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  4. Bronco Dino Pty Ltd v Cassowary Coast Regional Council - [2023] QPEC 15

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Bronco Dino Pty Ltd v Cassowary Coast Regional Council[2023] QPEC 15

Bronco Dino Pty Ltd v Cassowary Coast Regional Council[2023] QPEC 15

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Bronco Dino Pty Ltd & Ors v Cassowary Coast Regional Council & Anor [2023] QPEC 15

PARTIES:

BRONCO DINO PTY LTD

ACN 612 740 280

(first appellant in 199 of 2019)
KERRY ANNE BLACK AND ASHLEY SCOTT BLACK

(second appellant in 199 of 2019)

SEAN ARNOLD

(appellant in 197 of 2019)
v

CASSOWARY COAST REGIONAL COUNCIL

(respondent)
DARALEIGH PTY LTD

ACN 010 883 093

(co-respondent)

FILE NO/S:

197 of 2019

199 of 2019

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Cairns

DELIVERED ON:

16 May 2023

DELIVERED AT:

Cairns

HEARING DATE:

19-21, 23, 26-30 September 2022; 31 October 2022; 1 November 2022

JUDGE:

Fantin DCJ

ORDERS:

The appeals are adjourned to a date to be fixed to enable the parties to prepare conditions of approval that reflect these reasons.

CATCHWORDS:

ENVIRONMENT AND PLANNING – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION FOR QUARRY – where co-respondent seeks to develop a small hard rock quarry on rural land near Innisfail - where land is in Rural zone and designated an Extractive Resource Site – where land has existing development approval for Extraction – where respondent and State approved the development application subject to conditions – where submitters appealed against approval –  whether the proposed development would have unacceptable ecological impacts – whether quarry could be operated efficiently – whether sufficient area available –whether development should be refused or approved having regard to ‘relevant matters’

LEGISLATION:

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Integrated Planning Act 1997 (Qld)

Planning Act 2016 (Qld) s 5, s 29, s 45, s 59, s 286, s 311 & sch 2

Planning and Environment Court Act 2016 (Qld) s 43, s 45, s 46, s 47, s 76

Planning Regulation 2017 (Qld) r 30, r 31 & sch 24

Sustainable Planning Act 2009 (Qld)

Vegetation Management Act 1999 (Qld)

CASES:

Abeleda v Brisbane City Council (2020) 6 QR 441; [2020] QCA 257

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793; [2019] QPEC 16

Barro Group Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 235; [2021] QPEC 18

Bell v Brisbane City Council (2018) 230 LGERA 374; [2018] QCA 84

Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2018] QPELR 982; [2018] QCA 75

Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987; [2020] QCA 253

Bunnings Building Supplies Pty Ltd v Redland Shire Council & Ors [2000] QPELR 193; [2000] QPEC 1

Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor [2022] QPEC 16 

Carbone v Esk Shire Council [2006] QPELR 496; [2006] QPEC 16

Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6

Duncanson & Brittain (Quarries) Pty Ltd v Brisbane City Council & Ors [1986] QPLR 330

Edith Pastoral Company Pty Ltd v Somerset Regional Council & Ors [2022] QPELR 1125; [2021] QPEC 52

Glasshouse Mountains Advancement Network Inc. v Caloundra City Council & Anor [1997] QPELR 438

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

Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPELR 763; [2018] QPEC 21

Karalee Land Partners Pty Ltd v Ipswich City Council [2014] QPELR 603; [2014] QPEC 34

Kin Kin Community Group Inc. v Sunshine Coast Regional Council & Ors [2011] QPELR 349; [2010] QPEC 144

Lockyer Valley Regional Council v Westlink Pty Ltd & Ors (2011) 185 LGERA 63; [2011] QCA 358

Luke & Ors v Maroochy Shire Council & Watpac Developments Pty Ltd [2003] QPELR 447; [2003] QPEC 5

Mary Valley Community Group Inc. & Anor v Gympie Regional Council & Ors [2018] QPELR 345; [2018] QPEC 58

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2020] QPELR 328; [2019] QPEC 46

Nielsens Quality Gravels Pty Ltd v Brisbane City Council & Ors [2016] QPELR 709; [2016] QPEC 39

SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24

Sellars Holdings Ltd v Pine Rivers Shire Council [1988] QPLR 12; (1987) 30 APA 407

Trinity Park Investments Pty Ltd & Anor v Cairns Regional Council [2022] QCA 261

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309; [2021] QCA 95

Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2015] QPELR 21; [2014] QPEC 47

Wilhelm v Logan City Council & Ors [2021] QPELR 1321; [2020] QCA 273

Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168

COUNSEL:

K Wylie for the appellants

A Skoien for the respondent

M Batty with G Webber for the co-respondent

SOLICITORS:

Holding Redlich for the appellants (199 of 2019)

Miller Bou-Samra Lawyers for the appellant (197 of 2019)

P&E Law for the respondent

MacDonnells Law for the co-respondent

Table of Contents

Introduction5

The site and locality7

History of the application8

Proposed development8

Existing development approval (Extraction Approval)10

Statutory assessment and decision-making framework13

Overview of planning scheme15

Impacts on ecological values - overview16

Strategic Framework17

Desired Environmental Outcomes20

Shire Wide Measures, Natural Area code26

Rural Zone code28

Extraction/ Quarry code29

SPP 201631

SPP 201732

Regional Plan33

Air quality (dust)34

Blasting35

Noise37

Stormwater41

Groundwater42

Conclusion on ecological impacts47

The efficiency of the proposed quarry and whether there is sufficient area for stockpiling, acoustic bunds, and stormwater management47

Other relevant matters under s 45(5)(b) of the PA55

Need56

Support in planning documents59

Community expectations59

Public interest60

Advancing the purpose of the PA61

Relevant matters relied upon by Daraleigh and council61

Conclusion and orders62

Introduction

  1. [1]
    The Cassowary Coast is an area of outstanding natural beauty and biodiversity. It occupies the coastal plain between Cardwell and Innisfail, with the Great Barrier Reef world heritage area to its east, the rainforest ranges of the Wet Tropics world heritage area to its west, and a patchwork of agricultural land and small towns in between.
  2. [2]
    These appeals involve a proposal to develop a small basalt quarry on cleared land currently used for grazing, which is designated in the planning scheme for extractive industry use, and over which there is an existing development approval for extraction.
  3. [3]
    The council approved Daraleigh’s development application. Two submitter appeals were lodged and ordered to be heard together.
  4. [4]
    Unusually for a quarry appeal, the appellants do not contend that the proposed development should be refused because of unacceptable impacts on residential amenity, visual amenity, traffic, the road network, vegetation clearing, or loss of good quality agricultural land. None of these issues were relied upon as a ground for refusal.
  5. [5]
    The parties agreed upon a list of the issues in dispute.[1] By closing addresses, the appellants’ case focussed on:[2]
    1. (a)
      impacts on the ecological function of surrounding areas of ecological value from blasting, noise, dust, and groundwater;
    2. (b)
      whether the quarry could be operated efficiently (given its relatively small size and the depth of overburden covering the hard rock resource);
    3. (c)
      whether there is sufficient area for stockpiling, acoustic bunds, and stormwater management (sediment pond and water storage); and 
    4. (d)
      whether acoustic measures to mitigate noise will be effective, and can be practically implemented.
  6. [6]
    The appellants also contended that the development should be refused in the exercise of the court’s discretion having regard to ‘relevant matters’ in s 45(5)(b) of the Planning Act 2016 (Qld) (‘PA’).
  7. [7]
    Daraleigh and council maintained that the proposed development should be approved subject to lawful conditions.
  8. [8]
    Daraleigh did not concede that the proposed development did not comply with any assessment benchmarks, and contended that if it did, any non-compliance could be addressed by the imposition of conditions. It also relied upon relevant matters said to support the approval of the proposed development.
  1. [9]
    The relevant statutory assessment and decision-making framework is that prescribed by the PA. Daraleigh must establish that the appeals should be dismissed.[3]
  1. [10]
    The overriding principle of the applicable planning scheme is ecological sustainability. Relevantly, that scheme contains many provisions seeking to protect the unique environmental qualities of its natural areas, while maintaining the predominant role of agriculture, and diversifying the economic sectors.
  2. [11]
    Notwithstanding the scheme’s emphasis on the protection of ecological systems and environmental qualities, the assessment of the proposed development starts from a position favouring approval, subject to impact assessment, for two reasons.
  3. [12]
    First, the land on which the development is proposed is designated in the planning scheme as an Extractive Resource Site (‘ERS’). It is one of only seven such sites in the planning scheme area, and the only one which is yet to be developed.  A Quarry use (as defined) is impact assessable on the land, but ‘not inconsistent’ because of the ERS designation. A Quarry is an ‘inconsistent’ use everywhere else (without an ERS designation) in the planning scheme area. An inconsistent use is a type of development that is inconsistent with the policy direction of the zone or precinct.[4]
  1. [13]
    Second, the land benefits from an existing development approval for Extraction (including screening and storage) up to 100,000 tonnes per annum, and an Environmental Authority permit for Environmentally Relevant Activities (‘ERAs’) for extracting and screening (‘the Extraction Approval’). The Extraction Approval has not yet been acted upon, but Daraleigh has taken steps and expended funds in preparation to do so. If the development application the subject of this appeal is not approved, Daraleigh intends to act upon the Extraction Approval.
  2. [14]
    For reasons explained below, the existence of the Extraction Approval is a mandatory consideration in the court’s assessment of the development application and is relevant to expectations about impacts that may reasonably be expected on the site of the proposed quarry. 
  3. [15]
    This Court has observed that geology and feasibility of quarrying are fundamental matters for the assessment of an extractive industry.[5] The primary ordinary meaning of feasible is: capable of being done, effected or accomplished.[6] Daraleigh has established by drilling and investigation that there is a proven resource of quarriable material in the form of a hard rock deposit of high quality basalt on the site. Basalt can be extracted and processed to produce a variety of concrete aggregates, sealing aggregates, road base and ballast for supply to the construction industry. Above the hard rock deposit is a layer - of varying depth - of weathered, or extremely weathered, hard rock (overburden), above which sits a layer of topsoil.
  4. [16]
    There is no question that the resource is capable of being extracted, although the appellants raise concerns about the efficiency of the proposed quarry.
  5. [17]
    It is a characteristic of extractive industry that it can be practically located only where suitable deposits (which can be worked in a viable way) are to be found.  The existence of a proven resource, which can be feasibly and viably extracted, is a matter of town planning importance favouring approval.[7] The court has recognised that it is in the community’s interest that a proven deposit of quarryable material of high quality be availed of wherever possible.[8]

The site and locality

  1. [18]
    The proposed development is in a rural area in the Cassowary Coast hinterland, about 10 kilometres north-west of Innisfail, on the western side of the Bruce Highway.[9] The area is known for its banana and sugarcane industries, and receives very high rainfall, particularly between January and April.
  2. [19]
    The proposed quarry is located on a large, irregularly shaped parcel of land approximately 217.6 hectares in area (‘the Land’), which is partly cleared and partly vegetated. The cleared areas are used for cattle grazing and plantation forestry. The only improvements are a house and farm outbuildings. The character of the area is rural, and the terrain is undulating. 
  3. [20]
    To the north-west, south and east of the Land are predominantly rural use areas, including for sugarcane and banana farming, forestry plantations, and cattle grazing. The closest houses on neighbouring lots are approximately 800 metres from the site of the proposed quarry.
  4. [21]
    Adjoining the western boundary of the Land is the Wooroonooran National Park. On the opposite side of the Bruce Highway, a few kilometres away to the north-east is the Eubenangee Swamp National Park, and approximately seven kilometres away is Ella Bay National Park.
  5. [22]
    The site of the proposed quarry is roughly in the centre of the Land and adjacent to its western boundary (‘the site’). The site is cleared and currently used for cattle grazing. On the basis of Mr Gray’s updated calculations, the quarry footprint has an area of approximately 11 to 12 hectares,[10] with an intended maximum working area of only two hectares at any time. When buffer areas and associated stormwater management are included, the total area is larger.
  6. [23]
    The site is on a large plateau and falls generally towards the north and east. One of the consequences of this siting is that (it is accepted) the proposed quarrying operations will not have adverse visual impacts. It can be distinguished from a case where the quarrying occurs on hillslopes or ridges and the impacts are visible offsite.
  7. [24]
    There are areas of high ecological value near the site. About 100 metres to the west of the quarry footprint is the boundary of Wooroonooran National Park. A vast national park covering most of the Bellenden Ker range, it comprises tens of thousands of hectares of coastal uplands. Immediately north of the site, but within the Land, is a small isolated patch of mapped remnant vegetation, about 13 hectares in area (‘the remnant patch’). To the south-west of the site is another area of mapped remnant vegetation.
  8. [25]
    The proposed development does not involve any clearing of the remnant vegetation in the remnant patch or other native vegetation. The remnant patch is to be retained and expanded by revegetation. Mature weed species are to be removed.

History of the application

  1. [26]
    Daraleigh made a superseded planning scheme request under the Sustainable Planning Act 2009 (Qld) (‘SPA’) for the proposed quarry to be assessed and decided under a superseded planning scheme (‘the planning scheme’).
  2. [27]
    Council approved that request. As a result, the application had to be assessed against the superseded planning scheme rather than the current planning scheme.
  3. [28]
    Daraleigh then made a superseded planning scheme development application for:
    1. (a)
      a development permit for a material change of use for a Quarry (as defined) (up to 250,000 tonnes per annum); and
    2. (b)
      a development permit for a material change of use for an ERA – ERAs 16(2) and (3) extracting and screening.
  4. [29]
    The application was referred to the Chief Executive as a concurrence agency because it involved ERAs (extraction and screening greater than 100,000 tonnes per annum), State controlled road matters, development impacting State transport infrastructure, and vegetation.
  5. [30]
    Council and the Chief Executive issued information requests.
  6. [31]
    The application was impact assessable. It was publicly notified and attracted 136 properly made submissions: 52 objected to the development and 84 supported it.
  7. [32]
    Both the Chief Executive and council approved the development subject to conditions. Council later issued a negotiated decision notice. Two submitter appeals opposing the approval were lodged and ordered to be heard together. The Chief Executive did not elect to participate in the appeals.

Proposed development

  1. [33]
    The proposed quarry is intended to operate in accordance with the Operational Plans in Exhibit 53.
  2. [34]
    The operations would occur in accordance with conditions of approval, various operational plans (including an environmental management plan, a stormwater management plan, a rehabilitation management plan, an overburden management plan and a blast management plan), the concurrence agency conditions in the Amended Concurrence Agency Response, together with the conditions that will apply to the ERA under the Quarry Environmental Authority.[11]
  3. [35]
    In broad terms, it is proposed to commence the proposed quarry at the north-west and west end of the site by establishment works to create clean water diversion drains around the site, bund walls for acoustic attenuation purposes, working platforms, sediment ponds, stormwater detention ponds and access ramps for the purposes of commencing extraction, processing and export of overburden and hard rock.
  4. [36]
    The proposal involves the quarry being progressively developed from west to east by:
  1. (a)
    stripping and stockpiling the topsoil;
  2. (b)
    stripping the overburden and using some of it for on-site infrastructure (eg, stormwater bunds) and rehabilitation;
  3. (c)
    blasting the hard rock deposit to produce workable hard rock;
  4. (d)
    processing the overburden and hard rock by crushing and screening; and
  5. (e)
    stockpiling the products made from overburden, hard rock, or a combination of them, for transportation off the site.
  1. [37]
    Extraction is proposed in seven stages with a multi-bench pit within a defined extraction area, where existing surface levels range from RL73 metres to RL80 metres, with extraction proposed to occur down to approximately RL50 metres.
  2. [38]
    Crushing and screening is to occur by mobile plant only, in the extraction area. There will be no fixed plant.
  3. [39]
    Within the extraction area will also be permanent sediment basins and bund walls (for stormwater and erosion and sediment control), internal haulage routes, and stockpiles of processed material. The site facilities (weighbridge, office and carpark) will be outside the extraction area and occupy an area of about 6,200 square metres.
  4. [40]
    The existing dwelling will be retained and used for the supervisor or manager.
  5. [41]
    It is proposed to extract a total of approximately 1.2 million tonnes of weathered basalt and overburden, overlying up to 2.9 million tonnes of basalt. The maximum extraction would be 250,000 tonnes per annum. The estimated life of the use could be up to approximately 40 years, depending on the rate of extraction.
  6. [42]
    Blasting is limited to only eight days per calendar year. Machinery proposed includes front end loaders, excavators, bulldozers and trucks.
  7. [43]
    The operating hours will be limited to 6am to 6pm Monday to Saturday. The use would not operate on Sundays or public holidays.
  8. [44]
    The proposal involves four to five full time equivalent employees on site.
  9. [45]
    Vehicle access would be from Moody Road, which connects the site directly to the west of the Bruce Highway, which connects Innisfail to Cairns in the north.
  10. [46]
    Daraleigh has agreed to accept the conditions required by council and the concurrence agency, and recommended by experts following the joint expert meeting and report process. Those conditions include: [12]
    1. (a)
      an updated Stormwater Quality Management Plan to be prepared and submitted with a future Operational Works Application;
    2. (b)
      conditions requiring compliance with dust and noise control measures;
    3. (c)
      conditions requiring updated rehabilitation and environmental management plans to be submitted prior to commencement of the use;
    4. (d)
      a condition requiring an increase to the existing remnant patch buffer to 30 metres wide, and management of the buffer in accordance with recommendations in the ecology joint expert report (‘Ecology JER’), as well as lateral expansion of, and exclusion of cattle from, the remnant patch; and
    5. (e)
      a condition requiring compliance with the Blast Management Plan annexed to the Separate Report of Mr Heilig (Exhibit 39).

