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QCoal Pty Ltd v Isaac Regional Council[2021] QPEC 60

QCoal Pty Ltd v Isaac Regional Council[2021] QPEC 60

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

QCoal Pty Ltd & Anor v Isaac Regional Council [2021] QPEC 60

PARTIES:

QCOAL PTY LTD ACN 010 911 234 AND QCOAL GROUP

(Appellants)

v

ISAAC REGIONAL COUNCIL

(Respondent)

FILE NO:

1480/2020

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

1 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

19–22 October 2021

JUDGE:

Everson DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application for a Works Camp in the Rural zone

PLANNING AND ENVIRONMENT – ASSESSMENT – compliance with regional plan and planning scheme – whether there is a need for the proposed development – whether there are relevant matters which justify the proposed development

LEGISLATION:

Planning and Environment Court Act 2016 (Qld) ss 43, 45 and 46

Planning Act 2016 (Qld) ss 45 and 60

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257

Wilhelm v Logan City Council & Ors [2020] QCA 273

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147

Isgro v Gold Coast City Council & Anor [2003] QPELR 414

COUNSEL:

C L Hughes QC and E J Morzone QC for the appellants

M J Batty and S J Hedge for the respondent

SOLICITORS:

Emanate Legal for the appellants

King & Company for the respondent

Introduction

  1. [1]
    This is an appeal against the refusal by the respondent of a development application for a development permit for a material change of use for a Works Camp (“the proposed development”) in respect of land situated at 529 Wollombi Road, Suttor (“the site”).
  2. [2]
    The development application seeks to make permanent and expand a temporary Works Camp at the site which commenced operation on 31 January 2018. The temporary Works Camp was approved for a maximum of four years from the commencement of the use or the completion of the construction phase of the Byerwen Coal Mine Project (“the mine”), whichever occurred first.[1] The proposed development seeks to make the temporary Works Camp at the mine permanent and expand it to accommodate up to 600 persons and 650 rooms.[2]

The proposed development and the mine

  1. [3]
    The proposed development is intended to house workers at the mine which is located approximately 30 kilometres west of the town of Glenden. Glenden is within the local government area administered by the respondent.[3]
  2. [4]
    As at July 2021 the mine comprised a total of eight mining leases,[4] and once fully operational it is anticipated to produce up to 10 million tonnes of hard coking coal per year.[5] The mine was approved as a Coordinated Project by the Coordinator-General in July 2014 and is expected to have a life of more than 50 years.[6] The CoordinatorGeneral’s evaluation report dated July 2014 had regard to an environmental impact statement (“the EIS”).[7] At full production, the workforce throughout the operational phase of the mine is anticipated to be between 850 and 900 employees requiring a 600 person accommodation facility.[8] At the time the mine was approved it was assumed that 30 per cent of workers at the mine would live in Glenden, that 45 per cent of these would be families with children and that 22 per cent would be couples.[9] It is now proposed that 98 per cent of the appellants’ workforce will reside at the proposed development leaving only 2 per cent whom it is anticipated will live locally and commute daily to and from the mine.[10]

The site and the surrounding area

  1. [5]
    The site is included in the Regional Landscape and Rural Production Area under the Mackay Isaac and Whitsunday Regional Plan (“the Regional Plan”).[11]  It is included within the Rural Zone and outside the Urban Locality pursuant to the Nebo Shire Plan 2008 (“the Nebo Planning Scheme”), which was in effect when the development application was properly made.[12] The site remains in the Rural Zone pursuant to the Isaac Regional Planning Scheme (“the Isaac Planning Scheme”) which commenced on 1 April 2021.
  2. [6]
    While the proposed development will incorporate ancillary services including a wet mess and a gymnasium,[13] there are significant facilities and community infrastructure located in the nearby town of Glenden. Glenden was established in the early 1980s by what is now the mining company Glencore, primarily to support the nearby Newlands coal mine.  This infrastructure has now been handed to the respondent to administer.[14] The infrastructure available in Glenden is extensive and well established.[15] It includes a police station, a church, a prep to year 12 state school, various sporting facilities including a 50-metre swimming pool, a medical centre, a post office, a library, licensed premises and supporting retail, mechanical and fuel operations. Some facilities are now closed including the golf course, the bowls club, and the pharmacy.[16] As at 2016 there were 594 private dwellings in Glenden and approximately 68 per cent were unoccupied.[17] The vast majority of housing is rented at a nominal rate.[18] In 2013, Glencore owned approximately 95 per cent of the residential housing in Glenden including 331 houses.[19] 
  3. [7]
    The approval of the mine by the Coordinator-General in 2014 was secured on the basis that the appellants would provide temporary and permanent housing for the mine workforce in Glenden who would be transported by bus to and from Glenden.[20] I accept the evidence of Mr Norling, the economist who gave evidence on behalf of the respondent that travel time between the proposed development and Glenden is less than half an hour.[21]

