Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council
[2017] QPEC 35
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- Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council[2017] QPEC 35
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Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council[2017] QPEC 35
Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council[2017] QPEC 35
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors [2017] QPEC 35 |
PARTIES: | PARKLANDS BLUE METAL PTY LTD (ACN 010 471 548) (appellant) v SUNSHINE COAST REGIONAL COUNCIL (respondent) and THE CHIEF EXECUTIVE ADMINISTERING THE TRANSPORT INFRASTRUCTURE ACT (first co-respondent by election) and CHIEF EXECUTIVE OF THE DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION, AND CHIEF EXECUTIVE OF THE DEPARTMENT OF NATURAL RESOURCES AND MINES (FORMERLY CHIEF EXECUTIVE OF THE DEPARTMENT OF ENVIRONMENT AND RESOURSE MANAGEMENT) (second co-respondent by election) and THE YANDINA CREEK PROGRESS ASSOCIATION (third co-respondent by election) and OTHERS (9th to 10th co-respondents by election) |
FILE NO/S: | D 247 of 2011 |
DIVISION: | Planning and Environment Court |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning and Environment, Maroochydore |
DELIVERED ON: | 22 June 2017 |
DELIVERED AT: | Planning and Environment Court, Maroochydore |
HEARING DATE: | 14 – 16 February, 20 April 2017 |
JUDGE: | Robertson DCJ |
ORDER: | Conditions to be imposed in accordance with Ex 2 (as amended 20.4.17) and these reasons. |
CATCHWORDS: | CONDITIONS OF APPROVAL: where a number of conditions relating to an approval for a hard rock quarry at Yandina remain in dispute, whether proposed conditions are relevant and reasonable; whether appellant bound by its position at the merits appeal that the haul route be fully upgraded prior to the commencement of the use; standard of haul route design, particularly that part which is a flood plain and is irregularly inundated, whether Council should be responsible for maintenance of haul route once upgraded, whether there should be some offset against the cost of the upgrade to be borne by the appellant as a result of forward planning by Council for its unsealed road system; whether conditions proposed for aviation safety are relevant and reasonable, whether aeronautical study proposed at merits appeal is still required, whether proposed condition deferring contribution by way of levy to DTMR in respect to the use of that part of the haul route that includes State-Controlled roads is reasonable. |
COUNSEL: | MB Hinson QC & JD Houston for the appellant CL Hughes QC & A Skoien for the respondent J Brien for the 1st co-respondent J Wilson-Smith for the 3rd co-respondent |
SOLICITORS: | P & E Law for the appellant Sunshine Coast Regional Council for the respondent Norton Rose Fulbright for the 1st co-respondent Andrew Morris Legal Practice for the 3rd co-respondent |
Introduction
- [1]There is no need for me to set out in detail the long and protracted history of this proposal, commencing on 30 June 2009 with an application for a development permit by the appellant (Parklands) to conduct a hard rock quarry activity on a greenfield site at Yandina. Council refused the application on 31 October 2011. In the course of the IDAS process, there were a number of referral agencies, including the first co-respondent by election (the DTMR), which notified conditions to be attached to any approval.
- [2]Parklands appealed against Council’s refusal and against conditions sought to be imposed by DTMR in respect of the upgrading of the state-owned road at the intersection of the haul route with Yandina-Coolum Road.
- [3]
- [4]DTMR had been excused from active participation in the merits appeal. All active parties have negotiated conditions since the court ordered Council to provide Parklands with draft conditions on 16 October 2015.
- [5]By the time of the conditions appeal (heard over 4 days in February 2017, and on 20 April 2017), many conditions had been agreed, as set out in Exhibit 2. When I refer to Exhibit 2, I will refer to a copy of Exhibit 2 which is Appendix 1 to Parklands Reply Submission dated 19 April 2017, handed up on 20 April 2017. Exhibit 2 indicates the conditions agreed in blue shading.
- [6]After the conditions hearing, all parties made written submissions and submissions in reply, including a response by Parklands to Council’s reply submissions delivered 19 April 2017, the day before the hearing of oral submissions on 20 April 2017, which provoked a mild rebuke from Mr Hughes QC and a brief, and interesting, reminder to the court of the Bar Association’s Conduct Rules. With that submission, was included the updated version of Exhibit 2 described as Appendix 1, which includes a number of agreed changes made post the conditions hearing.
The disputed conditions
- [7]The disputed conditions all relate to the Development Permit for Material Change of Use, and can be divided essentially into four categories.[3] Essentially, Parklands wishes to partially upgrade the haul route before commencing extractive industry, by constructing the sealed access drive from North Arm-Yandina Creek Road, and the intersection between that road and Toolborough Road as set out in Recommendations in block outline in Exhibit 6;[4] to enable overburden to be removed from the site which will take 12 to 18 months, and involve between 55 and 66 fully-loaded trucks per working day with an average load of 30 tonnes.[5]
- [8]
[110] That the haul route should be upgraded to the appropriate standard before the use commence is essential for traffic safety reasons, but also to ameliorate amenity impacts arising from 110 very large truck movements on an average weekday (when the quarry is working at maximum capacity), such as noise, dust and intangible impact on amenity of residents along the haul route. All the conditions agreed by the experts should be imposed.
- [9]This, in turn, involves an argument that “use” in this context includes all activity associated with the Preparation Phase.
- [10]The second issue in serious contention is the standard to be adopted in the construction of the haul route, which includes a consideration of hydraulic evidence, civil engineering and traffic engineering evidence which was led during the conditions appeal, and the traffic engineering evidence and amenity evidence (noise, dust etc.) led at the merits appeal hearing. This, in turn, involves a consideration of the conditions contended for by Council and Parklands in Exhibit 2.[8]
- [11]The third contentious issue relates to the financial responsibility for the upgrade and the ongoing maintenance of that part of the haul route that is Council owned. DTMR and Parklands have resolved their dispute with one exception, and that concerns the timing of the commencement of the payment of a contribution towards the maintenance of, and/or accelerated pavement life of the State-controlled road network to be used by haul trucks, commencing with the Toolborough Road and Yandina-Coolum Road intersection.
- [12]The fourth major area of contention relates to the draft conditions relating to aviation safety. This was a significant issue at the time of the merits appeal when both Parklands and Council relied on evidence of aviation safety and aviation operational efficiency experts. The dispute now focuses on para [127] of my judgment and in particular paras (e)-(f):
“[127] Informed by the joint reports of the air quality experts and the blasting experts, the aviation experts agreed that:
…
- (e)an acceptable level of aviation safety could be provided if there was positive control of the blasting activity and air traffic was managed in order to separate aircraft from the blasting activity. Appropriate control and management arrangements would need to be determined through preparation of an aeronautical study;
- (f)an area with defined vertical and horizontal limits, from which aircraft must be excluded during blasting activity at the subject site, could be established to delineate the required separation of air traffic from potential projectile rock created by the blasting activity. Aircraft should be excluded from the defined area, under normal conditions, for a period of approximately 10–15 minutes prior to blasting (when the blast area is secured) until the all clear is given, and approximately 5–10 minutes after the blast, depending upon access to the blast area, proximity of firing and extent of any dust or gases;
…”
- [13]At the conditions hearing, Parklands was the only party to introduce further evidence (from Mr Guselli) and its position now is that an aeronautical study is no longer necessary and that the real issues relating to aircraft safety can be reasonably and relevantly dealt with by binding Parklands to comply with a Blast Protocol, annexed to Mr Guselli’s statement, dated 10 February 2017.[9]
- [14]There are a number of other disputed conditions that are effectively ancillary to the main issues identified above.[10]
The relevant test
- [15]Pursuant to s 3.5.30 of the Integrated Planning Act 1997 (IPA) Conditions must be relevant or reasonable:
“(1) A condition must—
- (a)be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
- (b)be reasonably required in respect of the development or use of premises as a consequence of the development.”
