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Mary Valley Community Group Inc v Gympie Regional Council[2018] QPEC 58

Mary Valley Community Group Inc v Gympie Regional Council[2018] QPEC 58

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Mary Valley Community Group Inc & Anor v Gympie Regional Council & Ors [2018] QPEC 58

PARTIES:

MARY VALLEY COMMUNITY GROUP INC

(appellant/applicant)

and

PEAK EVENTS LTD TRADING AS GARAPINE

(second appellant/applicant )

v

GYMPIE REGIONAL COUNCIL

(respondent)

and

CORBET PROPERTY PTY LTD (ACN 614 710 360)

(second respondent/first co-respondent)

and

CORBET QUARRIES PTY LTD (ACN 614 710 360)

(third respondent/second co-respondent)

FILE NO/S:

4/2018 and 7/2018

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of an Appeal and Originating Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

7 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

21 October (inspection) and 22 October to 26 October 2018

JUDGE:

RS Jones DCJ

ORDER:

  1. The relief sought by the appellants/applicants pursuant to their amended originating application is refused.
  2. The appeal is dismissed.
  3. The matter is otherwise adjourned to facilitate the preparation of conditions.
  4. I will hear further from the parties as to any further consequential orders.

CATCHWORDS:

APPEAL AGAINST APPROVAL – where respondent council approved respondent’s decision to approve a development application for a material change of use – where material change of use involved expansion of existing borrow pit into a commercial quarry together with a concrete batching plant – where proposed development is extractive industry, high impact industry and involved environmentally relevant activities – where hard rock had already been removed from existing borrow pit on the land to facilitate other commercial activities on the land – where existing commercial activities on the land included transport depot, compost manufacturing and organic waste processing, bulk landscape supplies, other associated uses and associated environmental relevant activities

WHETHER A PROPOSED DEVELOPMENT IN CONFLICT WITH RELEVANT PLANNING DOCUMENTS – where subject land zoned rural – where located 700m south of respondent’s industry investigation area – where surroundings generally of a rural character – where adjoining land used for non-rural uses including mountain bike riding, short term accommodation, training and conference uses – where landscape materially affected by existing Bruce Highway and ancillary roadworks

WHERE CONFLICT ALLEGED – where conflict alleged in respect of numerous provisions of respondent’s planning scheme – where conflict alleged in respect of a number of matters including location, alignment with the planning scheme, visual amenity, water quality and storm water, noise and air quality, Good Quality Agricultural Land, need and quarry management and control issues

ORIGINATING APPLICATION – where following filing the notice of appeal appellants/applicants filed an originating application – where originating application amended – where originating application sought declaratory relief – where relief sought involved a declaration that various decisions of the respondent concerning the existing borrow pit located on subject land were void and to no effect – where in support of their originating application the applicant/appellants alleged application for the borrow pit was a sham – where also alleged first and second respondents operated in material breach of conditions of approval

LEGISLATION:

Sustainable Planning Act 2009

Planning Act 2016

CASES:

Gillion v Scenic Rim Regional Council & Ors [2013] QPEC 15

Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

Mirani Solar Farm Pty Ltd v Mackay Regional Council and Anor [2018] QPEC 38

Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors [2014] QPEC 24

Warringah Shire Council v Sedevic (1987) 10 NSWLR 335

COUNSEL:

Mr PE Hack QC acting on a direct brief for the appellants/applicants

Mr CL Hughes QC with Mr M Batty for the second and third respondents

Mr BG Rix for the first respondent/council

SOLICITORS:

Thynne + Macartney for the second and third respondents

Thompson Geer Lawyers for the first respondent/council

  1. [1]
    I am concerned here with two interrelated proceedings. First, an appeal (4/2018) against the decision of the first respondent (the council) to approve Development Applications lodged on behalf of the first co-respondent and the second co-respondent, (the co-respondents), to permit, subject to conditions, a quarry and a concrete batching plant on the subject land. The second proceeding (7/2018), is an amended originating application filed on behalf of the appellants/applicants seeking declaratory relief to the effect that the decision made by the council on 30 May 2016, to amend an existing development permit for operational work-bulk earthworks to facilitate the operation of a hard rock borrow pit on the subject land, is void and of no effect. For the reasons set out below the orders of the court are:
  1. The relief sought by the appellants/applicants pursuant to their amended originating application is refused;
  2. The appeal is dismissed;
  3. The matter is otherwise adjourned to facilitate preparation of conditions;
  4. I will hear from the parties as to any further consequential orders.

Background

  1. [2]
    The subject land is located at 1944 Bruce Highway at Traveston, approximately 19 kilometres south of Gympie. The land is at an intersection where the new Bruce Highway carriageway connects via a grade separated interchange to:
  • The Mary Valley Link Road;
  • The old Bruce Highway; and
  • Traveston Road. 
  1. [3]
    The existing roadworks are a significant feature of the landscape. In the joint expert report (JER) of the town planners, Mr Brownsworth for the appellants/applicants, Mr Adamson for the council and Mr Buckley for the co-respondents, the experts described this particular feature of the location in the following terms:[1]

“The subject land is on the north-western quadrant of that interchange having an eastern facing frontage to both the Old Bruce Highway carriageway and an acceleration ramp to the new highway’s north bound carriageway; and frontage to the Mary Valley Link Road to the south.  Direct vehicular access is limited to the Old Bruce Highway, which links to the interchange.  The subject land is well located in terms of gaining direct access to the Bruce Highway, in particular for heavy vehicles.  Mr Brownsworth notes that a designated haul route to and from the site is not identified in the GRPS…”

  1. [4]
    The subject land is zoned rural and, as the town planners recognised, consistent with that zoning, the dominant use of the land in proximity to the subject could be described as involving rural and semi-rural uses. There was some debate between the town planners as to whether, in the opinion of Messrs Buckley and Mr Adamson, the surrounding road works were “the unmistakeably dominant land use in the locality”.  Mr Brownsworth disagreed.  While accepting that the highway infrastructure was an obvious land use feature, subject to the use of the adjoining land immediately to the west, I am inclined to agree with Mr Brownsworth that otherwise the surrounding land uses are of a rural character.[2] 
  1. [5]
    The subject land is also subject to a number of overlays under the planning scheme, being:[3]
  • Bushfire hazard;
  • Significant conservation areas;
  • Flood hazard areas; and
  • Good quality agricultural land.
  1. [6]
    Only the first and last of those overlays warrant discussion in the circumstances of these proceedings.
  1. [7]
    To the immediate west and materially elevated above the subject land is that owned by Mr and Mrs Bennett, described during the course of the proceedings as the “Garapine land”.  While to a significant extent that land is uncleared, it is used for a number of purposes which could not fairly be described as being rural in nature.  In the JER of the town planners those uses are described in the following terms:[4]

“Adjoining the subject land on its western boundary is the Garapine facility.  It is an outdoor education facility which includes active recreational tracks for walking and mountain biking, short-term accommodation, and training/retreat/small conference and support facilities.  The facility caters for primary school and high school camps, weddings and retreats.  This land features significant tree cover and overlooks the subject land from the western ridgeline only.  The site is improved by a number of structures, but these are approximately 420m from the subject land.  It is understood the facility focuses on outdoor education and Mr Brownsworth advises the majority of children’s activities occur within the bush lands located on the Garapine site.  The existing activities zone is located approximately 50 to 70 metres from the proposed quarry pit and the existing bike track runs along the site boundary approximately 10 to 20 metres away from the location of the outside rim of the proposed quarry pit.”

  1. [8]
    Apart from saying that only one wedding has taken place, Mr Bennet otherwise agreed that that was a fair description of the uses of the land. More will be said about those uses below.
  1. [9]
    Doubts were raised by Messrs Buckley and Adamson about whether or not those uses were lawful. According to them, “serious doubts existed as to their legitimacy.  Mr Brownsworth did not take express exception to those doubts but was of the opinion that such concerns were not relevant to the assessment of the proposed development.[5]  While having some genuine concerns about the matter, I will refrain from expressing a final view and proceed on the basis that the uses on the Garapine land are all lawful.  I am comforted in adopting this approach because of the evidence of Mr Brownsworth and Mr Adamson to the same effect, namely, that it is not in the overall scheme of things a determinative consideration.[6]  I am also comforted by the fact that the uses of this land, lawful or not, is of no material consequence to the opinions expressed by many of the other expert witnesses.[7]
  1. [10]
    The subject land is an irregular parcel of approximately 67 hectares in area over which a number of approvals have been issued to facilitate a number of uses being carried out on the land. These approvals are set out in the JER of the town planners:[8]
  • In 2015 a material change of use for a Transport Depot, High Impact Industry (Compost Manufacturing and Organic Waste Processing) Bulk Landscape Supplies, Caretaker’s Accommodation and associated Environmentally Relevant Activities (ERAs).  This approval included a transport depot component for the storage and servicing of road transport and heavy machinery as well as producing, storing and selling of bulk landscape supplies.  Those landscape supplies include the compost and organic waste processing undertaken on the site.  That element of the use of the land is located primarily over two areas or pads, Pad 1 providing for the storage and processing of materials to be composted and Pad 2 to contain the workshop, office building and bagging facility.
  • In 2015 an operational work permit was issued to facilitate bulk earthworks.  In particular, this permit, which is the subject of the declaratory relief proceedings bought by the appellants/applicants, was intended to, subject to conditions, permit the extraction of hard rock from a borrow pit located in the western sector of the property.  Initially the approval limited the operation of the borrow pit to a 12 month period but that was extended to 31 May 2018.  As at the time of the hearing of these proceedings the council is considering a further application to extend the operation period of that borrow pit.  More will be said about the extent and use to which the hard rock extracted from the borrow pit was put will be dealt with in more detail below together with the conditions imposed on those works.
  • In 2016 a further material change of use for Bulk Landscape Supplies was approved.  This approval allowed for a third storage pad area (Pad 3).
  • In 2017 an approval was granted for operational works landscaping in association with the already granted development approvals.
  1. [11]
    The extent of the current operations on the land, together with the location of the proposed quarry and concrete batching plant,[9] are shown in the report of Mr McGowan, the visual amenity expert relied on by the co-respondents. The nature and extent of the existing uses reveals an extensive and sophisticated business operation.
  1. [12]
    Initially, the landscaping and transport operations were conducted on another parcel of land that was the subject of a resumption associated with the upgrading of the Bruce Highway by the Department of Transport and Main Roads. That resumption required the relocation of those operations within a relatively short timeframe. Some of the consequences of that resumption are discussed in more detail below.
  1. [13]
    The land was purchased by Mr Alvin Corbet. He was described by his son, Andrew Corbet, as being the “owner and director” of a number of companies including the co-respondents.  That group of companies was referred to as the “Corbet’s” group of companies.[10]

