Mackay Resource Developments Pty Ltd v Mackay Regional Council
[2015] QPEC 32
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- Mackay Resource Developments Pty Ltd v Mackay Regional Council[2015] QPEC 32
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Mackay Resource Developments Pty Ltd v Mackay Regional Council[2015] QPEC 32
Mackay Resource Developments Pty Ltd v Mackay Regional Council[2015] QPEC 32
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors [2015] QPEC 32 |
PARTIES: | MACKAY RESOURCE DEVELOPMENTS PTY LTD (ACN 134 090 903) (appellant) v MACKAY REGIONAL COUNCIL (respondent) CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT & MAIN ROADS (first co-respondent by election) CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT & HERITAGE PROTECTION (second co-respondent by election) AND ASSUNTA HEAD, SCOTT HEAD, DAWN E KLIBBE, BRIAN J RASMUSSEN, GARY STURDY, CLIFF SOUTHERLAND, ALAN B THOMSETT, KEVIN W WEST, ELIZABETH A WEST & VANESSA HEAD (third co-respondents by election) |
FILE NO: | P&E No. 975/11 |
PROCEEDING: | Determination of conditions only (in Appeal) |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 23 July 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 July 2015 |
JUDGE: | Dorney QC DCJ |
JUDGMENT: | As per amended draft (initialled and placed on the file) |
CATCHWORDS: | Appeal – subsequent, separate hearing of determination of conditions – quarry in rural area |
LEGISLATION CITED: | Integrated Planning Act 1997, s 3.5.11, s 3.5.21, s 3.5.21(1), s 3.5.21(1)(a), s 3.5.22, s 3.5.22(1)(b), s 3.5.30, s 4.1.50(1), s 4.1.52(1) Sustainable Planning Act 2009 |
CASES CITED: | Brown v Morton Shire Council (1972) 26 LGRA 310 Chesol Pty Ltd v Logan City Council [2007] QPELR 285 Chuwar Recycling and Land Filling Pty Ltd v Ipswich City Council & Ors [2008] QPELR 256 Heilbronn & Partners Pty Ltd v Brisbane City Council [1997] QPELR 368 Hymix Industries Pty Ltd v Alberton Investments Pty Ltd [2001] QCA 334 Lloyd v Robinson (1962) 107 CLR 142 Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors [2013] QPEC 57 Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors [2014] QCA 210 Tully Sugar Ltd v Cassowary Coast Regional Council & Anor [2010] QPELR 643 Woodward v Mackay Regional Council & Ors (unreported) (BD 1292 of 2013; 11 July 2013) |
COUNSEL: | A N Skoien for the respondent J G Lyons for the first co-respondent by election |
SELF REPRESENTATIVES: | T R Simpkin (on behalf of the appellant) K W West (on behalf of the third co-respondent by election) |
SOLICITORS: | S.B. Wright & Wright & Condie for the respondent Norton Rose Fulbright for the first co-respondent by election |
Introduction
- [1]On 26 December 2013 Robin QC DCJ allowed the appeal in this proceeding [which had been filed on 29 March 2011 by Mackay Resource Developments Pty Ltd (“MRD”)] but adjourned the appeal “generally to enable suitable development conditions to be worked out”.
- [2]The present hearing, therefore, concerns the scope, range and details of such development conditions.
Background
- [3]The appellant’s successful appeal was against a refusal by the Mackay Regional Council (“MRC”) of MRD’s development application.
- [4]The development application had sought a material change of use to enable land in the Mackay area to be used as a quarry. This proposed quarry is to be located on Barrie Lane which, at its eastern end, adjoins Homebush Road (which is a State controlled road) and, at its western end, adjoins the Peak Downs Highway (which is, also, a State controlled road).
- [5]The land the subject of the application, and appeal, (“Site”) is currently used for rural purposes, partly for the cultivation of sugar cane and partly for use as pasture land, although it has been used as a “borrow pit” in the past.
Scope of Present Hearing
- [6]As already noted, Robin QC DCJ allowed the appeal: see Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors [2013] QPEC 57. That has the necessary consequence that the actual conclusions reached in that decision bind me in determining what are “suitable” development conditions.