Existing development approval (Extraction Approval)

  1. [47]
    The Land has the benefit of an existing development approval for Extraction (including screening and storage) up to 100,000 tonnes per annum, by a negotiated decision notice issued by council on 14 February 2019 (the Extraction Approval). There is a corresponding Environmental Authority permit issued by the Department of Environment and Protection for:
    1. (a)
      ERA 16 (2a) – extracting, other than dredging, in a year, up to 100,000 tonnes per annum; and
    2. (b)
      ERA 16 (3a) – screening up to 100,000 tonnes per annum.
  2. [48]
    The Extraction Approval remains current until 2025. It covers an area broadly similar (but not identical) to the part of the Land the subject of the proposed development for a quarry.
  3. [49]
    I accept the evidence of Daraleigh’s director, Mr Dillon, that Daraleigh has undertaken various works and spent approximately $300,000 in preparation to commence operation of the Extraction Approval. I also accept his evidence that if the proposed quarry the subject of this appeal is refused, Daraleigh intends to develop the Land consistently with the Extraction Approval.
  4. [50]
    The main differences between the existing Extraction Approval and the proposed quarry are that the proposed quarry:[13]
    1. (a)
      includes blasting (limited to eight days per year);
    2. (b)
      increases the maximum annual extraction from 100,000 to 250,000 tonnes per annum, along with associated screening, crushing and production of the material; and
    3. (c)
      involves deeper excavation to extract hard rock and overburden.
  5. [51]
    The change to include blasting triggers a change in the definition of the proposed land use from Extraction to Quarry (both defined uses in the planning scheme).
  6. [52]
    Pursuant to s 45(5)(a)(ii) of the PA and r 31(1)(f) of the Planning Regulation 2017 (Qld), impact assessment must be carried out having regard to any development approval for, and any lawful use of, the premises (in this case, the Extraction Approval and associated Environmental Authority permit).  There is a question as to the weight that should be given to the existing approval.
  7. [53]
    In Karalee Land Partners Pty Ltd v Ipswich City Council[14] the Court determined that regard to an existing approval should extend to consideration of the implications of that approval for the subject site, including any future impacts of development under that approval.[15] The Court also agreed that the existing approval was relevant to the consideration of impacts, and provided a base line against which the impacts of the proposed development could be assessed.[16]
  8. [54]
    In Carbone v Esk Shire Council[17] the Court said that in assessing the impacts of the proposal, the relevant comparison was between what may occur under the existing approval on the one hand, and on the other, likely impacts if the proposal were to go ahead (rather than the starting point being no development at all).[18]
  9. [55]
    I respectfully agree with that approach.
  10. [56]
    The appellants contended that the Extraction Approval ought be given little, or no meaningful, weight because it is dated, has not yet been acted upon, and is unlikely to be acted upon.
  11. [57]
    Although the extraction application was made some years earlier, the associated negotiated decision notice was issued in February 2019 (relatively recently). The approval remains current and does not expire until 2025. The evidence establishes that it will be acted upon if the quarry is not approved, and funds have been expended to that end.
  12. [58]
    To the extent that some of the experts nominated by the appellants (Mr Reed on quarry management, Mr Buckley on town planning, and Mr Delaney on ecology) gave limited regard or very low weight to the Extraction Approval and its potential impacts, including because it had not yet been acted upon or may not be acted upon in future, that was an incorrect approach. That error affects the weight I give to their evidence, but was not determinative. 
  13. [59]
    The appellants also submitted to the effect that the Extraction Approval was unlikely to be acted upon because (without blasting) it would produce only overburden-derived products of low economic value for which there is less demand, and it may not be economically viable. Matters of private economics (a person’s personal financial circumstances) are not relevant to the decision of the assessment manager. The subject application for a quarry use does not exist in a vacuum. The Extraction Approval is a lawful extant approval that can be acted upon at any time, with consequential impacts. That is clearly a relevant matter to have regard to.
  14. [60]
    The appellants also submitted that Mr Dillon wrongly believed that the Extraction Approval permitted crushing to occur; that upon its proper construction it did not; and that his mistaken belief was relevant to whether the Extraction Approval would ever be acted upon.
  15. [61]
    The relevant uses are defined in the planning scheme as follows:

‘extraction’ means the use of premises for removal of sand, gravel, soil, rock, stone or similar material from land or a watercourse.

The use includes the screening, and storage of the material but does not include extraction using blasting which is defined separately – see quarry.

…

‘quarry’ means the use of premises for extraction of gravel, soil, rock, stone or similar material from land or a watercourse using methods that involves blasting.

The use includes the screening, crushing, grinding, milling and storage of the material.

  1. [62]
    The appellants submitted that crushing would not be permitted under the Extraction Approval because it was not expressly referred to in the definition of ‘extraction’ and was not ‘an ancillary use of the premises’.[19] They submitted that any crushing would not be subservient, or incidental and subordinate, to the excavation of overburden.
  2. [63]
    I do not accept this construction. The principles for construction of planning schemes are uncontroversial and it is unnecessary to rehearse them here. The scheme definition of ‘extraction’ is broadly framed and the list of activities included in the defined use is not exhaustive. The only activity expressly excluded is blasting. A limitation should not be read into the definition in the absence of clear words. There is no warrant to do so here. The preferable construction is that the Extraction Approval does not exclude crushing.
  3. [64]
    I am satisfied on Mr Dillon’s evidence that Daraleigh does intend to act upon the current Extraction Approval if the subject application for a Quarry is refused. Therefore, the likely impacts of the Extraction Approval if acted upon are relevant to my assessment of the impacts of the proposed development.
  4. [65]
    An assessment of the potential impacts of a development is informed by a range of considerations, including an objective reading of the adopted planning controls to ascertain what, if any, reasonable expectation there should be about the type and intensity of development intended for any given locality. The designation of the site as an ERS in the planning scheme and the Extraction Approval are both relevant to ‘reasonable expectations’ of what may be developed on the site, although they are not determinative.

Statutory assessment and decision-making framework

  1. [66]
    There was no dispute about the applicable legislative provisions. Pursuant to the transitional provisions of the PA[20] and the Planning and Environment Court Act 2016 (Qld) (‘PECA’)[21], the appeals are by way of hearing anew,[22] and are to be heard and determined, and the development application is to be assessed, and decided, under the PA and the PECA.[23].  That is the case despite the development application being made under the now repealed SPA,[24] and includes the continuation of its assessment as a development application (superseded planning scheme).[25]
  2. [67]
    The Court must (a) consider the aspect of the appeal relating to the assessment manager’s consideration of the superseded planning scheme in question as if the application had been made under the superseded planning scheme; and (b) in considering the aspect, disregard the planning scheme in force when the application was made.[26]
  1. [68]
    The Court stands in the shoes of the assessment manager, and the Court’s decision must be based on its impact assessment of the development application pursuant to s 45(5) of the PA.[27]
  2. [69]
    The appropriate approach to the statutory assessment and decision-making process is that set out by the Court of Appeal in a number of recent decisions[28] which confirm the approach adopted in earlier decisions of this Court.[29]
  3. [70]
    There is a broad discretion, conferred by s 60(3) of the PA, in relation to deciding a development application that requires impact assessment. It is for the decision-maker to weigh and balance the factors to which consideration may be given.[30] As the Court of Appeal observed in Abeleda v Brisbane City Council,[31] the starting point must generally be that compliance with the planning scheme is afforded 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.[32] The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act when making a decision under s 60(3) of the Act, where the factors that favour approval (or approval subject to conditions) have to be balanced with the factors that favour refusal of the application.[33] 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 to undertake decision-making in a way that advances the purpose of the Act.[34] Non-compliance with an assessment benchmark is not equivalent to a veto of the proposed development.[35]
  4. [71]
    In deciding the appeal, the Court must confirm the council’s decision, change it, or set it aside and make a decision replacing it or returning the matter to the council with directions that the Court considers appropriate.[36]
  5. [72]
    The development application must to be assessed against the superseded planning scheme and the other planning instruments (ie, planning instruments other than local categorising instruments) in force at the time the development application was lodged.[37]
  6. [73]
    The Court may, however, give such weight to subsequent laws and policies that are not a local categorising instrument as the Court considers appropriate.[38]
  7. [74]
    The appellants rely upon assessment benchmarks in the planning scheme, and provisions of other statutory instruments, namely:
  1. (a)
    the State Planning Policy 2016 (‘SPP 2016’), in force at the time the development application was properly made;
  2. (b)
    the Far North Queensland Regional Plan 2009-2031 (‘Regional Plan’), in force at the time the development application was properly made, and current; and
  3. (c)
    the State Planning Policy 2017 (‘SPP 2017’) (which came into effect after the application was properly made).
  1. [75]
    The relevant provisions of the SPP 2016 and the Regional Plan apply as assessment benchmarks against which the proposed development is to be assessed.[39]
  2. [76]
    The SPP 2017 was not in force when the development application was properly made, but the Court is entitled to give it the weight that it considers appropriate in the circumstances.[40] 
  3. [77]
    The Planning Regulation 2017 (Qld) also relevantly prescribes that impact assessment must be carried out having regard to: any development approval for, and any lawful use of, the premises (in this case, the Extraction Approval and associated Environmental Authority permits); and the common material.[41]

Overview of planning scheme

  1. [78]
    In the planning scheme, the Land is in the Rural zone. That zone is divided into two precincts: Rural Use and Rural Conservation. The Land is in the Rural Use precinct, rather than the Rural Conservation precinct.
  2. [79]
    The Rural Use precinct is predominantly cleared land and includes good quality agricultural land suitable for agricultural use, including cropping and improved pastures as well as more marginal rural land suited to grazing.[42] 
  3. [80]
    The Rural Conservation precinct (which the Land is not in) includes land that has all or part of the lot containing land suitable for conservation. It includes areas of significant conservation value and land that may require revegetation. [43]
  4. [81]
    In addition to its Rural zoning, the Land is one of only seven sites in the planning scheme area designated as an Extractive Resource Site. All six of the other sites designated as ERS are already developed.
  5. [82]
    A Quarry use is impact assessable (inconsistent) everywhere else in the planning scheme area, except on ERS designated land.  That points to a strong planning intent, or expectation, for the Land to be developed for extractive industry, subject to impact assessment against the whole of the planning scheme.
  6. [83]
    The town planning expert nominated by Daraleigh, Mr Schomburgk, said that the ERS designation indicated that the land use is appropriate from a town planning perspective, without ignoring the need for an impact assessment. He noted that while the ERS designation does not of itself necessitate an approval, the planning scheme makes it clear that this is one of only seven sites where such a land use is anticipated and indeed, actively encouraged.
  7. [84]
    The town planning expert nominated by council, Ms Taylor, agreed that the ERS designation should be given considerable weight, ‘particularly because of the level of detailed planning strategy that is in place in the planning scheme for rural zoned land, which includes additional Precinct and ERS designations to guide and control development’.[44]
  8. [85]
    On this issue, I prefer and accept their opinions to those of the town planning expert nominated by the appellants, Mr Buckley, who said that the level of support contained within the planning scheme for an extractive industry on the Land was very low. His evidence about the relevance of the ERS designation was also affected by his adoption of the concerns raised by Mr Delaney (in respect of ecological impacts), Mr Ganly (need) and Mr Reed (quarry operations).
  9. [86]
    The ERS designation provides a high degree of support for, and a reasonable expectation of, the proposed development, subject always to impact assessment.
  10. [87]
    The agreed list of issues[45] identifies a number of alleged non-compliances with the planning scheme. Provisions of the Regional Plan and the SPP 2016 (and the SPP 2017) are also relied upon.
  11. [88]
    The instruction in s 45(5)(a)(i) of the PA that impact assessment ‘must be carried out against the assessment benchmarks in a categorising instrument for the development’ does not mean that the Court (as decision-maker) is required, in order to lawfully make a decision, to make express findings about every ‘assessment benchmark’ that might be referred to by the parties,[46] particularly where it is said to be of no application by a party, is at the bottom of a hierarchy of provisions, or is not in dispute on the evidence.
  12. [89]
    With that qualification, I deal with the issues relied upon by the appellants to warrant refusal of the proposed development. Relevant planning scheme provisions are considered in the context of each issue, only to the extent that it is necessary to do so.

Impacts on ecological values - overview

  1. [90]
    The appellants do not submit that the proposed development will have direct adverse impacts on the adjoining remnant vegetation or the national park by virtue of clearing of remnant (or other native) vegetation. The appellants rely upon alleged adverse impacts that are indirect, which are said to be impacts on the ecological function of surrounding areas of ecological value from blasting, noise, dust, and groundwater.
  2. [91]
    The impacts of the proposed development must be viewed in the context of the likely impacts of the existing Extraction Approval. The ecological experts broadly agreed that the Extraction Approval alone would have impacts on the landform resulting from the removal of the overburden, on the surface and sub-surface hydrology (including by removing the surface material that establishes ephemeral streamflow in the remnant patch, and by capturing stormwater and discharging it into the head of the western gully), and on the remnant patch; and would create a ‘quarry setting’ with associated noise impacts and quarry activity. They also agreed that, when compared with the Extraction Approval, some additional impacts of blasting and increased operational intensity and duration (from the increased maximum extraction) would be expected to arise from approval of the quarry.
  3. [92]
    The experts differed on the extent of those differences. The evidence of the ecological expert nominated by Daraleigh, Mr Moffit, was that the differences in impacts are unlikely to be significantly greater than those already arising from the Extraction Approval if acted upon. Mr Delaney accepted that the majority of both direct and indirect ecological impacts associated with the current proposal would occur as a result of the Extraction Approval. Notwithstanding that, Mr Delaney proceeded on the basis that all of the ecological impacts arising from the proposed quarry should be attributed to it and considered without reference to the impacts arising under the Extraction Approval. That was an incorrect approach. It affects the weight I give to his evidence, but was not determinative.  On this issue, I prefer the evidence of Mr Moffitt to Mr Delaney.
  4. [93]
    Similarly, Mr Delaney accepted that in assessing the ecological impacts of the proposed development he did not give consideration to the designation of the site as an ERS. That also affects the weight I give to his evidence. The site’s designation as an ERS, one of only several sites where (subject to impact assessment) a Quarry is a consistent use, is relevant in assessing the impacts of the proposed development. 

Strategic Framework

  1. [94]
    The appellants contend that the proposed development does not comply with the part of the Strategic Framework, s 1.2.2, which states:

The overriding principle of the Planning Scheme is the promotion of ecological sustainability. Ecological sustainability is the balance between the protection of ecological processes and natural systems, economic development and the maintenance of the well-being of people and communities. The following strategies will encourage the achievement of ecological sustainability:

  • Maintain the predominant role of agriculture, whilst increasing diversity within and between economic sectors.
  • Develop tourism in a managed way, founded on the natural and cultural characteristics of the Shire, achieving a role which contributes to the economy, but which has a low impact on the social and physical environment.
  • Manage the natural resources of the Shire in such a way to protect and enhance their permanent viability and value for the lasting benefit and enjoyment of future generations, while maintaining economic and social development.
  • Preserve and enhance the character of urban, natural and rural areas, including the striking scenic landscape, the relaxed and friendly lifestyle and the strong sense of community identity, which typifies the Shire.
  • Foster the efficient, safe and convenient movement of people and goods within the Shire and beyond.
  • Plan and manage the Shire in the context of its region and neighbours.

[emphasis added]

  1. [95]
    It is only the statement of principle highlighted in bold above that the appellants rely upon,[47] and it was not strongly pressed in final submissions.
  2. [96]
    Daraleigh submits that, properly construed in its context, this statement of principle is not an assessment benchmark.
  3. [97]
    It is necessary to consider the provision in its context. Part 1 of the planning scheme contains three divisions:
    1. (a)
      Division 1 – Relationship to Integrated Planning Act 1997 (Qld) (‘IPA’);
    2. (b)
      Division 2 – Strategic Framework; and
    3. (c)
      Division 3 – Planning Scheme Structural Elements.
  4. [98]
    Division 1 is not relevant. Section 1.2.2 sits within Division 2, Strategic Framework.
  5. [99]
    Division 2, Strategic Framework, begins with s 1.2.1, which states:

(1) This division summarises the overall effect of parts 4, 5 and 6 of the planning scheme on the nature and location of development in the local government area.

(2) This division provides a guide for related decisions of local government, developers, other infrastructure providers and the community generally.

[emphasis added]

  1. [100]
    Sections 1.2.1 and 1.2.2 are the only provisions in Division 2.
  2. [101]
    The wording of s 1.2.1, and the structure of Part 1 overall (by separating the Strategic Framework in Division 2 from the Planning Scheme Structural Elements in Division 3), support a construction that s 1.2.2 is part of a summary of other parts of the scheme and provides a guide, but is not itself an assessment benchmark.  Specifically, Division 2 provides a summary of Part 4 - Zones, Part 5 – Shire Wide Measures, and Part 6 - Development Codes, which contain various assessment benchmarks.
  3. [102]
    The next division, Division 3, Planning Scheme Structural Elements, explains how the Shire is divided into seven zones with four shire-wide codes, explains how to determine the level of assessment of development, and explains how the scheme seeks to achieve ‘outcomes’.
  4. [103]
    Section 1.3.4 footnote 4(d) provides that Impact Assessable development:

… Are types of development that may be consistent with the policy direction of the zone or precinct or have not been considered, and require input from submitters through public notification. … The application is not restricted to assessment against applicable codes but also involves a broader assessment of the environmental effects of the proposal. The planning scheme determines the extent and scope of the assessment …

[emphasis in original]

  1. [104]
    Section 1.3.7, Planning Scheme Aims to Achieve Outcomes, states:

The planning scheme aims to achieve outcomes that are identified according to the following levels –

  1. (a)
    desired environmental outcomes;
  2. (b)
    overall outcomes for zones and shire wide measures, or for the purpose of a code;
  3. (c)
    specific outcomes for zones, shire wide measures and codes;
  4. (d)
    probable solutions for a specific outcome, or acceptable solutions for complying with a self-assessable code.

[emphasis added]

  1. [105]
    That is followed by a flow chart setting out each of those levels. This provision does not refer to the Strategic Framework or s 1.2.2 as part of the outcomes sought to be achieved by the planning scheme. This also supports a construction that s 1.2.2 is not itself an assessment benchmark, but a broad statement of principle.
  2. [106]
    Section 1.3.9 states:

A probable solution for a specific outcome offers a potential solution for achieving that outcome in whole or in part, but does not limit the assessment manager’s discretion under the IPA to impose conditions on a development approval, nor does it limit the applicant from providing other solutions to the specific outcome.