The proposed uses

  1. [14]
    As I have already identified, the uses approved by the council are, in effect, the conversion and expansion of the existing and now idle borrow pit in the western section of the subject land into a commercial quarry, and the development and use of a concrete batching plant which would be located, broadly speaking, in the centre.[11] 
  1. [15]
    While the details of the quarry and concrete batching plant elements of the proposed development will be discussed in more detail below, it is sufficient at this stage to identify that investigations have revealed that approximately 6 million tonnes of quarry material resource is capable of recovery. At an average annual production rate of around 200,000 tonnes, the expected life of the quarry would be in the order of 30 plus years. It is intended that the product quarried would be split in the order of 30-40% to concrete aggregates with the remaining 60-70% of product being targeted for civil and road based uses. A significant proportion of the concrete aggregate is intended to be used on site in the proposed concrete batching plant.
  1. [16]
    During the course of the cross-examination of Mr Brownsworth by Mr Hughes QC, senior counsel for the co-respondents, he agreed that the respondent’s support for the proposed development was a relevant consideration, but was not determinative. He also accepted that cases concerning quarries typically involve a large numbers of objections, and that in the circumstances of this case, there were relatively few (with some of the submitters being located as far as Goondiwindi, Oakey and the Brisbane suburb of Carindale). Mr Hughes described it as being a consequence of a “relatively sparse distribution of the population in this locality”.[12] That again was accepted by Mr Brownsworth as being a relevant matter, but again, not a determinative consideration.
  1. [17]
    While no party asked me to address the objections to the proposed development in any detail, a cursory review tends to reveal that most of the local submitters were concerned with amenity issues. As the evidence progressed, it seemed more likely than not that some of issues raised were in reality not matters of substance (e.g. haulage transport/route issues) or otherwise could, as addressed by the expert witnesses called by the co-respondents, be able to be dealt with by the imposition of appropriate conditions on development. The various amenity issues raised are discussed below.

Alleged conflicts

  1. [18]
    In the appellants/applicants’ Notice of Appeal no less than 25 conflicts with the council’s planning scheme are identified. Thankfully, the town planners were in agreement that the issues raised in the Notice of Appeal were:[13]
  1. (a)
    Location;
  1. (b)
    Alignment with the planning scheme;
  1. (c)
    Visual amenity;
  1. (d)
    Water quality of storm water;
  1. (e)
    Noise and air quality;
  1. (f)
    Good quality agricultural land (GQAL);
  1. (g)
    Need; and
  1. (h)
    Quarrying operations and management issues.
  1. [19]
    The town planners also acknowledged and agreed that there was overlap between a number of the issues and, in respect of matters (c) to (h), they had to rely on the advice of other experts.[14]
  1. [20]
    As the case progressed it became clear that the evidence concerning bushfire risk,[15] ecology, and water quantity and quality established that those matters, neither of themselves nor in conjunction with any other matter, would warrant refusal of the proposal.  As much was conceded by Mr Hack QC for the appellants/applicants.  For the sake of completeness I should add that I do not consider there is any merit in the criticism of Mr Friend’s treatment of the ground mapping.[16]
  1. [21]
    There is also no dispute that the ameliorative steps proposed by Mr McGowan, which would be imposed as a part of any conditions package, would adequately address any concerns regarding visual amenity.[17]  Mr McGowan was not required for cross-examination.  Instead, the case advanced on behalf of the appellants/applicants was that, in respect of all of the witnesses called to address impacts on amenity, given the past conduct of the co-respondents, I could have no confidence that any conditions imposed by the council would be complied with.[18]  This issue is dealt with below.

Some relevant statutory provisions

  1. [22]
    In respect of the declaratory relief sought, the onus rests with the appellants/applicants. However, notwithstanding being co-respondents to the appeal, the onus rests with them to satisfy me that the appeal ought be dismissed.[19]  Also, subject to any relevant enabling Act, an appeal to this court is by way of hearing anew.[20]  In deciding an appeal under the Planning Act 2016 the court has the power to make a range of orders including, not surprisingly, the power to confirm or set aside the decision appealed against.[21]  It is not in contest that the Planning Act applies in the circumstances of these proceedings.
  1. [23]
    In the appeal proceeding it is asserted by the co-respondents that in the event that there was conflict (with the planning scheme) there would be sufficient grounds to warrant approval in any event.
  1. [24]
    In respect of the “grounds” issue, in Mirani Solar Farm Pty Ltd v Mackay Regional Council and Anor I made the following observations:[22]

“Of significance is that the “sufficient grounds” test enunciated in s 326 of the now repealed Sustainable Planning Act 2009 (SPA) is no longer applicable.  Pursuant to s 326(1) of the SPA, a decision made about a development application could not conflict with a relevant planning instrument unless:

‘(a) The conflict is necessary to ensure the decision complies with a State Planning Regulatory Provision; or

  1. (b)
     There are sufficient grounds to justify the decision despite the conflict…” (Emphasis added)

Pursuant to s 45(5) of the Planning Act:

An impact assessment is an assessment that –

  1. (a)
     Must be carried out –
  1. (i)
     Against the assessment benchmarks in a categorising instrument before the development; and
  1. (ii)
     Having regard to any matters prescribed by regulation for this sub-paragraph; and
  1. (b)
     May be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.” (Emphasis added)

Examples of what might constitute “another relevant matter” include:

  • A planning need
  • The current relevance of the assessment benchmarks in the light of changed circumstances
  • Whether assessment benchmarks or other prescribed matters were based on material errors.

Categorising instrument” for the purposes of s 45(5)(a) is:[23]

‘a regulation or a local categorising instrument that does any or all of the following –

  1. (a)
     categorises development as prohibited, assessable or accepted development;
  1. (b)
     specified the categories of assessment required for different types of assessable development;
  1. (c)
     sets out the matters (the assessment benchmarks) that an assessment manager must assess assessable development against’

“Local categorising instrument” is:[24]

‘(a) A planning scheme; or

  1. (b)
     A TLPI (temporary local planning instrument); or
  1. (c)
     A variation approval to the extent the variation approval does and of the things mentioned in sub-section (1).’

A local categorising instrument that is a “planning scheme” is a document “setting out integrated State, regional and local planning and development assessment policies for all of a local government area…[25]

According to the Explanatory Notes to the Planning Bill 2015,[26] the introduction of section 45 was to avoid what were seen to be difficulties that arose out of the application of s 326 of the SPA which was described as involving a “two part test”.  It was said:

‘The form of the assessment and decision rules under the Bill is designed to address difficulties that arose in administering the old Act, due to the so-called “two part test” for both code and impact assessment.  Under that test, an assessment manager’s decision could “conflict” with a relevant instrument if there were “sufficient grounds to justify the decision, despite the conflict”.  In practice, as a result of judicial authority in several cases, this test resulted in a time consuming and unproductive enumeration of supporting and conflicting “grounds”, instead of the intended assessment of the merits of the proposal based on established policy, and other relevant considerations to reach a balanced decision in the public interest.

The assessment and decision rules for both code assessment and impact assessment under the Bill dispense with the “two part test”…

Impact assessment under the Bill is an “unbounded” assessment, meaning relevant matters other than those prescribed can also be taken into account, and weighing and balancing “inside the box” as well as factors “outside the box” can take place in reaching a decision…

[I]t is intended the new assessment and decision rules should lead to a renewed emphasis on the quality, rigour, legibility and consistency of policies in planning instruments, and their primacy in determining the outcome of performance-based development assessment.’

As to the suggestion that impact assessment under the Planning Actis an unbounded assessment”, while more will be said about s 45 of the Planning Act below, it is appropriate to point out at this stage that the discretion provided pursuant to s 45(5)(b) must be exercised bearing in mind the purpose of any relevant legislation and planning instrument or document.”

The declaratory relief sought

  1. [25]
    Before dealing with the issues in dispute that remain, it is appropriate that I dispose of the originating application challenging the decision notice of the council dated 30 May 2016. After pleading a number of factual matters and a number of alleged breaches of development conditions, it is asserted that the proposed use of the borrow pit including associated blasting, amounted to a material change of use, namely the use of quarrying or extractive industries which was not capable of being approved by the council as operational works as defined within s 10 of the Sustainable Planning Act 2009 (SPA).[27] It was alleged in the alternative that:

“22. Further, or in the alternative, what was proposed by Corbet Property … was not capable of being treated as a permissible change as the change proposed and approved resulted in a substantially different development to that approved by the 21 July 2015 Development Permit.

  1. Further, or in the alternative, the request by Corbet Property for approval to change the 21 July 2015 Development Permit was not accompanied by the consent of the owner of the land who was, at all times, after 17 December 2015 Alvin Roy Corbet.
  2. In the premises the Council’s decision of 30 May 2016 was made without power in that it was not authorised under the provisions of the Sustainable Planning Act 2009 (Qld) or the provisions of the Council’s Planning Scheme 2013.”
  1. [26]
    For reasons it is unnecessary to elaborate on, the argument based on the ownership of the subject land lacks any merit.
  1. [27]
    The relief sought by the appellants/applicants is of particular relevance to their case in this way. It is contended by them that, in the event that the borrow pit was an unlawful use, I should treat the proposed quarry as development that would occur on an undisturbed site. To use Mr Hack’s words, the borrow pit should be treated “as if it were not there”.[28]  On the other hand, insofar as the council and co-respondents are concerned, the existence of the borrow pit has positive consequences in that the proposed development must be assessed having regard to, amongst other things, any existing lawful uses of the land.[29]
  1. [28]
    During final addresses, Mr Hack submitted that I was not required to grant the relief sought and that “it is sufficient for their purposes that the Court determine that the use of the borrow pit was unlawful”.[30]  Notwithstanding that concession, I consider it appropriate to dispose of the application on its merits. 
  1. [29]
    In Mr Hack’s written submissions, the appellants/applicants position was put in these terms:[31]

“The case for the Mary Valley Community Group Inc and Peak Events Pty Ltd is simple and may be simply put.  It is that the application made in October 2015 and May 2016 to amend the 21 July 2015 Development Permit for Operational Works – Bulk Earthworks to permit the extraction by blasting and quarrying of 100,00m3 (269,500 tonnes) of rock, the crushing of that rock, and the use of it in concrete and otherwise in constructing works on the site was not capable of being regarded as a permissible amendment i.e. it was not capable of satisfying the definition of “permissible change” in the Sustainable Planning Act 2009 (Qld) (which was in force at the time of the application)…

On any sensible view, what was proposed could only have been regarded as a material change of use, because it was “the start of a new use of the premises” or because it was “a material increase in the intensity or scale of the use of the premises”. 