- [16]As Mr Hughes QC noted in oral argument, the wording of s 3.5.30 of the now repealed IPA is in similar terms to s 345 of the Sustainable Planning Act 2009 (the SPA). When dealing with competing conditions, some of which may satisfy either or both of the statutory tests, the decision maker is required to undertake an exercise of discretion subject only to the condition being reasonable or relevant. In Waverly Road Developments Pty Ltd v Gold Coast City Council[11], this Court set out the principles applicable to the exercise of the conditions power.
Discussion
The timing of the haul route upgrade
- [17]The Council and the Association have raised a number of reasons why (as they submit) the court should not permit Parklands to go behind its position at the merits hearing, which was its agreement that the haul route should be upgraded to the appropriate standard before the use commenced. There is no doubt that was its position. At that stage, the only issue extant relating to the haul route from the point of view of Parklands, was the responsibility for the cost of the upgrade to the haul route and the responsibility for its ongoing maintenance, which I was satisfied could be left to the conditions stage.[12] In accurately summarizing what I said in my judgment in relation to traffic, Mr Wilson-Smith (on behalf of the Association) wrote:
“22. Your Honour’s reasons in respect of traffic are set out at paras [101] – [115] of the judgment which provides, inter alia:
- (a)all the traffic experts agreed that the proposal could not proceed in the absence of upgrading of that portion of the proposed haul route, that it (sic) the Council controlled;
- (b)conditions should be imposed to reflect the agreement reached at the second JER;
- (c)by the time of the hearing only two traffic engineering issues remained unresolved;
- (d)that the haul route should be upgraded to the appropriate standard before the use commences is essential for traffic safety reasons but also to ameliorate amenity impacts arising from 110 very large truck movements on an average weekday (when the quarry is working at maximum capacity), such as noise, dust and intangible impact on amenity of residents along the haul route. All the conditions agreed by the experts should be imposed;
- (e)it will be a condition that the haul route be upgraded to an appropriate standard, and a condition to be negotiated (hopefully) about its maintenance.”
- [18]At the conditions hearing, the focus was on what commencement of the use means in the context of a quarry operation. Council and the Association focused on the definitions of “material change of use” and “use” in the IPA.[13] Parklands focuses on the definition of “Extractive Industry” in the Planning Scheme. It is defined in the Planning Scheme as:
“…the use of premises or works for a business purpose, for the winning on or from the land, and/or the treatment and processing, including crushing and screening, of gravel, rock, sand, soil, stone or other similar materials.”
- [19]Parklands relied on the judgment of de Jersey CJ in McDonald v Douglas Shire Council.[14] The judgment focuses on the construction of the term “commenced”, in the context of a development permit for the use of land as a resort, in s 4.13(18) of the Local Government (Planning and Environment) Act 1990 (the P&E Act). This court had held that despite some work having been done under a building permit, nevertheless, as the use of the land the subject of the approval had not commenced within 4 years, the permit had lapsed. In relation to the words in s 4.13(18)(a) “the use of land… the subject of the approval in respect of which the permit was issued, has not commenced…”; the Chief Justice wrote (at [19]) (the words) “obliges one to look at the approval, identify the particular use envisaged by that approval, and ask has that particular use commenced. Recourse to the general definition of ‘use’ under s 1.4 (which in its terms has some similarity to the definition of ‘use’ in the IPA) is therefore, in my view, unhelpful…”
- [20]This construction, it is submitted, favours the argument advanced by Mr Hinson QC and Mr Houston on behalf of Parklands that the use commences when “extractive industry”, as defined in the Planning Scheme, commences. There was some argument, by reference to evidence of Mr Gray at the merits hearing, that overburden may have some commercial value, and that it may indeed be sold if a market can be found.[15] Ultimately, in my opinion, it is not necessary for me at this stage to reach any final conclusion on the competing arguments advanced on this discrete point, because the task for me is to decide, in the exercise of discretion which conditions (of those in dispute) should be imposed; based on all the evidence (both in the merits appeal and the conditions hearing) by reference to s 3.5.30 of the IPA.
- [21]It can be accepted that there was some evidence at the merits hearing that there was insufficient room on the site to store overburden in the Preparation Phase. The removal of overburden prior to commencement of the quarry business was not the subject of any real focus during the merits hearing. Given the complexity of the then disputed issues, it is unnecessary to level any criticisms at Parklands for not focusing on this particular issue i.e. the timing of the haul route upgrade, to enable overburden to be removed. The Activity Based Management Plan (the ABMP)[16] certainly referred to anticipated removal of overburden during what was then referred to as the “construction phase”, which is now referred to in Exhibit 2 as the “preparation phase.”
- [22]There was, however, never any suggestion at the merits hearing that the haul route be partially upgraded (as now suggested by Mr Holdsworth) to enable the overburden to be removed. In my judgment,[17] based on the common position of all the traffic engineers, the number of truck movements is noted, which is very similar to the number of truck movements proposed over approximately 18 months by Parklands to remove the overburden and prepare the site for business activity.[18] Parklands preferred conditions therefore propose that for up to 18 months, at least 110 large truck movements would be introduced onto Toolborough Road and North Arm Yandina Creek Road, a road system that presently has very low large truck movements, in circumstances in which there would be significant parts of the haul route (particularly on Toolborough Road) which will remain unsealed and be well-below the design standards appropriate for traffic safety agreed by all traffic engineers and accepted by Mr Holdsworth at the conditions hearing.
- [23]It is common ground that there are very low heavy vehicle movements on the Council-owned part of the haul route. At present, the Council-owned portion of the road is appropriately described by Mr Beard as a rural collector road with vehicle loads of approximately 500 light vehicles using Toolborough Road per day, and 110 using North Arm –Yandina Creek Road and a very low number of heavy vehicles, between five and six on Toolborough, and one every other day on North Arm-Yandina Creek Road. It is common ground that the introduction of a large number of heavy vehicles with light vehicles will increase traffic safety risk. The issue now is whether the proposal by Mr Holdsworth is sufficient to appropriately mitigate that risk, and whether the conditions proposed by Council (to ensure that the haul route is fully upgraded before introducing such a large number of heavy vehicles) are not an unreasonable imposition on the development.