- [7]To this end it is noted that:
- the Court canvassed the opinions of various experts, including the joint opinions of such experts (in which matters of agreement had been reached), which have continuing relevance here; and
- the Court made specific findings in respect of traffic, including that:
- it should be a condition of the approval that product extracted and removed from the Site should be hauled along sealed roads only: at [36];
- a favourable determination with respect to that condition “would no doubt be based on expert advice as to what appropriate safety standards call for in this location” and that the conditions required by the first co-respondent by election, the Chief Executive, Department of Transport & Main Roads (“DTMR”), “in respect of works at intersections with State-controlled roads used will apply”: at [37] (emphasis added); and
- in attending to the safety concerns in an appropriate way, the “relatively cautious approach” of the MRC’s traffic expert, Mr Camilleri, “is the one that should be preferred”: at [38].
- [8]A contentious matter is whether the appeal decision allows the consideration of a condition that the haul route be in one direction only (in this case, west) from the Site. The MRC has contended that any such condition has already been ruled out: see, for example, by the conclusion expressed at [38]. For its part, MRD, although having argued for a sole route to the east at the appeal hearing, contended at this hearing that the Court should set a condition that the haul route be solely to the west from the Site.
- [9]In making the determination that he did not propose to set any condition that the haul route be to the east from the Site, Robin QC DCJ added that he was “not persuaded” that such a condition could be relied upon to work in practice, including a reference to Chuwar Recycling and Land Filling Pty Ltd v Ipswich City Council & Ors [2008] QPELR 256 at [14] – [18]: at [38]. But there are a number of limitations which qualify that determination. First, it simply rules out an easterly haul route. Secondly, the passages referred to in Chuwar, while expressing significant areas of concern, conclude with the finding that, in the case in question, there was a “particular risk of non-compliance”, although it was noted that a combination of measures could be appropriately applied to materially reduce that risk: at 259 [18]. Even so, it was additionally remarked that there was likely to be a level of non-compliance, at least at times, and that such would have “some impact” and that, while that impact was relevant, it was not “determinative of and in itself”: also at 259 [18]. Moreover, as Rackemann DCJ in Chuwar noted, while there have been cases where this Court has rejected reliance on conditions which require ongoing supervision and enforcement, the designation of a route for heavy vehicles was not unique to the case in question, as it was “relatively common”: at 259 [18].
- [10]Furthermore, Rackemann DCJ did, later, consider, and impose, a condition defining, and limiting, a haul route in Woodward v Mackay Regional Council & Ors (unreported) (BD 1292 of 2013; 11 July 2013). No reasons were published; but Condition 10 stated that the “extractive industry site must be accessed by haul vehicles in accordance with” 4 nominated sub-conditions.
- [11]The concern that I have here is that there appears to have been no blanket ruling out by Robin QC DCJ of any condition that the haul route could be to the west from the Site. This arises from further statements made both in paragraph [36] and in paragraph [38]. While one possible reading of those particular paragraphs might be that the particular arguments raised needed to be addressed even if, finally, they were made irrelevant by the decision made, it is my view that Robin QC DCJ was simply dealing with the evidence that was led before him insofar as it addressed such issues without making a final determination one way or the other. Necessarily, the consideration that he did undertake was informed by the approach of MRD (which, at that time did not argue for a haul route in a westerly direction).
- [12]Nevertheless, since the concerns raised in Chuwar have not been addressed here by MRD – despite being aware of the need for detail (as shown by the reference in Exhibit 12 to #20 @ [103]) – and since, as Woodward shows, it would be necessary to be quite specific in addressing the concerns identified in Chuwar, I decline to entertain the argument at this final stage, especially in circumstances where it should have been fully developed in evidence in this particular hearing if MRD had desired that such a conclusion ought to be reached. Important to that determination is the fact that no traffic engineer – even one not called as a witness by MRD – has advanced, by any form of written or oral opinion brought to my attention, what would be all of the appropriate sub-conditions necessarily applicable here.
- [13]Accordingly, I intend to determine the conditions with respect to the haul route as applying both to the easterly and westerly directions of travel along Barrie Lane.