  1. [107]
    Section 1.3.10 contains a flow chart described as ‘a guide to assist in following the structure of the planning scheme’. It notes that for impact assessment, ‘[t]he proposed development is assessed against the provisions of the entire planning scheme’. [emphasis added]
  2. [108]
    In terms of the structure of the zone framework, s 4.1 provides: ‘Each zone/ precinct contains a brief introduction statement providing the background to the zone/ precinct.  These sections do not form part of the assessment provisions of the planning scheme for self or code assessable development’.
  3. [109]
    Reinforcing the statement in s 1.3.10, s 4.1.1 states: ‘All impact assessable development is assessed against the relevant provisions of the entire planning scheme’.
  4. [110]
    Section 4.1.2 explains the structure of codes:

Each code contains a ‘purpose statement’ which identifies the overall outcome the code seeks to achieve.

Each code consists of two (2) columns:

  • Column 1 contains the ‘specific outcomes’ with which code and impact assessable development will be assessed against; and
  • Column 2 contains probable and acceptable solutions. Probable solutions provide ways in which a development can achieve the corresponding specific outcome for code assessment. Acceptable solutions are the only way a self assessable development can comply.

[emphasis added]

  1. [111]
    Returning to the relevant part of s 1.2.2 relied upon by the appellants, properly construed in context, this statement of principle is not itself an assessment benchmark but rather summarises what later parts of the scheme seek to achieve, particularly in considering impacts on ecological values.
  2. [112]
    Even if I am wrong about that, nothing turns upon it because to the extent that s 1.2.2 may apply as part of a broader assessment against the entire planning scheme, I am satisfied that the proposed development complies with it. That is, the proposed development strikes an appropriate balance between ‘the protection of ecological processes and natural systems, economic development and the maintenance of the well-being of people and communities’.  The site is designated for extractive industry and it benefits from an existing approval for extraction. The proposal does not involve clearing any native vegetation, will be conditioned to require revegetation of currently degraded areas, (for reasons explained below) will not have unacceptable impacts on ecological processes, will not adversely impact residential or rural amenity and character, and will facilitate small scale economic development.

Desired Environmental Outcomes

  1. [113]
    The appellants submit that the proposed development does not comply with three provisions in the Desired Environmental Outcomes (‘DEOs’):
    1. (a)
      s 3.1.1 paras [2] and [4];[48] and
    2. (b)
      s 3.1.2 para [6].
  2. [114]
    The DEOs relate to the whole of the Shire: s 3.1. These outcomes ‘assist in achieving ecological sustainability, which is the purpose of the IPA’. They are grouped into three broad headings: Ecological and Natural Systems, Economic Development, and Community Wellbeing. Only the first two are relevant.
  3. [115]
    DEO s 3.1.1, Ecological and Natural Systems, relevantly provides:

2. The ecological systems, environmental qualities and scenic landscape values are protected and enhanced through:

  • Retention, expansion and rehabilitation of a viable shire-wide network of habitat and corridors;

…

  • Identifying land uses that are sympathetic to and do not adversely impact on the protection of ecological values and processes (terrestrial and aquatic).

…

4. The quality of the waters in the Shire is maintained or enhanced through best practice management of catchment areas.

[emphasis added]

  1. [116]
    With respect to DEO s 3.1.1(2) above, the appellants only rely upon the ecological systems and environmental qualities, not scenic landscape values.
  2. [117]
    DEO s 3.1.1(2) is in two parts.
  3. [118]
    The first dot point seeks to protect and enhance the ecological systems and environmental qualities through ‘[r]etention, expansion and rehabilitation of a viable shire-wide network of habitat and corridors’.
  4. [119]
    The quarry footprint is unusual insofar as it is almost entirely cleared land.  Both ecological experts agreed that a quarry occupying a cleared footprint may still give rise to adverse impacts on adjoining ecological areas. I accept Mr Moffitt’s evidence that a cleared footprint is nonetheless a very favourable starting point for a quarry development. The proposed development will have no direct impact on remnant vegetation, mapped habitat, or a viable shire-wide corridor on the Land. 
  5. [120]
    The supplementary ecological assessment report prepared by Mr Moffitt summarised the condition of the site. The quarry footprint is almost entirely devoid of native woody vegetation and is dominated by exotic pasture grasses. Areas between the quarry footprint and the remnant patch support scattered planted cabinet timber trees, exotic species and some native species. The southern edge of the remnant patch supports the greatest load and diversity of weed species, which likely reflects the area’s use as a cattle camp.  Cattle have caused groundcover disturbance in this area. A detailed botanical survey was undertaken of the remnant patch, which failed to locate conservation significant flora species. One conservation significant frog species was recorded in the remnant patch (which is also found in the national park), and there is potential for other conservation significant fauna species. 
  6. [121]
    No clearing of native vegetation in the remnant patch is proposed. Much of the surrounding land supporting lowland rainforest has already been cleared for agriculture, and approval of the quarry would cause no further direct loss of the relevant vegetation community represented in the remnant patch. The northern edge of the quarry footprint has been realigned to allow the planted cabinet timber trees to be retained as a buffer to the southern edge of the remnant patch. There will be no alienation of habitat because surrounding land is generally cleared and habitat corridors to (and past) the remnant patch will be maintained. The buffer between the quarry footprint and the remnant patch to the north originally proposed has been increased to 30 metres. In addition, the remnant patch will be expanded and rehabilitated by planting, with the result that the proposed development will decrease, rather than increase, habitat fragmentation. The replanting will also enhance the functionality of the local habitat connection to the west of the quarry footprint. In this respect, the proposed development achieves an improved ecological outcome to that under the Extraction Approval.
  7. [122]
    The quarry footprint (and all surrounding agricultural land) is included in broadscale mapping of a large ‘State-wide terrestrial and riparian buffer corridor’ (the Eubenangee corridor) which links Ella Bay National Park to the east, Eubenangee Swamp National Park to the north-east, and Wooroonooran National Park in the north-west.  Although the site is within this mapped Eubenangee corridor, it is not in areas of identified importance, including the continuum of mapped habitat Mr Moffitt describes as the ‘core connection’. The site is located towards the southern edge of the mapped corridor, in a fragmented landscape.
  8. [123]
    The Southern Cassowary is an endangered species. There are no formal records of cassowaries occurring on the site or within a few kilometres of it, but cassowaries occur in the region, predominantly in the national parks and vegetated areas. The Eubenangee Swamp National Park and Ella Bay National Park are separated from Wooroonooran National Park and the site by cleared land used for agricultural purposes, and also by the Bruce Highway.  The national park boundaries are not contiguous with each other.  There are small patches of remnant vegetation between the national parks which function as corridor connections. I accept Mr Moffit’s opinion about the importance of the ‘central core’ part of the mapped corridor, which is almost entirely comprised of remnant vegetation in conservation estate. He said that the entirety of this low-lying continuum of national park and reserve land connecting Wooroonooran National Park and Eubenangee Swamp National Park is identified as Essential Habitat for the Southern Cassowary and it creates a substantial and robust corridor between these conservation areas for that species. The importance of that existing core connection for cassowaries is also reflected in the mapping in the National Recovery Plan for Southern Cassowary, which identifies the potential corridor for restoration as the core connection further north. Mr Delaney agreed. I accept that the northern part of the corridor already functions as the ‘central core connection’ to facilitate local fauna movement.  This is contrasted with the much more fragmented habitat occurring further south.
  9. [124]
    The Land is about four kilometres to the south-east of that ‘central core connection’ of the mapped corridor and is separated from it by cleared fragmented land used for agriculture.  That is, the site of the proposed quarry is disconnected from that central core connection and does not function as part of it. The proposed development would not have any direct or indirect impact on that central core connection.
  10. [125]
    Mr Delaney acknowledged that the area identified by Mr Moffitt as the ‘central core connection’ in the mapped corridor will be used by cassowaries under most conditions. But he also said that the subject site is an important part of a ‘flood free’ part of the corridor to the south of the existing ‘central core’ connection, linking coastal and hinterland areas. He opined that this ‘flood free’ part of the corridor would operate to link the national parks in a location further south. Such a connection would require fauna movements across the Bruce Highway and agricultural land in an area south of the primary ‘central core’ connection identified by Mr Moffitt.
  11. [126]
    I do not accept Mr Delaney’s opinion on this issue because I am satisfied that the connection described by him is not likely, practicable, or viable. I accept Mr Moffitt’s evidence, based on site specific investigation, that there is no significant potential for the safe or desirable movement of cassowaries across the Bruce Highway in the areas identified by Mr Delaney, particularly because of the undulating nature of the highway, creating steep cuttings and batters that form impediments and areas of entrapment. The experts agreed that the highway creates a significant physical barrier to fauna movement. I accept Mr Moffitt’s evidence that while the construction of a fauna land bridge or overpass over a cutting in the area proposed by Mr Delaney is theoretically possible, it would be an expensive piece of infrastructure, there are no plans by the Department of Transport and Main Roads for one in that location, and it would lack justification given the poor habitat connectivity. The southern ‘flood free’ corridor proposed by Mr Delaney would require cassowaries to traverse significant areas of cleared land under cultivation for cropping, including sugarcane. Accepting that cassowaries may move through the landscape notwithstanding gaps in forest cover, I prefer Mr Moffitt’s evidence that the land identified by Mr Delaney is unlikely to function effectively as a corridor because it is not vegetated and does not provide the cover and habitat resources to act as a corridor, in contrast to the wide continuum of vegetated land further north which provides the ‘core connection’. I am satisfied that the existing ‘core connection’ in the corridor to the north provides a robust, well-defined and safer movement pathway compared to Mr Delaney’s proposed corridor further south, which is not clearly defined and is subject to significant barriers and hazards.  That finding is supported by the fact that the proposed ‘flood free’ corridor Mr Delaney refers to is not specifically identified in relevant strategic planning documents (such as the National Recovery Plan for Southern Cassowary, the planning scheme, or the Regional Plan), and the site is not identified as a Strategic Rehabilitation Area in the Regional Plan.
  12. [127]
    I am satisfied that the approval of the development would not cause any meaningful disruption in cassowary movements between the relevant national parks, or have any unacceptable impact on a viable shire-wide network of habitat and corridors. 
  13. [128]
    All mapped habitat and corridors will be retained. In addition, the existing habitat and corridors are to be expanded and rehabilitated by regeneration and replanting, in accordance with the recommendations of the ecological experts and the conditions Daraleigh has agreed to accept.
  14. [129]
    The phrase ‘protect and enhance’ in DEO s 3.1.1(2) must be read in context and bearing in mind that when any development occurs some amenity impairment will generally result.[49] The remnant patch to the north of the proposed quarry footprint is currently isolated from other remnant vegetation and degraded by weed incursion and grazing cattle. I am satisfied that the fencing, replanting, and rehabilitation proposed as part of the development will protect, enhance, and result in a net improvement to, the ecological systems and environmental qualities of that area. 
  15. [130]
    The ecological experts agree that if the proposed quarry is approved there should be a condition requiring replanting and rehabilitation, but they disagree on the extent of the area so required.
  16. [131]
    Mr Moffitt said there was a fragmented local habitat connection to the west of the proposed quarry. He said that enlarging the remnant patch in a northerly and westerly direction would significantly enhance the functionality of that local habitat connection, and significantly strengthen existing fauna movement pathways. To achieve that, he recommended revegetation of about 16.7 hectares of the riparian corridor to the north and west of the remnant patch to improve corridor function.
  17. [132]
    Mr Delaney agreed with Mr Moffit’s recommendation, but also recommended revegetation of two additional areas: about 5.97 hectares to the west of the quarry footprint (‘Additional Area A’); and about 29.6 hectares to the north-east of the remnant patch (‘Additional Area B’).
  18. [133]
    In response to this, Mr Moffitt saw merit in adopting, and was prepared to support, revegetation of Mr Delaney’s Additional Area A (with reconfiguring of existing cattle fencing to improve east-west movement), but he did not support revegetation of Mr Delaney’s Additional Area B.
  19. [134]
    Daraleigh has agreed to accept conditions of approval giving effect to the revegetation of the two areas that are supported by both ecological experts: of 5.97 hectares; and of 16.7 hectares. The result is that both experts agreed upon a total area to be revegetated of approximately 22 hectares. That is a very significant area of habitat and corridor expansion and rehabilitation, particularly relative to the size of the quarry footprint. The revegetation proposed enlarges the remnant patch by a factor of about three, and consolidates and joins a patch of regrowth vegetation to the north.
  20. [135]
    Over and above that, Mr Delaney seeks revegetation of an additional 29.6 hectares to the north-east of the remnant patch, Additional Area B. On his evidence, the purpose of revegetation of Additional Area B was to preserve a vegetated ‘flood free’ corridor linking Wooroonooran National Park with the remnant patch and areas of remnant vegetation to the north-east. I have already found that such a corridor is not practicable or viable.  I prefer the evidence of Mr Moffitt that the area in Additional Area B which Mr Delaney recommends revegetation of is greater than necessary to mitigate impacts, or to provide a net benefit that may tend to support approval. Mr Moffitt’s proposed conditions are logical, and strike an appropriate balance between the environmental and economic considerations. Revegetation of the additional 29.6 hectares in Additional Area B is not warranted to comply with any assessment benchmark and would not be reasonably necessary or required as a condition of approval of the proposed development. 
  21. [136]
    There are a number of other mitigation measures proposed by Mr Moffitt, which Daraleigh has agreed to adopt, that would provide meaningful environmental benefits and favour approval of the development. They include: the removal of cattle from part of remnant patch; the reduction of existing infestations of non-native species; the removal of proliferating weed species, such as African Tulip; and the regeneration of Additional Area A (which would not occur under the terms of the Extraction Approval). Mr Delaney agreed that these provided benefits and that the approval of the proposed development would reduce landscape fragmentation.
  22. [137]
    These measures protect more remnant vegetation and require a more restrictive buffer area than that required by the State in its Amended Concurrent Agency Response with respect to remnant vegetation. That is, the conditions now proposed to be attached to the approval of the proposed quarry deliver better ecological outcomes than those required by the relevant State agency. For example, the State does not prohibit clearing of that part of the southern edge of remnant patch that intrudes into the ERS designation, whereas in the proposed conditions for approval of the quarry this vegetation would not be cleared.
  23. [138]
    It is also instructive to compare these environmental benefits which would arise from approval of the proposed quarry to those arising from implementation of the Extraction Approval. Condition 4 of the State’s Concurrent Agency Response for the Extraction Approval states: ‘The clearing of vegetation is limited to 0.5 hectares within the extent identified as Area A as shown on attached Referral Agency Response (Vegetation) Plan, RAPP SDA-0714-013023 prepared by JA, dated 3 February 2015’. In the concurrent agency response for the Extraction Approval there is a further condition G2 requiring a minimum buffer distance of 50 metres to be maintained between operational areas and protected areas, wildlife habitat, and regulated vegetation. I am satisfied that those conditions can operate harmoniously in that the prescribed buffer operates as a setback and is not necessarily inconsistent with the vegetation clearing permitted in condition 4.
  24. [139]
    The upshot is that condition 4 of the Extraction Approval potentially permits the clearing of 0.5 hectares of remnant vegetation within the remnant patch. In contrast, approval of the proposed quarry would see this vegetation retained and added to by replanting. 
  25. [140]
    The first dot point of DEO s 3.1.1(2) is achieved.
  26. [141]
    The second dot point of DEO s 3.1.1(2) seeks to protect and enhance ecological processes and environmental qualities through ‘[i]dentifying land uses that are sympathetic to and do not adversely impact on the protection of ecological values and processes (terrestrial and aquatic)’. I am satisfied on the basis of the evidence of the ecological expert, Mr Moffitt, and the air and noise expert, Mr King (dealt with below), that dust and noise impacts from the proposed development will not have an unacceptable adverse impact on the protection of ecological values and processes.
  27. [142]
    I am satisfied that the proposed development would not adversely affect any mapped area of ecological significance habitat or corridor, and it would provide for extensive rehabilitation and enlargement of the areas of the subject site for ecological purposes.
  28. [143]
    The second dot point of DEO s 3.1.1(2) is achieved.
  29. [144]
    DEO s 3.1.1(4) seeks to maintain or enhance water quality in the Shire ‘through best practice management of catchment areas’. The provision is directed towards the overall water quality of the Shire and catchment areas.  For reasons explained below, I am satisfied that the proposed development will not have an adverse impact on water quality in the Shire or within any relevant catchment area.
  30. [145]
    Implementation of the existing Extraction Approval will necessarily result in changes to hydrology by altered drainage and flow regimes. I consider the  impacts of the proposed development below under the headings Stormwater and Groundwater, and rely upon my reasons with respect to this issue.
  31. [146]
    To the extent that approval of the proposed quarry will include conditions requiring regeneration and revegetation of areas that are currently degraded, including gullies, and would exclude cattle from the remnant patch, it has the potential to enhance water quality in the immediate catchment.
  32. [147]
    Daraleigh emphasised that there is, effectively, a combined position of the stormwater experts that the proposed development can be approved subject to conditions. I accept their evidence.
  33. [148]
    DEO s 3.1.1(4) is achieved.
  34. [149]
    DEO s 3.1.2, Economic Development, para [6] provides: ‘The natural resources (good quality agricultural land, fresh and marine waters, air, forests, extractive resources and native fauna and flora) of the shire are protected, managed sustainably and used efficiently.’ [emphasis added] The appellants only rely upon the parts highlighted in bold.
  35. [150]
    This DEO falls under the heading ‘Economic Development’. The provision seeks to protect, manage sustainably, and use efficiently the natural resources of the Shire (including extractive resources) in a way that promotes economic development. I am satisfied that the provision is achieved because I have found that there will be no unacceptable impacts on native fauna and flora, and that the extractive resources in the proposed quarry can be used efficiently. I also accept Daraleigh’s submission that the provision is drafted so broadly that it is difficult to see how the proposed development could be in clear non-compliance with the provision, as is required.
  36. [151]
    DEO s 3.1.2(6) is achieved.