The statutory assessment framework

  1. [8]
    Pursuant to the Planning and Environment Court Act 2016 (“PECA”) the appeal is by hearing anew,[22] and the appellants must establish that the appeal ought to be upheld.[23]  Section 46 of the PECA addresses the nature of an appeal and relevantly provides:

“(2) The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if –

  1. (a)
    the P&E Court were the assessment manager for the development application; and
  1. (b)
    the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.”
  1. [9]
    As the proposed development was impact assessable, s 45 of the Planning Act 2016 (“PA”) provides that the assessment must be carried out against the relevant assessment benchmarks in a categorising instrument for the development which, in the circumstances before me, are the relevant provisions of the Regional Plan and the Nebo Planning Scheme.[24] I must assess the development application against the Nebo Planning Scheme as it was in effect when the development application was properly made,[25] however I may give the weight I consider appropriate in the circumstances to the Isaac Planning Scheme as it has replaced the Nebo Planning Scheme prior to the determination of the appeal.[26]
  2. [10]
    The court in determining an appeal about a development application is conferred a wide discretion pursuant to s 60 of the PA which relevantly states:

“(3) To the extent the application involves development that requires impact assessment, and subject to section 62, the assessment manager, after carrying out the assessment, must decide—

  1. (a)
    to approve all or part of the application; or
  2. (b)
    to approve all or part of the application, but impose development conditions on the approval; or
  3. (c)
    to refuse the application.”
  1. [11]
    In undertaking this task, the observations of Mullins J in Abeleda & Anor v Brisbane City Council & Anor are instructive:

“[42] …The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b).  The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.

[43] In view of the fact that s 60(3) of the Act reflects a deliberate departure on the part of the Legislature from the two part test under s 326(1)(b) of the SPA, it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved. The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the factors in favour of approval (or approval subject to development conditions) have to be balanced with the factors in favour of refusal of the application. The weight given to each of the factors is a matter for the decision-maker in the circumstances, particularly having regard to the purpose of the decision in the context of the Act and the obligation imposed on the decision-maker under s 5(1) of the Act to undertake the decision-making in a way that advances the purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41.”[27]

  1. [12]
    Mullins J further observed in Wilhelm v Logan City Council & Ors:

“[77] …The change in the decision-making regime has not affected the fundamental nature of a planning scheme as the reflection of the public interest in the appropriate development of land.”[28]

  1. [13]
    Insofar as the assessment benchmarks themselves are concerned, the applicable principles for the construction of planning documents were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council in, inter alia, the following terms:

“[52] The same principles which apply to statutory construction apply to the construction of planning documents.  The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:

[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’.  In Commissioner for Railways (NSW) v Agalionos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.  Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.  Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and subordinate provision, and which must give way to the other’.  Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[56] The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.”[29]

The relevant assessment benchmarks

  1. [14]
    The Regional Plan is the pre-eminent plan for the region.  It takes precedence over all planning instruments and provides a context for local level planning.[30]  Principle 5.5.1 has been identified as relevant to the determination of this appeal.  It relevantly states:

“5.5.1 The long-term viability of resource communities is sustained by enhancing liveability, providing diverse housing and employment options and accommodating the needs of the resource sector.

Opportunities to capture this growth and invest in advancing the liveability and long-term sustainability of these communities will be a major driver in decision-making for these towns and villages.