- [24]Parklands introduced the statement of Mr James Carruthers[19] as being relevant to the issue of traffic safety in the 18 month Preparation Phase. His evidence was unchallenged. Between 2005 and 2008 his business operated heavy vehicles (relevantly through the intersection between North Arm-Yandina Creek Road over Toolborough Road to the Yandina-Coolum Road intersection) pursuant to two operational works permits to remove fill from his property at Yandina Creek. During the three year period at least 500,000m³ of material was hauled along the route. His company maintained the haul route during periods of haulage, and paid a $30,000 bond to Council which was released at the end of that period.
- [25]A $100,000 contribution was paid to Council, as a contribution towards the costs of upgrading the sealed section of Toolborough Road. There were no safety complaints during the period, and only one complaint about dust. Mr Holdsworth accepted that at present the heavy vehicle numbers were as Mr Beard stated. In his individual report at the conditions hearing,[20] he accepted that his reference to much heavier truck movement trucks in 2008 was as a result of the Carruthers’ permits, and with that ceasing and Boral closing, truck movements on both parts of the haul route are very low.
- [26]As Parklands observes,[21] it proposes to haul 130,000m3 over an 18 month period to facilitate site preparation and to partially upgrade the haul route.[22] Council does not take issue with that part of the proposal to use material from the site (overburden or rock) to construct the haul route. Parkland points to the Carruthers’ approvals as a practical example of the ability of the haulage route (excluding that part from the quarry site access to just prior to the intersection of North-Arm Yandina Creek Road with Toolborough Road), at its present standard, to safely cope with a large number of large trucks without generating complaints about safety or amenity impacts with the one exception of a dust complaint. These approvals were operational works approvals over a period of 3 years, and did not involve a material change of use and impact assessment, such that Council would not have had available the extensive expert evidence relating to traffic safety and amenity available to the Court. It is probable that for every major approval an apparently inconsistent decision can also be found, however the Court here acts on the evidence before it, and although of some relevance, I think the Carruthers evidence has little weight in the circumstances here.
- [27]Mr Holdsworth’s proposal for the partial upgrade, and his response to acknowledged safety issues, is as follows:
“2. Recommendations
Based on my observations, I recommend that a haulage route management plan be prepared and implemented, which includes the following requirements.
a. The erection of 60 kph speed limit signs along the route over which the subject trucks will operate to the east of the existing “End 80kph” sign in Toolborough Road.
b. The erection and ongoing maintenance of advisory speed signs at horizontal curves along the route, together with the erection and maintenance of chevron signs at the rear of horizontal curves.
c. The erection of “road narrows” signs in advance of isolated road narrowings such as culverts.
d. The reconstruction of the Toolborough Road/North Arm-Yandina Creek Road intersection to the “ultimate” standards represented in Covey & Associates Plan 08846 Sheet C06, Issue C, including sealed pavement construction for at least 50m along each approach in advance of the intersection. This construction should include a “splitter island” in the east approach and works to “tighten” the east to south left turn geometry to discourage vehicles from “cutting” across the south-east corner of the intersection at speed.
e. The widening of North Arm-Yandina Creek Road to the north of Toolborough Road (in the section shown as “relatively narrow” in the attached plan) to facilitate the safe passage of opposing trucks together with the construction of localized road widenings wherever necessary and other sections of the haulage route to guarantee an opposing vehicle passing opportunity of at least 7.0m width at least every 250 metres.
f. The requirement that truck operators/drivers operate CB radios on a specified channel whenever traversing the haulage route to facilitate communication between drivers of opposing trucks.
g. Regular maintenance of the route to ensure a safe all-weather riding surface and to avoid the build-up of gravel concentrations, particularly in vehicle breaking and turning areas etc.
Provided that each of the above matters is implemented, I am of the view that the haulage route will operate safely with the expected truck movements in its current unsealed construction.”
- [28]There is common ground between the traffic engineers that, in assessing safety, the contents of a fully laden heavy vehicle is irrelevant. In other words, the same safety issues arise whether or not the trucks are carrying overburden (e.g. soil, surface rock etc.) or quarry products.
- [29]I accept Mr Beard’s evidence that immediately you have the introduction of a large number of heavy vehicles with smaller vehicles, particularly on a road such as this which is in poor condition, you create potential for conflict. He accepted that Mr Holdsworth’s interim proposal in a. to g. above would reduce some hazards, but not all. He was very critical of recommendation e. which provides for “pull over” areas every 250m where the unsealed road is not wide enough to permit heavy vehicles to pass safely. As Mr Beard said, this creates additional decision points, and lack of clarity about right of way, although this could be dealt with by appropriate signage. Although accepting that the partial upgrade would be for up to 18 months, Mr Beard made the good point that the road, as partially upgraded, and particularly the unsealed sections, would be difficult to maintain. In his opinion it would likely lead to frequent roadworks as a result of the introduction of heavy vehicles, and road works and damage to the road surface are very relevant factors in relation to traffic safety. I also accept his evidence that in reality from a traffic safety perspective, the “interim” upgrade is a downgrade for residents, which he described as “substantial.” On the evidence of Mr Beard relating to the important issue of traffic safety, which I prefer to that of Mr Holdsworth on this issue, the haul route should be fully upgraded, before up to 110 heavy vehicles per day are introduced into this particular road system.
- [30]As indicated above. there is an issue about the state of the evidence concerning the ability of Parklands to stockpile overburden on site in the Preparation Phase; and whether or not overburden is a salable product. As to the former, at the time of the merits hearing, access was proposed via McCords Road, however Parklands has since acquired the adjoining property (Lot 442 on C6743), and as a result of a minor change, access is now to be from North Arm-Yandina Road. It follows therefore that Parklands have an additional area for stockpiling purposes. Parklands did not call anyone to give evidence on this issue, but there is, as part of Exhibit 3[23] a letter from Mr Williams (Solicitor for Parklands) to Mr Phillips (Council Solicitor), dated 6 December 2016 which responds to a request from Council relevant to Council’s proposed condition 24, which Parklands opposes. The letter advised that Parklands Civil Engineers Covey & Associates had roughly calculated that, as a result of the acquisition of the adjoining property, only about 1,800m² of the land would be available with an estimated stockpile maximum of 4,500m³ of material. It also advised that with a 10% access grade (in dispute at hearing but now agreed), approximately 130,800m³ of material would need to be taken offsite in the preparation phase.
- [31]I accept that there is insufficient room on the site to stockpile overburden to be removed prior to commencement of the “business operation” of the quarry, but the focus of the need for the haul route upgrade has always been on traffic safety and amenity impact issues. Council submits that the evidence is insufficient to reach any final conclusion on the stockpile issue, but acknowledges that to upgrade the haul route, Parklands should be able to remove overburden and/or road making materials from the site for the purposes of upgrading the haul route. General condition 45 encapsulates the Council’s acceptance of this requirement.
- [32]At the conditions hearing, there was much focus on the extent to which the ABMB dealt with the issue of removal of overburden prior to commencement of quarry operations. At that stage, the construction phase was to be in five phases involving approximately 137,000m³ of “cut” surplus to earth works and civil works required on site. The focus of the ABMP, at the time of the merits appeal, was on the need to remove overburden if surplus to the requirements to undertake “civil works” during the construction phase. The focus was not on the extent to which the haul route would be upgraded prior to commencement of “extractive industry.” In the ABMP[24], in the “construction phase” there are a number of statements that are relevant to this issue:
“To minimize the disposal of earth materials from the construction phase, excavated materials will be used wherever possible as construction materials for civil works required by the development. For example, if 100,000 tonnes of crushed or sized quarry material materials can be used in the civil works, then this reduces the quantity of surplus material required to be removed off-site and reduces the need for the importation of equivalent quarry materials from another quarry site.
