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Karreman Quarries Pty Ltd v Somerset Regional Council[2015] QPEC 53

Karreman Quarries Pty Ltd v Somerset Regional Council[2015] QPEC 53

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Karreman Quarries Pty Ltd v Somerset Regional Council & Ors  [2015] QPEC 53

PARTIES:

KARREMAN QUARRIES PTY LTD (ACN 010 168 742)

(appellant)

v

SOMERSET REGIONAL COUNCIL

(respondent)

and

C.W. AND E.J. RUSSELL AND SONS

(co-respondent)

and

QUEENSLAND ELECTRICITY TRANSMISSION CORPORATION LIMITED (ACN 078 849 233)

(first co-respondent by election)

and

THE CHIEF EXECUTIVE ADMINISTERING THE TRANSPORT INFRASTRUCTURE ACT 1994

(second co-respondent by election)

FILE NO/S:

2686/14

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court

DELIVERED ON:

29 October 2015, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

21 October 2015 and 29 October 2015

JUDGE:

Everson DCJ

ORDER:

  1. [1]
    The appellant is granted leave to add the following disputed issues in the appeal:
  1. “The extent of the disturbance footprint shown on the approved plans has not been appropriately demonstrated to comply with condition WT4 of the Department of Environment and Heritage Protection’s referral agency response dated 5 February 2014 which requires:

“The stormwater runoff from disturbed areas, generated by (up to and including) a 24 hour storm event with an average recurrence interval of 1 in 5 years must be retained on site or managed to remove contaminants before release.”

  1. The extent of the disturbance footprint shown in the approved plans fails to take into account appropriately graded haul roads given that the proposed haul roads shown on the approved plans are too steep and unsafe.
  1. Given paragraphs 1 and 2 above, the proposed development will not be able to provide for progressive rehabilitation and thereby conflicts with SO2 of the Extractive Industry Code.”
  1. [2]
    The appellant pay the costs of the respondent, co-respondent and second respondent by election of and incidental to this application on the standard basis.
  1. [3]
    The appellant pay the costs of each of the parties consequential upon the need to reconvene any meetings of existing experts on the standard basis.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – where appellant seeks to add issues as disputed issues in the appeal – where there was a delay by the appellant in seeking this amendment -  whether leave should be granted.

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, applied

Body Corporate for Sun City Resort CTS 24674 v Sunland Constructions Pty Ltd & Ors (No 2) [2011] QSC 42, applied

COUNSEL:

M A Williamson for the appellant

B D Job for the co-respondent

SOLICITORS:

Connor O'Meara for the appellant

Cooper Grace Ward for the respondent

  1. [1]
    This is an application seeking an order that the appellant be granted leave to add the following issues as disputed issues in the appeal:

“1. The extent of the disturbance footprint shown on the approved plans has not been appropriately demonstrated to comply with condition WT4 of the Department of Environment and Heritage Protection’s referral agency response dated 5 February 2004 which requires:

“The stormwater runoff from disturbed areas, generated by (up to and including) a 24 hour storm event with an average recurrence interval of 1 in 5 years must be retained on site or managed to remove contaminants before release.”