Recognising the legitimate interests of communities in maximising the benefits of locally retained and resident workforce (sic) should be seen as a key priority.”[31]

  1. [15]
    Pursuant to this principle, policy 5.5.7 is identified as relevant.  It states, “(p)lanning for workers’ accommodation and infrastructure must address the impacts of the site’s eventual closure”.[32]
  2. [16]
    Principle 7.1.1 has also been identified as relevant in the determination of this appeal.  It and the associated policies are in the following terms:

“7.1.1 Land and infrastructure are used efficiently, taking into account costs of servicing, projected demand on/from existing urban infrastructure and employment.

Thereafter, the following policies appear:

7.1.2 Urban growth is consolidated in a compact settlement pattern within areas identified for this purpose.

7.1.4 Development is located and sequenced to make the best use of existing infrastructure, and ensure efficient and cost-effective investment in new infrastructure.

7.1.8 A range of lot sizes and housing types is provided within urban areas to cater to diverse needs, including resident and non-resident workers.

7.1.10 Promote and accommodate growth in areas where existing and planned infrastructure and services can accommodate it.”[33]

  1. [17]
    Similarly relevant is principle 7.4.1 which is in the following terms:

“7.4.1 Housing meets the needs of the community, considering all lifecycle stages, varying demands, and economic circumstances.”[34]

  1. [18]
    The following policies have also been identified as relevant:

“7.4.4 Encourage settlement in mining communities by providing sufficient urban land supply and diverse housing stock that can adequately accommodate predicted population growth.

7.4.5 Provide a mix of dwelling types and sizes to attract long-term residents and a sustainable population in resource communities.  This accommodates different family types, dynamics and housing needs.

7.4.6 Provide housing and accommodation for temporary residents and employees involved in industrial development, mining and construction, and seasonal work.

7.4.8 Facilitate the location of non-resident worker accommodation to ensure access to services and community integration, and social cohesion with the existing community.[35]

  1. [19]
    Pursuant to the Nebo Planning Scheme, the local government area is divided into two localities, the Urban Locality and the Rural Locality.[36] It states that the development controls are structured as follows:

“The Nebo Shire Plan seeks to achieve outcomes that are identified according to the following levels:

  1. (a)
    desired environmental outcomes;
  1. (b)
    overall outcomes for and purpose of a code;
  1. (c)
    specific outcomes for a code;
  1. (d)
    probable solutions for a specific outcome, or acceptable solutions for complying with a self-assessable code.”[37]
  1. [20]
    Thereafter in the desired environmental outcomes it is stated at s 2.2.2 that “(t)he coal mining industry is the single most important factor in the current level of development in the Shire.”[38] Thereafter in s 2.2.3 of the desired environmental outcomes it is stated that “Glenden is the primary residential accommodation area for the coal mining industry”. Thereafter it is stated: 

“(16) The urban localities accommodate a range of uses, new coal mining workers camps, associated services and residential types and lot sizes to reflect community needs.  Isolated workers camps, that is (sic) not within or adjoining the urban localities or Coppabella, are not envisaged within the Shire unless located adjacent to mines in locations not able to be conveniently serviced by accommodation within an urban locality or within Coppabella.”[39]

  1. [21]
    In Table 3-1 which is described as “Assessment Levels and Applicable Codes for a Material Change of Use for a Defined Use or Use Class”, a Works Camp is shown to be an Impact assessable (consistent use) in the Rural Zone.[40]  It is uncontentious that the proposed development falls within the definition of a Works Camp.[41]
  2. [22]
    In s 4.1.3.2, the overall outcomes sought by the Urban Locality Code include:

“(e) Urban Localities accommodate population, mining workers accommodation and rural residential growth in the Shire, to the exclusion of the Rural Locality;

  1. (f)
    Commercial, industrial and residential uses are consolidated in, and do not extend beyond the boundary of, an Urban Locality.”[42]

Thereafter at s 4.1.5 the Nebo Planning Scheme intends that inconsistent uses within the Urban Locality are inconsistent uses within the applicable zone in circumstances where both parties agree that expression of this specific outcome in this way corrects a typographical error.[43]

  1. [23]
    Subsequently in the Rural Locality Code, s 4.3.2 includes the following overall outcome:

“(i) Residential uses, only where they cannot be practically located in an Urban Locality, are located, designed and operated so as not to adversely affect or restrict the operation of rural uses and associated buildings, structures and/or infrastructure. In such cases, there (sic) location should desirably be adjacent to an Urban Locality (section 4.2.8)”[44]