All surplus materials to be removed and disposed offsite (anticipated to be mainly overburden and highly weathered rhyolite) will be transported by road truck to suitably licensed premises. These may include building and construction sites approved to receive fill material.
It is recognised a construction management plan will be required for external roadworks required by the development. It will include a description of traffic management and environmental management controls to minimise environmental impacts from construction of the external roadworks.”
- [33]And:
“Overburden materials that are surplus to construction requirements during the construction phase and which cannot be stored on site because of initial lack of room will be trucked off site and disposed of at approved premises.”
What the ABMP does not state is large quantities would be hauled along a partially upgraded haul route.
- [34]In my opinion, the requirement that the haul route be upgraded prior to up to 55 loaded trucks leaving the site per day for traffic safety reasons, is not inconsistent with Conditions (such as 24) which require stock piling of overburden until the haul route is constructed, excepting truck movements for construction purposes. Condition 24 does provide for other unstated exceptions, approved in writing by Council. The difficulty about storage of overburden is really one that Parklands should have planned for when its own traffic expert (Mr Holdsworth) at the time of the merits appeal agreed that the upgrade should be undertaken prior to the use commencing, which, from a traffic safety and amenity issue perspective focused on the 110 heavy vehicle movements per day. From the traffic safety point of view alone, on the basis of my preference for Mr Beard’s evidence, conditions that require the haul route to be fully and adequately upgraded are reasonably required as a consequence of the development. It may be that Parklands will have to source road building materials prior to heavy vehicles using the haul route, from other sources other than the site, and it might lead to timing issues in relation to works required by Condition 18, but, in my opinion, that is not unreasonable because of the importance of traffic safety for the reasons I have exposed. In reality, it is a question of degree, as Parklands seem to accept in proposing Conditions for a partial upgrade as recommended by Mr Holdsworth. Given my conclusions on this issue, there remains some minor inconsistency in wording between the Council Conditions 18(n), 24 and 45 in Exhibit 2. All of these conditions relate to the issue of stockpiling and/or removal of overburden for the purpose of construction of the external haul route as part of the Preparation Stage. Only Condition 24 contains the additional flexibility that would allow Parklands to do other than stockpile overburden on site (where there is insufficient room), if “approved in writing by Council”. This flexibility is desirable and reasonable, and the parties may wish to incorporate these words into the other linked conditions.
- [35]Not surprisingly, the Association has focused on adverse amenity impacts arising from the movement of a similar number of fully loaded heavy vehicles over what is a proposed partially-constructed haul route for a period of up to 18 months. The evidence in the merits appeal on amenity impacts (air quality, noise, intangible etc) remains unchanged. Ms Adams was called by Parklands to address acoustic issues only in relation to Option A (a concrete floodway) in proposed Council condition 52A.[25]
- [36]In relation to air quality, it is true as Parklands point out, that the experts allowed for a number of very conservative assumptions in the modelling[26] which is reflected now in the ABMP,[27] and do not specifically deal with any part of the haul route at any stage once trucks are moving at the rate proposed, which is not sealed. Mr Wilson-Smith makes the point, not by a reference to any evidence but probably self-evident, that in relation to amenity impacts on his clients generally, as well as roadworks to partially upgrade the haul route for up to 18 months, there will be further time where roadworks will be necessary to fully upgrade prior to quarry products being hauled from the site.
- [37]In relation to amenity impacts generally, Mr Wilson-Smith also notes that the evidence in relation to traffic management in this 18 month plus period prior to the full upgrade is deficient. As he points out, in undertaking their modelling, the air quality experts had access to, and inferentially relied upon, a Covey & Associates Engineering works for external roadworks (up to the commencement of the present sealed section of Toolborough Road) which indicated that the road would be sealed. I noted this in my reasons for judgment.[28]
- [38]
“[142] Quarries are clearly uses that generate significant noise, particularly in relation to the operation of the crushing plant and in relation to truck movements along the haul route to and from the quarry floor. Not surprisingly all active parties engaged experts to advise in relation to this important issue.”
- [39]The agreed condition by all four acoustic experts at the merits hearing included condition 39:[30]
“Noise Condition 3: Sealing of roadway
[39] Prior to commencement of operation of a quarry, McCords Road (from the access road to North Arm-Yandina Creek Road) and North Arm-Yandina Creek Road (from McCords Road to Toolborough Road shall be sealed with a dense-graded asphalt material). This road is to be maintained free of potholes.”
- [40]The ABMP (in relation to the Noise Management Plan)[31] does not refer to removing overburden from the site via heavy vehicles for up to 18 months over a partially upgraded haul route. This would include the proposed unsealed section from the quarry entrance now on North Arm-Yandina Creek Road just prior to the Toolborough Road intersection. Movements of haul trucks are included (in the Noise Management Plan) as part of the operation/quarrying phase. The Noise Management Plan acknowledges:
“Prior to commencement of operation of the quarry, McCords Road (from the access road to North Arm-Yandina Creek Road) and North Arm-Yandina Creek Road (from McCords Road to Toolborough Road) is to be sealed. A dense-graded asphalt road surface should be used for 100 metres either side residences (sic) that are within 200 metres of the road.”[32]
- [41]This is an acceptance of Condition 39 as agreed by all the noise experts. Except as recognised in d. of Mr Holdsworth’s recommendations[33] the partial upgrade will not provide for the sealing of this part of the haul route. Even if it is accepted that both air quality and noise experts in their reports at the merits hearing allowed for conservative boundaries in modelling dust and noise levels, at the very least, the residents along the whole haul route which is not sealed will have adverse amenity impacts on the basis that it is highly unlikely that any distinction will be made between a large number of trucks hauling overburden and the same or similar number of trucks hauling quarry products.[34]
Standard of the Haul Road Upgrade
- [42]It is common ground that an approximate 1.1 kilometres of the haul route, on North Arm-Yandina Creek Road to its intersection with, and for a distance along Toolborough Road, is significantly flood prone and lies in a flood plain. This was noted at the merits hearing but not the subject of evidence. Mr Clarke (Parklands) and Mr Collins (Council) have provided a joint expert report[35] and Mr Collins provided a separate report[36] in relation to Parklands preferred Option C[37] which was not available when he and Mr Clarke wrote their joint report. Mr Collins describes Option C as “a proposed flexible pavement at or near existing road vertical alignment, with a geofabric wrapped rock fill subgrade replacement. Widening of the roadway, with associated new longitudinal table drains are proposed as part of (the) haul design”.[38]
- [43]In summary, Council proposes that either a concrete floodway be constructed at grade over that part of the haul route inundated in a ARI 100 year flood event (Option A); or, Option B, a raised road pavement on fill embankment, such that the sub-grade is above the 10 year ARI flood level. This in turn would require Parklands to provide a flood study to demonstrate that the design would have a non-worsening effect on adjacent properties both upstream and downstream.
