPA and the explanatory notes to each of those.

[32] Cf the prayer for relief in relation to excusal of non-compliance in relation to giving notice of the appeal.

[33] See Hammercall’s 17 January 2015 response to the Respondent’s outline. 

[34] A reference to an Act includes regulations made pursuant to the Act – see Acts Interpretation Act s 7. 

[35] SDPWOA s 36.

[36] SDPWOA ss 35, 37(1)(d).

[37] See examples Affidavit of Green Ex BOG-1 at pp. 238-245, 259-279, 284-304, 396-407.

[38] See affidavit of Green BOG-1 p. 280.

[39] See affidavit of Green BOG-1 pp 240, 304.

[40] See affidavit of Schneider sworn 27/10/14 paras 9-10 and 16-17.

[41] Cf Metrostar Pty Ltd v Gold Coast City Council [2007] 2 Qd R 45, dealing with a now superseded excusal provision.

[42] It is public notification of the EIS which is the necessary anterior step to the IDAS process under the SPA, but I would also excuse non-compliance in relation to notification of the TOR, to the extent that was also considered to otherwise affect the validity of the development application process and the jurisdiction of the court to entertain this appeal.

Close

Editorial Notes

  • Published Case Name:

    Boral Resources v Gold Coast City Council

  • Shortened Case Name:

    Boral Resources (Qld) Pty Limited v Gold Coast City Council

  • MNC:

    [2015] QPEC 13

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    10 Apr 2015

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2015] QPEC 1310 Apr 2015Application for orders and directions; determination that the appeal against the respondent’s refusal of a development application under the Sustainable Planning Act 2009 proceed notwithstanding non-compliance with the Sustainable Planning Act 2009 and the State Development Public Works Organisation Act 1971: Rackemann DCJ.
Notice of Appeal FiledFile Number: Appeal 4615/1508 May 2015-
Appeal Determined (QCA)Appeal 4615/15 (No Citation)27 Aug 2015Application for leave to appeal dismissed: Holmes JA and Atkinson and Mullins JJ.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Curran & Ors v Brisbane City Council & Ors (2002) QPELR 58
3 citations
Jump To
Cite 1 - (2002) QPELR 58
Cite 2 - (2002) QPELR 58
Cite 3 - (2002) QPELR 58
Demiscto Pty Ltd v Brisbane City Council [2008] QPEC 22
1 citation
Jump To
Cite 1 - [2008] QPEC 22
Metrostar Pty Ltd v Gold Coast City Council[2007] 2 Qd R 45; [2006] QCA 410
1 citation
Jump To
Cite 1 - [2007] 2 Qd R 45
Rathera P/L v Gold Coast C C[2001] 2 Qd R 476; [2000] QCA 506
1 citation
Jump To
Cite 1 - [2001] 2 Qd R 476
Scurr v Brisbane City Council (1973) 133 C.L.R 242
2 citations
Jump To
Cite 1 - (1973) 133 C.L.R 242
Cite 2 - (1973) 133 C.L.R 242
Stevens v Pine Rivers Shire Council [2006] QPELR 326
1 citation
Jump To
Cite 1 - [2006] QPELR 326
Walker v Noosa Shire Council [1983] 2 Qd R 86
1 citation
Jump To
Cite 1 - [1983] 2 Qd R 86

Cases Citing

Case NameFull CitationFrequency
Nadic Investments Pty Ltd v Townsville City Council [2015] QPEC 401 citation
Telstra Corporation Ltd v Brisbane City Council [2016] QPEC 374 citations
1

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