Statutory framework
- [14]Although the Integrated Planning Act 1997 (“IPA”) was repealed on 18 December 2009 by the Sustainable Planning Act 2009 (“SPA”), the former applies because the development application here was lodged by MRD with the MRC on 9 December 2009.
- [15]Accordingly, pursuant to the transitional provisions of the SPA, the development application was assessed and decided by the MRC as if the IPA was still in force and, except for a few limited qualifications, the appeal (which includes this subsequent hearing) is to be heard and determined by this Court as if the IPA was still in force. Pursuant to the IPA, the assessment manager for the development application (which in this appeal is this Court, in place of the MRC) can impose conditions on any approval pursuant to s 3.5.11(1)(b) and Division 6 of Part 5. In particular, with respect to the latter, s 3.5.30 states that such a condition must:
- (a)be relevant to, but not an unreasonable imposition on, the development or use of the premises as a consequence of the development; or
- (b)be reasonably required in respect of the development or use of the premises as a consequence of the development.
- [16]Since the development application is impact assessable, it was required to undergo public notification. Accordingly, it has been the subject of properly made submissions objecting to the proposed quarry. Among such submitters are the third co-respondents by election. In this hearing, Mr West appeared for himself and on their behalf. He led no evidence; but he did otherwise participate in the hearing.
- [17]The second co-respondent by election neither took any role in the appeal hearing nor at this hearing. It provided an amended concurrence agency response dated 21 June 2013. It did not dispute the conditions contained in the original referral agency response by DTMR.
- [18]Under the IPA, the appeal (in both its parts) is by way of hearing anew: see s 4.1.52(1). Additionally, MRD bears the onus on all appeal matters: see s 4.1.50(1).
Matters in dispute
- [19]After the decision was given on 26 September 2013, the MRC prepared a set of conditions that it proposed. It has now provided a Consolidated Conditions Package (Exhibit 4). This Package contains, besides MRC’s own proposed conditions, the second co-respondent by election’s, the Chief Executive Department of Environment and Heritage Protection (“DEHP”), proposed conditions: see paragraph [17] of these Reasons. For its part, the DTMR has now provided an Amended Referral Agency Response (“ARAR”) (Exhibit 7). It reflects the prospect identified by this Court that the haul route would use Barrie Lane to both the east and the west, thereby involving both of the State controlled intersections with Homebush Road and the Peak Downs Highway, as well as updating a technical matter. A further adjustment is contained in Exhibit 13. And Annexure A to the draft judgment contains the final versions of all conditions sought by all respondents.
- [20]MRD has disputed some of the proposed conditions. The disputes, in summary form, concern:
- the requirements for the upgrade of the intersection of Barrie Lane and Homebush Road: Condition 3 of the ARAR;
- the absence of the word “grid” after the words “wheel shaker”: Condition 7 – and Condition 13 – of the MRC’s Conditions Package (Exhibit 4);
- the requirement for upgrading Barrie Lane: Condition 12 of the MRC’s Conditions Package (including the detailed requirements for the Barrie Lane Upgrade Requirements Plan contained in that package and the further updates noted above);
- the requirement for geo-technical certification of slope stability: Condition 15 of the MRC’s Conditions Package;
- the requirement for acoustic certification of plant and equipment: Condition 23 of the MRC’s Conditions Package; and
- the “relevant period” for the approval of the proposed quarry (i.e. approval within which the proposed use for the extractive industry as approved must start) of 6 years: Condition 28 of the MRC’s Conditions Package.
Matters not in dispute
- [21]I accept the contention of the MRC that the arguments presented by MRD do not expressly assert that:
- any of the disputed Conditions are not relevant;
- any of the disputed Conditions are an unreasonable imposition;
- or
- any of the disputed Conditions are not reasonably required.