- [44]
- Approximately 550 metre length of unsealed road on North Arm-Yandina Creek Road, and 750 metres length of unsealed road on Toolborough Road is inundated in the ARI 100 year flood event.
- Both these sections of road are frequently flooded, with 450m and 700m respectively flooding in an AR2 year event.
…
- The roads are generally inundated by one to two days during significant flood events, with at least seven floods since 2007 inundating the road. The 2011 flood inundated the roads for around three days. An analysis of the inundation characteristics of the roads, based on comparison with the available record for the adjacent Yandina Creek stream gauge is provided in Attachment 4.
…
- The results of the flood model show that flood depths across Toolborough Road are up to 1m in the AR1 2 year event, and up to 1.8m in the ARI 100 year flood, though generally across the flood plain, depths are more shallow, making efficient culverting more difficult.”
- [45]In relation to Option B, the flood experts agreed that an extensive network of culverts would be required to convey stormwater under a road built above the 10 year ARI flood level, however they also agreed that the indicative design would produce an unacceptable level of afflux, so further assessment will be required,[40] and the number of culverts may increase. Parklands, in its first submission[41] asserts that on the basis of the flooding evidence, the civil engineers Mr McAnany (Parklands) and Mr Gould (Council) agree that Option B is “economically unviable”.
- [46]Mr McAnany certainly said this[42] but Mr Gould expressly generally disagreed with Mr McAnany.[43] However, he did agree that as a result of the hydraulics evidence, the elevating of the roadway across the flood plain may not be economically viable, but this has not been demonstrated.[44] Mr Collins in his individual report, commented about the ability to drain the shoulders in Parklands proposed Option C by reference to two locations. As he noted this proposal was advanced by Parklands in late January 2017, so effectively after the meeting with Mr Clarke. The two locations he selected, he described as “low points”. Option C involves dense-grade asphalt at grade through the flood plain area. If Option C is adopted, Parklands agrees to a system of flood markers, and a prohibition on haulage for 24 hours until after all flood waters have receded below the base of the gravel sub-grade of the road pavement. One of the difficulties with Option C is that it came late, and without a complete drainage design. Mr Collins conceded that there can be a solution, and Mr McAnany’s evidence about draining the road construction in accordance with Option C was quite persuasive.
- [47]In terms of flood immunity, Option A is probably the best, however Mr McAnany gave evidence that to provide a concrete floodway in the 1.15 kilometres of the haul route in the flood plain would cost approximately $820,000 more above the $1 million cost per kilometre of the road generally, but on the evidence, would require far less maintenance over the design life of the section.[45] There is no evidence as to the extent of this saving. The concrete surface would generate slightly more noise for the life of the quarry than that generated by dense-graded asphalt.[46]
- [48]A number of points made by Parklands in its primary submission in relation to Option B had merit. At paragraphs 17(a) and (b) of its 15th March submission, Parklands notes:
“170. Parklands submits there is no justification for requiring it to increase the level of the existing level of flood immunity of the haulage route in circumstances where:-
(a) it is common ground that quarry haul trucks must not use the road when floodwaters reach a specified level and for 24 hours after floodwaters recede from that level – and so the increased immunity is of no relevance to Parklands’ operations; and
(b) the Council requires Parklands to bear the full cost of improving the flood immunity of the haul route;”
- [49]As Mr Collins noted in his evidence,[47] it is not reasonable to expect Parklands to solve the flooding problems (flooding to the 2 year limit) for the broader community. It just has to get the road to a standard that is not going to make the flooding worse. Council opposes Option C on a number of bases, primarily because there is no proper design evidence, and that an asphalt road at grade in a flood plain that is frequently inundated is completely unsatisfactory given that the major impact on the pavement will be from heavy vehicles, and the damage is very likely when the sub-grade is wet. Parklands response to that is that they are prepared to accept a condition that there will be no heavy vehicle traffic until 24 hours after flood waters recede below the base of the gravel sub-grade of the road pavement.
- [50]In relation to Council’s reply submissions,[48] I agree with Parklands that there is sufficient evidence that a drainage solution can be found and that it is appropriate to leave the detailed design for consideration by Council at the operational works stage. Parkland proposed condition 56 provides for input from a RPEQ at or just prior to the lodgement of the Operational Works application for the haul route including assessment and certification of any necessary “upgrades” to “drainage structures”. In light of my conclusions about responsibility for cost of the upgrade, there is no need for a condition of the type set out in red in Parklands Condition 56 in Exhibit 2 in the last sentence. Modified conditions 54 and 55, ensuring that haulage must cease if any section of the gravel sub-grade of the road pavement is inundated as shown on the flood-markers created under condition 55, and must not resume until 24 hours after all flood waters have receded from below the base of the gravel sub-grade as shown by the flood markers, are reasonable. I note also the acceptance by Parkland in its updated Exhibit 2 of the words “base of the gravel sub-grade” to reflect the civil engineering evidence.
- [51]It follows that I am satisfied that Option C as proposed by Parklands is reasonable and relevant subject to the conditions, proposed by Parklands at 51, 54 and 55, and 56 (absent the last sentence).
The use of the presently sealed section
- [52]Parklands wishes to take advantage of the existing sealed section of the haul route on Toolborough Road, from the intersection of the State-controlled road past the entrance of the disused Boral site. The section from the intersection to the Boral entrance, on the evidence, seems to be in good condition, but the section thereafter has deteriorated. At the time of the merits hearing, the traffic engineers’ reports were informed in part by Covey & Associates’ drawings of the haul route which showed it commencing from the existing sealed section of Toolborough Road.[49] By the time of JER4 for the conditions hearing, Mr Holdsworth opined that from a traffic engineering perspective, there was no present need to reconstruct the currently sealed section, and Mr Beard considered that “no works would reasonably be required in areas where the sealed width is more than 7.4 metres. However, if pavement edge breaks have reduced the seal width to less than 7.4 metres, those edge breaks should be repaired to ensure a sealed width of not less than 7.4 metres.”[50] Parklands accepts that recommendation.