  1. [24]
    A Works Camp is specifically listed as a defined use under the heading Residential Uses in s 7.1.1 and it is uncontentious that it is a Residential Use.[45]
  2. [25]
    Thereafter in s 4.2.4.1(a), consistent uses within the Rural Locality are stated to be consistent uses within the applicable zone and in s 4.2.5.1 is the similarly worded and (by agreement of the parties) corrected statement appears to the effect that inconsistent uses within the Rural Locality are inconsistent uses within the applicable zone.[46]
  3. [26]
    The Isaac Planning Scheme contains a planning strategy evident in the provisions of the Regional Plan and the Nebo Planning Scheme quoted above. Notably, in the strategic intent at s 3.2.2 it is stated that urban settlement does not occur outside nominated towns including Glenden.[47]  It is further stated pursuant to s 3.1 that established towns including Glenden are intended to provide the range of urban housing choices for the region and that urban expansion does not extend beyond these areas.[48]  In s 3.3.1.3, it is stated that non-resident workforce accommodation is provided in response to a legitimate demonstrated need.[49] Finally, pursuant to the Rural zone code, overall outcome 2 includes the statement that urban and rural residential expansion does not occur on land in the Rural zone.[50]

The disputed issues

  1. [27]
    The first issue for determination in the appeal is whether the site is in an appropriate location for the proposed development having regard to the above provisions of the relevant assessment benchmarks. I am also asked to have regard to the following relevant matters:
  1. whether there is a need for the proposed development having regard to a number of matters;[51]
  2. whether the proposed development will have acceptable or unacceptable impacts on Glenden;
  3. whether the proposed development will have positive or negative social impacts on workers;
  4. whether the proposed development makes appropriate use of suitable infrastructure; and
  5. the weight that should be given to the Isaac Planning Scheme.[52]

Discussion

  1. [28]
    Applying the principles which apply to the construction of the planning documents referred to above in Zappala it is clear that there is a strong theme running through the Regional Plan which takes precedence over the Nebo Planning Scheme and the subsequent Isaac Planning Scheme, to consolidate urban growth and efficiently utilise land and infrastructure. It is also intended that a mix of dwelling types are provided and that non-resident worker accommodation is located “to ensure access to services and community integration, and social cohesion with the existing community.”[53] These themes are reflected in the Nebo Planning Scheme where relevant desired environmental outcomes nominate Glenden as the primary residential area for the coal mining industry and do not contemplate “(i)solated workers camps…not within or adjoining the urban localities” unless they are in locations “not able to be conveniently serviced by accommodation within an urban locality”.[54] When the Nebo Planning Scheme is read as a whole, applying the principles of statutory construction quoted in Zappala above, it is clear that the nomination of a Works Camp as an impact assessable (consistent use) in Table 3-1 is not intended to override the clearly expressed statements in the desired environmental outcomes that a Works Camp is not envisaged other than within or adjoining an urban locality, unless it is in a location not able to be conveniently serviced by accommodation within an urban locality. This intent is confirmed in various provisions of the locality codes quoted above.[55]
  2. [29]
    To the extent that weight should be given to the Isaac Planning Scheme, it is noteworthy that the themes evident in both the Regional Plan and the Nebo Planning Scheme which seek to locate a use such as the proposed development in an urban locality, are continued in the relevant provisions of the Isaac Planning Scheme quoted above. In my view, the only weight that should be given to the Isaac Planning Scheme is that it demonstrates the consistent and continuing policy position of the relevant assessment benchmarks in the Regional Plan and the Nebo Planning Scheme.
  3. [30]
    The appellants rely heavily on the argument that there is a planning need for the proposed development at the site.  The concept of planning need was explained by Wilson SC DCJ in Isgro v Gold Coast City Council & Anor in the following terms:

“Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community … Of course, a need cannot be a contrived one.  It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met …”[56]