- [22]That may be qualified to some extent by MRD’s arguments concerning Condition 3 of the ARAR – which I will address in some detail later – and the reticence by MRC, concerning the upgrading of Barrie Lane, to rely on a “not unreasonable imposition” where substantial cost can be inferred for the relevant work. But it is true that the evidence led on behalf of MRD was, at least principally, to the effect that MRD was being treated differently from other developers, particularly those in the extractive industry. Again, I will deal in some detail later with MRD’s specific contentions in considering each of the disputed Conditions. It is sufficient to point out at this stage that each development application is to be assessed on its own individual merits and that any other “approval” does not act as a “precedent”: see Chesol Pty Ltd v Logan City Council [2007] QPELR 285 at 295 [66]; and Tully Sugar Ltd v Cassowary Coast Regional Council & Anor [2010] QPELR 643 at 649 [35].
- [23]It should also be pointed out that where, as here, a particular expert prepares a written report, is called to give evidence orally and is, thereby, subjected to cross-examination, the evidence of such a person – subject to the acceptance of appropriate qualifications relating to expertise and acceptance of reasoned opinions expressly based upon that expertise – and, in particular, the expert opinions expressed, can be given, inevitably, greater weight than some opinion expressed in a tendered document under the hand of a person who has not been the subject of those particular rigours.
- [24]Finally, no argument has been presented that, in any possible way, the Conditions proposed are not lawful.
Summary of parties’ cases
- [25]The MRC has accepted that no degradation levy should be included in the Conditions. It also accepts that the word “grid” can be part of the characterisation of the term “wheel shaker” in Conditions 7 and 13. But it contends that it should be incorporated by qualifying that term by the clause “(which may include a grid)”. With respect to all other issues in dispute, it contends that its proposed Conditions (as amended) ought to be accepted by the Court.
- [26]Consistently with the approach of the MRC, the DTMR, concentrating on Condition 3 of the ARAR contends that that condition should be accepted by the Court in full.
- [27]MRD’s contentions are that – apart from Conditions 7, 12 and 13 (which I will deal with next) and that the 6 year period in Condition 28 should be 8 years – there is no necessity for the imposition of the conditions sought.
- [28]With respect to Conditions 7 and 13, MRD contends that the appropriate term should be: “wheel shaker grid”.
- [29]Finally, with respect to Condition 12, MRD contends that it would accept a limitation on the haul route such that it would haul to the west only, also offering to cap such haulage to 40,000T. It does contain the proviso that, if MRD wished to exceed that cap and, or alternatively, use the haulage route to the east then it would have to meet the requirements of the MRC with respect to them.
- [30]Rather than analyse each contention separately with respect to each Condition in dispute, I intend simply to analyse the arguments about each Condition, in turn, and then reach a conclusion with respect to that contested Condition.
Relevant Principles
- [31]The role that conditions play under the various planning provisions was examined recently in the Court of Appeal in Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors [2014] QCA 210. Giving judgment for the Court, Gotterson JA (with whom Muir JA and Atkinson J agreed), referencing Atkinson J’s reasoning in Hymix Industries Pty Ltd v Alberton Investments Pty Ltd [2001] QCA 334 (at [23]), held that the character of a condition of a development approval is the “community price” a developer must pay for a development approval and is a “vehicle for minimising adverse effects” of permitted development: at [28].
- [32]Also, traffic safety is an important matter which the Court does not disregard lightly; and, as remarked by Quirk DCJ, an experienced Judge in this field, in Heilbronn & Partners Pty Ltd v Brisbane City Council [1997] QPELR 368, in dealing with matters of traffic safety, it may well be that a conservative approach is warranted: at 370.
- [33]Finally, in dealing with the issue of financial cost, it has long been held that the economics of any development are immaterial, a principle exemplified by Brown v Morton Shire Council (1972) 26 LGRA 310 at 313 [referring, in particular, to the High Court’s decision of Lloyd v Robinson (1962) 107 CLR 142 (at 155, per Kitto, Menzies and Owen JJ)].
Condition 3 of the ARAR
- [34]This Condition, as contained in Exhibit 7, besides referring to the new response date, updated the source of the requirements concerning the installation of lighting. Exhibits 14, 15 and 16 provide the necessary interconnection between the original reference to Chapter 17 and the present reference to Volume 6.