- [53]The civil engineers disagreed about the suitability of that section of the road at present, with Mr Gould intruding into areas such as acoustics and dust which he accepted were beyond his area of expertise. Neither had really done any extensive analysis so as to offer informed opinions from a civil engineering point of view. The major issue, in my opinion, is traffic safety (that is in relation to this issue) and with Mr Beard’s accepted qualification that can be reasonably addressed by Parklands proposed condition 51A, which appropriately allows for input from an expert appointed by Council. Parklands’ proposed conditions 51 and 51A as they relate to this issue are reasonable and relevant in the circumstances.[51]
Condition 51(c)
- [54]Condition 51(c) (Council) relating to the haul route (and excluding the presently sealed section) provides that the works must include “lane widening of curves, as required by Ausroads Guide to Road Design Part 3: Geometric Design.” As Council notes in its reply submissions,[52]the condition in these terms is in response to the agreed position of the traffic engineers in JER2.[53] Parklands still contends for the inclusion of the word “generally” in 51(c) which seems reasonable in light of what was agreed to by the experts:
“3. It was agreed that the upgrading of the haul route to the west of the sealed section of Toolborough Road as shown in the sketch planning layouts prepared by Covey and Associates indicate that upgrading to a generally acceptable standard is achievable within the constraints of the existing road reserve. Further refinement of the design should be undertaken in consultation with Council to achieve compliance with Austroads Guidelines wherever possible within the existing reserve, with the design speed to be agreed with Council early in that process. If those standards are not achievable within the existing road reserve, appropriate treatments (of sub-standard horizontal curves, for example) would need to be implemented in accordance with the requirements of the Manual of Uniform Traffic Control Devices. In refining the design, the width of the road construction (min 9m pavement with 8m seal including 0.5m of sealed shoulder) should not be compromised. Widening of the pavement and seal should be implemented at tight bends to accommodate the passing of articulated vehicles in accordance with the requirement of the Austroads Guidelines. Prior to construction, a road safety audit of the road design should be conducted.”[54]
Cost of the upgrade
- [55]At the time of the merits appeal judgment I observed that this was an issue that could be left to the conditions phase. Council has agreed that the haul route be constructed with a design life of 20 years. This is appropriate, and now provides consistency between conditions 44 and 51(b). There is some evidence in Councils’ forward planning documents[55] that it intends to allocate $1.95 million for upgrading/sealing North Arm-Yandina Creek Road within 10 years. Parklands contentions are to the effect that this forward planned expenditure (which relevantly only relates to that part of the haul route from the access to the quarry to the intersection with Toolborough Road) should in some way be offset[56]against its primary responsibility to pay for the upgrade. The traffic counts show that this part of the haul route presently has very low volumes; and very few heavy vehicles. Council addresses this issue in its reply submissions.[57] The evidence is not conclusive that the $1.95 million would be spent, and in any event, indicates only any real commitment to the first year. The reality is that the major user and beneficiary of this part of the haul route for the life of the quarry will be Parklands. It is not unreasonable therefore for it to bear the whole cost of constructing the haul route.
Maintenance
- [56]As at the time of Exhibit 2 (handed-up on 20 April 2017), the remaining focus is on the words “this road is to be maintained free of pot holes for the life of the development at no cost to Council” in conditions 38 (Council); and on Conditions (Council) 59 and 60. Condition 59 (Council) provides triggers for intervention for reconstructing and resurfacing the upgraded haul route. Essentially, Parklands’ position is expressed as follows:[58]
“196. Ordinarily, a new or upgraded road constructed by a developer to service a development would be accepted by Council ‘on-maintenance’ for 12 months, during which time the developer is responsible for maintaining and repairing the newly-constructed road. It would thereafter be accepted by Council “off-maintenance”. The road would then be maintained and repaired by the Council at its costs, in the same way that any other Council road asset or other asset is maintained.”
- [57]Council’s position is that in accordance with all the expert evidence, it is self-evident that it is the use of the haul route by quarry vehicles which will generate the greatest impact on the pavement and therefore the requirement for maintenance and repair, and therefore Parklands should bear that cost for the life of the quarry. Council accepts that it will still be required to perform routine maintenance that is not captured by the requirements of the conditions of approval.
- [58]I accept the evidence of Mr Healy that, in the circumstances here, a levy per tonne of product would not be appropriate because of the peculiar circumstances that would pertain to this particular development and this particular upgrade. The evidence is that the haul route (which in accordance with these reasons will be at grade and asphalt), will be irregularly inundated for extended periods, and this would make it extremely difficult to calculate an appropriate levy with any degree of reliability. There is no doubt that a sealed road will be better for the residents than an unsealed road, but, indisputably the predominant contributor to maintenance and repair of this hitherto low traffic volume local road will be from quarry vehicles.
- [59]The evidence about Council’s cost to maintain the road in the past is relevant, but of limited weight given this indisputable fact. I agree with Council that this is not the usual or “ordinary” situation where a new or upgraded road constructed by a developer to service a development, would be accepted by Council “on- maintenance” for 12 months during which time the developer is responsible for maintenance, and thereafter is accepted by Council “off-maintenance”. The reasonableness and/or relevance of these conditions must be considered against the unusual features here which are referred to above, but which can be summarised as:
- (a)The vast majority of maintenance and/or repair of the haul route pavement will be occasioned by quarry vehicles;
- (b)The flooding issues agreed by the hydraulics experts, and the court’s acceptance as a reasonable and relevant condition Parklands Option C; and the associated problems with predicted inundation of the section of the road that is in the flood plain;
- (c)The nature of the local road now with relatively small traffic volumes, and very low heavy vehicle movements.
- [60]It follows that the conditions proposed by Council in relation to maintenance and repair of the haul route are reasonable and relevant, and not, in the factual circumstances of this case, an unreasonable imposition on Parklands.
Maintenance triggers
- [61]In its written submissions,[59] Parklands refers in some detail to the absence of Council policy documentation to support the maintenance triggers for reconstruction and resurfacing of the haul route pavement during the life of the quarry. Given that Parklands will, as a result of conditions to be imposed, have responsibility to maintain the haul route to a satisfactory standard, there is no reason to impose conditions which I accept, on the basis of Mr McAnany’s evidence, are triggers for investigation and not intervention. It is very much in the commercial interest of Parklands to maintain the road to an appropriate standard throughout the life of the quarry. However, it is important to recognise that this is a Council road and Council should reasonably have some power to ensure that repairs and all maintenance are carried out by Parklands as reasonably required. It is not reasonable to expect Parklands to submit an Operational Works application on each occasion maintenance work is required by the conditions of the approval. There is merit in Council, as the owner of the road, having a mechanism in the conditions that would enable it to intervene in the unlikely event that Parklands (in breach of conditions and contrary to its own commercial interests), refused or failed to appropriately maintain the haul route as required by the conditions. A panel of civil engineers could be one mechanism, with Parklands being able to choose one and then being bound by his or her assessment and recommendations. The assessment could be guided by the triggers presently set out in Council’s Condition 59. This issue was not canvassed at the hearing, so I reach no conclusion on the relevance and reasonableness of such a condition, and invite the parties to either agree on a condition or advance further evidence and/or submissions if agreement cannot be reached on this discrete issue.