Corbet Property Pty Ltd advance a series of reasons (exhibit 4, tab 6) going to the discretion to refuse the application for a declaration.  Those matters, even if accepted (and they ought not be), cannot make lawful that which was unlawful.  The focus of the appeal, as senior counsel for Corbet Property Pty Ltd, reminded us, is on “any lawful use of, the premises…”

  1. [30]
    During oral submissions, Mr Hack put his position in the following terms:[32]

“Well, it’s implicit in any event.  What I want to say about the substance of the proceeding is this.  It comes down, I would submit, to the proposition.  The first proposition is, whether this is a lawful use.  The borrow pit is a lawful use.  Now, I have no idea what the other side says about that.  And perhaps my view on the law is entirely mistaken.  But, for the reasons that I have set out in the written submissions, my submission would appear that, one cannot by way of a permissible change to an operational works permit, undertake a quarry of 100,000 cubic metres with crushing and extracting and application into ready-mix cement, even if it’s for those purposes – sorry, those premises. That arises, firstly, from the definition of permissible use, which is set out underneath – sorry, permissible change which is set out in the written submissions, result in the substantially different development.  Well, it plainly does.

It’s introducing a quarry where there was not a quarry before … It introduces uses that were not presently lawful.  That is, it introduces quarrying and cement mixing … I want to make it clear that, the case is not put on the basis of Wednesbury unreasonableness. This is just a case where it was not open to council to approve an application of that nature as a variation or a permissible change to an operational works permit.  It just wasn’t within the scope of what was permitted under the Act. 

Because, to do so, it had to answer the description of the statute – applies, that is, not resulting in the substantially different development, and by referent to the guidelines not involved in a new use with different or additional impacts, and not introducing new impacts or increases in the severity of known impacts.  Now, all of those matters are offended.  It is also not an answer to say, well, it could have been done as its own application for approval of operational works.  But, for the same reasons, that can’t be right.  If one looks at the definition of operational works in the Act, it extends to extracting gravel, rock, sand and soil, but it does not extend to the other parts of the processes that were engaged.”

  1. [31]
    The “other parts of the process that were engaged” were the crushing and mixing with cement to create concrete out of the hard rock material excavated from the borrow pit.  As I understand it, at the heart of the submission is that the co-respondents were in reality operating a quarry on the land or, at the very least “a dry run for the quarry … in anticipation of the quarry[33] and not a borrow pit.
  1. [32]
    I do not consider that it is necessary to finally determine whether or not the decision of the council to approve the borrow pit was lawful or otherwise.  That is so because, even in the event that the decision to approve the borrow pit ought not have been made for the reasons advanced on behalf of the appellants/applicants, a matter about which I have serious reservations, there are overwhelming discretionary reasons why the relief sought ought not be granted. 
  2. [33]
    First, I am satisfied that when the decision was made by the council both it and the co-respondents were acting in good faith.  I am also satisfied that the only reason the co-respondents sought approval for the borrow pit was so that they could meet, in the most economic way possible, the requirement imposed requiring them to construct an impervious membrane separating the soil and water table below from the product stored on the pad.  The use of a concrete membrane was a reasonable option and there was no suggestion otherwise.  On the evidence before me, I am also satisfied that the borrow pit was not a “dry run” for the quarry. There may well have been some interest in a quarry and even some preliminary investigations carried out. However, Mr Corbet’s evidence was that it was decided to pursue the approval of the quarry once they realised the volume and type of material that might be available. That occurred after the second blast event at the borrow pit.[34] That evidence was not seriously challenged, and it is also consistent with their planning consultant’s correspondence with council which distinguished between the borrow pit and a quarry.[35]
  3. [34]
    Second, the relief sought would achieve no practical outcome.  The use of the borrow pit is well and truly at an end.  This is not a case where there are some adverse impacts on amenity being caused by the use, nor is it a situation where it would establish an undesirable precedent.  The originating application seeking the declaratory relief was not filed until after the notice of appeal had been filed.  The application has been brought solely for the forensic reasons explained by Mr Hack during the course of the proceedings.  The delay in seeking the relief sought is also a relevant consideration.
  4. [35]
    As Kirby P (as he then was) observed in Warringah Shire Council v Sedevic[36] there is a clear distinction between those circumstances where parties act in good faith and where one or both parties knowingly, or with careless indifference, acts contrary to the law or “jumps the gun ahead of the approval process”.
  5. [36]
    Third, even if the declaratory relief were granted, it would not achieve the forensic advantage sought.  That is so for at least two reasons.  As will be discussed below when dealing with the evidence of the town planners, the existence of the borrow pit is of itself far from a determinative consideration.  In any event, in circumstances where both the co-respondents and the council had been acting in good faith, it would be unnecessarily artificial when addressing the merits of the proposed quarry to proceed on the basis that the land where the borrow pit now sits was in its original state.  In this context I agree with the observations made by Robertson DCJ in Gillion v Scenic Rim Regional Council &Ors[37] where, after considering the decision of the Court of Appeal in Leda Holdings Pty Ltd v Caboolture Shire Council & Ors,[38] his Honour said:[39]

“At this point it is necessary to observe that as a matter of principle when an Assessment Manager is required (as is the case here) to assess a proposal to regularise an actual use (in this case declared to be unlawful), the applicant receives no benefit merely because the use is already in place.  However, there is no caveat on the Assessment Manager considering real evidence of actual impacts of up to the time of hearing….”

  1. [37]
    Finally, on this topic in circumstances where I am satisfied that the appeal against the decisions concerning the proposed quarry and batching plant ought be dismissed, any declaratory relief concerning the borrow pit would lack utility.
  2. [38]
    For these reasons, the relief sought in the Originating Application is refused.

Noise and air quality

  1. [39]
    The potential negative impacts on amenity that might be caused by noise and air quality by the quarry and/or the batching plant were addressed by Ms Richardson, who is a scientist specialising in such matters.  There was no expert evidence led on behalf of the appellants/applicants in contradiction.  In Ms Richardson’s report, after some introductory matters, she goes on to address a number of specific issues.[40]  First, the assessment of potential impacts.  Second, a discussion of the imposed conditions attached to the approvals.  Third, a section dealing with what she considered to be a response to the issues in dispute followed by a commentary.  Her report concludes:[41]

“In my professional opinion, there is no acoustic or air quality reason for the proposed development to be refused.

….

In my opinion, there is potential to achieve further reductions in the potential noise impacts through implementation of additional management measures.  These are as follows:

  • implementation of non-tonal reverse beepers on the Subject Site both for the existing approved operations and the proposed quarry and concrete batching plant; and
  • selection of a low-noise rock drill for the short term drilling required prior to blasting, to minimise noise emissions from this activity.

These additional mitigation measures will further reduce the potential for noise impacts on surrounding receptors.  Corbets have agreed to implement those additional recommendations for the existing and proposed operations.  Indeed, the adoption of these measures for existing operations is a positive benefit that would follow from approval of the proposed development.

On this basis, in my opinion the proposed operations at the Subject Site, with implementation of all management mitigation measures as described in this report, the conditions of approval and the supporting noise and air quality assessments, are expected to comply in full with the assessment criteria stated in the Gympie Regional Council Planning Scheme, the Environmental Protection (Noise) Policy, Environmental Protection (Air) Policy and subordinate guidelines.”

  1. [40]
    There was no serious challenge to Ms Richardson’s evidence in respect of either noise or air quality.  In this context I would note that she proceeded on the basis that the activities being carried out on the Garapine land were lawful.[42]  The only attack on the evidence of Ms Richardson was that set out in the written submissions on behalf of the appellants/applicants where it was said:[43]

“Ms Richardson’s evidence is predicated on the willingness and capacity of Corbet Quarries Pty Ltd to satisfy the requirements of the conditions referred to in her report.  Despite her glowing endorsement of the proponent’s methods, the available evidence is to the contrary.  It demonstrates that Corbet Quarries Pty Ltd had adopted a cavalier attitude to both the requirements of the Planning Scheme and the requirement to comply with conditions.  It is not to the point that other causes may have resulted in delays in satisfying conditions; the fact remains that the approvals granted were on the basis that [the] use not commenced before the conditions had been complied with.

The amenity of the neighbourhood ought not be interfered with except in circumstances where the Court can be confident that conditions imposed will be complied with.  The Court can have no such confidence here.”

  1. [41]
    I reject that submission.  I am satisfied that there is no reasonable basis to doubt that the co-respondents would comply with all legitimate conditions imposed and, indeed as Ms Richardson and Mr Huntley observed, even take additional steps to further reduce potential impacts on amenity.  It is abundantly clear from the evidence of Ms Richardson that the co-respondents, and indeed any of their associated companies, are highly regarded corporate citizens in the region.[44]  Mr Brownsworth, the town planner relied on by the appellants/applicants, and who lives at the Sunshine Coast region, referred to the co-respondents and their associated operations by stating that “they’re obviously a well-respected and operating company in this region…[45] While, at the end of the day, it is for the co-respondents to satisfy me that the appeal ought be dismissed, in my opinion it is the appellants/applicants who bear the evidentiary burden to satisfy me that, on the balance of probabilities, the co-respondents have committed the alleged breaches.
  2. [42]
    During oral submissions, there was also a belated attack on Ms Richardson’s report and, indeed in respect of a number witnesses, to the effect that their reports were fundamentally flawed and ought be disregarded in the entirety.  There is no basis for reaching that conclusion.  Each of the experts’ opinions, regardless of who retained them, were sufficiently connected to admissible data to permit proper testing of their accuracy.[46]
  3. [43]
    As best as I can make out from the cross-examination of Ms Phillips and Mr Corbet, the alleged failure to comply with conditions could be summarised as follows.
  4. [44]
    The first allegation was that the co-respondents had commenced the operation of the borrow pit before it was approved on 30 May 2016.[47] To make good this allegation, both witnesses were taken to a number of photographs taken by Mr Bennett.[48] The extent of the excavation that was said to have occurred as at 14 October 2015 was described by Mr Hack as “the dirt scar below the grass line”.[49] The excavation to that extent had occurred by October 2015. While there was clearly some confusion about the issue, Mr Corbet’s evidence was to the effect that not more than 5000 tonnes of material had been removed prior to the borrow pit being approved. It was also his evidence that up to that amount of material could be excavated in rural zoned land without approval of council.[50] Mr Corbet’s evidence on this matter was not seriously challenged and was supported to some extent by the evidence of Ms Phillips, at least up to 14 October 2015.[51] Mr Huntley’s evidence was also consistent with that of Mr Corbet, at least insofar as the evidence concerning the removal of up to 5000 tonnes without approval was concerned.[52]
  5. [45]
    While there is certainly room for suspicion that by April 2016 more than 5000 tonnes had been excavated, that is not enough. On balance, I am not sufficiently satisfied that this allegation has been made out. I would point out that in respect of this matter I was not asked to disbelieve the evidence of either Ms Phillips or Mr Corbet about it in either the written submissions or Mr Hack’s final address.
  1. [46]
    The next allegation of non-compliance was that the co-respondents did not, within three months from the date of approval submit a schedule of quantities and a remediation plan to the council. Ms Phillips agreed that those conditions were not met and the reasons for that was that she had mistakenly believed that their town planning consultant was addressing those issues.[53] 
  1. [47]
    It was also put to Ms Phillips that there was a failure to comply with the condition that records be kept of the quantity of material extracted from the borrow pit and the use to which that material had been put on the site. Ms Phillips’ response was that records of the quantity of material that had been extracted from the borrow pit had been kept.  Insofar as the use of the material is concerned, it is uncontroversial that the material taken from the borrow pit was used to construct the concrete membrane for the storage pad.  No other use has been suggested and there is no evidence that any of that material had been exported from the site. 
  1. [48]
    It was also put to both Ms Phillips and Mr Corbet that another condition which had not been met was that associated with the closure of a section of road in close proximity to the Bruce Highway upgrade. While it is clear that that condition had not been met, it is just as clear from the evidence of Ms Phillips, the operations manager of the business being conducted on the subject land, that that has been to a significant extent, the result of the conduct of the Department of Transport and Main Roads.[54]  
  1. [49]
    It was also put to both Ms Phillips and Mr Corbet that a landscaping condition had not been complied with. It was accepted by both of those witnesses that that condition had not been met. That said, it is again tolerably clear that the reason why that condition was not been met was because of the haste at which the co-respondents had to move their plant stock and operations as a consequence of the resumption of their land and the lack of certainty resulting there from.[55]  In this context, Ms Phillips in response to questions from Mr Hack said:[56]