- [35]Condition 3 was considered in the second Joint Traffic Report in the Appeal. Before turning to how it was considered there, it is noted that it has two relevant requirements, being:
- the installation of a “central splitter island” (taking the form of a painted island and including raised pavement bars, as specified) which is directed at ensuring that haulage trucks do not cut the corner when turning right from Homebush Road into Barrie Lane [Condition 3(a)]; and
- the provision of a detailed “swept path assessment” in order to demonstrate to DTMR’s satisfaction that the agreed design vehicle can safely manoeuvre through the intersection without compromising the safety of other road users [Condition 3(b)].
- [36]If that demonstration does not reach the relevant satisfaction, it is only then that the intersection work referred to in Condition 3(c) is “required”.
- [37]When this matter was considered in that second Joint Traffic Report – which, incidentally, was a joint report involving MRD’s then retained traffic engineer, Mr Beard – it was agreed that the upgrade required for this intersection was in fact “effectively” covered by Condition 3 (modified to the extent of including a direct reference to an identified drawing). Even if one could ignore that, where at the hearing of the appeal itself no issue was taken with Condition 3, this hearing has little room for movement since Robin QC DCJ expressly concluded that these works are required: see the reference already made to the reasons at [37], together with reference, at [44], to “a suitable conditions package” which was to “include requirements” of the DTMR, “of course”.
- [38]At this hearing, Mr Williams, an appropriately expert traffic engineer, gave evidence. He was called by DTMR. His report is Exhibit 11. In it, the opinion is expressed that the first requirement is “to achieve an outcome whereby the agreed design vehicle would be encouraged to remain on the correct side of the road while negotiating the subject intersection which would provide for the safety of all road users”: at paragraph 4.7. He, further, stated that the second requirement arose from the level of uncertainty around whether or not the existing intersection footprint is sufficient to accommodate the swept path of the agreed design vehicle, particularly where the assessments have been based on aerial imagery of varying levels of resolution: at paragraph 4.8. Thus, the DTMR contends that it is important to “ground truth” the capacity of the intersection to accommodate such a swept path after the installation of the relevant splitter. Having been asked to consider the statement of Mr Simpkin (Exhibit 12) which referred to an email dated 4 February 2015 from Mr Ross MacDonald, a Senior Designer (Civil) with the DTMR, to the effect that the existing configuration for a right turn entry into Barrie Lane from Homebush Road allows for a vehicle to make a manoeuvre “from completely within the right-turn auxiliary lane” in circumstances where ‘the swept path doesn’t cross the centre line of the side road’, Mr Williams stated that it did not cause him to change his views about the appropriateness of Condition 3.
- [39]If, perchance, MRD had called Mr MacDonald as a witness, particularly if he had prepared an expert report with the attendant declaration in accordance with the relevant rules (particularly those stating an understanding of the duty of an expert to the Court, and compliance with that duty), I may have been in a different position in resolving any apparent dispute that might exist.
- [40]But where, as here, I accept Mr William’s conclusion that the specified central splitter island is, among other things, to ensure the “safety” of the State-controlled road network in this area, in circumstances where that is an important guiding principle, it is my conclusion that the installation of that island is necessary, with the attendant consequential assessment and conditional upgrade (if so required). It is, then, not simply a police enforcement matter. Rather, it is inescapably a “development matter”.
- [41]Accordingly, in line with the conclusions that I have reached with respect to an eastern haulage route, I hold that Condition 3 of the ARAR is a condition which is reasonably required. In the circumstances already canvassed in the conclusions of Robin QC DCJ, it is also relevant and a not unreasonable imposition, because:
- the Condition is necessary for safety reasons, given the nature of the proposed use and the type of trucks which will use the quarry;
- the Condition ensures that an appropriate level of traffic safety is maintained;
- the Condition will result in a traffic safety benefit for the safety of all road users;
- any financial cost is, given the relevant circumstances, of no relevance; and
- the Condition was not disputed as “suitable” by MRD’s own traffic engineer at the Appeal hearing (where it was concluded that it was a sufficient ground to be relied upon to overcome the Court’s finding of conflict, being part of the issue of road upgrades and remedial works).