Shire Wide Measures, Natural Area code

  1. [152]
    The appellants allege non-compliance with the Shire Wide Measures, Natural Area code, s 5.3.2:
    1. (a)
      subheading Purpose; and
    2. (b)
      subheadings Specific Outcome S5, S6, and S7.
  2. [153]
    The Probable Solutions of the Natural Area code are not in issue. Mr Delaney conceded that the proposed development complies with all of the Probable Solutions in the Natural Area code.
  3. [154]
    Under s 5.3.2, the Purpose of the Natural Area code is to:

‘1. conserve and maintain ecological processes and systems to protect biodiversity; and

2. establish vegetated north to south and east to west wildlife corridors’.

  1. [155]
    I deal first with the Specific Outcomes before returning to the Purpose statement.
  2. [156]
    The appellants allege non-compliance with Specific Outcome S5 which states: ‘Riparian and coastal corridors along watercourses, wetlands and the coast are maintained, protected and/ or enhanced’.
  3. [157]
    Specific Outcome S5 has two corresponding Probable Solutions (for code assessment):

P8. The maintenance of an existing habitat corridor of:

  1. 25 metre width from the high bank of a watercourse;
  2. 50 metres width from the high bank of a major watercourse or wetland;
  3. 100 metres width from the high water mark along the coast.

P9. Where no coastal or riparian corridor exists, a revegetated corridor of:

  1. 5 metre width from the high bank of a watercourse;
  2. 10 metres width from the high bank of a major watercourse or wetland;
  3. 20 metres width from the high water mark along the coast.
  1. [158]
    A Probable Solution for a Specific Outcome offers a potential solution for achieving that outcome in whole or in part, but does not limit the assessment manager’s discretion to impose conditions on a development approval, nor does it limit the applicant from providing other solutions to the specific outcome: s 1.3.9.  Probable Solutions provide ways in which a development can achieve the corresponding Specific Outcome for code assessment: s 4.1.2. Development will not conflict with a code (used for the purpose of development assessment) if it complies with the Specific Outcomes of that code, whether by complying with the applicable Probable Solutions or otherwise (or can be conditioned to comply).
  2. [159]
    Mr Delaney accepted that the proposed development complies with both Probable Solutions P8 and P9.
  3. [160]
    Despite that, the appellants maintain that it does not comply with the Specific Outcome S5. This submission lacks merit. Compliance with the Probable Solution is one way of achieving the corresponding Specific Outcome; ie, compliance with the Probable Solution achieves the assessment benchmark in the Specific Outcome. In addition, the site does not adjoin nor is it proximate to a wetland or to the coast. The Eubenangee wetlands are approximately 3.5 kilometres away to the north-east. To the extent the quarry pit is proximate to watercourses (gullies or tributaries in the remnant patch that flow to the north or to the west to other vegetation), implementation of the existing Extraction Approval will cause changes to streamflow and discharge to these areas. Under the proposed quarry development, riparian vegetation on those watercourses will be maintained, protected, and expanded by replanting and rehabilitation work. For reasons explained elsewhere, I am satisfied that the development would not have any adverse impact on the mapped Statewide Terrestrial and Riparian Corridor Buffer or any corridor. I also refer to my reasons under the headings Stormwater and Groundwater.
  4. [161]
    Specific Outcome S5 is achieved.
  5. [162]
    The appellants allege non-compliance with Specific Outcome S6 which states: ‘Habitats on steep land are maintained, protected and/ or enhanced’. This submission lacks merit. Specific Outcome S6 has one corresponding Probable Solution (for code assessment), which is not in issue: ‘P10. The native remnant vegetation on land steeper than 15% slope is retained’.  Mr Delaney accepts the proposed development can comply with Probable Solution P10. The quarry footprint is setback from the remnant patch. Local habitat connectivity will be maintained. No native habitat is to be cleared and existing habitat will be maintained, protected, and enhanced by replanting and rehabilitation.
  6. [163]
    Specific Outcome S6 is achieved.
  7. [164]
    The appellants allege non-compliance with Specific Outcome S7 which states: ‘Wildlife can move freely without obstruction along conservation areas, critical environmental corridors and habitat’.
  8. [165]
    Specific Outcome S7 has one associated Probable Solution (for code assessment), which is not in issue: ‘P11. Fencing in areas identified on Map 7 as being a [sic] conservation areas, Critical Habitat, Important Habitat, Linkage Corridor/Habitat and Potential Linkage Corridor/Habitat is limited to four (4) strand unelectrified plain wire’.  Mr Delaney accepted that the proposed development can comply with P11. The quarry footprint is not affected by any of the areas identified in P11. Outside and beyond the quarry footprint to the south (but within the Land) is an area identified on planning scheme Map 7a as Natural Corridor/Habitat. The mapped area is a sliver approximately 25 metres wide which adjoins Wooroonooran National Park to the west. This area of vegetation mapped Natural Corridor/Habitat will be maintained. No fencing is proposed within it nor any identified conservation area, habitat or environmental corridor.  It is proposed that part of the remnant patch be fenced to exclude cattle, which will improve ecological values and assist in rehabilitating that area. Mr Moffitt said that that fencing should not be allowed to encroach on the local habitat link to the west, and will not impede fauna movement through the area, and nor would the existence of the quarry void. I am satisfied that the proposed development will not have any adverse impact on wildlife movements along conservation areas, critical environmental corridors and habitat.
  9. [166]
    Specific Outcome S7 is achieved.
  10. [167]
    Returning to s 5.3.2, the purpose of the Natural Area code is to conserve and maintain ecological processes and systems to protect biodiversity, and establish vegetated north to south and east to west wildlife corridors. For the reasons explained above, I am satisfied that the purpose of the code is achieved.

Rural Zone code

  1. [168]
    The only part of the Rural Zone code in dispute is the Purpose statement. The appellants do not allege non-compliance with any Specific Outcomes or Probable Solutions of that code. In effect, they concede that the proposed development complies with those assessment benchmarks. 
  2. [169]
    The appellants assert non-compliance only with the Rural Zone code, s 4.2, subheading Purpose, items 2 and 6, which provide:

The purpose of the rural zone is to:

…

2. Protect good quality agricultural land from alienation; 

…

6. Minimise the impacts of development on existing land uses.

  1. [170]
    Item 2 was not pressed strongly and was not in issue on the evidence (save for a faint and late submission that the rehabilitation of the quarry pit at the end of its life would result in that area being permanently alienated). The land the subject of the development is currently used for grazing, not cropping. The agreed position of the agronomy experts in their JER was that although a small area (approximately nine hectares) of good quality agricultural land would be alienated by approval of the development, the predominant role of agriculture in the Shire would be maintained, and the proposed use of the void for water storage at the end of the quarry’s life would serve agricultural uses. They also agreed that the proposed rehabilitation plan would satisfy the relevant rehabilitation standard.
  2. [171]
    Item 2 of the Purpose of the Rural Zone code is achieved.
  3. [172]
    Item 6 was limited to a contention that the proposed development would have unacceptable impacts on the ecological function of surrounding areas of ecological value. For reasons explained elsewhere under other assessment benchmarks, I am satisfied that the proposed development would not have unacceptable impacts on the ecological function of surrounding areas of ecological value.  There is no suggestion that the proposed development would have unacceptable impacts on other existing land uses, including residential. Item 6 is achieved.
  4. [173]
    The purpose statement of the Rural Zone code is achieved.

Extraction/ Quarry code

  1. [174]
    The appellants contend that the proposed development does not comply with the Extraction/ Quarry code, s 6.1.6:
    1. (a)
      subheading Purpose; and
    2. (b)
      subheadings Specific Outcome S1, S2, S7 and S8.
  2. [175]
    Section 6.1.6 states: ‘The purpose of this code is to ensure that development involving extraction or quarrying minimises the potential visual, community safety and environmental impacts’. By its use of the term ‘minimise’ the purpose of the Extraction/ Quarry code seeks not to preclude or avoid impacts entirely, but where they exist, or potentially exist, to ensure they are minimised or reduced.
  3. [176]
    Specific Outcomes S1 and S2 both occur under the subheading ‘Site Suitability’.
  4. [177]
    Specific Outcome S1 states:

The proposed site must be suitable for the efficient extraction or quarrying of the material with respect to:

a) Geological and geo-technical characteristics of the site; and

b) Proposed methods of extraction/ quarrying.

No Probable Solution is prescribed for S1.

  1. [178]
    Specific Outcome S2 states: ‘The proposed lot must be of sufficient size and dimensions having regard to the nature of the use, the potential impact on the amenity of adjoining uses and the protection of environmentally sensitive areas’. [emphasis in original] ‘Lot’ is defined in the scheme by reference to ‘allotment’ being ‘a piece of land or space described in a land title’. Here, that means the Land which has an area of approximately 217 hectares.
  2. [179]
    Specific Outcome S2 has a corresponding Probable Solution, P2. The appellants do not allege non-compliance with P2. It is instructive to set out Probable Solution P2:

The extraction or quarry site has sufficient area and dimensions to accommodate:

  1. The extraction or quarrying use;
  2. Storage and stockpiling areas;
  3. Vegetated buffers on the perimeter of the extraction and stockpiling area to ensure that there is [sic] no unacceptable impacts on adjoining uses due to dust or visual impacts;
  4. Minimum separation distance for extraction is 200 metres and the minimum for quarrying is 1,000 metres from sensitive receptors;
  5. Any environmentally sensitive land, for example riparian corridors, remnant vegetation;
  6. Sediment and erosion control measures;
  7. Buildings and parking areas in a safe location;
  8. Vehicle access and egress onto and around the site.

[emphasis in original]

  1. [180]
    ‘Separation distance’ is defined in the scheme as ‘the total linear distance between a source and a sensitive receptor’.
  2. [181]
    ‘Sensitive receptor’ is defined in the scheme as:

…an area where there is an individual or grouping of uses that are sensitive to potential impacts of land uses.  These are:

  • all land in the Innisfail, Mission Beach, village and rural residential zone; and
  • uses defined as caravan park, child care centre and educational establishment in the rural or conservation zone.
  1. [182]
    The scheme definition of ‘sensitive receptor’ does not include isolated residential uses, nor ecological or environmental areas.
  2. [183]
    It is accepted that the proposed quarry complies with Probable Solution P2. That is, that the quarry site has sufficient area and dimensions to accommodate all of the identified requirements in P2 above, including the minimum separation distance of 1,000 metres from sensitive receptors, as defined.
  3. [184]
    This minimum separation distance of 1,000 metres is also prescribed in Probable Solution P3, which corresponds to Specific Outcome S3, which deals with separation from sensitive receptors ‘so as not to adversely impact on nearby properties in terms of noise and dust’. Neither of these assessment benchmarks is relied upon by the appellants as a ground for refusal.
  4. [185]
    It is accepted that the proposed development also complies with Probable Solution P3, which requires the separation distance between sensitive receptors and quarry uses be a minimum of 1,000 metres.
  5. [186]
    Notwithstanding compliance with the relevant minimum separation distances prescribed by the planning scheme, the appellants maintain the proposed development does not comply with Specific Outcome S2.
  6. [187]
    The appellants rely upon the fact that the noise experts agreed that the definition of ‘sensitive receptor’ in the planning scheme was too narrow and out of step with contemporary practice, and that assessment of noise impacts should include all residential dwellings.  Despite that, it was not suggested that the proposed development would have any adverse impact (by noise or otherwise) on residential dwellings.
  7. [188]
    I am satisfied that the lot is of sufficient size and dimensions having regard to the nature of the use, the potential impact on the amenity of adjoining uses, and the protection of environmentally sensitive areas.
  8. [189]
    Specific Outcome S2 is achieved.
  9. [190]
    Specific Outcome S7 appears under the subheading ‘Environment’ and states: ‘Water from within or adjacent to the site must not adversely impact on the quality or quantity of the receiving ground or surface waters’. No corresponding Probable Solution is prescribed.
  10. [191]
    These impacts are considered below under the headings Stormwater and Groundwater. For reasons explained below, I am satisfied that water from within or adjacent to the site will not adversely impact on the quality or quantity of the receiving ground or surface waters.
  11. [192]
    Specific Outcome S7 is achieved.
  12. [193]
    Specific Outcome S8 appears under the subheading ‘Rehabilitation’ and states:

Development integrates rehabilitation into the operation of the site and progressively restores the site to a standard that achieves the following:

  1. The site is suitable for use for agricultural production, agroforestry, native vegetation, water storage or other use compatible with the locality; and
  2. Restores the visual amenity of the site; or
  3. The site is suitable for use of community, recreation, open space, refuse station or other like uses compatible with the locality; and
  4. Restores the visual amenity of the site.
  1. [194]
    I accept the submission that paras [a] and [b] should be read together as a single requirement with two components, disjunctively from paras [c] and [d], which should also be read together as a single requirement with two components.
  2. [195]
    The quarry management expert nominated by the appellants, Mr Reed, accepted that a rehabilitation plan for the proposed development could be prepared and would be an effective condition of approval. Similarly, the groundwater expert nominated by the appellants, Dr Cuff, said that after an establishment phase of four to five years, the void would fill with water and be suitable for agricultural purposes. That evidence was also supported by the agricultural land experts (in the Agronomy JER) who agreed that the future use of the land for agricultural purposes would not be precluded by the proposed development.
  3. [196]
    I am satisfied, on the evidence (including the proposed rehabilitation plan and proposed conditions), that the proposed quarry integrates rehabilitation and will eventually restore the site to a standard suitable for water storage, or other use compatible with the locality, and will restore the visual amenity of the site.
  4. [197]
    Specific Outcome S8 is achieved.

SPP 2016

  1. [198]
    The appellants rely upon the SPP 2016, Part E, subheading State Interest – Biodiversity, requirements 1, 2 and 3:

The development application is to be assessed against the following requirements:

Development:

  1. (1)
    enhances matters of state environmental significance where possible, and
  2. (2)
    identifies any potential significant adverse environmental impacts on matters of state environmental significance, and
  3. (3)
    manages the significant adverse environmental impacts on matters of state environmental significance by protecting the matters of state environmental significance from, or otherwise mitigating, those impacts.
  1. [199]
    The relevant matters of state environmental significance include the remnant patch and Wooroonooran National Park. There is nothing in the above provisions that alters or changes the outcome of my assessment of ecological matters. The provisions do not call for all environmental impacts to be avoided but rather seek to identify ‘potential significant adverse environmental impacts’ on those areas and to ‘manage’ those impacts by ‘protecting from’ or ‘otherwise mitigating’ those impacts. For the reasons explained elsewhere in this decision, I am satisfied that the proposed development complies with those requirements.
  2. [200]
    These provisions are achieved.

SPP 2017

  1. [201]
    SPP 2017, Part E, subheading State Interest – Biodiversity, incorporates a reference to matters of national environmental significance:
  1. (1)
    Development is located in areas to avoid significant impacts on matters of national environmental significance …
  1. (2)
    Matters of state environmental significance are identified and development is located in areas that avoid adverse impacts; where adverse impacts cannot be reasonably avoided, they are minimised.

…

  1. (3)
    Ecological processes and connectivity is maintained or enhanced by avoiding fragmentation of matters of environmental significance.
  1. [202]
    In terms of matters of national environmental significance, the remnant patch supports regional ecosystem RE 7.8.1b, a form of lowland tropical rainforest that occurs in the very wet and wet rainfall zone, which is listed in the endangered category of the threatened ecological communities in the Environment Protection and Biodiversity Conservation Act 1999 (Cth). As previously mentioned, the remnant patch is also mapped as Essential Habitat for the Southern Cassowary.
  2. [203]
    SPP 2017 does not represent any shift in planning policy or change in approach to the SPP 2016 (or, for that matter, the Regional Plan), in so far as they apply to the site. The planning purpose of each of the disputed provisions is the protection of ecological processes and values. Those are also outcomes sought to be achieved, in a balanced way, by the planning scheme. In those circumstances, the utility of giving weight to the SPP 2017 is limited. There is nothing in the later SPP 2017 that entitles it to significant weight as compared with the SPP 2016 in force when the development application was made. To the extent the SPP 2017 were to be given weight, there is nothing in the above provisions that alters or changes the outcome of my assessment of ecological matters. That is because, for reasons explained elsewhere, I am satisfied that the proposed quarry avoids significant impacts on the remnant patch, avoids or minimises adverse impacts on the remnant patch and Wooroonooran National Park, maintains ecological processes and connectivity, and avoids fragmentation of matters of environmental significance.
  3. [204]
    These provisions are achieved.

Regional Plan

  1. [205]
    The appellants also rely upon the Regional Plan, Part E, subheading Natural Environment, subheading 1.1 Biodiversity Conservation, land use policies 1.1.3 and 1.1.4 which state:

1.1.3 Urban development adjacent to areas of high ecological significance (see map 3) is located, designed, operated and setback to avoid adverse impacts on the area’s ecological values.

1.1.4 Urban development in or adjacent to areas of general ecological significance (see map 3) is located, designed and operated to avoid or, where avoidance is not possible, minimise any adverse impacts on ecological values where possible.

[emphasis added]

  1. [206]
    In terms of the Regional Plan mapping, in map 3 there are two areas of ‘high ecological significance’ adjacent to the proposed quarry site: the remnant patch and an area to the west described as ‘State and regional conservation corridor’. Further away to the south of the site, the vegetated area adjoining the Wooroonooran National Park is also designated an area of ‘high ecological significance’.
  2. [207]
    Paragraphs 1.1.3 and 1.1.4 must be construed in their proper context. The introductory words to this section of the Regional Plan, 1.1 Biodiversity conservation, make clear that land use policies such as paras 1.1.3 and 1.1.4 are directed towards controlling encroachment of urban development into areas of high ecological significance, and protecting ecological values from potential adverse impacts of urban development.
  3. [208]
    Daraleigh submits that paras 1.1.3 and 1.1.4 do not apply to the proposed quarry because it is not ‘urban development’ as defined in the Regional Plan:

Urban development: a general term including residential, industrial, retail, commercial, sporting, indoor recreation, short term accommodation, community activities and a range of other urban land uses. It does not include rural land uses such as agriculture and horticulture.