Aviation safety
- [62]The conditions in dispute are those set out from 73-77; and 79-80B. In accordance with Exhibit 2 (appendix 1 to Parklands 19.4.17, submission) 73, 77, 78 and 80-82 are no longer in contention. This topic and the associated topic of airport efficiency are dealt with in my reasons for judgment at [116]-[140]. At that time, Parklands were prepared to undertake the aeronautical study referred to in [127] (e) of my reasons. Mr Guselli gave evidence on behalf of Parklands, both at the merits appeal and the conditions hearing.[60] The factual dispute as reflected in the competing conditions in Exhibit 2 relates to the need for the aeronautical study (with the involvement of CASA), and the terms of the Blast Protocol, which at the time of the merits hearing was to be approved by CASA following such an aeronautical study. At the heart of Council’s argument that an aeronautical study is still necessary to properly inform the terms of the Blast Protocol, is its objection taken at the start of Mr Guselli’s evidence to the evidence contained in the Annexures to Exhibit 12 and to Mr Guselli’s summary in his statement of evidence. The objection primarily relates to Mr Guselli’s email communications with the relevant regulators, namely CASA, Air Services and Civil Air. He summarises the effect of these communications in his statement:[61]
“19. In summary, the outcomes of my consultation with CASA, Air Services and Civil Air were:
- (a)the aeronautical study contemplated in the joint report is not required by those organisations;
- (b)the air space buffers contemplated in the joint report are not required by those organisations;
- (c)the communication and coordination between the quarry and air traffic control around the time of a blast is not required by those organisations;
- (d)the existence of a quarry has been noted on the aviation charts and pre-flight information about the operation and frequency of blasting has been published in the enroute supplement;
- (e)in order to provide additional risk mitigation, a sentry should be posted to look out for any aircraft in the area at the time of a blast and blasting should be delayed as necessary;
- (f)there are no further requirements of the management of blasting, as it relates to aviation safety, now or if the 13/31 Runway is constructed;
- (g)from an aviation safety perspective, all measures are now in place to enable the quarry to commence operations.”
- [63]In relation to the Blasting Protocol, his evidence (based on his consultation with the regulators) is as follows:[62]
“20. CASA is the Australian aviation regulator, the Civil Aviation Regulations 1988 and the Civil Aviation Safety Regulations 1988, made under the author of the Civil Aviation Act, provide for general regulatory controls for the safety of air navigation. CASA, through the Office of Air Space Regulation has determined that no protocol or procedure is necessary to separate air traffic movements from the proposed blasting activities at the Yandina quarry.
- Air Services Australia is the national air traffic services provider and is regulated by CASA. Through the Sunshine Coast Control Tower, it controls air traffic within defined air space associated with the Sunshine Coast Airport. Air Services Australia through its Safety, Environment and Assurance Branch has assessed that no protocol or procedure is necessary to fulfil its safety obligations to air traffic.
- Contemporary aviation safety management is underpinned by the principles of communicative, communication and collaborative decision making. To acknowledge the position of each agency and to support these principles, the high-level blasting protocol constructed in 2013 has been revised considering the respective determinations.
- The revised High-Level Draft Blasting Management Protocol exceeds the minimum regulatory requirements and permits a high-level of safety and efficiency to be generated with minimal effort by the stakeholders. In particular, control tower personnel are free from obligations associated with approval or denial. In addition, after the first two blasts had been conducted, requirements for advisory radio broadcast would cease as sufficient awareness has likely been created.
- The High-Level Blasting Management Protocol with changes by me “tracked” is attachment 5A and attachment 5 to this statement.
- A copy of the High-Level Blasting Management Protocol with my changes accepted is attachment 6A and attachment 6 to this statement.
- The Protocol is only relevant if and when runway 13/31 is operational.”
- [64]Council did not call any air safety expert to give evidence at the conditions hearing. It objects to the key parts of Mr Guselli’s evidence on the ground that it is hearsay. Council’s position is difficult to understand, given that despite the mountain of evidence advanced at the merits hearing, the experts determined that the only real danger to overflying aircraft from the proposed east-west runway, either approaching or leaving, was from fly-rock, which, on the evidence, could invade the lowest predicted height of aircraft by some 148 feet, but only if the blast was uncontrolled and in complete contravention of the strict conditions agreed by the blasting experts and accepted by Parklands.[63] All experts agreed that this was extremely unlikely. It is also relevant that in accordance with conditions that Parklands has accepted, the maximum number of blasts per calendar month will be 2.
- [65]In its Reply to Council’s submissions,[64] Parklands usefully sets out the history of negotiations between it and Council since the merits appeal, resulting in considerable progress and proper concessions made by Parklands.[65] Councils’ proposed conditions notified on 30 October 2015,[66] included a condition that an aeronautical study be undertaken (to inform the Blast Protocol) “if required by CASA”.
- [66]Parklands disputed that condition, and by 20 September 2016,[67] Council had withdrawn that condition. As can be seen from one of the email exchanges the subject of the objection,[68] this was after Mr Greeves, an expert in aviation safety engaged by Council, was liaising by email with CASA about the subject of the aeronautical study. He was given the same information as Mr Guselli i.e. that the activity does not warrant the establishment of a Danger Area, and he noted that in the relevant charts to guide pilots, because of the approval, a symbol is now used to advise them of the activity. This attachment was disclosed by Council. I agree with Parklands that a reasonable inference could be drawn that after advice from Mr Greeves, Council withdrew its requirement for the aeronautical study, which it has now reinstated.
- [67]I accept Mr Guselli’s evidence that for the reason that he gives, an aeronautical study is no longer necessary. Council I infer, was aware of this from their own expert advisor in 2015. Rule 23 of the P.E.C.R. 2010 applies, and not only would strict proof of the summary in Mr Guselli’s report[69] cause unnecessary or unreasonable expense, it would be pointless, as it is highly probable that what he has been told by CASA and the other regulators is not seriously in dispute. The objection advanced by Council at the hearing is therefore overruled.
- [68]I do not accept Council’s submission that CASA may not have been fully informed about the proposed blasting. It would hardly have assisted CASA to be provided with a copy of the court’s judgment. On my assessment of his email exchanges with the regulators, Mr Guselli has made appropriate and full disclosure of what is expected, relating to the only problem from fly rock identified by the blasting experts.
- [69]In relation to the issue arising about the contents of the Blast Protocol arising from Mr Guselli’s cross-examination, I agree with the submissions made by Parklands in its reply to Council’s reply submissions.[70] Parklands proposed conditions in Exhibit 2 are reasonable and relevant and adequately address the issue of aviation safety from the use.
Other disputed conditions
- [70]Condition 48 is, in my opinion, an unreasonable imposition on the development. It is clear that Council has calculated the figure of 112 trips per day by extrapolating from the maximum extraction limit and taking into account an indicative truck size. Such a proscriptive condition does not reflect the uncontested condition evidence of the traffic engineers from the merits appeal,[71] relating to output limits, reflecting the reality that quarrying is by its nature an intermittent activity. I agree with Council that there should be some control over truck movements to give residents more certainty, however I agree with Parklands that a reasonable condition should be imposed by calculating the daily average based on an annual limit, as it was in the merits appeal.[72]
- [71]There remain a number of minor disputes relating to conditions in Exhibit 2 which seem to be simply drafting issues which hopefully can be resolved between the parties.[73]
The DTMR dispute
- [72]During the IDAS process, the DTMR as a referral agency imposed conditions it required as part of any approval. Parklands appealed against a number of conditions but, for good reasons, DTMR was excused from active participation in the merits appeal, and the dispute about its’ conditions was left to the conditions phase. Ultimately, the dispute narrowed and focused on DTMR’s condition 2 which requires Parklands to pay a contribution of 16 cents per tonne (payable annually and subject to indexation) for the maintenance and/or accelerated reduction in pavement life of the State-control road network (particularly Yandina-Coolum Road). Parklands argues that as it has accepted responsibility to upgrade the intersection off Toolborough Road with the Yandina-Coolum Road, it should be entitled to an offset against the contribution in condition 2. In negotiations, DTMR has amended condition 2 to provide that the contribution be payable from the third anniversary of the practical completion of the condition 1 intersection upgrade works, which is estimated to be a benefit of approximately $100,000.[74]
- [73]DTMR’s position is that there is simply no, or insufficient evidence, to enable the court to calculate a contribution or offset in relation to proposed condition 2. Interestingly, Parklands submits that DTMR’s approach (resulting in the three year moratorium) is “arbitrary”.