Conditions 7 and 13 of MRC’s Conditions Package
- [42]While I accept that, logically, a “wheel shaker grid” might conceivably lead to the selection of an object where the focus is on the grid and not on the “wheel shaking” integers of it, I would have thought, as a matter of sheer practicality, that any wheel shaker grid would, for example, be capable of removing excess materials from, in particular, haulage trucks on the Site prior to the same entering Barrie Lane. The fact that a cattle grid might be incorporated into such a “wheel shaker” (or even a wheel wash facility) does not appear to negate the effect of the requirement for a “wheel shaker”. Nevertheless, because of that logical imperative, it is preferable to have the reference to a “wheel shaker” (where it appears in Condition 7 and in Condition 13) accompanied by the additional qualifier, namely, “(which may include an incorporated grid)”. This is to be inserted after the term “wheel shaker”.
Condition 12 of the MRC’s Conditions Package
- [43]As already covered, there is no longer any degradation levy sought. Furthermore, there is no “increased maintenance costs levy” sought either.
- [44]Because of the determination that I have already made concerning the evidential impediment to the setting of a condition that the haul route be solely to the west from the Site, it is necessary, then, to consider the terms of the upgrade requirements for Barrie Lane as a whole. These are now contained in a document titled “MRC SKETCH” (which became Exhibit 13). In that form, subject to the addition of the sub-condition attaching to the section of Barrie Lane coloured gold and expressed in terms of “Minimum standard of a single lane seal of 3.5m with a 2.5m gravel shoulder on either side of the seal”, it is those requirements that are the subject of the present analysis.
- [45]Given the express endorsement by Robin QC DCJ of the preference for the approach of Mr Camilleri, in the circumstances now obtaining – subject to lawfulness (discussed below) – Condition 12 of the MRC’s Conditions Package, with the adjusted upgrade requirements contained in the updated MRC SKETCH, should be imposed. This is because there has been no contrary expert evidence which, in any way, has challenged the written and oral evidence of Mr Camilleri, an already accepted expert witness.
- [46]In particular, the only area of cross-examination which Mr Simpkin, on behalf of MRD, undertook of him was with respect to an allegedly comparable approval concerning Aqua Drilling. The documents which were tendered by MRD, without objection, were both the whole of the Negotiated Decision Notice of the MRC addressed to Aqua Drilling (dated 26 March 2014) and an excerpt from that Notice. The response by Mr Camilleri was that he had read those documents but he was not involved in that assessment. He added that his view, in this hearing, was based upon his professional experience which was to the effect that the product extracted and removed from the quarry relevant to this development application “should be hauled on sealed roads”.
- [47]To the extent that it matters, given my general analysis of this issue, Condition 14 of the Negotiated Decision Notice to Aqua Drilling referred to haulage of extraction material being confined to the “State Controlled Road Network”. In particular, the Condition was that any proposal “for haulage of quarry material over Council’s road network is not permitted without the prior approval of Council” (emphasis added). That matter alone would undermine any attack on Mr Camilleri’s opinion, even if there was some basis for that attack.
- [48]Of importance here is the principle that no approval of any development application, even where there might well be striking similarities, can act as any precedent. It is necessary, in each individual case, for the assessor – here, this Court – to look at all the material relevant to the application before it.
- [49]Mr Camilleri’s evidence was strongly in favour of the view that Barrie Lane is presently unsuitable as a haul route for the proposed quarry traffic, given the existing condition of that particular road. This is also in the context, again already referred to, of the decision by Robin QC DCJ that it should be a condition that the product extracted and removed should be hauled “only along sealed roads”.
- [50]It is of no moment that there may be safety concerns that presently exist for other traffic, because the requirements outlined by Mr Camilleri are relevant to the use proposed for the product extracted from the approved quarry. Consequently, in the circumstances considered by this Court in light of Mr Camilleri’s evidence, those upgrade requirements are not an unreasonable (even given the possible cost) imposition on the development or use of the premises as a consequence of the development.