  1. [209]
    The related definitions in the Regional Plan of ‘urban activity’, ‘urban footprint’ and ‘urban purposes’ do not support a construction of ‘urban development’ that includes extraction or quarrying. They emphasise that ‘urban’ normally refers to an activity or use in a city or town, not a rural area (as this use is). Ordinarily, a quarry use would establish in a rural area.
  2. [210]
    The appellants submit that the proposed quarry is urban development as defined because it is a not a rural use and would fall within a dictionary definition of ‘industrial’.
  3. [211]
    Although the point is arguable, in my view the preferable construction is that paras 1.1.3 and 1.1.4 do not apply because the proposed quarry is not urban development. Even if I am wrong about that, nothing turns upon it because to the extent they may apply I am satisfied (based on the evidence which I accept) that the proposed development is located, designed, operated, and setback to avoid adverse impacts on the area’s ecological values.
  4. [212]
    There is nothing in the relevant provisions of the Regional Plan that alters or changes the outcome of my assessment of ecological matters.

Air quality (dust)

  1. [213]
    Issues associated with air quality (dust) are limited to whether the proposed development will result in off-site dust impacts that would adversely impact the ecological function of surrounding areas of ecological value.[50]
  2. [214]
    This ground lacks merit. It was not an issue of serious concern for the ecological experts. The appellants complained the water storage areas and the quarry floor would be regularly inundated in high rainfall events, but at the same time said there was insufficient information available to be satisfied that the proposed quarry would have sufficient water available for proper dust management. The appellants relied on the evidence of Mr Reed, a quarry management expert, but he did not defer to the nominated air quality experts on this issue. 
  3. [215]
    The air quality experts agreed in their JER that the dispersion modelling completed by Mr King appropriately addressed: the key activities likely to generate dust emissions; the emission controls that would be implemented; the existing environment; the meteorological conditions; and the likely concentration of air pollutants. They agreed that it provided an appropriate basis for understanding the potential impacts of the development on air quality. They considered the impact of dust on vegetation. They agreed that the predicted dust deposition rates upon land external to the site, including Wooroonooran National Park, were predicted to be well below the thresholds identified in the literature for detrimental effects on vegetation. They noted the mean annual rainfall for Innisfail is 3547 millimetres with, on average, 100 days per year recorded rainfall totals of greater than 5 millimetres. They agreed that the effect of that rainfall is to wash deposited dust from the leaves of vegetation and that the high rainfall is likely to mitigate the effects of dust deposition on vegetation.
  4. [216]
    Mr King, the air quality expert nominated by Daraleigh, accepted he had not calculated the precise amount of water required to achieve the dust suppression outcomes identified in the JER, but was confident, having regard to the number of days when there is more than 10 millimetres of rain per year, that the site would be able to hold adequate water on site for dust suppression purposes. I accept his evidence.
  5. [217]
    Mr Welchman, the air quality expert nominated by the appellants, agreed the dust assessments were conservative and appropriate. The analysis undertaken considered an annual output figure of 500,000 tonnes per annum, in circumstances where annual output for the proposed development would be restricted to 250,000 tonnes per annum. He agreed the proposed development could be approved, in respect of matters relating to air quality, subject to the imposition of lawful conditions.
  6. [218]
    I accept the evidence of the air quality experts. I am satisfied that relevant assessment benchmarks are achieved and DEOs ss 3.1.1(1) and 3.1.2(6) and S2 and P2 of the Extraction/ Quarry code are complied with.

Blasting

  1. [219]
    Issues associated with blasting are limited to whether the proposed development will result in off-site acoustic impacts that would adversely impact upon the ecological function of surrounding areas of ecological value.[51] 
  2. [220]
    Dr Heilig, a mining engineer and blasting expert, undertook a blast assessment review and prepared a blast management plan. Although some weathered material in the upper benches could be excavated mechanically (without blasting), his assessment of the impacts of blasting employed a conservative approach; that drilling and blasting would be required for all locations across the quarrying area. He concluded that the impacts of blasting would comply with the relevant standards and conditions of the environmental authority, and would not cause any unacceptable impacts upon sensitive receivers or infrastructure.
  3. [221]
    Ecological expert Mr Moffitt emphasised, and I agree, that cumulative impacts from the proposed quarry must be considered in the context of impacts which would arise from implementation of the existing Extraction Approval. Implementation of the existing Extraction Approval will necessarily include noise and vibration impacts, and create a quarry setting.
  4. [222]
    To the extent that the proposed quarry includes blasting, that is a new or additional impact that would not arise under the Extraction Approval.
  5. [223]
    The ecological experts agreed that the blasting would be episodic (limited to eight times per year), would occur during the day, would have impacts on native fauna, and that the impacts would differ across fauna groups.
  6. [224]
    Mr Moffitt said that for mobile diurnal species (such as birds), blasting is likely to cause temporary dispersal from the remnant patch to alternative habitat in nearby vegetation.  He said that blasting would not cause a material cumulative impact because it was too infrequent and the extent of alternate habitat was too great to expect a meaningful component of each species’ metapopulation would be affected by each blast event.  He said that the existing bird populations would persist and move through the landscape in a similar manner as they do at present. He accepted that some impact would occur, but said it would be of a small scale, and limited to the life of the quarry’s approval. The areas proposed to be revegetated would enlarge and consolidate the remnant patch, and improve the function of the local fauna movement pathway on the western edge of the quarry. He said that a positive (and permanent) habitat improvement of this kind would provide an enduring benefit that significantly outweighed the minor, localised and short-term negative impacts arising from the impacts of blasting.  I accept that evidence. Mr Delaney said the result of some species avoiding the area may impact ecological processes such as seed dispersal and pollination, which are important in sustaining adjacent areas of high ecological value. Accepting that, I am nonetheless satisfied, on the basis of Mr Moffitt’s evidence, that any such impact would be limited and minor in the context of the ecological areas as a whole.
  7. [225]
    Mr Moffitt noted that for mobile nocturnal species (such as bats and flying foxes), blasting will occur during the day. The remnant patch does not provide roost habitat for the conservation significant Spectacled Flying Fox, and there are no recorded roost sites for it in the nearby national park, although the experts accepted there may be occasional examples of that (as individuals or small groups). Mr Moffitt said that to the extent that that species may use the remnant patch as forage habitat at night, it will not be affected, and proposed habitat regeneration will provide tangible long terms benefits for that species. In light of the absence of evidence of use of roost habitats, and the evidence of any use being confined to occasional foraging, I do not accept Mr Delaney’s opinion that the blasting would have a significant impact on any nocturnal species such as the conservation significant Spectacled Flying Fox.
  8. [226]
    The ecological experts agreed that for non-mobile species that live in the remnant patch exclusively, or use it as a component of a smaller range, a greater impact from blasting could be expected, and may result in some avoidance by those species. Mr Moffitt said that would mainly be of the southern edge of the remnant patch, closer to the interface with the quarry, but noted the area would not be deserted. Based upon his recent experience with hard rock quarries, he said that some fauna tend to habituate to the impacts of quarrying and continue to use areas, and there can be a spatial reorganisation of fauna in response to impact. He said enlargement of the remnant patch to the north and west as proposed by the development will mitigate those impacts and provide a permanent habitat improvement, and enduring benefit, that significantly outweighs the minor, localised, and short-term negative impacts arising from blasting at the quarry.  Mr Delaney acknowledged the broader long-term ecological benefits of the proposed rehabilitation works, but did not agree that they outweighed the impacts from blasting. On this issue I prefer the evidence of Mr Moffitt, particularly because Mr Delaney considered blasting in the context of the cumulative impacts of the proposed quarry, without taking into account that many of those impacts would arise from implementation of the existing Extraction Approval.
  9. [227]
    In terms of any impacts of blasting on Wooroonooran National Park, Mr Moffitt accepted that there is some potential for minor impact, confined to a very small area at the north-eastern edge of the national park, but said this would diminish as quarrying progresses from west to east (away from the national park). Mr Delaney was concerned that blasting would exceed the relevant limit for air-blast overpressure and ground vibration for a ‘protected area’ prescribed in the Environmental Protection (Noise) Policy 2008 (Qld) (‘EPP Noise’). These impacts are considered further under Noise below.
  10. [228]
    On this issue I prefer the evidence of Mr Moffitt. Mr Moffitt said that while the proposed quarry created more than a short-term impact, the impacts were acceptable and manageable, and would only last its lifespan. He said the beneficial impact of the proposed regeneration will deliver enduring long-term benefits for conservation significant species. I accept that evidence.
  11. [229]
    In conclusion, I am satisfied the off-site impacts of blasting from the proposed development will not have unacceptable adverse impacts upon the ecological function of surrounding areas of ecological value.

Noise

  1. [230]
    Issues associated with noise are limited to whether (in summary form):[52]
    1. (a)
      the proposed development will result in off-site acoustic impacts that would adversely impact upon the ecological function of surrounding areas of ecological value;
    2. (b)
      the acoustic measures identified by the acoustic experts in their joint report on Noise (‘Noise JER’) and by Mr King in his separate reports can be practically implemented and will be effective; and
    3. (c)
      the acoustic analyses undertaken by Mr King in the Noise JER and his separate reports are sufficient to demonstrate appropriate noise controls for the quarry operations depicted in the operational stage diagram drawings in Exhibit 53.
  2. [231]
    The issue is confined to noise impacts on ecological areas. There is no suggestion of adverse noise impacts on residential or other sensitive land uses.
  3. [232]
    As commonly occurs, information provided with the development application was supplemented during the joint expert meeting and report process, and during the hearing. The acoustic expert nominated by Daraleigh, Mr King, undertook modelling which included hypothetical scenarios for each of the stages of select fill extraction and processing, and hard rock extraction and processing.
  4. [233]
    In their JER, the acoustic experts, Mr King and Mr Brown, agreed that Mr King’s modelling had considered, and adopted, the likely ‘worst case’ scenario for the operation of the proposed development, in terms of acoustic impacts.
  5. [234]
    In the Noise JER those experts agreed that the development of the quarry on the site, including hard rock extraction by blasting and processing, could be undertaken in a manner that achieved compliance with the relevant noise criteria. They agreed that such a matter is a matter for conditions of approval and there would be adequate control of the level of noise emissions from the quarry. They also agreed, in effect, that from a noise perspective, the subject site is appropriate for a quarry.
  6. [235]
    The experts also agreed that the proposed development complies with the relevant separation distances prescribed in the planning scheme. There is no dispute about that. I refer to my earlier discussion of the Extraction/ Quarry code. In short, the planning scheme in its Probable Solutions uses separation distances from defined sensitive receptors as a means of regulating noise impacts. There is no dispute that the proposed development complies with the relevant separation distances from sensitive receptors, as defined in the scheme.
  7. [236]
    Notwithstanding those matters of agreement, in his oral evidence Mr Brown raised concerns about whether modelling performed by Mr King accurately recorded the acoustic outcome to be achieved by the development in accordance with the latest operational plans.[53]   
  8. [237]
    In cross examination, Mr Brown accepted that it would be possible for the acoustic experts to prepare conditions of approval which ensure compliance with applicable acoustic criteria. That is, through an iterative process, the identification of a suitable operational design with the appropriate acoustic outcome was feasible. He also accepted that nothing in his evidence involved rejection or modification of the matters agreed to by both experts in the Noise JER.  It was not suggested that specific assumptions and operational restrictions identified by Mr King for the purposes of the Noise JER would present particular difficulty for the operations of the proposed quarry. Mr Brown accepted that, so far as operations were concerned, an appropriate acoustic advice could identify locations, at any given time during the life of the quarry, where particular plant and equipment could, and could not, operate, and, any necessary attenuation measures to achieve the relevant acoustic outcomes.
  9. [238]
    Noise modelling allows the level of noise emissions to be assessed, taking account of a large number of inputs and different variables, including: the number of sources; the source locations; the height of source above ground; the source sound power level; the directivity of the source; high ground and barriers; atmospheric effects; and attenuation through vegetation.
  10. [239]
    In adopting the worst case scenario for noise impacts, the experts agreed that the modelling in the Noise JER is conservative. It assumes multiple noise sources operate simultaneously, with operating machines in the most exposed location, based on the least favourable meteorological conditions for downwind noise impacts, and with several screening and crushing plants.
  11. [240]
    Although the latest operational plans in Exhibit 53 (with amended staging plans) were provided after the Noise JER, the separation distances have not changed. That is, the location and design of the pit footprint remains unchanged. In addition, there has been no change to: the maximum amount of material to be extracted per annum; the planning designations of the site; the quarry footprint; the Extraction Approval; the hours of operation; the locations of sensitive receptors; the location of the pit; the applicable noise criteria; and the maximum number of blasts per annum.
  12. [241]
    The operational plans in Exhibit 53 include some aspects more favourable than those modelled, such as lower benches at earlier stages of development, and only one screening and crushing plant.
  13. [242]
    Mr Brown was critical of the absence of modelling of the specific stages in Exhibit 53, and focussed on the matters of operational detail, such as differences in sizes of earth mounds, and the precise nature and location of items of plant.
  14. [243]
    The level of detail required to assess and decide a development application will often depend upon the matters a decision maker is called to assess when granting or withholding approval.[54] The information should be sufficient for a judgment to be made about whether an element of design will comply with, or can be conditioned to comply with, the planning scheme. That must be considered in the context of the use applied for.
  15. [244]
    This Court has previously observed that a quarry is not a static use.[55] The nature of the use means that within the physical confines of the area approved, quarrying may occur, depending on the availability of the resource and the economics of extracting it. The full extent and quality of the resource, where it is buried rock, can only be uncovered as quarrying proceeds, although exploratory drilling may provide some indication.[56]
  16. [245]
    I am satisfied the information before me is sufficient to assess compliance.
  17. [246]
    The acoustic experts agreed that conditions can be imposed on approval of the development that would assist in ensuring compliance with stated noise criteria and mitigate noise impacts. Those conditions can require the achievement of a particular noise standard (for example, the environment authority requires the proposed development not to exceed a particular decibel reading for stated times of day and night), as well as the preparation of a Noise Management Plan, a site based Environmental Management Plan, and an Operations Management Plan. Such conditions would ensure either that remedial actions are taken or that operations cease should the standards not be achieved. They can also proscribe the operation of a particular plant and equipment at the same time. 
  18. [247]
    I accept the expert evidence that matters of noise impacts can be appropriately dealt with by way of conditions.
  19. [248]
    I accept that although the specific staging in Exhibit 53 has not been modelled, an appropriate noise outcome can be achieved. I am comfortably satisfied that:
    1. (a)
      the acoustic measures identified by the acoustic experts in the Noise JER and in Mr King’s subsequent reports will be effective and can be practically implemented; and
    2. (b)
      the acoustic analyses undertaken are sufficient to demonstrate appropriate noise controls for the quarry operations depicted in the operational stage drawings in Exhibit 53.
  20. [249]
    Where the ecological experts differed on the effect of off-site acoustic impacts on ecological areas, I prefer the evidence of Mr Moffitt to Mr Delaney.  Mr Delaney approached his analysis without reference to the noise impacts that would arise from implementation of the existing lawful Extraction Approval, as demonstrated in the Noise JER. 
  21. [250]
    Mr Delaney raised concerns with noise impacts on the national park, and referred to research documenting a range of adverse effects anthropogenic noise may have on wildlife. In cross examination he accepted that fauna will note changes in the acoustic environment; initially they would likely be cautious and avoid a perceived threat; but generally, noise will not cause direct physical harm, and fauna will adapt unless there is a direct challenge to their wellbeing. Assuming cassowaries may occur in the national park to the west, Mr Delaney noted they would be active during the day at the same time that the extractive industries are undertaken, and are particularly sensitive to low frequency noises (such as those emitted by road traffic and blasting). However, he also accepted that fauna are quite intelligent, and will moderate behaviour and movement patterns in response to impacts by moving away. 
  22. [251]
    To the extent acoustic impacts may cause avoidance or spatial reorganisation of fauna (if any), I note that the part of Wooroonooran National Park closest to the quarry footprint is the eastern edge of a vast, connected protected area covering thousands of hectares of rainforest, such that wildlife would not be constrained in moving westwards, away from the quarry.
  23. [252]
    It is also relevant to have regard to the noise impacts of the existing Extraction Approval. Condition 18 of that approval regulates noise impacts in a general way but does not afford any certainty as to the precise noise impacts that would occur as a result of the approval. The Environmental Authority is similarly general.  If conditions of approval imposed on the proposed quarry prescribed strict quantitative noise limits (as is proposed), that would be an improvement over the current condition under the Extraction Approval. Mr Delaney agreed that it would give more certainty in assessing noise impacts on matters of ecological significance.
  24. [253]
    I am satisfied the off-site acoustic impacts of the proposed development will not have unacceptable adverse impacts upon the ecological function of surrounding areas of ecological value.
  25. [254]
    The assessment benchmarks in the planning scheme are achieved.
  26. [255]
    There was evidence from the acoustic experts that the projected blasting/noise impacts may not comply with, and may exceed, the relevant limit in the noise standards in the Environmental Authority so far as they relate to impacts on the edge of Wooroonooran National Park. That noise standard is not an assessment benchmark in the planning scheme but a requirement of the separate Environmental Authority. Unless there is amendment to the Environmental Authority in the future, the requirement must be complied with.  The Chief Executive with responsibility for the Environmental Authority has not elected to co-respond in the appeals. Any non-compliance with that noise standard in the Environmental Authority is a matter for the State and does not warrant refusal of the application. The appellants concede that non-compliance with the Environment Authority is not relied upon as a ground of refusal, and that the relevant standard is not an assessment benchmark.
  27. [256]
    The appellants raised concerns about whether acoustic measures to mitigate noise will be effective and can be practically implemented.
  28. [257]
    I am satisfied the proposed quarry can operate as intended, meeting noise criteria agreed by the acoustic experts in their JER, and taking into account the additional buffer recommended by Mr Moffitt in the Ecology JER. 
  29. [258]
    In conclusion, I am satisfied that noise impacts can be adequately and properly dealt with by conditions of approval, and do not warrant refusal of the development.