“…So the Department of Transport and Main Roads, as I said yesterday, had moved our access and advised us in around about twenty – 2015, we had to prepare tie-in access for – for that.  So the road closure meant opening of a – of a new entrance into our site which impacted on a lot of things.  One was the preparation of the final landscaping plan because the entire access was moved on our site, out of our control.  The – the road closure was dependent on the designs that were being prepared by Department of Transport and Main Roads.  So we had to wait – I don’t have the exact dates, but I – I do have them in these documents so I can reference those dates.  So we had to wait over, I believe 18 months before we received the final designs for that – for that road closure.  That road closure meant that we could apply for the – the – sorry, that entrance change meant that we could apply for the road closure only when that – that works had been completed.”

  1. [50]
    That evidence is consistent with that given by Mr Corbet.[57]
  1. [51]
    Ms Phillips also accepted that some relatively minor building work had occurred on the subject land without the necessary approvals in place. Her evidence was that given the relatively small size of the structures, council approval was not necessary.[58]  That, of course, is not an excuse.  She also accepted that walls “separating building material storage were constructed without necessary approvals being put in place.[59]  During the cross-examination of Mr Corbet, he gave evidence that the reason for that was because the engineering firm initially retained “went broke” and that other consulting engineers had to be retained.[60]  That breach has been established. I also accept Mr Corbet’s explanation for it, but that does not provide an excuse for non-compliance.
  1. [52]
    There was also a suggestion that the co-respondents had carried out a blast at the borrow pit site without the necessary approvals being in place. The evidence of Mr Corbet and Mr Huntley satisfies me that that was not the case.  It was not suggested to Mr Corbet that no blasting would occur, only that the blast event on 15 December 2015 was not approved by the council.  Mr Corbet’s evidence was that approval was not required from the council but from the “Mines Department”.[61]  That evidence was not seriously challenged and I accept it. 
  1. [53]
    I do however accept that a blast event occurred without notice being given to the Bennetts. Notice was given that a blast event would occur between the 3rd to 12th of May 2016. No such blast occurred. Instead, it occurred on 10 June 2016 without notice being given. I consider this to be a serious omission.
  1. [54]
    While the evidence establishes that there have been a number of conditions that have not been complied with,[62] having regard to the size of the co-respondents’ operations that had to be quickly relocated from their original site because of the resumption by the Department of Transport and Main Roads, and also the delays caused as a consequence of the action/inaction on its part, the reasons for much of that non-compliance can be readily understood.  Further, insofar as conditions have not been met, they are now in the process of being rectified.
  1. [55]
    On balance, insofar as the co-respondents have not complied with conditions imposed by the council, many of those failures are either capable of explanation, even if not excusal, and are relatively minor in the scheme of things. There is no suggestion that the breaches were so serious as to warrant enforcement proceedings being initiated by the council or any other relevant institution. The evidence of Mr Brownsworth and Ms Richards is that the co-respondents, together with the other associated companies, are sound corporate citizens in this local government area. Apart from some of the answers given during cross-examination of Mr Corbet and Ms Phillips about the failure to comply with some conditions, there is no evidence to the contrary.
  1. [56]
    While I consider the lack of notice regarding the blast event on 10 June 2016 to be a serious matter, it would seem to be more the result of oversight rather than deliberate misconduct.
  1. [57]
    As to exactly why that happened was not explored. Mr Bennett’s evidence about it was not challenged, and, as far as I have been able to determine, Mr Corbet was asked no questions about it either in evidence-in-chief or cross-examination.
  1. [58]
    The incident is of serious concern but was most likely a “one off” event. That it occurred does not cause me to have any serious doubts about the co-respondents’ intention and ability to comply with lawfully imposed conditions in respect of either the proposed quarry or concrete batching plant.
  1. [59]
    Finally, on this aspect of the proceeding, for me to proceed on the basis that the co-respondent would, in the event of approval, act in an unlawful manner, sufficient probative evidence would be required to justify such an approach. There is not.

Visual amenity

  1. [52]
    As discussed above, it was not disputed that the measures identified by Mr McGowan would address any visual amenity issues associated with what is proposed. As far as I was able to ascertain, no criticism of his evidence is included in the written submissions relied on by the appellants/applicants. It would therefore appear that the only concern about the evidence of Mr McGowan would be that associated with the concerns about the co-respondents being ready, willing and able to comply with all relevant conditions. For the reasons already given, I do not consider those concerns are warranted. Accordingly, I accept the evidence of Mr McGowan without reservation.

Ecology and bushfires

  1. [53]
    In respect of ecological and/or bushfire concerns, the co-respondents and the council relied on the evidence of an environmental scientist, Mr Friend. No contradictory witness on these matters was called on behalf of the appellants/applicants. In fact, Mr Friend was not required for cross-examination. In these circumstances, it is necessary only to state that Mr Friend was of the opinion that the proposed development would not result in any unacceptable adverse impacts in respect of either ecological matters or bushfire risk.[63]
  1. [54]
    The evidence of Mr Friend in the appellant’s/applicant’s written submissions was only challenged in respect of two matters. First, his treatment/use of relevant overlays in the planning scheme, and next his failure to provide for an additional buffer area.[64]  As I have already stated, there is no substance or basis for any criticism of Mr Friend’s treatment of the relevant overlay maps.  As to the issue of whether additional buffer areas ought be provided for, this ought to have been a matter Mr Friend was given the opportunity to comment upon.  He was not given that opportunity. I am more than satisfied on the unchallenged evidence of Mr Friend that the proposed development would not result in any adverse impacts upon either ecological matters or bushfire risk.  In this context, it is also of some relevance that Mr Thompson, the expert witness relied upon by the co-respondents to deal with the issue of good quality agricultural land (GQAL), was also of the opinion that the setback distances to the north and to the south were more than adequate to provide an acceptable buffer from adjoining land uses.[65] To the east is the Bruce Highway and to the west the elevated land is being used for non-rural purposes.

GQAL

  1. [55]
    As just referred to, the co-respondents relied on the evidence of Mr Thompson to address the issue of GQAL. Mr Thompson is a soil scientist with a degree in agricultural science. The appellants/applicants did not call any witness with expertise in this area to contradict his opinions.[66]  Notwithstanding this, and him not being required for cross-examination, it was asserted in the appellants’/applicants’ written submissions that:[67]

“…Mr Thompson was not required for cross-examination however that is not the end of the matter.  There were aspects of his evidence that are concerning and that would leave the Court not satisfied that the co-respondent has discharged its burden so far as this aspect of the matter is concerned.

The overwhelming feature of Mr Thompson’s evidence is his tendency to baldly (sic) assert conclusions instead of explaining the reasons that led him to that conclusion.  Moreover as will be explained, much of Mr Thompson’s evidence fails to engage with the issue raised.”

  1. [56]
    Not being required for cross-examination, neither of those matters were put to Mr Thompson to give him the opportunity to respond. That said, the issues raised are ones for me to make a determination about.
  1. [57]
    As was the case concerning other expert witnesses including Mr Thompson and, in particular Ms Richardson and Mr Huntley, reliance was placed on the familiar discussion concerning expert witnesses by Heydon JA (as he then was) in Makita (Australia) Pty Ltd v Sprowles.[68]
  1. [58]
    As to the first of these matters, I am satisfied of the following. First, all of the matters discussed in Mr Thompson’s report, save for the one paragraph ruled to be inadmissible at page 6, are matters within Mr Thompson’s field of expertise and experience. I am satisfied that his report in no way attempts to usurp my role as the trier of the facts involved in the case. I am also satisfied that his report contained sufficient scientific data to enable me to form my own independent judgment of the matters addressed. The report is intelligible and convincing on its face, and was sufficiently comprehensive to satisfy me that it was fundamentally sound. That is particularly so when there was no challenge to any of the factual matters contained in his report nor in respect of any of the opinions he expressed. The final observation I would make is that if the appellants/applicants considered Mr Thompson’s report to be so fundamentally flawed, they ought to have objected to its admission. They did not.
  1. [59]
    As to the second matter raised against Mr Thompson, it is asserted in paragraph 112 of the appellants’/applicants’ written submissions that Mr Thompson’s report was “remarkable” and then that it was “impossible for the court to be satisfied that there is no relevant conflict with the Planning Scheme where the co-respondent’s expert has simply failed to address the core part of the scheme.”
  1. [60]
    In my view, Mr Thompson’s report probably went further than it needed to. The central issue in my view was whether there was conflict with the performance outcome in the planning scheme which required GQAL to be preserved and/or whether the proposed development when in operation might put in jeopardy the potential of surrounding lands to be put to productive agricultural uses.
  1. [61]
    As to the first of those two issues, the location of the concrete batching plant is such that it is abundantly clear that GQAL would not be compromised. On balance, based on the evidence of Mr Thompson, I am also sufficiently satisfied that the proposed quarry will not have any unacceptable impacts on either GQAL or any other potentially viable rural activities to which the subject land might have been put. As to the surrounding land, I am also satisfied that a sufficient buffer will be provided for in respect of those properties to the north and south. As already pointed out, to the west the land is materially elevated and is being used for non-rural purposes, and to the east the land fronts the Bruce Highway.