- [51]It is, further, irrelevant whether the MRC should itself determine a high priority for the expenditure of upgrading Barrie Lane itself, even where it has given some indication of some potential for it by including it as part of some future capital works “program”. This Court cannot involve itself in how any Council should expend its limited public funds, particularly where the suggestion for the expenditure comes from a developer for the purpose of facilitating a private benefit (which, incidentally, would flow from the general public benefit).
- [52]The reason for the insertion of the “minimum standard” with respects to that section of Barrie Lane marked “gold” is that it reflects the unchallenged evidence of Mr Camilleri that that particular standard is required [as can be extracted from paragraph 16(c) of Exhibit 9 (which is Mr Camilleri’s supplementary expert report of 10 June 2015)].
Condition 15 of MRC’s Conditions Package
- [53]This deals with geotechnical certification.
- [54]Again, MRD’s argument is based upon two “similar” quarries having no such requirement placed on them.
- [55]Again, no expert evidence was presented by MRD to contest the evidence given by Mr Bratt. His written Statement of Evidence became Exhibit 8. He was called to give oral evidence and cross-examined by Mr Simpkin, on behalf of MRD. That cross-examination was limited to drawing the attention of the witness to Attachment 3 to MRC’s Conditions Package (which was a map showing the steep land overlay on the subject property). After ascertaining from Mr Bratt that the steep land related to the “yellow-coloured section” and that there was a drawing prepared by Ausrocks, consulting mining engineers, with drawing number PHQ01 – which also showed the subject land – the witness agreed with the proposition that the majority of the quarry footprint would be located outside the steep land overlay map. But, having examined the condition carefully, it, reasonably, limits the area of concern for the required report. As for the certification, on completion, its context limits the ambit of its concern.
- [56]A complementary question was directed towards paragraph 10 of Exhibit 8 (which stated that the requirements of the condition were “standard” for development of any sort involving earthworks on steep land and, hence, were “not considered unreasonably onerous”). Mr Bratt replied that he stood by his statement to that effect despite having read paragraph 17 of Mr Simpkin’s statement (in Exhibit 12). That particular paragraph in that particular statement contained references to decision notices for both the Sutton quarry (dated 17 December 2014) and for the Aqua Drilling quarry (already referred to) in which no such conditions were imposed.
- [57]For reasons already canvassed, particularly in light of the non-retraction by Mr Bratt of his considered views and the absence of evidence concerning similarity – much less identicalness – there is no basis at all for concluding that Mr Bratt’s evidence should in any way be rejected. Thus, the geotechnical certification of slope stability to which Mr Bratt’s evidence directly related is a “suitable” condition, being limited in its scope and, accordingly, being relevant to, and not an unreasonable imposition on, the proposed quarry and its use; and, also, being reasonably required in respect of the proposed development.
Condition 23 of MRC’s Conditions Package
- [58]This concerns acoustic protection.
- [59]On this issue the MRC relied on Mr Paul King. His expert report became Exhibit 10. It was dated 5 June 2015.
- [60]This Condition contained two components. The first dealt with the testing of machinery, plant and equipment prior to its use on the quarry site. The second related to testing in the event that noise monitoring external to the quarry indicated that compliance with the overall noise limits at surrounding land points was being exceeded.
- [61]MRD’s contentions were that all machinery that would operate in the quarry would have a manufacturer’s certificate and that all machinery would be maintained by a qualified diesel fitter “to keep them in prime operating order”. Hence, no condition should be imposed.
- [62]In cross-examination of Mr King, it was put, on behalf of MRD, to the witness whether he was aware that in another “approved” quarry (identified, then, as the Sutton quarry) there was no such condition imposed about prior testing. The witness indicated that he was not aware of that particular application. When it was then put to him that, if this condition “was a standard thing”, why that would not have been applied to the Sutton quarry application, Mr King’s answer was that, specifically with respect to MRD’s quarry, the reasoning behind the condition came from the Joint Expert Report that was prepared in conjunction with the consultant that MRD had itself engaged and which, then, was incorporated into that Report. The answer was amplified by the statement that the basis of assessment for such noise was computer noise modelling of the future quarry operations, which was itself based upon an assumed range of source noise levels for the likely sort of plant and equipment that would be used on the quarry site. This meant that, because there were a lot of assumptions made with respect to such likely plant and equipment and their noise levels, it was agreed between the experts that, as part of the noise management plan, an appropriate condition was a requirement for the testing of noise levels of individual items prior to use; and that the second component was the most appropriate way to ensure, for continued operation, compliance with such noise limits. Mr King added that while he had certainly seen other development approvals that did not have such a condition, he felt that in this case it was a condition that was warranted and that, in particular, he did not believe it was onerous and that it was really there to protect compliance with noise limits, at the end of the day.