Stormwater

  1. [259]
    Issues associated with stormwater were limited to whether the sediment pond and quarry floor storage volumes depicted in the approved drawings (and the Stormwater and Water Quality Management Plan) can be practically implemented, and the suitability of the sediment pond and water storage areas depicted in the operational stage diagrams in Exhibit 53.[57]
  2. [260]
    The two experts who assessed potential stormwater issues, Dr Johnson (nominated by Daraleigh) and Mr Robson (nominated by the appellants), ultimately agreed that there were no stormwater management issues on the site that cannot be addressed by engineering assessment, and that there are no threshold issues sufficient to justify refusal of the application.  I accept that evidence.
  3. [261]
    Daraleigh has agreed to accept a condition requiring an updated stormwater quality management plan to be prepared and submitted with the operational works application.
  4. [262]
    Dr Johnson was satisfied that there is sufficient area on the site to ensure an effective stormwater management solution (including sediment pond and onsite detention basin) could be implemented. Dr Johnson was cross examined on the practical operation of sediment basins. He was not concerned by the need to pump water from the basins as and when required.
  5. [263]
    It was accepted that for certain stages of the proposed development part of the quarry floor would operate as a water storage area, as well as the sediment ponds. An issue was raised about the stage 1 and 2 water storage solution in terms of what would occur in the event of rainfall while water in the void was being treated. Ultimately, Dr Johnson opined that the fact the water could be satisfactorily captured and held onsite was a matter able to be addressed by conditions and ongoing management.
  6. [264]
    The oral evidence of Mr Robson also supports a conclusion that there is no reason for the proposed development to be refused on stormwater grounds. Mr Robson agreed that the Operational Plans do not change the fact that the external catchment area for the quarry is very small, or that the quarry is only required to deal with the rain falling directly in it. He accepted that the five year ARI (average recurrence interval) storm event has been designed for, as is required. He agreed that the treatments and use of flocculants (to group and remove sediments from the water captured before it is discharged off site) would be achievable. Although there would be periods of high rainfall in which the quarry floor and sediment ponds would be inundated at times, and which may result in the quarry being unable to be worked for a period of time, he agreed that that is an operational matter, and that the design event agreed by the experts is achievable. He agreed that the management of stormwater is an ongoing activity, because quarries are not static uses; that it is not unusual for stormwater management plans to be revised and updated during the life of a quarry; and that there can be further refinement and detailing of the stormwater management system at the stage of operational works applications. Mr Robson agreed that, even on his approach, compliance with stormwater outcomes can be achieved through the preparation of a more detailed stormwater management plan.
  7. [265]
    I am unpersuaded by the appellants’ criticism of the lack of precisely identified sediment ponds and water storage areas for all stages, and their descent into the minutiae of operational aspects of stormwater management for each stage of the development.  There is sufficient information for me to be satisfied on the basis of the expert evidence that stormwater management can be adequately dealt with as part of an updated stormwater management plan to be submitted with an operational works application.
  8. [266]
    I am satisfied that the proposed development complies with the relevant assessment benchmarks, including planning scheme DEO s 3.1.1(4), S5 of the Natural Area code, and P2 and S7 of the Extraction/ Quarry code.

Groundwater

  1. [267]
    The movement of water across the site is generally from the south and west towards the north and east. The proposed quarry has a depth of about 24 to 34 metres (from surface levels at RL74 to RL84 metres down to RL50 metres) and a width of approximately 650 metres. The creation of that void would affect surface and subsurface flows to the remnant patch, to the north of the void. However, the extent to which it does so must also be considered in the context of implementation of the existing Extraction Approval, which will necessarily affect those flows.
  2. [268]
    The ecological experts broadly agreed that implementation of the Extraction Approval alone would have impacts on the landform resulting from the removal of the overburden, on the surface and subsurface hydrology (including by removing the surface material that establishes ephemeral streamflow in the remnant patch, and by capturing stormwater and discharging it into the head of the western gully), and on the remnant patch.
  3. [269]
    The proposed quarry involves diversion of surface run-off around the perimeter of the quarry footprint so that the remnant patch will no longer receive that surface inflow in the same way, and the discharge of the diverted run-off into downstream waterways which will increase the frequency and volume of flows received. There will necessarily be an impact from that. The question is the extent of the impact and whether it would be unacceptable.
  4. [270]
    With respect to groundwater impacts, Mr Delaney’s opinion was based upon the evidence of Dr Cuff, the expert nominated by the appellants.
  5. [271]
    In Mr Delaney’s opinion, the quarry would have significant impacts on surface and sub-surface inflows which will have direct impacts on the ecological values, condition, and viability of the remnant patch. Mr Delaney did not temper that opinion by reference to the baseline impacts of what could lawfully currently occur under implementation of the Extraction Approval. Although in his separate report he did note that the area of the remnant patch potentially affected by the absence of sub-surface flows would increase from 1.78 hectares under the Extraction Approval to 4.56 hectares under the quarry approval. Mr Delaney went so far as to opine that diversion of the surface and sub-surface inflows away from the remnant patch caused by the proposed development has the potential to result in the ‘destruction’ of vegetation in the remnant patch, constituting ‘clearing’ prohibited under the Vegetation Management Act 1999 (Qld). I found this part of his evidence unpersuasive, particularly considering the area’s very high annual rainfall (over 3,500 millimetres) and the proposed dispersal of surface and sub-surface waters from the quarry including into the remnant patch.
  6. [272]
    Mr Delaney’s evidence also did not recognise that changes to the hydrological regime in areas north of the site as a result of the proposed quarry (or, for that matter, the Extraction Approval) would be ameliorated to an extent by pumped discharges from the stormwater ponds to replicate, or reproduce as close as possible, the water that would otherwise have passed into that area without the adjoining development. The stormwater experts agreed that the water quality standards required to be met before discharge are very high.
  7. [273]
    The appellants submit that Daraleigh has not undertaken sufficient groundwater modelling or analysis to determine whether the proposed development would have adverse impacts on groundwater flows, which in turn may have adverse impacts on areas of ecological value, and, in the absence of definitive knowledge about the risk, likelihood and consequence of groundwater impacts, the court would apply the precautionary principle.[58] I will return to the precautionary principle.
  8. [274]
    The groundwater experts agreed that:
    1. (a)
      the proposed quarry site does not fall within any groundwater management area nominated by the State;
    2. (b)
      the online mapping tool Queensland Globe returned zero results for any groundwater dependent ecosystems, springs, ecosystem watercourses or ecosystem areas on or within several kilometres of the site, and there were a number of registered and unregistered bores on and around the site;
    3. (c)
      the terrain over the site varies in topography between RL74 metres to RL84 metres.  The proposed extraction area is to be quarried to a depth of RL50 metres;
    4. (d)
      there were four borelogs for registered bores drilled over the subject site (within the area proposed for quarry extraction) in 2008. Those bores were drilled from surface levels of 74 metres AHD to 87 metres AHD, down to a minimum level of about 35 metres AHD. No water was intercepted by any of the boreholes drilled.  The borelogs show no aquifer present on the site down to the level drilled;
    5. (e)
      there were seven percussion drill holes drilled across the quarry footprint. All except one were drilled to depths of between 25 and 28 metres. All holes terminated in hard basalt. There was no evidence of aquifers in the zone above the commencement of the basalt, ie, the surface layer (although Dr Cuff considered some features indicative of ‘fluid flow’ through the basaltic material); and
    6. (f)
      there was an unmarked bore (referred to as the Shed bore) outside the area proposed for quarry extraction, about 170 metres north-east of the eastern quarry boundary. It had showed a reported depth of water of about 35 metres in November 2018. The experts agreed that the aquifer corresponding to this water level is likely to be sub-artesian based on other local information, indicating that the top level of the aquifer is somewhere between 30 and 34 metres AHD.
  9. [275]
    It is significant that the only bore or drill hole showing water is outside the quarry footprint and supports the presence of an aquifer at a maximum level of 30 to 34 metres AHD, which is about 20 metres below the anticipated base of the proposed quarry.
  10. [276]
    Where there are differences between the experts on the extent to which groundwater is present on the site, its movement across the site, and what impact the quarry will have on groundwater and on the remnant patch, I preferred (and found more persuasive) the evidence of Mr Moffitt and Dr Johnson to that of Mr Delaney and Dr Cuff.
  11. [277]
    With respect to the groundwater experts, where they disagreed I preferred the evidence of Dr Johnson to that of Dr Cuff because, summarising:
    1. (a)
      Dr Cuff’s first report was prepared without the benefit of a site inspection;
    2. (b)
      Dr Cuff relied upon information provided to him by one of the appellants, some of which was not provided in the reporting process;
    3. (c)
      on his own admission Dr Cuff’s evidence evolved or changed over the course of the written reports and oral evidence (eg, from a theory that ‘paleochannels’ may exist in the basalt to ‘fluid flow pathways’);
    4. (d)
      on his own admission Dr Cuff’s analysis, both in his initial report and in the Groundwater JER, contained a number of errors or erroneous assumptions based upon misinterpretation of factual information. For example, with respect to the location of a bore, the groundwater water level in a bore, and the base level of the quarry (an error he agreed was fundamental). Those errors had to be corrected and caused him to reconsider his opinion. Whilst errors or changes in evidence, or both, would not necessarily undermine the confidence the court would have in an expert’s evidence, as corrected, in this case their cumulative effect caused me to approach Dr Cuff’s evidence with greater caution and rendered his evidence less persuasive;
    5. (e)
      Dr Cuff’s approach tended to be more theoretical (consistent with his academic background in geochemistry), and concerned with possibilities of what may occur, rather than what the available evidence supported or demonstrated;
    6. (f)
      Dr Cuff’s hypothesis about groundwater moving through the basalt mass was based upon a single bore result (DG02), and was not supported by the other evidence; and
    7. (g)
      at times Dr Cuff expressed opinions on matters beyond his area of expertise (such as impacts on ecological values). Where he did, I do not give those opinions weight.
  12. [278]
    Dr Cuff’s evidence was that the information available was insufficient to prove or disprove water flow through the basalt on the site. He said that the proposed quarry had the potential to essentially block, or stop, any groundwater moving from above the quarry surface, or from the south-west, south, or south-east, to further north. He said this would create a groundwater ‘shadow’ that would result in a failure to recharge soils (with corresponding adverse impacts on vegetation or farmland), or a failure to recharge or generate water in downstream creeks and streams. He said that, for this reason, further information or analysis would be required before the court would be satisfied to approve the development.  Dr Cuff said that water can and will move through the basalt mass via fractures and fissures that act as ‘fluid flow pathways’, and that the depth of removal will impact on both downwards and horizontal flows through the soils and other zones adjacent to the excavation. He said the basalt mass indicates evidence of considerable interaction with water, and the question of whether the interference with flow pathways would be significant or not could not be answered because of the paucity of data. He said there was a real risk that extraction of the basalt mass will have a significant influence on down-gradient stream baseflow and springs, but that the risk cannot be easily quantified as the magnitudes of the affected flows are unknown.
  13. [279]
    In support of his hypothesis, Dr Cuff relied upon a single drill hole (DG02) to indicate the existence of periodic groundwater flows through the basalt mass to the north-east. He said that chemical analytical data showing a relatively high level of nickel (a significant element in basalt) in waters sampled from that drill hole indicated the likely presence of a second aquifer or ‘fluid flow pathway’ in the vicinity of the site.
  14. [280]
    In cross examination, Dr Cuff accepted that any groundwater present on the site was likely to be below RL50 metres (the lowest working level of the quarry), and indeed below RL30 metres. With respect to the nickel levels, he accepted there were various alternate hypotheses to explain it, and that the level of the nickel was not particularly elevated.
  15. [281]
    I do not accept the appellants’ submission that there was insufficient information available to reliably assess issues of groundwater impacts. I am satisfied on the evidence that sufficient testing was done, which included one diamond drill hole, percussion drill core sampling, and information from previously drilled bore holes. I accept Dr Johnson’s evidence that the borehole logging was consistent with industry practice, and that no additional logging was necessary, and, for the reasons given by him, there was no need for a multi-season assessment, or additional monitoring.
  16. [282]
    Dr Johnson is a very experienced expert witness in water engineering. His evidence (which remained consistent and was unaffected by factual errors) was that the proposed development would not have unacceptable groundwater impacts. He said the direct physical evidence, from the geotechnical and geological site investigations undertaken on the site including the drilling, is that no groundwater has ever been detected in the basalt. He said there was sufficient evidence to conclude that any groundwater on, or adjacent to, the site is located at a level below the anticipated lowest level of the quarry. He said there is no fissured rock aquifer located in the rock resource itself, and there is no perched aquifer sitting above the upper level of the rock. All borehole investigations undertaken on the site have shown that the material overlying the basalt is clay, which is not a suitable material in which an aquifer could form.
  17. [283]
    Dr Johnson said that: there was no physical evidence supporting the existence of an aquifer in the basalt mass, or for the presence of Dr Cuff’s ‘fluid flow pathways’; any aquifer in that mass, if one existed (which he did not accept), would be so small as to be insignificant since its contributing catchment at the top of the ridge is so small; and the potential for groundwater flows through the hard rock mass was negligible.
  18. [284]
    Dr Johnson said the evidence showed that there is a solid mass of basalt cupped at the top and bottom by broken basalt, and that there is no evidence that water had flowed through the hard rock basalt.  He said that the existing aquifer sits at a level below the base of the rock resource, that it simply cannot be impacted by the proposed quarry works, and that there are no aquifers on the site which will be impacted by the proposed development. 
  19. [285]
    Dr Johnson was critical of Dr Cuff’s reliance, in his initial report, upon information provided to him by one of the appellants, including with respect to springs. Dr Johnson noted that those springs were located some kilometres north of the quarry site, were separated from the quarry site by areas of higher and lower ground level, were located at below 20 metres AHD, and were likely to be influenced by the higher groundwater levels on the hill closest to them rather than by activity on the site.
  20. [286]
    Dr Johnson was critical of Dr Cuff’s reliance on the higher nickel concentration detected in groundwater at one borehole (DG02), which was not even on the site. Acknowledging that he was not a geochemist, Dr Johnson observed that the presence of high nickel concentrations is only evidence that the groundwater has, at some time and in some location, passed through or over a geological formation where the rocks contain higher amounts of nickel than other rocks. He noted that site inspection shows the presence of substantial basalt deposits on the ground surface upstream of the proposed quarry and in the area between the proposed quarry and DG02, which could well explain the higher nickel result. He said there was plenty of opportunity for flow seepage to have filtered through this material before being monitored at DG02. He opined that a higher nickel concentration was not evidence that there is an aquifer in the basalt mass, especially when all available direct evidence points to the conclusion that there are no extensive ‘fluid flow pathways’ or detectable groundwater in the basalt.
  21. [287]
    I accept Dr Johnson’s evidence. 
  22. [288]
    I am satisfied that the proposed quarry, including removal of the basalt mass, will not cause unacceptable adverse impacts on stormwater and groundwater external to the site, including on ecological values.
  23. [289]
    The appellants rely upon the expression of the precautionary principle in s 5(2)(a)(ii) of the PA. Section 5(1) requires that an entity that performs a function under the Act must do so in a way that advances the purpose of the Act. Advancing the purpose of the Act includes:
  1. (a)
    following ethical decision-making processes that –

…

(ii) apply the precautionary principle, namely that the lack of full scientific certainty is not a reason for delaying taking a measure to prevent degradation of the environment if there are threats of serious or irreversible environmental damage.

  1. [290]
    It is unnecessary to apply the precautionary principle because the evidence does not establish (or even came close to establishing) threats of serious or irreversible environmental damage.
  2. [291]
    I have rejected the appellants’ contention that the impacts on surface and sub-surface inflows to the remnant patch will be significant or unacceptable, or that they cannot be adequately mitigated by conditions of approval.
  3. [292]
    I am satisfied that water from within or adjacent to the site will not adversely impact on the quality or quantity of the receiving ground or surface waters. The relevant assessment benchmarks are achieved.

Conclusion on ecological impacts

  1. [293]
    I am satisfied that Daraleigh has addressed the ecological impacts of the proposed development in a way that demonstrates compliance with the relevant assessment benchmarks.  The impacts will be sufficiently mitigated by proposed conditions of approval.  There are no grounds arising from ecological impacts, considered individually or collectively with other matters, that warrant refusal of the proposed development.

The efficiency of the proposed quarry and whether there is sufficient area for stockpiling, acoustic bunds, and stormwater management

  1. [294]
    The appellants contend that issues of efficiency are raised by DEO s 3.1.2(6) and Specific Outcome S1 of the Extraction/Quarry code.
  2. [295]
    Both provisions apply to the whole of the Shire. They do not distinguish between sites already designated as ERS, and sites where a quarry use is inconsistent.
  3. [296]
    It is important to bear in mind that the ERS designation identifies suitable sites for the efficient extraction or quarrying of material. This is not a case where further exploration of the Land is required to establish the nature of the resource. The planning scheme designation recognises that basalt and overburden exist on the Land, and that it can facilitate the extraction or quarrying of resources. It is a site which the planning scheme requires be specifically protected for that purpose: Rural Zone code s 4.2(4) and (5).
  4. [297]
    DEO s 3.1.2(6) provides: ‘The natural resources (good quality agricultural land, fresh and marine waters, air, forests, extractive resources and native fauna and flora) of the shire are protected, managed sustainably and used efficiently.’ [emphasis added]
  5. [298]
    This DEO falls under the heading ‘Economic Development’. The provision seeks to use efficiently the extractive resources of the Shire in a way that promotes economic development. For the reasons explained below I am satisfied that the proposed development complies with this provision. That is, the extractive resources available in the proposed development will be used efficiently.
  6. [299]
    Before considering Specific Outcome S1 of the Extraction/Quarry code relied upon by the appellants, it is important to bear in mind the purpose of that code, which is a land use code. Section 6.1.6 identifies the overall outcome the code seeks to achieve: ‘The purpose of this code is to ensure that development involving extraction or quarrying minimises the potential visual, community safety and environmental impacts’. 
  7. [300]
    By its use of the term ‘minimise’ the purpose of the Extraction/Quarry code seeks not to preclude or avoid impacts entirely, but where they exist or potentially exist to ensure they are minimised or reduced.  It is specifically directed towards particular kinds of impacts: visual; community safety; and environmental. The only one of those that is relevant in these appeals is environmental. For the reasons explained elsewhere in this decision, I am satisfied that the proposed quarry will not have unacceptable environmental impacts and that any impacts are appropriately minimised. In that way, the purpose of the Extraction/Quarry code is achieved.
  8. [301]
    Specific Outcomes S1 and S2 of the Extraction/Quarry code occur under the subheading ‘Site Suitability’. Specific Outcome S1 states:

The proposed site must be suitable for the efficient extraction or quarrying of the material with respect to:

a) Geological and geo-technical characteristics of the site; and

b) Proposed methods of extraction/quarrying.