The evidence of Mr Huntley

  1. [62]
    The co-respondents relied on the evidence of Mr Huntley to address the quantity and quality of hard rock that might be capable of being won from the quarry. Mr Huntley has degrees in both geology and engineering specialising in rock mechanics. His curriculum vitae reveals extensive experience in underground mine design, planning and scheduling resource estimation and geological engineering. This experience extends to both the mining and quarrying of resources.[69]  There was no other evidence dealing with rock quantity and quality.  Mr Huntley’s conclusions can be summarised as follows:[70]
  • The proposed quarry site has approximately 6.5 million tonnes of metamorphic rock and overburden. 
  • The quality of the rock is high and capable of a wide range of uses ranging from providing material for driveways and the manufacturing of concrete through to providing material which would meet the specification of, among other departments, the department of transport and main roads for road construction.
  • The quality of the rock is such that it would receive interim certification from the department of transport and main roads for use as road base and concrete aggregate materials. 
  • This quarry, falling into the category of a small quarry, is unusual in that the co-respondents have the experience and ability to achieve such certification.
  • The quality of the overburden is such that it could be incorporated into the existing landscaping products stored on and transported from the site.  That is to be incorporated in the existing uses on the site.  Any overburden not capable of being utilised for landscaping purposes is considered to be “minimal”.
  • The site is well located for a number of reasons and, in particular, minimising haulage distances past land used for other purposes, ability to supply material for major road works and in respect of existing and future competition the haulage route issue has two particular consequences.  First, in reducing the potential for adverse impacts on amenity.  Second, in giving the co-respondents a cost advantage in respect of the cost of transport.  A less direct impact is the potential to reduce the wear and tear caused to lower order roads caused by heavy haulage vehicles.
  1. [63]
    Mr Huntley also expressed the views that impacts on amenity can be reduced by controlling operating hours and, in particular, managing blasting impacts. In respect of blasting, Mr Huntley opined:[71]

“Blasting impacts can be suitably managed using the Blast Management Plan prepared for the site.  Given the proposed rate of extraction, blasting may be completed once or twice a month with each blast lasting a few seconds.  Prior to blasting, relevant neighbours will be notified and a blast exclusion perimeter will be set up around the quarry.”

  1. [64]
    Not only is it the case that there was no evidence called by the appellants/applicants that might have tendered to undermine Mr Huntley’s opinions, his conclusions and opinions were not seriously challenged in cross-examination. Indeed, they were relied on by the appellants’/applicants’ economist, Mr Brown. Instead, the cross-examination by Mr Hack was primarily directed to undermining Mr Huntley’s credit by having him categorised as a biased advocate on behalf of the co-respondents.[72]  Mr Huntley’s objectivity was also challenged on the basis of him, in the event that the quarry were to proceed, gaining commercial benefit as a consultant.[73] During the course of an exchange between Mr Hack and myself, Mr Hack squarely stated his position in the following terms; “I will be submitting that Mr Huntley’s evidence should not be accepted because he’s adopted the role of an advocate”.[74]
  1. [65]
    Towards the end of his cross-examination, it was suggested that he had given contradictory evidence in an earlier case.[75]  In support of the contention that he was not complying with his obligations to the court, Mr Hack confronted him with some observations made by Robertson DCJ in the case of Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors.[76]
  1. [66]
    In the written submissions of the appellants/applicants, his evidence was discussed in three paragraphs. It was said:[77]

“The evidence of Mr Huntley was, with the greatest of respect, entirely unsatisfactory.  The role of the expert witness is to assist the court in understanding the evidence.  An expert witness ought be independent and be seen as being independent.  Mr Huntley cannot be regarded as an independent witness seeking to assist the court.  The company in which he and his spouse hold a one third share has been acting for, and advocating the interests of, the Corbet companies for a period in excess of three years.  It, and Mr Huntley stands to benefit from the continuation of that relationship in the event the appeal is dismissed

Moreover his evidence offends the usual requirements of expert witnesses.  He presents a series of conclusions without any attempt to assist in understanding how that conclusion was reached. 

His evidence ought not be accepted.”

  1. [67]
    I reject those submissions. It is true that Mr Huntley, quite rightly as it appears, received severe criticism from Robertson DCJ in the Parklands Blue Metal case.[78] That criticism was, in particular, based on him raising significant and serious issues in his trial report which were not addressed or raised in the earlier joint expert report with his counterpart Mr Grey. That was quite rightly seen as adopting an adversarial approach.  Mr Huntley was also criticised for not making reasonable concessions during cross-examination.  In other words, he was failing to meet his obligations to his counterpart and, most importantly, to the court.
  1. [68]
    Those issues do not arise in this case. Mr Huntley was not required to enter into a joint expert reporting exercise and, insofar as he might have been required to make concessions during his cross-examination he appeared to do so. It would seem that Mr Huntley learnt his lesson. As to the assertion that he had given contrary evidence in the earlier case, I also accept his explanation that the two cases are simply not capable of comparison. The earlier case involved a proposed quarry in the Sunshine Coast regional council area which, unlike the situation here, is well serviced by a number of large quarries.[79] 
  1. [69]
    As to the ongoing commercial interest of Mr Huntley’s firm should the quarry proceed, that of itself provides no basis for rejecting his evidence. No lack of objectivity was either expressly or by implication revealed during his cross-examination and, on balance, given the nature and extent of his expertise it is not surprising that he might be involved in the future in the event the quarry were to proceed.
  1. [70]
    Also, given his previous involvement with the subject land, it is not at all surprising that the co-respondents elected to rely on him rather than retain another expert who had no such familiarity. The evidence also strongly suggests that Mr Huntley might also provide advice to other quarry operators who could or would be in competition with the proposed quarry. Finally, I also reject the submission to the effect that his report lacked a sufficient nexus between his conclusions and opinions and the basis and reasoning behind those conclusions and opinions. His report and necessarily the conclusions reached therein, went well beyond mere oracular pronouncements. Mr Huntley’s evidence (including his report) was intelligible, convincing and contained “the necessary scientific criteria for testing the accuracy of conclusions.”[80]
  1. [71]
    The evidence of Mr Huntley leaves me satisfied that in the event that the quarry were to proceed, it would be capable of economically producing a significant volume of high quality hard rock able to be used for purposes identified.

The town planning evidence

  1. [72]
    Before descending into the evidence of the town planners in more detail, it is convenient at this stage to observe that there was a significant level of agreement between them that can be summarised as:
  • Hard rock quarries are a vital component of the state’s building infrastructure and development industry;
  • It is in the community’s interest to ensure that hard rock quarries are identified, protected and, where appropriate, exploited;
  • Self-evidently, hard rock quarries are site specific;
  • Safe and efficient access to major road network systems are a matter of significance;
  • The location of the proposed quarry so near to the Bruce Highway would greatly reduce the adverse impacts on amenity caused by heavy vehicles using haulage routes.  Often a source of considerable concern to those residents surrounding a quarry.
  • Under the council’s planning scheme, quarries are contemplated within the Rural Zone.
  • In the event that there was sufficient need for a quarry and no overwhelming negative impacts on amenity, insofar as the quarry is concerned, there would be no material or serious conflict with the Planning Scheme.
  1. [73]
    Another common ground was that, although not directly stated by the town planners, as Mr Huntley said, “no one wants a quarry, but everyone needs one”.[81]
  1. [74]
    Leaving aside the batching plant, Mr Brownsworth was of the opinion that under the planning scheme, if sufficient need were established and there no overwhelming negative impacts on amenity, the quarry “would be supported by the provisions of the scheme.[82]  That is hardly a surprising concession, as the reasonable expectations of the community will be governed by the planning scheme. That is, it must be reasonably expected that a given parcel of land might be developed in a manner contemplated under that scheme. Having regard to the evidence of Messrs Thompson, McGowan, Clarke and Friend, together with the evidence of Ms Richardson, I am satisfied that any adverse impacts on amenity and/or the environment at large could be adequately addressed by the imposition of appropriate conditions of the type identified by the council and Ms Richards and Mr Huntley.  That conclusion applies equally to the proposed quarry and the proposed concrete batching plant.  That said, I consider it appropriate to deal with the quarry at the batching plant separately.  I agree with Mr Brownsworth that, on its own, the batching plant is in genuine conflict with the planning scheme. 
  1. [75]
    Given my conclusions in respect of adverse impacts on amenity, the next issue that needs to be considered is whether there is sufficient need to warrant the approval of the quarry.

Economic need

  1. [76]
    To deal with the issue of economic need, the co-respondent relied on the evidence of Mr Duane and the appellants/applicants on that of Mr Brown. As was the case with the town planners, the JER of the economists revealed a significant level of agreement. Of particular significance in this regard was that the experts agreed on the importance of hard rock quarries to the State’s construction industry. In this context, it was also identified that it was of significance that the south east Queensland region was one of the most rapidly expanding populations in Australia, the population having doubled from 1.6 million residents in 1986 to approximately 3.2 million residents in 2018. Present estimates would have the population at approximately 4.75 million by 2036. This growth would bring about strong demand for quarry resources including hard rock, sand and gravel.[83]  It was also uncontroversial that quarry materials were a high volume low cost product.  Mr Duane and Mr Brown agreed:[84]

“Quarry materials are high volume and low cost, that in the past have ideally been processed as close as possible to the communities that use them.  A range of factors, however, are impacting on the cost to produce quarry materials, including:

  1. -
    Vertical integration of companies;
  1. -
    Economies of scale of larger quarries;
  1. -
    Regulatory environment; and
  1. -
    Transport costs.”
  1. [77]
    Not surprisingly, urban encroachment was also recognised as being an important issue having regard to the population growth in south east Queensland. The location of the quarry proposed in this instance avoids the types of issue that often arise when a quarry is developed in an area where there is a high level of existing or planned urban development.
  1. [78]
    In respect of the issue of vertical integration Mr Brown and Mr Duane agreed:[85]

“Concrete is one of the most widely used construction material (sic) throughout the world and forms the basis in major infrastructure including buildings, roads, bridges, dams, houses and the like.

Concrete is one of the main uses of quarry aggregate material, being a composite material composed of course aggregate bound together with a fluid cement that hardens over time.

Consequently, most of the quarry operators in Australia are vertically integrated companies that supply most of their own aggregate materials from their quarries to their concrete batching plants.  For major companies, this typically accounts for 50 per cent of their quarrying output.

Quarries and concrete batching plants, therefore, can and often are integrated activities with:

  1. -
    Concrete batching plants usually located within 50-80km of quarries, with major players supplying their own concrete batching plants; and
  1. -
    Concrete batching plants usually being spread throughout a metropolitan area servicing a radius between 30-50km around the concrete batching plant.

The shelf life of concrete is typically around 90 minutes, meaning that most concrete batching plants service an area within 15-30 minutes of the batching plant to allow an hour to pour the concrete at the end user site.”