- [74]Parklands relies on what it says is evidence from the JER2 of traffic engineers[75] in which they say:
“…in respect of Toolborough Road/ Yandina-Coolum Road intersection, it was agreed that the geometry of the existing intersection is not consistent with current design standards in the context of existing traffic demands and development approval. Having regard to that matter and the agreement that the Applicant should bear the entire cost of the constructing works, they agreed it might be appropriate for this matter to be taken into account when DTMR determine the magnitude of other road charges which may be imposed on the subject development.”
- [75]Parklands has accepted condition 1. There is no evidence of any present plans of DTMR to upgrade that intersection which, given the traffic flows from Toolborough Road is not surprising. There is no evidence as to the actual cost of upgrading the intersection. The evidence is not sufficient for the court to say that the intersection works required to upgrade the intersection to accommodate quarry trucks are “upgrading for present design deficiencies having regard to existing traffic and traffic from another approved development”. There is no evidence that there is any other development that will use this intersection for up to 112 heavy vehicle movements a day. Indeed the evidence is that the Boral quarry on Toolborough Road is closed. Parklands position overlooks the fact that condition 2 relates to the whole of the State controlled road network to be used by its heavy vehicles for its quarry, and in particular the undoubted adverse effect on the pavement of Yandina-Coolum Road beyond the intersection. The terms of condition 2 as proposed by DTMR are reasonable and relevant and should be imposed.
Conclusion
- [76]Conditions to be imposed in accordance with agreed conditions in Exhibit 2 (as amended on 20.04.2017) and these reasons.
Footnotes
[1] Parklands Blue Metal Pty Ltd (ACN 010 471 548) v Sunshine Coast Regional Council [2014] QPELR 479 (referred to as “RJ”).
[2] Sunshine Coast Regional Council v Parklands Blue Metal Pty Ltd [2015] QCA 091, (2015) 208 LGERA 199.
[3] By reference to Exhibit 2, in the Preparation Phase (Conditions 18, 19, 20, 24, 27, 28 and 42); Haulage Route Construction and Use (43-45; 48, 51-56 (see Parklands 58A), 59, 60); and Aviation Safety (74-77, 79 and (see Parklands’ proposed 80A-80B), 82).
[4] Exhibit 6 Conditions Hearing p 4, and Exhibit 2 58A – 60.
[5] Ibid p 3.
[6] [2014] QPELR 479 at 500.
[7] Ibid 499-501
[8] Draft condition 51.
[9] See draft condition 74 (Parklands) in Exhibit 2; and Exhibit 12 p 38 (conditions hearing).
[10] Draft condition 59 associated with maintenance; 48 dealing with the maximum allowable daily trips and associated with the haul upgrade and cost.
[11] [2011] QPELR 649 at 659 para [47]; (2011) 187 LGERA 352 at [47]
[12] RJ 499-501.
[13] For example, “use” is defined in Schedule 10 of the IPA to include “any use incidental to and necessarily associated with the premises.”
[14] [2003] QCA 203.
[15] Merits hearing T-5, 58 L.5, 59
[16] Exhibit 8 (merits appeal) pp 19, 21, 44, 139 and 140.
[17] RJ [110].
[18] Exhibit 6 (conditions appeal) p 3 (over approximately 18 months… between 50 and 66 fully loaded trucks).
[19] Exhibit 13.
[20] Exhibit 11.
[21] Parklands submission 15.3.17 at [87].
[22] Exhibit 2 Parklands proposed Condition 58A
[23] Page 235 of Exhibit 3.
[24] Merits hearing, Exhibit 8 pp 19, 139.
[25] Exhibit 2, p 10.
[26] RJ – [76].
[27] Exhibit 2, condition 9, Exhibit 8 (merits hearing) 6.1.
[28] RJ [80].
[29] RJ [142].
[30] Merits Hearing, Exhibit 9, tab 13, p 8.
[31] Exhibit 8 (Merits) 6.3.
[32] Ibid p.47
[33] Ex. 6 (Conditions Hearing)
[34] See the statements of residents Exhibits 20 and 21 (Conditions)
[35] Exhibit 7 (Conditions Hearing).
[36] Exhibit 17 (Conditions hearing).
[37] See Parklands condition 51, 51A, Council’s conditions 51, 52-55 (Exhibit 2).
[38] Exhibit 17 (Conditions)
[39] Exhibit 17, p 2.
[40] Exhibit 7, p 4, [8] and [10].
[41] 15 March 2017, [16].
[42] Exhibit 9, p 5, 4.12(i)(ii).
[43] Exhibit 9, p 35, 8.21.1.
[44] Exhibit 9, 8.21.2
[45] T3-37, ll 1-3.
[46] Exhibit 10 (conditions appeal, Ms Adams).
[47] T 1-93,ll 1-6
[48] 7.4.17, [2.83].
[49] Merits appeal, Exhibit 10-6 from p 5.
[50] Conditions, Exhibit 6, p 5-6.
[51] Exhibit 2, p 9-10.
[52] 2 April 2017 p.3
[53] Appeal Exhibit 10-6, p2 para3
[54] Exhibit 10-6 p.2 para 3.
[55] Conditions hearing, Exhibit 37 – p.9 and Appendix 4.
[56] Parklands suggest an infrastructure agreement against its primary responsibility to pay for the upgrade.
[57] 7 April 2017, p 23.
[58] Para 196, Parklands 15 March 2017.
[59] 15 March 2017.
[60] Exhibit 12.
[61] Exhibit 12, para 19.
[62] Exhibit 12, paras 20-26.
[63] RJ para 130.
[64] 11 April 2017.
[65] Letter dated 10 February 2017, Exhibit 3 tab 46, p 325-328.
[66] Exhibit 3, conditions hearing, tab 3.
[67] Exhibit 3, conditions hearing, tab 11.
[68] Exhibit 12, attachment 4, 34-35.
[69] Exhibit 12, para 19.
[70] 19 April 2017, at [122]-[125].
[71] Merits hearing, Exhibit 10-5, 10-6 and 10-7.
[72] Appeal hearing, Exhibit 11, tab 15, p 19-20.
[73] Condition 19( the only dispute seems to relate to the inclusion of the word “drilling” which seems to me to superfluous given the purpose of the condition i.e. to ensure that any blasting in the preparation phase be governed by the ABMP and that Council and DEHP are given advance notice; Condition 20; Condition 27; Condition 43 which, consistently with what I have written about 18(n), 24 and 45 above, should also allow for heavy vehicles to leave the site if approved by Council.
[74] Conditions hearing, Exhibit 14, tab 7, p 27, 31-32.
[75] Merits hearing, Exhibit 10-6.