[emphasis added]

No Probable Solution is prescribed for S1.

  1. [302]
    The specific outcomes sought to be achieved in a code are directed towards achieving the purpose of the code. The purpose of this code must be borne in mind when considering any non-compliance alleged with Specific Outcome S1. That is, the suitability of the site for efficient quarrying must be considered in context of minimising potential visual, community safety and environmental impacts.
  2. [303]
    The proposed development starts from a favourable position in terms of site suitability because it is one of only seven in the planning scheme area that benefits from an ERS designation.
  3. [304]
    The assessment in Specific Outcome S1 requires consideration of two things: the geological and geotechnical characteristics of the site to demonstrate there are in fact extractive resources present, and the nature of them; and the proposed methods for extracting and quarrying them. Those matters considered together form the basis for an assessment of whether the site is suitable for efficient extraction or quarrying of that material, with the purpose or aim of minimising potential visual, community safety and environmental impacts.
  4. [305]
    The appellants focus on the use of the word ‘efficient’ in Specific Outcome S1. It is not defined in the scheme. Its ordinary meaning should be used.
  5. [306]
    The Macquarie Dictionary defines efficient as: ‘1. effective in the use of energy or resources. 2. adequate in operation or performance; having and using the requisite knowledge, skill, and industry; competent; capable. 3. Producing an effect, as a cause; causative’.[59]
  6. [307]
    Specific Outcome S1 is not concerned with some broad concept of efficiency in the quarrying industry generally, nor with questions of private economics.  It does not require an applicant to demonstrate an exhaustive quantitative assessment of whether, and to what extent, there is a demand for the full range of products proposed to be derived from the quarry, their pricing and saleability. Nor does it require an applicant to descend into the minutiae of how the quarry will be operated and managed over the duration of its lifespan. Much of the appellants’ evidence and submissions was directed towards matters of this kind, and to that extent, their approach was misconceived. As a result, it is unnecessary to consider much of the evidence relied upon, or submissions referred to, in order to determine this issue. 
  7. [308]
    Summarising, the appellants argued that the proposed quarry was inefficient because:
    1. (a)
      it was ‘overburden driven’, meaning that there was no capacity to store and stockpile overburden on-site to access the hard rock, and the overburden must be sold (or disposed of off-site) as and when it is extracted, raising consideration of whether there is a demand for overburden-derived products;
    2. (b)
      the quality of the hard rock had not been appropriately assessed and insufficient drilling has been done to determine the quality of the basalt; and
    3. (c)
      the proposed development needs to be contained almost completely within the quarry void, with the result being that in the early stages the lower working platforms will operate as a sediment and water storage area, the processing areas and working areas for stockpiling are too small, and there was insufficient area for sediment ponds and basins.
  8. [309]
    The appellants and the quarry management expert nominated by them, Mr Reed, also took issue with the level of detail provided for the proposed development.
  9. [310]
    As previously observed, the level of detail required to assess and decide a development application will often depend on the matters a decision maker is called to assess in granting or withholding approval.[60] The information should be sufficient for a judgment to be made about whether an element of design will comply with, or can be conditioned to comply with, the planning scheme. That must be considered in the context of the use applied for.
  10. [311]
    This Court has previously observed that a quarry is not a static use.[61] The nature of the use means that within the physical confines of the area approved, quarrying may occur depending on the availability of the resource and the economics of extracting it. The full extent and quality of the resource, particularly where it is buried rock on a greenfield site, can only be known as quarrying proceeds, although exploratory drilling may provide some indication.[62] A quarry is not akin to a building plan or subdivision; an approval for a quarry may limit the boundaries of the area to be quarried, or it may approve the use conditioned by a requirement for council approval of detailed management plans.[63] In this case, both are proposed.
  11. [312]
    This Court has also observed that development design is commonly an iterative process.[64] It is not uncommon for the design to evolve during the development assessment process before council and during an appeal in this Court, often in response to issues raised in the joint expert process. In this case, they included dropping the quarry working area to a lower level to improve noise management and enlarge the remnant vegetation buffer, and allowing the quarry to excavate deeper in the earlier stages to maximise recovery of available hard rock and encourage quarry best practices by keeping the initial quarry footprint to a minimum. Exhibit 53 contained the latest operational plans for each stage of the proposed quarry. Various areas where changes might be required during further detailed design were canvassed in the evidence. It would unsurprising if there were some changes as the design is further refined and settled.
  12. [313]
    Approvals are usually subject to conditions which require development ‘generally in accordance with’ the approved plans.  It was not contended that the application was a futility, or that the level of uncertainty here was such as to prevent determination of whether the proposal would comply, or could be conditioned to comply, with the relevant assessment benchmarks.
  13. [314]
    To the extent that Mr Reed’s concerns about insufficient drilling, sampling or testing focussed on the commercial viability or ‘bankability’ of overburden-derived products and the need experts considered this, as I have explained, this was misconceived and it is unnecessary to descend into much of this evidence.
  14. [315]
    I accept the evidence of the quarry management expert nominated by Daraleigh, Mr Gray, that the scale of operations and product range offering of a quarry will vary over time. In times of peak demand a quarry may operate close to or at its approved maximum annual output, but for most years it is less, and in more subdued economic conditions, quantities and product range can be around half the maximum. For a quarry to be efficient, it needs to have a degree of flexibility in terms of how it is operated. For example, the proposed operator may choose to dig deeper at an earlier stage of operations if that suits its operations (or the market) best.
  15. [316]
    I am satisfied that the information before the Court is sufficient to assess compliance for this small, rural quarry.
  16. [317]
    With respect to the geological and geotechnical characteristics of the site, and whether the quality of the resource had been adequately assessed, the presence and quality of the extractive resources has been confirmed by both mapping and drilling. The geological experts agreed that:
    1. (a)
      the basalt proposed to be quarried at the site is regionally mapped as Atherton Basalt;
    2. (b)
      Atherton Basalt is being, or has been, successfully quarried in the Shire at Coorumba Road (‘the Pioneer quarry’) and Pin Gin Hill (‘the council quarry’) since the early 1980s;
    3. (c)
      the basalt at the Pioneer quarry has been processed to produce a wide range of quarry products, including concrete aggregates, armour rock, gabion, ballast, and road pavement materials, and it is transported as far as Cairns (as was the case with the council quarry when it was operating);
    4. (d)
      the presence of quality basalt on this site has been confirmed, including by the additional drilling and testing of one diamond core drill hole (DDH1) in a method, and at a location, agreed by the geological experts (accepted to be within the area proposed for extraction);
    5. (e)
      the overall overburden to basalt ratio at the site is approximately 30:70, which is high by general industry standards but common for basalt quarries in this area; and
    6. (f)
      the overburden that has to be removed to access the underlying basalt will either have to be sold or stockpiled once stripped as a requisite part of development of the quarry. Stockpiling requires consideration of cost, design, stability, and environmental impact.
  17. [318]
    The geological expert nominated by Daraleigh, Mr McKenzie, gave evidence that both the Pioneer quarry and the council quarry have been successful long-term quarries with no excessive overburden stockpiles. His evidence was that the rock dating and geological mapping of the Atherton basalt province indicates that the basalt on the subject site consists of the same basalt at flow (or flows) as the above quarries, which are 8 and 10 kilometres from the site.
  18. [319]
    In the Geology Agreed Approach the geological experts agreed that the objective of the additional drill hole (diamond core hole DDH1) was to: infill and complete the 100 metre by 100 metre drill coverage across the site (which now includes 17 drill holes across the basalt deposit); provide a geological comparison between previous drilling done in 2008 and 2018; demonstrate homogeneity across the resource; and provide samples of fresh basalt from depth for source rock quality testing to prove the resource suitability for the production of construction materials.
  19. [320]
    Mr McKenzie attended onsite and supervised the drilling of DDH1. His evidence was that the basalt intersected in DDH1 represents an extremely hard and competent basalt resource, ideal for quarrying and production of construction materials. He said that the basalt is massive with minimal fracturing or jointing and is a hard, fresh, competent, and structurally undisturbed basalt, ideal for quarrying and production of construction materials. The basalt samples were extracted to a depth of approximately 26 metres (about RL50 metres). The average quality of the samples extracted was classified under the relevant rock quality designation at 89%, or ‘good to excellent’. 
  20. [321]
    The geological expert nominated by the appellants, Mr Reed, does not challenge that sample quality but was critical that only one diamond drill hole was drilled. He raised concerns about the homogeneity of the quality of the resource. He was critical of a lack of testing and analysis of the overburden.
  21. [322]
    Mr McKenzie said the drilling and testing undertaken proved the basalt resource’s homogeneity, quality, and suitability for production of Department of Transport and Main Roads (‘DTMR’) specified quarry materials, such as concrete aggregates, ballast, gabion etc. He referred to the Geological JER comparison of geological logs between DDH1 and the neighbouring boreholes which, he said, clearly demonstrated corresponding overburden, weathering and basalt thicknesses between all boreholes, proving the geological homogeneity of the basalt in the western central core of the site. He noted that all the test results from DDH1 exceeded the acceptance criteria for the DTMR specifications, indicating high quality and durable source rock for a variety of applications, including pavement material, aggregates, and ballast.  He noted that this was in addition to 2018 testing proving the suitability of weathered basalt suitable for road base and fill products. He was satisfied that the 17 drill holes across the site adequately define the resource (being an appropriate density for a small and shallow well defined basalt flow), and that no further drilling was needed across this small-scale quarry footprint.
  22. [323]
    Mr McKenzie disagreed with Mr Reed’s opinion that it was necessary to analyse the geotechnical and engineering properties of the overburden resource. He said the document relied upon by Mr Reed (the JORC code which set minimum standards for reporting of mineral resources) did not apply to the quarrying of construction materials such as rock and gravel, was not mandatory for small quarry operators such as the proposed development, and was inapplicable. The document relied upon by Mr Reed is not incorporated into, or referred to in any of the planning documents or instruments relevant to the appeals.
  23. [324]
    Mr McKenzie was satisfied that the overburden at the proposed quarry can be used to produce saleable products of value to the local community. He said it was not common industry practice to test overburden for quality and geotechnical properties before quarrying, because of its likely usage for non-specified fill and onsite topsoil and rehabilitation materials. His evidence was that the testing of overburden products will be undertaken once the quarry is in operation as per the DTMR specification, or as required by customers seeking particular materials.
  24. [325]
    Mr Reed raised concerns about petrographic analyses of two core samples from DDH1: one indicating the presence of secondary mineralisation; and the other regarding reactivity in concrete, which may render it unsuitable for use in certain applications. In response, Mr McKenzie discussed and explained those results in detail in the second Geology JER. He had no concerns about them. The effect of his evidence was that the results were explicable, not unexpected, and not atypical in regional basalts. He maintained that the testing results exceeded the minimum quality acceptable criteria for all quarry products required by DTMR and Australian Standards. He also noted that extensive product testing was required by DTMR when hard rock quarrying operations commence, from onsite product stockpiles, which will ultimately determine what quarry products are produced and sold. He said it was appropriate for overburden testing to occur once products have been processed.
  25. [326]
    Much of the geological evidence was agreed. Where there were differences in the opinions of Mr McKenzie and Mr Reed, I preferred (and found more persuasive) the evidence of Mr McKenzie for reasons already identified. In addition, Mr McKenzie had the benefit of personally observing the drilling process on site. He observed indicia of the ‘hardness’ of the basalt, such as the slow penetration rate and the need to break and cut down cores to one metre lengths because the basalt was not jointed and fractured, which he said was rare and evidenced its high quality.
  26. [327]
    I accept Mr McKenzie’s consistent evidence that the combination of 2008 water bore drilling, the 2018 percussion drilling, and the 2021 DDH1 drilling and testing, including surface mapping and 3D modelling, results in an accurate resource model with accurate resource tonnages for both overburden and ballast. I am satisfied on his evidence that additional core drilling over deep overburden areas is unnecessary and unwarranted. The quarry can develop in accordance with the operational plans from west to east. Any identified deep overburden areas will be stripped to access underlying and adjacent high quality aggregates or supply overburden products as and when the market demands.
  27. [328]
    The question of the proposed method of extraction being efficient is directed towards ensuring that the method of resource recovery is appropriate. The uncontested evidence of the blasting expert, Dr Heilig, demonstrates that.  The evidence of the quarry management expert nominated by Daraleigh, Mr Gray, also supports that finding.
  28. [329]
    Importantly, there is no suggestion that the proposed quarry is not capable of being developed, or that it would be impossible to develop.
  29. [330]
    Mr Gray’s local knowledge and experience informed his view, and he distinguished between the operations of ‘all rounder’ quarries (subject as the subject proposal) and larger, vertically integrated operators. He explained that the regional Pioneer quarry was vertically integrated, and he could infer a trend from its sales that the lower sales of overburden related products were inversely related to the surging demand for aggregates. The focus on hard-rock material in a busy period was unsurprising given that Pioneer’s purpose was to supply high-quality aggregates.
  30. [331]
    Mr Gray’s evidence was that the proposed quarry is ‘the simplest of quarries’, consisting of several benches to be excavated into cleared land within a plateau of elevated, north facing subdued basalt terrain. In his experience with planning, designing and operating quarries (including extensive Queensland experience), he said ‘it doesn’t get much easier for quarries than this’.[65] 
  31. [332]
    I accept Daraleigh’s submission that Mr Reed’s approach seemed to be based particularly upon his experience with major Australian and multi-national quarrying companies (which tended to be more vertically integrated companies), in contrast to the small-scale operation proposed here. 
  32. [333]
    Mr Reed’s concerns focussed on what he said were inefficiencies in some of the operational aspects of the quarry, as opposed to its overall viability and feasibility. Much of his evidence was focussed on cost, and whether a particular method was expensive for the operator. That approach was misconceived.
  33. [334]
    As previously observed, matters of private economics (a person’s personal financial circumstances) are not relevant to the decision of the assessment manager, or the court, to grant an approval.[66] Nor do they inform whether a use is appropriate. The planning authority, and the court, is concerned with how the land is to be used, not whether the proposed development is going to be a wise commercial venture.
  34. [335]
    Here there is ample evidence that a quarry resource exists on the site. The efficiency of the economics of operating the proposed quarry are personal circumstances which are not relevant to the decision whether to grant an approval.
  35. [336]
    Similarly, with respect to the appellant’s arguments about saleability of the overburden and that the proposed quarry will struggle to be efficient because it is ‘overburden driven’, the question of efficiency in the relevant assessment benchmarks in this case does not require Daraleigh to disprove these contentions.
  36. [337]
    In any event, the evidence establishes that the overburden extracted can have a use as construction materials, particularly lower value, bulk materials (such as fill). Mr Reed accepted that it was probable that most regional hard rock quarries have considerable quantities of overburden, and that this was because of deep weathering profiles of rock in that region. Mr Gray pointed out that of the 10 operating hard rock quarries considered in the relevant Table of Quarries, all are known to produce and sell quarry products derived from overburden materials, along with crushed hard rock products from bedrock. Mr Gray maintained his opinion that the overburden has market value, including for road base and select fills. Mr Gray did not consider the intention of the proposed quarry to operate as an ‘all rounder’ by selling its overburden to market as too onerous. Rather, he saw it as a case of matching strategy to the geology of the site. He said that less vertically integrated quarries (such as this one) are more able to adopt this strategy because they have the flexibility in who they are prepared to sell to. Mr Reed accepted that overburden can be used for products that include bulk fill, some types of select fill and a rock clay blend, and that customers will determine whether overburden is fit for purpose at the time the customer seeks the product. Mr Reed also accepted that a condition controlling the need for stockpiling overburden as proposed by Mr Gray would allay concerns about how quantities of overburden would be dealt with.
  37. [338]
    In conclusion, where there are differences in the evidence of the quarry management experts, I prefer (and found persuasive) the evidence of Mr Gray to that of Mr Reed.
  38. [339]
    There are no geology or quarry management matters that warrant refusal of the application. The assessment benchmarks are achieved.
  39. [340]
    Even if I am wrong about what is required to demonstrate compliance with Specific Outcome S1, and there is some non-compliance with that assessment benchmark because of the matters relied upon by the appellants, in my view it would not, either alone or in combination with any other non-compliance identified, be such as to warrant refusal of the application, in the exercise of the broad discretion required.
  40. [341]
    In addition, I am satisfied on the evidence that no planning harm would result from approval of the proposal in non-compliance with the requirement for ‘efficiency’. No harm would occur to the community from approval of an inefficient quarry. An inefficient quarry may reduce its profitability for Daraleigh, but that is a matter of private economics, not public, planning, or community harm.
  41. [342]
    The appellants also alleged that there is insufficient area for stockpiling, acoustic bunds, and stormwater management. There is a degree of overlap between the evidence with respect to this issue and the notion of efficiency considered above.
  42. [343]
    With respect to whether there is a sufficient area available to conduct the quarry operations efficiently, Specific Outcome S2 of the Extraction/Quarry code under the subheading ‘Site Suitability’ is relevant. It states: ‘The proposed lot must be of sufficient size and dimensions having regard to the nature of the use, the potential impact on the amenity on [sic] adjoining uses and the protection of environmentally sensitive areas.’ [Emphasis in original] ‘Lot’ is defined in the scheme by reference to ‘allotment’ as ‘a piece of land or space described in a land title’.
  43. [344]
    As previously observed, Specific Outcome S2 is not directed to the quarry site or extraction area itself but the lot on which it is proposed to be located. Here, the ‘lot’ has an area of approximately 217 hectares. There is no suggestion that it is of insufficient size. 
  44. [345]
    I refer to my earlier discussion of Specific Outcome S2 and its corresponding Probable Solution, P2. The appellants do not allege non-compliance with P2.
  45. [346]
    It is accepted that the proposed quarry site complies with Probable Solution P2 in that it has sufficient area and dimensions to accommodate the identified requirements. The site meets the separation distances to ‘sensitive receptors’ as defined. It does not touch upon areas of ecological value. It includes appropriate buffers. Quarrying and stockpiling areas are accommodated. Sediment and erosion control, parking, and vehicular access are either not in issue, or able to be dealt with by way of conditions.
  46. [347]
    Mr Reed raised concerns about layout configuration and how the sediment pond and quarry floor storage volumes would be practically implemented. Mr Gray’s evidence was that the location of water storages, sumps, pipelines and drains within the quarry stages will change with time.  That is consistent with the consensus that quarries are not a static use.
  47. [348]
    Mr Reed raised concerns about the efficiency of stormwater bunds, but, on this issue, and stormwater management generally, I accept and prefer the evidence of the nominated stormwater experts, which I have already referred to.
  48. [349]
    Other concerns raised by Mr Reed (eg, movement of water for wash down areas and use of a water cart) are matters of management that I am satisfied can be adequately dealt with by way of conditions of approval at this, or later, operational works stages.
  49. [350]
    I am satisfied that the proposed quarry can operate as intended, with sufficient space available for crushing and screening plant, stockpiling and stormwater storage within the working area when operating at capacity.  
  50. [351]
    The relevant assessment benchmarks are achieved.