  1. [79]
    The fundamental differences between the two economists is addressed in their JER under the heading “OVERALL NEED”. Mr Duane summarised his views as follows:[86]

“Overall, the research in relation to economic need for the subject quarry and concrete batching plant indicates that there is demand and economic need for the subject development for the following reasons:

Quarries and concrete batching plants, therefore, can and often are integrated activities with:

  1. -
    The proposed facilities will cater for the growing demand for quarrying products and concrete materials in the defined region on the Sunshine Coast.  The proposed development will add to competition, choice and convenience for a range of users within 50-60km of the subject site;
  1. -
    There are significant benefits ultimately for the public from the co-location of quarries and concrete batching plants, including reduced transportation costs;
  1. -
    The proposed site is well located to road infrastructure and the efficient use of this infrastructure ensures a sustainable economic return to the community;
  1. -
    The proposed site is well located to the growing population and future infrastructure projects on the Sunshine Coast/Gympie (sic) the proposed quarry and concrete batching plant will only account for a smaller proposition of total demand in the defined catchment and would not impact on the ongoing viability of other quarries.

In summary, the proposed development would add to competition, choice and convenience, particularly within the area in and around the south of Gympie and the areas around the northern Sunshine Coast Regional Council and Noosa Council areas.”

  1. [80]
    Mr Brown on the other hand did not consider there was any demand or need for the proposed development for the following reasons:[87]

a.There is more than adequate supply and production capacity of hard rock quarries located within the study area to meet foreseeable future demand without the need to approve the proposed facility;

  1. b.
    The claim benefits of co-locating the quarry and batching plant  are inconsistent with a short shelf life of ready mixed concrete with the subject site being comparatively isolated from urban centres where demand is more likely to be concentrated;
  1. c.
    There is no evidence of a lack of competition or unmet demand for the proposed development within the study area; and
  1. d.
    The absence of a clear market demand or need for the proposed development militates against the prospects of any meaningful community benefits, such as employment or supply chain development.”
  1. [81]
    The “defined region” referred to by Mr Duane and the “study area” referred to by Mr Brown is that identified in the JER at page 37.
  1. [82]
    Before proceeding further, I would observe at this stage that given the evidence of Mr Corbet in particular, but also that of Ms Phillips, I have no reason to doubt that, if approved both the quarry and the batching plant would go ahead.  Their evidence is that if this occurred, the existing number of employees would increase by up to 20.[88]  This evidence was unchallenged and I accept it.  I consider that Mr Brown tended to underestimate the employment benefits that would arise if these proposals were approved.  I also accept the evidence of Mr Corbet that the employees are likely to come from the Gympie region generally rather than the Gympie urban area itself. 
  1. [83]
    Both economists carried out a “reconciliation of supply and demand”. Mr Duane’s can be found in table 6 of their JER[89] and Mr Brown’s in table 7.[90]  The level of disagreement on the demand side of the equation in respect of both quarry products and hard rock demand does not warrant further discussion.  The real point of difference can be found in their respective analysis of the supply side of the equation. 
  1. [84]
    Both looked at existing quarries and quarries approved but not yet in production. Based on a consumption rate of nine tonnes per capita, Mr Duane would have supply and demand heading towards an imbalance by 2036 and, if quarries at Gunalda and Yandina Creek are excluded, by 2031.[91]  Based on 11 tonnes per capita, demand would exceed supply by 2026 or 2031, depending on what happened at Gunalda and Yandina Creek.  On the other hand, according to Mr Brown at either a consumption rate of nine tonnes per capita or 11 tonnes per capita, supply exceeded demand. 
  1. [85]
    The basis for this discrepancy revolved around the production levels or capacity of existing and approved quarries. In their JER, where Mr Duane is referred to as (GD) and Mr Brown as (MB) it is said:[92]

“GD contends that typically, an allowance of around 75-80 per cent of approved limits is usually a general estimate of the annual production of these facilities.  This does not mean that they cannot produce above this level if they have the appropriate infrastructure in place. 

MB accepts that it is challenging for a quarry to operate at its approved capacity due (sic) and that production levels would be below the approved capacity, he does not accept that annual production would necessarily be capped at 75 per cent – 80 per cent of approved capacity.  MB contends that in the face of rising demand quarry operators have in the past been able to achieve production levels well above 75 per cent – 80 per cent of approved capacity.  MB considers that GD is setting a production capacity too low, and adopts a (sic) estimate of 90 per cent of approved capacity.”

  1. [86]
    Mr Brown, in his evidence-in-chief when offering a summary of the difference between himself and Mr Duane, expressed the view that Mr Duane’s approach unnecessarily “wound back” potential supply and that, insofar as potential additional supply is dependent upon plant and equipment capacity, if there was sufficient demand then quarry operators would invest in plant and equipment to increase their capacity to meet demand.[93]
  1. [87]
    In evidence-in-chief Mr Duane was asked whether Mr Brown’s adoption of 90% capacity was realistic. His answer was:[94]

“In my view, it’s not because you’ve got evidence of existing quarries not operating in that level and again, approved quarries will take some time to ramp up their production but particularly if they’ve indicated in an application they’re going to be producing at a lower level than that.  And the approved quarries is where there’s the biggest difference between the two of us I think that’s slightly optimistic, yes to be using 90 per cent.”

  1. [88]
    During the cross-examination of Mr Duane, he was asked why he adopted the lower end of the range of 75% and not 80%. On balance I do not think anything really turns on this given that both Mr Duane’s 75% and Mr Brown’s 90% are only guides and, in any event, whether it is 75% or 77.5% or 80%, it would make very little difference to Mr Duane’s analysis.[95]
  1. [89]
    Mr Duane’s evidence in cross-examination was clearly to the effect that he adopted the figure of 75% because that was more consistent with what was actually occurring on the ground. According to him, it would be unrealistic not to take into account the past history of existing quarries.[96]
  1. [90]
    Notwithstanding Mr Brown’s thesis that existing and proposed quarries would be capable of meeting future demand, he did accept that, in the event that this proposal went ahead, the quarry would introduce a “dimension of choice and competition”.[97] 
  1. [91]
    After being taken to the production figures associated with a number of existing quarries, it was put to Mr Brown that he did not have any evidence that the quarries to which he was referred had either the equipment or capacity to produce 90% of their approved levels of output. He readily agreed that he did not have that evidence but then went on to say “but there’s nothing to stop them making a capital investment”.[98]
  1. [92]
    It can readily be accepted that productivity could be increased to 90% and even beyond by further capital investment in plant and equipment. However, Mr Brown gave no evidence about the likelihood of that being able to be achieved particularly in respect of the smaller quarries. In this regard, it is relevant that the larger quarries, being those more likely to have the capacity to increase capital expenditure to meet demand, are primarily located in the vicinity of the Sunshine Coast in the hard rock study area agreed to by the economist.[99] 
  1. [93]
    Both experts agreed that the quarrying for construction materials in Australia is dominated by what they called “three key players” being Holcim, Boral and Hanson.  By reference to their study area, the Hanson quarry and one of the Holcim quarries is located to the south of the Sunshine Coast local government area and outside the study area.  One Holcim quarry exists to the south of the study area, and the Boral “Moy Pocket” quarry is located close to the border of the Sunshine Coast and the Gympie local government area.  Mr Brown accepted that if the proposed quarry were to go ahead, it would introduce a new competitor into an area “dominated now by the large players in terms of existing operating quarries”.[100]
  1. [94]
    The relevance of this evidence is that those quarries most likely to have the capacity to inject capital expenditure to increase output are predominantly located further away from the demand centres in and around Gympie. This is a matter of significance in an industry involving high volume and low cost, and being sensitive to the cost of transport.
  1. [95]
    On balance, I have reached the conclusion that I prefer the evidence of Mr Duane on the issue of supply. As Mr Brown accepted, he had no hard evidence to support his adoption of an output capacity of 90%. Mr Duane’s approach based on analysis of actual historical output, while clearly more conservative, is nonetheless more likely in my view to provide the more realistic estimates.
  1. [96]
    In my view, in addition to overstating the likely future supply situation, Mr Brown has not given sufficient weight to the other public benefits associated with the introduction of a new competitor within the market[101] and, as already identified, has failed to give sufficient weight to the employment benefits that would flow from the quarry. 
  1. [97]
    I also consider that Mr Brown has tended to underestimate the level of local demand for hard rock material together with his underestimation of the co-respondents, together with their other associated companies, being able to successfully operate a quarry in an efficient and economic manner. As to the former, Mr Corbet gave evidence, which was not seriously challenged, that the co-respondents would supply existing concrete batching plants in the area with hard rock and that there was a high level of interest from a number of those operators as to whether or not the quarry was likely to go ahead. According to him, two operators in particular, Ready Mix and Mansell, were making regular enquiries about its progress.[102] 
  1. [98]
    Leaving aside the proposed batching plant for the moment, it is clear that the co-respondents and associated companies might also have an advantage over a number of other smaller operators. The co-respondents and other companies within the “Corbet’s group are already involved in the transportation of forestry, grain, timber, landscaping and mining products.  They are also involved in heavy plant and equipment hire and have, in the way of plant and equipment, 100 prime movers, 20 light trucks, 160 semi-trailers and other heavy plant equipment including front end loaders, excavators, graders and scrapers etc.[103] Mr Andrew Corbet also has considerable history with the concrete industry.[104]
  1. [99]
    I agree with the evidence of Mr Corbet to the effect that the ready access to such a wide range of transport vehicles and other plant and equipment would be likely to result in economic benefits, and, in particular, keeping transport costs down. On balance, the evidence of Mr Duane together with that of Mr Corbet leads me to conclude that a very likely consequence of this quarry being approved and developed is that it would assist in addressing local demand for hard rock and introduce competition and choice. The co-respondents would also have the potential to be able to better control costs of production and supply by virtue of their ability to integrate the proposed quarry and their existing fleet of transport vehicles and other plant and equipment.[105]
  1. [100]
    Accordingly, I am satisfied that there is a sufficient need that would warrant approval of the proposed quarry.
  1. [101]
    Given my conclusions concerning need, together with my findings about potential impacts on amenity, I am satisfied that the approval of the quarry would be, to use Mr Brownsworth’s words, supported by the planning scheme.  That is, no conflicts of any material consequence arise.
  1. [102]
    Turning then to the proposed batching plant, again the evidence of Mr Duane together with that of Mr Corbet, leads me to conclude that there is a need for an additional batching plant close to Gympie, particularly one having the locational attributes associated with the one proposed.
  1. [103]
    As I understand Mr Brown’s concerns about the proposed batching plant, it is essentially because of its location. That is, it was not conveniently located having regard to “where the demand is being generated”.[106]  Again to use Mr Brown’s words it is “neither fish nor fowl”.[107]  That said, he did accept that the co-respondents, because of the extent of their existing operations and ownership of transport, plant and equipment, would have an advantage over some of the smaller local operators.  And further, in being able to operate a batching plant in concert with the quarry would allow them to have greater control over the cost of quarrying products going into the concrete.  With all these factors in mind, Mr Brown was prepared to accept that the proposed batching plant would be capable of competing in the market place “but the extent to which they would be seen as an ideal competitor remains to be seen.”[108]
  1. [104]
    Again, Mr Brown seems to have underestimated the extent of local demand. In his evidence-in-chief Mr Corbet spoke of a huge discrepancy between the cost of concrete in Brisbane when compared to that in Gympie. According to him, in Brisbane 32 MPA concrete could be purchased for in the order of $130 per cubic metre whereas at Gympie it could be as high as $235 per cubic metre.[109]
  1. [105]
    During the course of Mr Brown’s cross-examination he referred to sourcing the website of the Hanson quarry located at Noosaville. By reference to the JER of the economists, it is at the eastern most extremity of the “30 minute drive time”.[110] The website indicated that from that quarry, within the Brisbane, Gold Coast and Sunshine Coast markets, residential quality ready-mix concrete costs ranged from $230 to $260 per cubic metre.  That is consistent with what Mr Corbet said about the cost of concrete in Gympie, but is materially different to what he said the price for concrete that could be achieved in Brisbane. Of relevance here is that the location of this Hanson operation would make it an unreliable, if not improbable, supplier for much of the Gympie market. Particularly for Gympie itself and for its surrounds to the west and the north.
  1. [106]
    While this information might tend to support what Mr Corbet said about the cost of concrete in Gympie, it does not necessarily follow that it is inconsistent with his evidence about what concrete might be purchased for in Brisbane. Notwithstanding Mr Brown giving his evidence after Mr Corbet, he did not make any specific enquiries about what cost concrete might be able to be purchased for in Brisbane. While not explored, the costs in Brisbane could be materially affected by the number and size of proximate quarries and the level of competition in the Brisbane marketplace. That said, the question marks over this aspect of the evidence leaves me in the situation where I am not satisfied that I should proceed on the basis that concrete might be able to be obtained in Brisbane at a cost of $130 per cubic metre.
  1. [107]
    In respect of Mr Corbet’s evidence about the price differential between Brisbane and Gympie, I should put on the record that the reason why I do not intend to proceed on the basis of its accuracy is not because I do not accept it as reliable evidence. As Mr Hack fairly pointed out, Mr Corbet is a man who has a great deal of experience in the concrete batching industry.[111]
  1. [108]
    However, as he also pointed out, there could be reasons that might explain that price differential that were not explored. In particular, in addition to competitive factors, the likelihood of the price of concrete varying depending on the quantity required to meet any particular project. The thrust of Mr Hack’s submission being, the greater the volume of concrete being purchased, the more likely it is that a lower price could be negotiated.[112] I accept that submission. That of course does not affect the conclusions I have reached concerning demand/need, based on the evidence of Mr Duane and the balance of Mr Corbet’s evidence.
  1. [109]
    I am satisfied that the evidence of Mr Duane together with that of Mr Corbet reveals a strong likelihood that a batching plant on the subject land together with the quarry would materially contribute to meeting an existing need and result in the introduction of desirable choice and competition. Also, as discussed when dealing with the quarry, the co-respondents, unlike many of their likely or smaller competitors, would be in a position to better control costs by virtue of them being able to integrate the batching plant with the quarry and their existing fleet of transport vehicles and other plant and equipment.
  1. [110]
    That I am satisfied that there is a need for the batching plant is not the end of the matter because, as Mr Brownsworth pointed out, a concrete batching plant is in genuine conflict with the planning scheme.
  1. [111]
    However, before going on to consider that matter, I should address the demeanour of Mr Corbet. I agree that at times his evidence was given in an abrasive and argumentative manner. That, however, has to be seen in the context of him being a quite unsophisticated, albeit business-minded, lay witness, having heard a number of accusations about the integrity and/or competency of the companies in which he is involved. By way of examples, it was suggested to him that the application for a borrow pit was little more than an artifice. Also, that the co-respondents acted in blatant disregard of a number of development approval conditions and acted with little regard to the welfare and amenity of its neighbours to the west.
  1. [112]
    In respect of a last matter, at one stage it was, in my opinion, quite unfairly put to Mr Corbet that on one occasion a blast event from the borrow pit caused fly-rock to fall onto the Garapine property. Mr Corbet denied that that occurred, and when I asked Mr Hack if he had instructions to that effect, after consulting with his instructor Mr Bennett, the land owner, he replied “I’m not sure your Honour.  It can go by the by”.[113] 
  1. [113]
    While Mr Corbet’s demeanour at times was unsatisfactory, I do not consider that that had any meaningful impact on either his credibility or reliability as a witness save for my concerns about the cost of concrete in Brisbane. My concerns about that issue do not cause me to have any reason to doubt the balance of his evidence.