  1. [31]
    There is no doubt that there is a significant need for accommodation for both existing and prospective workers employed at the mine.  What is contentious is whether the appellants have discharged the onus of proving that this need cannot be met in Glenden as contemplated by the assessment benchmarks referred to above.  In doing so, it is important to emphasise that they are the reflection of the public interest for the appropriate development of land in the respondent’s local government area.[57] As noted earlier, it is now the intention of the appellants to accommodate 98 per cent of their workforce in the proposed development.[58] Mr Leary, the Executive General Manager of Planning and Operations of the appellants, gave evidence that there is now a clear preference for mine workers to reside in coastal locations,[59] and that “a number of relevant changes in industry practice” have occurred including changes in rosters to 12 hour days for seven days on with seven days off.[60] Mr Leary stated that QCoal makes 17 houses available in Glenden for workers and that these houses are all occupied by permanent employees, with preference being given to families and couples. Currently, there are five employees on the waitlist seeking this accommodation.[61] For the sake of completeness, it should be noted that some workers are also accommodated at the Glenden Motel,[62] which has 50 rooms and operates as a Works Camp.[63]
  2. [32]
    There are two essential planks to the appellants’ arguments which seek to justify the proposed development at the site. Firstly, it is argued that this is the preferred accommodation model for existing and prospective workers.  Secondly, it is argued that there is no suitably zoned land in Glenden that is available to the appellants to meet their need for workers’ accommodation.
  3. [33]
    The difficulty for the appellants so far as the first plank is concerned, is that it has not discharged the onus of proving that 98 per cent of its current and prospective workforce would in all likelihood prefer to reside at the proposed development rather than in Glenden as contemplated by the relevant assessment benchmarks referred to above. The EIS submitted in support of the application seeking approval of the mine assumed 30 per cent of workers would live in Glenden and that 45 per cent of these would be families with children.[64] A limited survey undertaken by Ms Ashford, the social planner who gave evidence on behalf of the appellants, of existing employees at the mine disclosed a considerable level of demand for accommodation in Glenden.[65] Under cross-examination, Ms Ashford conceded that the survey had serious limitations and was of an “exploratory nature” and that the percentages it revealed should not be relied upon.[66] At the very least any survey must be representative of the prospective workforce for the mine and not merely sample, in a limited way, the existing workforce at the temporary Works Camp. Accordingly, a reliable survey has not been put in evidence and the assertions of Mr Leary that for most workers there is now “a clear preference for mine workers to reside in coastal locations” does not of itself prove a need for 98 per cent of the existing and prospective workforce of the appellants at the mine to reside at the site.
  4. [34]
    Moreover, such an outcome would appear inconsistent with the evidence of potential challenges and impacts that non-residential workers can experience which are set out in the joint report of the social planners in the following terms:

“a. Separation from families and friends causing damage to relationships;

b. Missing out on important and social occasions and/or family events;

c. Restricted opportunities in some cases to travel home in case of family emergencies

d. Experiencing a sense of isolation and loneliness;

e. Fatigue caused by long shifts and demanding physical work;

f. Emotional and functional adjustments of returning to home from work intermittently;

g. Reduced communication options

h. Decreased/impaired opportunities for leisure activities, and,

i. Higher levels of sleep disturbance.”[67]