  1. The extent of the disturbance footprint shown in the approved plans fails to take into account appropriately graded haul roads given that the proposed haul roads shown on the approved plans are too steep and are unsafe.
  1. Given paragraphs 1 and 2 above, the proposed development will not be able to provide for progressive rehabilitation.”
  1. [2]
    The appellant is a commercial competitor of the co-respondent, and has appealed the decision of the respondent to approve the co-respondent’s development application for a material change of use for an extractive industry and appropriate ERA on land situated at Gregors Creek Road, Gregors Creek. The grounds of appeal listed in the notice of appeal focus primarily upon whether or not there is a demonstrated existence of the resource that is claimed to exist on the land in question and whether there is a need for the proposed development. The loss of alleged good quality agricultural land is also raised as an issue, as are adverse traffic impacts.
  1. [3]
    The issues in dispute were the subject of an order made by his Honour Judge Rackemann on 23 January 2015 and referred not only to the issues raised in the notice of appeal, but also to further issues that may be identified in particulars or in writing on or before 13 February 2005. Self-evidently, the issues, which are the subject of the application before me, did not arise as a consequence of the order referred to above.
  1. [4]
    The meetings of experts have concluded, with the exception of the meeting of the town planning experts. The circumstances by which the further issues, the subject of this application arose, are set out in the affidavit of Mr Connor, the solicitor for the appellant, filed in support of the application. Essentially, Mr Dugald Gray was engaged as a need expert on behalf of the appellant. On 7 July 2015, he drew to Mr Connor’s attention for the first time that the detention basins on the approved plans for the quarry, the subject of this appeal, appeared too small to store run-off from the extraction area in order to comply with condition WT4 referred to above. Mr Gray also expressed concerns that the haul road gradients depicted on the Overall Layout Plan were too steep for use by a haul truck. Mr Gray then had a meeting with Mr Connor and counsel on 29 July 2015, before commencing the expert meeting process with his counterpart, Mr Duane on 31 July 2015. The joint report in respect of need was not completed until 18 September 2015 and Mr Connor did not feel that it was appropriate to have any further discussions with Mr Gray until this time. Mr Connor wrote to the legal representatives of the other parties on 15 September 2015 alerting them to potential additional issues which are the subject of this application. On 30 September 2015 a letter was sent to the parties detailing the additional issues. Although Mr Connor was respecting the expert meeting process, it does not explain why he did not alert the parties to the issues beforehand. Self-evidently; not only were the issues the subject of this application raised late, but they were not raised with the other parties until a considerable period after they were first raised with the legal representatives of the appellant.
  1. [5]
    I have before me an affidavit of Mr Gray sworn 17 October 2015 which deposes to alleged inadequacies in respect of the stormwater detention basins required by condition WT4 and also concerns with respect to the siting and gradients of the proposed haul roads within the quarry. At paragraph 11 of his affidavit, he concludes that, in his opinion, the proposed development could be amended to address the “technical issues that I have identified above”, but that until the proposal has been amended, he is of the view that the proposal conflicts with Specific Outcome SO12 of the Rural Zone Code of the Esk Shire Planning Scheme which requires land stability to be managed having regard to, amongst other things, the location and design of roads and access driveways and that the proposal further conflicts with Specific Outcome SO2 of the Extractive Industry Code of the planning scheme which requires the development provide for the systematic rehabilitation of the site in a stable condition and landform suitable for alternative uses.
  1. [6]
    Obviously, conflicts with the planning scheme are legitimate matters for disputed issues in the hearing and determination of the appeal. However, in terms of SO12 of the Rural Zone Code of the planning scheme, the issue addressed is land stability and the purpose of the outcome is to maintain land stability having regard to a number of matters. Nowhere in the affidavit of Mr Gray is it asserted that the haul routes will not be stable. The best that can be submitted in terms of this particular provision of the planning scheme is that the probable solution corresponding to SO12 requires vehicle access to be safe with a slope not greater than 20 per cent, and that in paragraph 10(b)(ii) of his affidavit, Mr Gray questions whether the western-most haul road gradient is closer to 20 per cent or 25 per cent.
  1. [7]
    In my view, there is an insufficient evidentiary basis for alleging a conflict with SO12 of the Rural Zone Code.
  1. [8]
    As far as the conflict with SO2 of the Extractive Industry Code is concerned, Mr Gray asserts that the design of the proposed quarry will not allow systematic rehabilitation of the site to occur, as is required by this particular specific outcome. He asserts that this is because a considerably larger detention basin system will be required as the proposed quarry expands and because in order to achieve safe and practicable gradients for proposed heavy equipment, the haul road network will have to be designed to traverse the hillside in a zig-zag manner through previously quarried levels. Although engaged as a need expert, the curriculum vitae of Mr Gray, which is exhibit “DNG1” to his affidavit, discloses he is a qualified mining engineer with extensive quarrying experience. He therefore clearly has a level of expertise which is sufficient to make an assertion in this regard. No evidence contradicting his assertion has been placed before me.
  1. [9]
    I am therefore in a position where the appellant asserts a significant conflict with a most relevant part of the planning scheme which is not currently listed as a disputed issue in the appeal.
  1. [10]
    Obviously the raising of this disputed issue is not of itself sufficient to ensure the success of the application in this respect.[1] Relevant factors for me to consider include the nature and importance of the amendment, and the issue of whether or not it is possible to achieve a systematic rehabilitation of the site is one which is important. Other factors which I need now consider are the extent of the delay, together with the costs associated with it and the prejudice of allowing the amendment.  I note that the joint meetings of the experts have not yet completed, and whilst there may be a need for a further meeting of the geological experts, it is difficult to see that any other areas of expertise will be affected should I grant leave to raise the issue of conflict with SO2 of the Extractive Industry Code. The dates for the hearing of this matter have not yet been set, and in the circumstances, the co-respondent cannot point to any specific prejudice should I permit this issue to be added to the dispute between the parties. Obviously the price of me doing so is that the appellant will pay the costs thrown away and any additional costs as a consequence of the late adding of the additional disputed issue. The delay in seeking the amendment between the date when the issues the subject of the application were first notified to the appellant’s solicitor on 7 July 2015 and the steps put in place to add additional issues by contacting the other legal representatives of the parties on 15 September 2015 is not, in my view, satisfactorily explained. However that is not of pivotal importance. I also note that in Body Corporate for Sun City Resort CTS 24674 v Sunland Constructions Pty Ltd & Ors (No 2),[2] a number of principles were identified relevant to the exercise of my discretion. These include the need for an adequate explanation or justification for the bringing of the application. Balancing all of these matters, which I will not list, with the matters set out above, I am of the view that it is not only in the interests of the parties that these additional issues be litigated as part of the appeal but that it is also in the public interest that this occur. 
  1. [11]
    Accordingly, the appellant is granted leave to add the following disputed issues in the appeal:

“1. The extent of the disturbance footprint shown on the approved plans has not been appropriately demonstrated to comply with condition WT4 of the Department of Environment and Heritage Protection’s referral agency response dated 5 February 2004 which requires:

“The stormwater runoff from disturbed areas, generated by (up to and including) a 24 hour storm event with an average recurrence interval of 1 in 5 years must be retained on site or managed to remove contaminants before release.”

  1. The extent of the disturbance footprint shown in the approved plans fails to take into account appropriately graded haul roads given that the proposed haul roads shown on the approved plans are too steep and are unsafe.
  1. Given paragraphs 1 and 2 above, the proposed development will not be able to provide for progressive rehabilitation and thereby conflicts with SO2 of the Extractive Industry Code.”
  1. [12]
    I order that the appellant pay the costs of the respondent, co-respondent and second co-respondent by election of and incidental to this application on the standard basis. I further order that the appellant pay the costs of each of the parties consequential upon the need to reconvene any meetings of existing experts on the standard basis.

Footnotes

[1] See AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 214-215.

[2] [2011] QSC 42 at [25].

Close

Editorial Notes

  • Published Case Name:

    Karreman Quarries Pty Ltd v Somerset Regional Council & Ors

  • Shortened Case Name:

    Karreman Quarries Pty Ltd v Somerset Regional Council

  • MNC:

    [2015] QPEC 53

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    29 Oct 2015

Appeal Status

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

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