The batching plant and conflict

  1. [114]
    The setting or character in which the subject land is located is undoubtedly of a rural nature. However, it is far from a pristine rural environment. To the immediate east of the subject land is the extremely busy Bruce Highway. Seven hundred metres to the north is a large area of land part of which, depending of course on demand, may in the future be used for industrial purposes. To the immediate west is the Garapine land which, while largely uncleared, is used for non-rural uses and, of particular significance in this regard, conducts mountain bike racing events on a monthly basis. Twice a year, two rounds of the Queensland Enduro competition is held on this land. On those occasions there could be between 260 and 300 competitors.[114]  Of course, there is also the current commercial use of the subject land which is clearly of a non-rural nature and which dominates a large proportion of the total area.  That this situation exists in no way warrants of itself the approval of the proposed batching plant, but it is a relevant consideration. 
  1. [115]
    It is uncontroversial that the concrete batching plant is a “High Impact Industry” use and that as such would ordinarily be located on land within an industrial zone.
  1. [116]
    Part three of the planning scheme sets out the strategic framework. Section 3.4.1 sets out five strategic outcomes being:
  1. The capacity of productive rural lands to contribute to the Region’s economy and community health is protected from incompatible land uses, enhancing the independence of urban and rural communities.
  2. The rural production base of the Region is broadened to accommodate the widest diversity of productive land uses as is practicable.
  3. Rural areas recognised that different localities within the Region have the capacity to support varying intensities of the same rural activities.
  4. Non-rural activities that are ancillary or subsidiary to principal rural land uses are encouraged to widen the economic base for rural production provided that rural production in surrounding areas is not alienated.
  5. Extractive resources in rural areas are protected for effective and sustainable exploitation consistent with demonstrated community need.
  1. [117]
    The co-respondents placed particular emphasis on the fourth and fifth of those outcomes.
  1. [118]
    As has already been identified, the planning scheme contemplates and, where appropriate, would support the exploitation of extractive resources within the rural zone. However, 3.4.1(4) does not contemplate an activity such as a concrete batching plant. It could not be sensibly said that such a use would be ancillary or subsidiary to principal land uses which would “widen the economic base for rural production”.  Also, while the elements of the “theme components” of the rural futures set out in table 3.2 contemplate the exploitation of extractive resources, there is no support within those themes for a concrete batching plant.  Consistent with what has already been referred to, s 6.2.20.1 of the Rural Zone Code identifies the purpose of that zone to be:

“(1) The purpose of the zone is to:

  1. (a)
     provide for a wide range of rural uses including cropping, intensive horticulture, intensive animal industries, animal husbandry, animal keeping and other primary production activities;
  1. (b)
     provide opportunities for non-rural uses that are compatible with agriculture, the environment and the landscape character of the rural area where they do not compromise the long-term use of the land for rural purposes; and
  1. (c)
     protect or manage significant natural features, resources and processes, including the capacity for primary production.”
    (Emphasis added)
  1. [119]
    During the course of the proceeding, in support of both the quarry and the concrete batching plant I was referred to sub-paragraphs (f), (i) and (n). They state respectively:
  • Uses that require isolation from urban areas as a consequence of their impact such as noise or odour may be appropriate where land use conflicts are minimised. 
  • Extractive industries may be established on land other than good quality agricultural land.
  • Development is cited, designed and managed to avoid or minimise the risk of natural hazard impacts (flood inundation, acid sulphate soils and bushfire) to people and property.
  1. [120]
    It can be readily accepted that a concrete batching plant is a use that would need to be isolated from urban areas, and that on the subject land it would be capable of being designed and managed to avoid or minimise the risk of natural hazards. That said, looked at in isolation, the introduction of a concrete batching plant in rural zoned land would be, absent other overriding considerations, a use inconsistent with community expectations.
  1. [121]
    However, as identified above, pursuant to s 45(5) of the Planning Act 2016 an impact assessment of any proposed development “may be carried out against, or having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise”.
  1. [122]
    In the JER of the town planners, when dealing with the strategic framework under the planning scheme, Mr Brownsworth emphasised the following mattes:[115]
  • Protecting local character;
  • Protection of productive rural lands;
  • The prevention of incompatible development or at least separation of incompatible development from rural uses to ensure existing and future rural activity is protected; and
  • The protection of GQAL.
  1. [123]
    After considering those elements of the planning scheme together with others, Mr Brownsworth went on to say that in assessing the proposed development (being both the quarry and the batching plant) it would need to be demonstrated that:[116]
  • Rural character is protected;
  • Rural uses are protected from intrusion of incompatible uses or at least separated from incompatible uses;
  • Land identified as GQAL is protected from incompatible uses and is not alienated or fragmented; and
  • The proposal hold significant benefits to a local or wider community in circumstances or when characteristic are such that they are not suited to conventional urban areas.
  1. [124]
    Mr Brownsworth then went on to express his final conclusions on this matter in the following terms:[117]

“The proposal:

  1. (a)
     given the significant and increased intensification of industrial and non-rural use of the site, the proposal will not protect or enhance the rural character and amenity of the area;
  1. (b)
     provides for further intrusion of incompatible uses into the rural area;
  1. (c)
     it is not separated from surrounding rural and existing uses;
  1. (d)
     alienates the land further and encourages fragmentation of rural land uses within the area given the surrounding lands are designated GQAL;
  1. (e)
     with respect to the quarry use, the proposal does not benefit from a high level of protection under the GRPS as it is not identified as a key resource area…;
  1. (f)
     has not demonstrated that there will be a significant benefit to the local or wider community;
  1. (g)
     includes a concrete batching plant that is wholly incompatible with rural uses and activities and is able to be more appropriately located in industrial zones with (sic) urban areas;
  1. (h)
     specifically with respect to the proposed extractive industry does not benefit from a high level of protection under the (planning scheme);
  1. (i)
     is not consistent with community expectations or development within the locality…;
  1. (j)
     would materially intensify the scale of industrial uses on the site and create significant impacts on the rural life style, character and amenity of the area;
  1. (k)
     has not demonstrated that visual impacts and impacts from traffic, noise, dust and blasting will be minimal; and
  1. (l)
     has not demonstrated at the time of writing this report that there is sufficient need for the proposal at this site given the level of conflict with the [planning scheme] and the extent of impacts on character and amenity in the area.”
  1. [125]
    Bearing in mind the conclusion I have reached concerning the proposed quarry, it is necessary to deal with each of those concerns of Mr Brownsworth in turn.
  1. [126]
    Given the existence of the proposed quarry, the introduction of the concrete batching plant will, when considered in the light of that quarry and the already existing uses on the land, have only a marginal impact on intensification of non-rural uses when looked at objectively. And, while it is true that the batching plant would not protect or enhance the rural character and amenity of the area, that has to be considered in light of the evidence of the expert witnesses which I have accepted dealing with potential impacts on amenity. That issue is dealt with further below.
  1. [127]
    As to the second matter, as already identified, while the batching plant would introduce further intrusions of a non-rural use, when looked at objectively, that intrusion is not significant.
  1. [128]
    As to the third matter, again when looked at objectively it is of little consequence when the introduction concrete batching plant is considered, having regard to its location and surrounding existing and future land uses. On this topic, regard also has to be had to the setbacks and visual amenity conditions addressed by Mr McGowan which have been addressed above.
  1. [129]
    As to the fourth matter, the concrete batching plant of itself would have only marginal impact.
  1. [130]
    The fifth matter has already been dealt with when considering the proposed quarry.
  1. [131]
    As to the sixth matter, the evidence of Mr Duane together with that of Mr Corbet satisfies me that there will be a material benefit to the community in introducing, insofar as demand for concrete is concerned, competition, choice and convenience. There are also the employment benefits to which I have already referred.
  1. [132]
    As to the seventh matter, when regard is had to the existing use of the subject land and the introduction of the proposed quarry, while it may be said that the batching plant is incompatible with rural uses, any conflict that exists is greatly reduced. The interrelationship between the quarry and the batching plant also has the benefit of not only reducing transport costs but also the elimination of heavy vehicle traffic on the surrounding road network. That would not be the case in the event of having to supply material to a batching plant in an industrial zone.
  1. [133]
    As to the eighth matter, this has already been dealt with when dealing with the proposed quarry.
  1. [134]
    As to the ninth matter, again having regard to the existing and future uses which will be conducted on the subject land, the introduction of a concrete batching plant in my view could not be truly said to be inconsistent with reasonable community expectations. It would be but one relatively small component of a heavily industrialised use of the land, including an operating quarry.
  1. [135]
    As already said, in the overall scheme of things, the introduction of the batching plant will have a relatively minor impact on the intensification of the industrial uses existing and proposed on this land.
  1. [136]
    Turning to the last two matters, as was readily accepted by Mr Brownsworth when being cross-examined by Mr Hughes, any potential negative impacts on noise, dust, water quality, ecology and bushfire risk have been dealt with by a number of experts. And, as I have already concluded, on their evidence I am satisfied that those matters could be addressed by the imposition of appropriate conditions. As to Mr Brownsworth’s concerns about traffic, they were shown to be unfounded. In respect of visual amenity the proposed concrete batching plant will be located at approximately the centre of the subject land and, with appropriate landscaping, will be hardly visible, if visible at all, from the north, south, and east.[118] 
  1. [137]
    Finally, as already addressed, I am satisfied that it has been demonstrated that there is a need for the proposed concrete batching plant.
  1. [138]
    When looked at objectively, with the proposed quarry and the current uses on the land being in operation, the introduction of the proposed concrete batching plant would be very unlikely to offend reasonable public expectations to any material extent. When the totality of these matters are taken into account they, insofar as the proposed concrete batching plant is concerned, are sufficient to warrant approval notwithstanding any existing conflict with the planning scheme.
  1. [139]
    For the reasons given, the orders of the court are:
  1. The relief sought by the appellants/applicants pursuant to their amended originating application is refused.
  2. The appeal is dismissed.
  3. I will hear further from the parties as to any consequential orders.

Footnotes

[1]  Exhibit 5, paras 15 and 16. See also aerial plans showing existing road network.

[2]  Exhibit 5, para 36.

[3]  Exhibit 5, para 58.

[4]  Exhibit 5, para 42.

[5]  Exhibit 5, para 43.

[6]  T1-71 ll 1-3.

[7]  Those concerned with ecology, bushfire, good quality agricultural land, water quality/treatment, quantity and quality of quarry material and economics.

[8]  Exhibit 5, paras 27-31.

[9]  Exhibit 9, page 39.

[10]  T3-87, ll 30-45; T3-88, ll 1-42.

[11]  Exhibit 9, page 39.

[12]  T2-7 l 23-46.

[13]  Exhibit 5, para 76.

[14]  Exhibit 5, para 77.

[15]  Exhibits 5, 10 and 11.

[16]  T5-33; T5-34 ll 1-15.

[17]  See Exhibit 9, pages 7, 16 and 17.

[18]  T5-31 ll 17-27; T5-33 ll 20-33.

[19]Planning Act 2016 s 45.

[20]  Section 43.

[21]  Section 47.

[22]  [2018] QPEC 38 at [14]-[22].

[23]  Ibid s 43(1).

[24]  Ibid s 43(3).

[25]  Ibid s 4(c).

[26]  At page 74.

[27]  Amended originating application, para 21-24.

[28]  Submissions on behalf of the appellants/applicants, para [5].

[29]  Section 45.  Planning Act 2016 and Planning Regulation 2017 Reg 31.

[30]  Submissions on behalf of the appellants/applicants, para 52. See also T5-30.

[31]  Submissions on behalf of the appellants/applicants, paras 44 to 51.

[32]  T5-3 ll 10-43.

[33]  T5-4 ll 3-9.

[34]  T 3-97 ll 16-34.

[35]  E.g., correspondence of Mr Adamson, Exhibit 29.

[36]  (1987) 10 NSWLR 335.

[37]  [2013] QPEC 15.

[38]  [2006] QCA 271 at [31].

[39]  [2013] QPEC 15 at [175].

[40]  Exhibit 13, pages 8-18.

[41]  Exhibit 13, pages 18-19.

[42]  T3-44 ll 17-27.

[43]  Submissions on behalf of the appellants/applicants, paras 114-115.

[44]  T3-53 ll 8-25.

[45]  T2-13 L 35.

[46]Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [85]-[87].

[47]  T 2-62 ll 24-47; T 2-63 ll 1-20 per Ms Phillips. Also T 3-100 ll 22-27; T 3-10 ll 1-3 per Mr Corbet.

[48]  Exhibit 42.

[49]  T 2-63 L 20.

[50]  T 3-96 ll 22-46; T 3-100 ll 42-45; T 3-101 ll 1-7; T 3-105 ll 3-28.

[51]  T 2-63 ll 7-35.

[52]  T 4-18 ll 33-40.

[53]  T 2-72 l 25-45.

[54]  T2-77 ll 1-37.

[55]  T3-6 per Ms Phillips and T3-110 ll 17-32.

[56]  T3-6 ll 10-22.

[57]  T3-110 ll 17-34.

[58]  T3-5 ll 27-39.

[59]  T3-8 ll 37-40.

[60]  T3-111 ll 7-20.

[61]  T3-10 ll 8-25.

[62]  Both these witnesses were also cross-examined about one or more of the storage pads and parking on the site.

[63]  See generally Exhibit 11.

[64]  Submissions on behalf of the appellants/applicants, paras 91-98.

[65]  Exhibit 8, page 6.

[66]  Exhibit 8.

[67]  Submissions on behalf of the appellants/applicants, paras 99-100.

[68]  (2001) 52 NSWLR 705 at [745].

[69]  Exhibit 12, attachment 1.

[70]  Exhibit 12, pages 35-36.  Note para 6.6 ruled inadmissible. 

[71]  Exhibit 12, page 35, para 6.7.

[72]  T 4-25 ll 22-37.

[73]  T4-20 ll 12-44.

[74]  T4-26 ll 1-3.

[75]  T4-34.

[76]  [2014] QPEC 24.

[77]  Submissions on behalf of the Appellants/Applicants, paras 116-118.

[78]  [2014] QPEC 24 at [174]-[183].

[79]  T4-37 ll 17-44.

[80]Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [87].

[81]  T4-35 ll 28-33.

[82]  T2-8 ll 35-47. T2-9 ll 1-47.

[83]  Exhibit 7, pages 6 and 7, para 29.

[84]  Exhibit 7, para 19.

[85]  Exhibit 7, paras 24-28.

[86]  Exhibit 7, paras 156-157.

[87]  Exhibit 7, page 51, para 158.

[88]  Exhibit 16, page 10.

[89]  Exhibit 7, page 40.

[90]  Exhibit 7, page 47.

[91]  Exhibit 7A para 2.7-2.9 and table 1.

[92]  Exhibit 7, paras 78 and 79.

[93]  T4-65 ll 14-47.  T4-66 ll 1-24.

[94]  T3-21 ll 35-39.

[95]  T3-34 ll 1-9.

[96]  T3-36 ll 6-27.

[97]  T4-69 ll 46.

[98]  T4-78 ll 1-5.

[99]  Exhibit 7, page 22.

[100]  Exhibit 7, para 99.

[101]  In addition to the potential downward pressure on price, the introduction of additional choice of product and convenience.

[102]  T3-82 ll 37-46.  T3-83 ll 1-10.

[103]  Exhibit 16, paras 6-9.

[104]  T3-81 ll 23-31.

[105]  Exhibit 16, para 47.

[106] T4-81 ll 10-27.

[107]  T4-66 ll 25-30.

[108]  T4-81 ll 30-33.

[109]  T3-83 ll 20-30.

[110]  Exhibit 7, page 44.

[111]  T5-8 L 30.

[112]  T5-9 ll 15-25.

[113]  T4-5 ll 10-34.

[114] T2-47 ll 35-46 to T2-49 ll 1-19.

[115]  Exhibit 5, para 134.

[116]  Exhibit 5, para 145.

[117]  Exhibit 5, pages 36-37.

[118]  Exhibit 9, landscape plan 10.

Close

Editorial Notes

  • Published Case Name:

    Mary Valley Community Group Inc and Peak Events Ltd trading as Garapine v Gympie Regional Council, Corbet Property Pty Ltd and Corbet Quarries Pty Ltd

  • Shortened Case Name:

    Mary Valley Community Group Inc v Gympie Regional Council

  • MNC:

    [2018] QPEC 58

  • Court:

    QPEC

  • Judge(s):

    Jones DCJ

  • Date:

    07 Dec 2018

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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