  1. [35]
    Ms Ashford selectively quoted from various government reports into fly in, fly out workers which were not put in evidence.[68] However, she conceded that the model of a Works Camp contemplated by the proposed development was an undesirable work arrangement from a family perspective as compared to giving a worker and his or her family a choice of living in the community.[69]
  2. [36]
    I accept the evidence of Ms Bennett, the social planner who gave evidence on behalf of the respondent, that the proposed development effectively denies prospective workers for the projected 50-year mining project the opportunity to live locally and bring their partners and families with them.[70]
  3. [37]
    The appellants have therefore failed to demonstrate a need for 98 per cent of their prospective work force to reside in the proposed development at the site.
  4. [38]
    I now turn to the second essential plank in the appellants’ case, that is, that there is no suitably zoned land in Glenden that is available to the appellants. Although Glencore owns significant residential land and houses in Glenden, it is asserted by the appellants through Mr Leary that commercial negotiations between the parties “with respect to the shared resources and accommodation have failed”.[71]  Under cross-examination however, Mr Leary conceded there has never been an attempt by the appellants to acquire particular residential housing in Glenden from Glencore.[72]  Furthermore, the appellants own land in Glenden at Lot 15 on SP256 in respect of which development approvals were obtained, firstly on 11 December 2013, permitting 47 freehold allotments and subsequently, on 19 December 2013, permitting up to a maximum of 56 dual-occupancy units and up to a maximum of 45 houses.  These development approvals have now lapsed.[73] Also, in relation to land described as Lots 13 and 16 on SP256186 the appellants obtained development permits permitting 12 multiple dwellings on 8 October 2020.  To date the appellants have not acted on these approvals.[74] No explanations have been given as to why these development approvals have been allowed to lapse and have otherwise not been acted upon.
  5. [39]
    Mr Norling, the economic consultant who gave evidence on behalf of the respondent, observed that had the development approvals referred to above been acted upon, the appellants could have accommodated an estimated 170 workers permanently in Glenden.[75]  I accept his evidence in this regard which discloses an opportunity to offer a significant number of workers a choice of housing within Glenden which the appellants have chosen to not take up. 
  6. [40]
    Moreover, there is significant freehold land adjoining the urban area of Glenden which could be utilised for a Works Camp as contemplated by s 4.3.2 of the Nebo Planning Scheme and there is no evidence of any attempt by the appellants to secure any of this land for a Works Camp.[76]
  7. [41]
    In the circumstances, the appellants have not discharged the onus of demonstrating that there is a latent unsatisfied demand to accommodate 98 per cent of their proposed workforce which is not capable of being adequately met in and adjacent to Glenden, in a manner consistent with the assessment benchmarks referred to above.
  8. [42]
    The appellants make submissions as to occupational health and safety issues arising as a consequence of workers returning to Glenden after 12-hour shifts. It was contemplated by the appellants that workers accommodated in Glenden would be provided with bus transport to their accommodation at their end of their shifts and buses are already used extensively to transport workers around the large mine site. This does not appear to be an unreasonable impost. Indeed, Mr Leary implies that it is still contemplated for accommodation arrangements in Glenden.[77] Accordingly, I am not of the view that it is necessary for workers to drive to Glenden at the conclusion of their shifts should they be accommodated there, and this is not a relevant matter which is of any consequence.
  9. [43]
    The appellants also submit that the length of the current shifts, being 12 hours, will not leave workers much time to utilise facilities in Glenden afterwards. Firstly, there is no evidence before me that demonstrates that shifts could not be shorter than 12 hours should workers be accommodated in Glenden. There is no evidence before me that shifts of this length are essential to the appellants’ mining operation. On the contrary, they just appear to be a preference from an organisational perspective based on the industrial model the appellant has adopted. Secondly, in any event, there is evidence before me which establishes that even on their current shifts, workers living in Works Camps utilise recreational facilities in Glenden.[78]
  10. [44]
    The appellants also complain of the loss of infrastructure involved in dismantling the existing temporary Works Camp.  This is a natural consequence of the temporary development approval which the appellants obtained. Conversely, much more significant public infrastructure in Glenden will be under-utilised or ultimately lost should the proposed development proceed. I accept the evidence of Ms Bennett that approval of the proposed development would not enable the establishment of any housing types that would attract long-term sustainable populations in Glenden.[79] I also accept her evidence that residential populations, including that which could potentially be provided by the appellants, are important in providing further demand for services and facilities in Glenden.[80] Essentially, the proposed development will not create housing diversity or result in the efficient use of existing significant infrastructure in Glenden, contrary to what the assessment benchmarks contemplate.

Conclusion

  1. [45]
    The proposed development is inconsistent with the relevant provisions of the Regional Plan and the Nebo Planning Scheme. The planning strategy underlying these provisions is also reflected in the Isaac Planning Scheme which recently came into effect.  The appellants seek to establish a Works Camp in a location convenient to them with minimal infrastructure in circumstances where they have not demonstrated that their existing and prospective workforce cannot be housed nearby, in and around Glenden, as contemplated by the relevant assessment benchmarks. It is only a 30-minute bus journey from the site. The consequences of approving the proposed development would be detrimental to the ongoing utilisation of the significant social and administrative infrastructure which is already located in Glenden. This is not an appropriate planning outcome. The failure of the proposed development to offer a significant choice to prospective workers to accommodate them with their families a short bus ride from the mine is likely to have a negative impact on certain workers.
  2. [46]
    The appellants have not discharged the onus of establishing that the appeal should be allowed, the effect of which would be to locate 98 per cent of their current and prospective workforce at a Works Camp at the mine rather than, at the very least, offering to accommodate a significant number of their workers in Glenden as contemplated by the relevant assessment benchmarks.
  3. [47]
    The appeal is therefore dismissed.