- [63]Again, it has not been clearly identified that there was any similarity, much less an exact identity, between the quarry in question and the Sutton quarry. In any event, as already analysed, there is no precedential principle applicable.
- [64]In consequence, I conclude that the requirement for acoustic certification of plant and equipment is both relevant to, and not an unreasonable imposition on, the proposed quarry and its use; and that it is reasonable to require it in respect of the proposed development.
Condition 28 of MRC's Conditions Package
- [65]This condition relates to a relevant period of 6 years, starting the day the approval takes effect, before the approval lapses if the first change of use under the approval does not start.
- [66]Section 3.5.21(1) of the IPA deals with the relevant period for lapsing. Section 3.5.21(1)(a) sets an initial period of 4 years, unless “the approval states a different period”. A later provision, s 3.5.22 of the IPA, allows a person wanting to extend the period set under s 3.5.21 to “ask” for an extension: see s 3.5.22(1)(b). Depending on the nature of the approval, certain other steps must also be taken. But what that provision does establish is that the period “stated” of 6 years – already being a 50% increase here in the relevant statutory period – is capable of further extension.
- [67]The contention of MRD is that it be given a period of 8 years. Again, this contention partly relies upon being “in line with other developments”; but, for reasons already canvassed many times, that is not an appropriate basis.
- [68]Another basis is that the amount of work to be done in Barrie Lane is “a real and significant commercial risk” for the developer and “a major benefit to Council” (relying upon the general agreement between relevant experts about the need for upgrading Barrie Lane in any event). Reference is also made to the benefit to residents and to the general community. It is against that background that the 8 years is sought. But MRD itself acknowledges that it can “request” the Council to extend the time if required. There is no particular additional basis raised as to why 6 years before a “start” must be made is not reasonable in these particular circumstances, particularly given the statutory minimum of 4 years.
- [69]Accordingly, I find that a period of 6 years is both relevant to, and not an unreasonable imposition on, the proposed quarry (and reasonably required in respect of the proposed development), particularly in circumstances where the Site is rural land, containing good quality agricultural land in respect of which rural uses are preferred. It is important that existing planning for the general area, as well as future planning for it, are not prejudiced by a particularly long period before there is an actual start, especially where there is a statutory provision governing an extension.
Conclusions
- [70]I have been given a draft judgment (referred to earlier).
- [71]Because of the findings that I have made, in accordance with the reasons for and the decision of Robin QC DCJ on 26 September 2013, I conclude that all of the respondents’ proposed conditions satisfy both – or at least one – of the tests of the lawfulness, applicability and “suitability” as set out in s 3.5.30 of the IPA. Accordingly, MRD has not discharged its onus in establishing to the relevant satisfaction the exclusions and modifications that it has sought to the proposed conditions.
- [72]Given that the terms of that draft cover all relevant matters, including costs (which will be addressed next), I will give formal judgment generally in terms of that draft, noting that the relevant Conditions appear in an attachment marked Annexure A.
- [73]As for costs, considering the outcome of the hearing before me, I believe it is appropriate that there be no order as to costs. Nevertheless, particularly since MRD is no longer represented by solicitors or counsel, because of the principle of procedural fairness I will allow a short period for any costs submissions, if so desired, to be made. It should be pointed out that the costs, apart from Court (and other related) fees and disbursements, cover professional “costs” only, which a self‑represented litigant is not generally entitled to. Nevertheless, I do not intend to exclude MRD from making any submissions it wishes to.
- [74]What I intend to do is to give judgment essentially in terms of the draft; but to amend that draft with respect of costs to incorporate what I have just discussed.