Footnotes

[1] Exhibit 9, para 4.

[2] Ibid para 3.

[3] Ibid para 17.

[4] Exhibit 10, para 22.

[5] Exhibit 9, para 17.

[6] Ibid; Exhibit 10, para 18.

[7] Exhibit 9, para 18.

[8] Exhibit 11, para 4.

[9] Exhibit 7, para 90.

[10] Ibid para 50.

[11] Exhibit 9, para 47.

[12] Ibid para 49.

[13] Exhibit 7, paras 17 – 19.

[14] Ibid para 29.

[15] Ibid Table 5, pp 22 – 25.

[16] Ibid.

[17] Ibid para 40.

[18] Exhibit 12, para 109.

[19] Exhibit 7, para 41.

[20] Exhibit 12, para 84.

[21] Ibid para 150.

[22] Planning & Environment Court Act 2016 (Qld) s. 43.

[23] Ibid s 45(1)(a).

[24] Planning Act 2016 (Qld) s 45(5)(a)(i).

[25] Ibid s 45(7).

[26] Ibid s 45(8).

[27] [2020] QCA 257.

[28] [2020] QCA 273.

[29] [2014] QCA 147.

[30] Exhibit 3, p 6; Planning Act 2016 (Qld) s 8(4)(b).

[31] Exhibit 3, p 84.

[32] Ibid p 85.

[33] Ibid p 107.

[34] Ibid p 113.

[35] Ibid p 114.

[36] Exhibit 4, s 1.4.2.1.

[37] Ibid p 12.

[38] Ibid p 14.

[39] Ibid p 15, s 2.2.3(16).

[40] Ibid p 18.

[41] Ibid p 101.

[42] Ibid p 21.

[43] Ibid p 22.

[44] Ibid p 27.

[45] Ibid p 100.

[46] Ibid p 28.

[47] Exhibit 5, p 153, s 3.2.2(2) and (3).

[48] Ibid p 157, s 3.3.1.1(1) and (4).

[49] Ibid p 159.

[50] Ibid p 173, s 6.2.6.5.2(2)(k).

[51] Exhibit 23, para 2.

[52] Ibid.

[53] Exhibit 3, p 114, s 7.4.8.

[54] Exhibit 4, p 15, s 2.2.3(16).

[55] Ibid p 21, s 4.1.3.2(e) and (f); p 27, s 4.2.3.2(i).

[56] [2003] QPELR 414 at [21].

[57] Wilhelm v Logan City Council & Ors [2020] QCA 273 at [77].

[58] Exhibit 7, para 50.

[59] Exhibit 10, para 53(c).

[60] Ibid para 65.

[61] Ibid paras 70 and 71.

[62] Ibid p 30.

[63] Exhibit 12, para 110(c).

[64] Exhibit 7, para 90.

[65] Exhibit 16, paras 12 – 21.

[66] T3 – 12, ll 1 – 25.

[67] Exhibit 7, para 176.

[68] T3 – 34, ll 35 – 40.

[69] Exhibit 7, para 126; T 3 – 35, ll 5 – 25.

[70] Exhibit 7, para 164.

[71] Exhibit 10, para 76.

[72] T1 – 18, ll 23 – 26.

[73] Exhibit 17.

[74] Ibid.

[75] Exhibit 12, para 167.

[76] Exhibit 26.

[77] Exhibit 10, para 73.

[78] Exhibit 19, para 20; Exhibit 20, para 32.

[79] Exhibit 7, para 160.

[80] Ibid para 191.

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Editorial Notes

  • Published Case Name:

    QCoal Pty Ltd & Anor v Isaac Regional Council

  • Shortened Case Name:

    QCoal Pty Ltd v Isaac Regional Council

  • MNC:

    [2021] QPEC 60

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    01 Nov 2021

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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