Other relevant matters under s 45(5)(b) of the PA

  1. [352]
    The appellants identify a number of matters said to warrant refusal of the development application. They are set out in paragraph [7] of the issues in dispute:[67]
    1. (a)
      the lack of economic, planning and community need for the proposed development on the Land;
    2. (b)
      the lack of support in the applicable planning documents for the proposed development on the Land;
    3. (c)
      approval of the proposed development will does not reflect or advance the reasonable community expectations for the Land;
    4. (d)
      approval of the proposed development will not be in the overall public interest;
    5. (e)
      approval of the proposed development will adversely and unacceptably impact on the Eubenangee Corridor identified as a terrestrial corridor of State significance;
    6. (f)
      approval of the proposed development will not advance the purpose of the PA particularly having regard to, and taking into account, the short and long term effects of the proposed development at a local and State level;
    7. (g)
      the lawful use of the national park and the habitat values of the park will be adversely and unacceptable impacted by the proposed development; and
    8. (h)
      the proposed development will impact on the ecological qualities of the Land and, in particular, will impact on the potential future rehabilitation and incorporation into a better connected rainforest network.
  2. [353]
    Most of these matters have already been dealt with in consideration of whether the proposed development complies with the assessment benchmarks, and it is unnecessary to repeat my earlier findings about those issues. To the extent necessary, I deal with any additional issues below.

Need

  1. [354]
    This is not a case where an assessment benchmark requires the applicant to demonstrate that there is a need for the development to permit its approval. Put another way, Daraleigh does not have to prove that there is a need for the proposed quarry.
  2. [355]
    Need is raised in the context of ‘other relevant matters’ and in the appellants’ contentions about efficiency above. The existence, or lack, of a planning need for the proposed development may be relevant under s 45(5)(b) of the PA. The absence of, or insufficient need for, the proposed development is one of a number of factors the appellants point to, as relevant matters to justify refusal of the development in the exercise of the discretion.
  3. [356]
    The principles pertaining to an assessment of need were recently summarised by the Court of Appeal in Yorkeys Knob BP Pty Ltd v Cairns Regional Council:[68]

As the authorities make clear, the assessment of “need” in this context is a flexible process, informed by the principles discussed in cases like Isgro v Gold Coast City Council [2003] QPELR 414…but not constrained by those principles as though they were a “checklist” that must be ticked off by a decision-maker in every case. As the court said in Intrafield Pty Ltd v Redland Shire Council (2001) LGERA 350 at [20], “need is a relative concept to be given greater or lesser weight depending on all of the circumstances which the planning authority was to take into account.”

[Footnotes omitted]

  1. [357]
    A useful summary of those principles was set out by Wilson SC DCJ (as his Honour then was) in Isgro Pty Ltd v Gold Coast City Council & Anor[69] at paras [20] to [26]. The following principles taken from that summary are relevant, namely:
    1. (a)
      a use is needed if it would, on balance, improve the services and facilities available in a locality;
    2. (b)
      need, in planning terms, does not mean pressing or critical need, or even a widespread desire;
    3. (c)
      the question of need is decided from the perspective of the community and not that of an applicant, commercial competitor or those who make adverse submissions;
    4. (d)
      providing competition and choice can be a matter which provides for a need, in a relevant sense; [and]
    5. (e)
      need is a relative concept to be given greater or lesser weight depending on all of the circumstances.[70]
  2. [358]
    I adopt the following summary from the Co-respondent’s Written Submissions[71] of the principles which can be discerned from cases involving quarries, that are relevant to an assessment of need for extractive resource uses:
    1. (a)
      the establishment of a proven resource which can (from a geological perspective) be feasibly and viably extracted is a matter of town planning importance favouring approval,[72] because it is in the community’s interest that a proven deposit of quarriable material of high quality be availed of wherever possible;[73]
    2. (b)
      employment benefits arising from employment of members of the region are relevant to the assessment of need for a quarry;[74]
    3. (c)
      assisting in meeting local demand for hard rock and introducing competition and choice are matters supporting a finding of need for a proposed quarry;[75]
    4. (d)
      in fact, provision of competition in a market where there is none has been treated by the court as representing the fulfilment of a town planning need;[76]
    5. (e)
      ready access of the proposed quarry operator to plant and equipment (including transport vehicles) would be likely to result in economic benefits, in particular keeping transport costs down,[77] as will proximity of the proven resources to target markets (which is a matter of town planning importance);[78]
    6. (f)
      the bar for establishing need should not be set too high when the use involves a necessary of life, such as quarry products;[79] and
    7. (g)
      quarry materials are high volume, low-cost materials that need to be extracted and ideally processed as close as possible to the communities that use them.[80] 
  3. [359]
    In Barro Group Pty Ltd v Sunshine Coast Regional Council,[81] a quarry appeal, Williamson KC DCJ observed:

Whilst the issue of need is relevant to the community interest test, I am unable to accept this particular case called for a detailed examination of economic need in the manner contended by Council. A broader analysis was called for, which examined the proven locally significant resource against the background of the planning scheme. In that context, the proven resource is acknowledged, along with its importance, in a town planning sense, to the community.

Once the resource is considered in this context, coupled with the recognised community benefits that flow to the community from its extraction … it is not difficult to conclude a need has been comfortably demonstrated in favour of the proposed development ….

Those observations are apt here.

  1. [360]
    The planning scheme’s ERS designation of the site as a proven extractive resource is the starting point for a demonstration of the need for the proposed development. In that context, much of the evidence of the economic need experts was devoted to examination of matters of detail which were, in my view, unnecessary. 
  2. [361]
    The need experts agreed in the JER that quarry materials within Far North Queensland and the Cassowary Coast play a critical role for the construction industry, and are necessary to support the population increase that Far North Queensland has experienced, and is expected to continue to experience in the next 20 to 30 years.
  3. [362]
    The evidence of the need expert nominated by Daraleigh, Mr Duane, was that there would be no ‘disbenefit’ to the community arising from the proposed quarry. In his opinion, the proposed quarry would increase competition, choice, and convenience in the existing market, and that its approval would increase (albeit to a small degree) diversification of the economy.
  4. [363]
    By way of broad overview, the economic experts agreed that there were four operating quarries plus gravel pits within the relevant study area, and that their estimated combined total production appears to meet market demand from a quantitative perspective.  However, Mr Duane’s evidence was to the effect that the quantitative economic analysis does not reveal the full picture in respect of how the market is operating. Pricing trends are also relevant. There is only one quarry in the northern part of the study area (where the proposed development is located). It has increased prices across a range of different products substantially since 2020. Mr Duane said that the distances between the north and south sectors of the study area currently limit the competitiveness of quarries in each sector to serve the other sector, with quarries in the southern sector being at a cost disadvantage when servicing the northern sector (in which the proposed quarry is located). He said the proposed quarry offers security of supply in the Innisfail market when demand for quarrying products throughout Cairns more broadly will have increased demand for their products. Mr Duane’s evidence was that the proposed quarry would provide a number of benefits to the community, including transport cost savings to the population within 50 kilometres of it, and adding to local employment.
  5. [364]
    The need expert nominated by council, Mr Norling, was of the view that a moderate economic need exists for the proposed quarry due in large measure to the variability of demand on the Cassowary Coast, and for competitive reasons.
  6. [365]
    The need expert nominated by the appellants, Mr Ganly, opined that there was an insufficient level of economic and community need for the quarry. He said that it would not contribute to economic development in the Shire nor expand the Shire’s economic base. On these issues, I prefer the evidence of Mr Duane and Mr Norling.
  7. [366]
    Even the appellant’s quarry management expert, Mr Reed, accepted that hard rock can be a valuable community resource, it can be used to deliver valuable infrastructure and services, and the extraction of hard rock can be in the community interest.  Mr Reed agreed that at the time the Quarry Management JER was prepared, the price for aggregates at the Pioneer quarry was high, and that there had been meaningful increases to prices across all of their quarry products in the period from 2018 to 2020.
  8. [367]
    This evidence was supported by lay witnesses. Mr Nucifora and Mr Finch gave evidence of a need from locally operating businesses for quarry products. They said the current market is unable to deliver those products satisfactorily. Mr Finch’s company, in particular, complained of not being able to secure products from the Pioneer quarry in Innisfail due to the level of demand and pricing issues.
  9. [368]
    The appellants submitted that the need for the proposed development was limited at best and was not sufficient to outweigh non-compliance with assessment benchmarks.
  10. [369]
    For reasons explained above, I have found that the proposed quarry complies with the relevant assessment benchmarks.
  11. [370]
    I am satisfied that a need (albeit modest) for the proposed quarry has been established and that it is unnecessary to descend into further analysis of the economics of the proposal.
  12. [371]
    To the extent there is a need for the proposed quarry, that is a matter that also favours its approval.

Support in planning documents

  1. [372]
    With respect to (b) in the appellants’ ‘relevant matters’, alleged lack of support in the applicable planning documents for the proposed development on the Land, I have already found that there is clear support for the proposed development in the planning documents. The planning documents demonstrate a clear intention for the Land to be used for extraction or quarrying purposes, in light of the ERS designation.

Community expectations

  1. [373]
    With respect to (c) in the appellants’ ‘relevant matters’, the proposed development does not reflect or advance reasonable community expectations for the Land, this is not an assessment benchmark. It is raised here as a relevant matter. It requires an assessment of whether the quarry proposed by this development application would be within reasonable community expectations. Put another way, whether a quarry of the kind proposed in this development application would exceed reasonable community expectations. 
  2. [374]
    The expectations, to be reasonable, must be assessed in light of all the planning provisions applying to the Land.[82]  The planning scheme may be regarded as a prima facie expression of what will constitute, in the public interest, the appropriate development of the Land.[83]  The body of material in the form of submissions following public notification and any evidence given at the hearing by residents may also be regarded as a direct expression of the expectations.[84] In addition, properly made submissions formed part of the common material,[85] and the assessment is required to be carried out having regard to them.[86] 
  3. [375]
    The issues raised in the properly made submissions were summarised in Attachment C to the Town Planning JER. A majority of those who made submissions supported the proposed development. Issues raised in objecting submissions related, in general terms, to the same issues raised by the appellants, primarily environmental impacts.
  4. [376]
    The community’s expectations tended in favour of approval, having regard to the submissions made during the public notification stage.
  5. [377]
    On balance, there should be a reasonable community expectation that the Land may be developed for the proposed quarry use. That expectation is derived primarily from a combination of the site’s ERS designation, its zoning, the absence of any express discouragement for such a use on the land, and the existing Extraction Approval (which remains current and could be acted upon at any time). In addition, there is nothing about scale or impacts of the proposed development on this site, involving a small quarry on only a relatively small part of a large rural parcel of land well separated from potentially incompatible uses, with extraction limited to 250,000 tonnes per annum and blasting limited to eight days per annum, which would be beyond reasonable community expectations. 

Public interest

  1. [378]
    With respect to (d) in the appellants’ ‘relevant matters’, I am satisfied that approval of the proposed development will not adversely affect the public interest.

Impacts on Eubenangee Corridor, national park and ecological qualities

  1. [379]
    With respect to (e), (g) and (h) in the appellants’ ‘relevant matters’, I have already found that the proposed development will not result in unacceptable adverse impacts on the Eubenangee Corridor, the use of the national park and its habitat values, or the ecological qualities of the Land and its potential future rehabilitation. Approval of the proposed development will achieve some rehabilitation of the Land which would not otherwise occur absent the approval, and which would not occur if the Extraction Approval is acted upon.

Advancing the purpose of the PA

  1. [380]
    With respect to (f) in the appellants’ ‘relevant matters’, the contention is that approval of the proposed development will not advance the purpose of the PA particularly having regard to, and taking into account, the short and long term effects of the proposed development at a local and State level. The contention is so broad as to be almost meaningless. I have considered the purpose of the PA in light of the evidence and am comfortably satisfied that this assertion is not made out. Approval of the proposed development will not result in harm, locally nor on a State wide basis.

Relevant matters relied upon by Daraleigh and council

  1. [381]
    Daraleigh identified a number of matters said to warrant approval of the development application. They are set out in paragraph [266] of its written submissions and in the issues in dispute.[87] They include: the existence of a planning, community, or economic need for the development; that it is in an appropriate location that would not result in unacceptable impacts; the existing Extraction Approval and Environmental Authority; that any non-compliance with assessment benchmarks (which is not admitted) can be adequately addressed by the imposition of conditions and does not warrant refusal of the development; the absence of adverse amenity impacts; that the development is consistent with reasonable community expectations; the development demonstrates an overall community benefit; and approval will advance the purpose of the PA.  I accept that each of the above matters relied upon are made out, and that those matters support approval.
  2. [382]
    I also accept council’s concluding submissions that the proposed quarry:
    1. (a)
      is desirable and appropriate development that seeks to win valuable resources, that is, valuable to both the developer and the general community;
    2. (b)
      is appropriately located on rural land that is within the Rural Use Precinct of the Rural Zone of the Planning Scheme, with potential extractive industry use recognised by the ERS designation;
    3. (c)
      is appropriately located within the Regional Landscape and Rural Production Area of the Regional Plan;
    4. (d)
      is appropriately located on a site that has the benefits and impacts of the existing Extraction Approval;
    5. (e)
      is appropriately located such that it effectively avoids many of the significant impacts that can accompany development of its type (such as traffic, visual amenity, or landscape character impacts);
    6. (f)
      is development that appropriately minimises significant adverse impacts (including avoidance of significant adverse impacts on surrounding sensitive uses, the environment, and ecology);
    7. (g)
      is located on a site with sufficient area and suitable topography to enable appropriate design and management of operations to efficiently win the natural resource while implementing measures to avoid or minimise adverse impacts; and
    8. (h)
      appropriately manages the balance between competing desired planning outcomes reflected in the Planning Scheme (as well as the State planning instruments) – that is, between the intent for use of Rural land for agricultural purposes and the intent to gain and use valuable natural resources located on, or under, such land - while avoiding or minimising significant amenity, character, environmental, or ecological impacts.

Conclusion and orders

  1. [383]
    Daraleigh has discharged the onus. In due course, the appeals will be dismissed and the development approved subject to conditions.
  2. [384]
    The appeals are adjourned to a date to a date to be fixed to enable the parties to prepare conditions of approval that reflect these reasons.

Footnotes

[1]  Exhibit 7A (Amended Consolidated List of Issues in Dispute).

[2]  Exhibit 7A (Amended Consolidated List of Issues in Dispute) and Appellant’s Outline of Argument in closing addresses.

[3] Planning and Environment Court Act 2016 (Qld) s 45 (‘PECA’).

[4]  Exhibit 10 (Planning Scheme) p 5 fn 4(e).

[5] Barro Group Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 235, 238[3] (‘Barro’), citing Sellars Holdings Ltd v Pine Rivers Shire Council [1988] QPLR 12, 16-17 (‘Sellars’).

[6]  Macquarie Dictionary, Revised Third Edition.

[7]Barro, 239[4].

[8] Sellars, 15.

[9]  I had the benefit of a site inspection to assist my understanding of the evidence.

[10]  Exhibit 32 (Supplementary Separate Report of Dugald GRAY) pp 7-8[28]-[31].

[11]  See Item 15 of Volume 2 of the Appeal Book, Exhibit MFI-b (especially at pp 1039-1074).

[12]  Exhibit 9 (Co-respondent’s List of Proposed Conditions).

[13]  Exhibit 14 (JER Town Planning) p 5[1].

[14]  [2014] QPELR 603 (‘Karalee’).

[15] Karalee, 607[12].

[16]  Ibid, 619[35]. 

[17]  [2006] QPELR 496 (‘Carbone’).

[18]Carbone, 500[10].

[19] PA sch 2, s 6 (definition of ‘use’).

[20]PA ss 286 and 311(4).

[21] PECA s 76.

[22] PECA s 43.

[23] Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPELR 763 (‘Jakel Pty Ltd’).

[24] PA s 311(4); Jakel Pty Ltd, 782[88].

[25] PECA s 46(6); PA ss 29(9) and 286.

[26] PECA s 46(6).

[27] PA s 59(3).

[28] Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987; Abeleda v Brisbane City Council (2020) 6 QR 441 (’Abeleda’); Wilhelm v Logan City Council & Ors [2021] QPELR 1321; Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309.

[29] Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2020] QPELR 328.

[30] Abeleda.

[31]  (2020) 6 QR 441.

[32] Abeleda, 457[42].

[33]  Ibid, 458[43].

[34]  Ibid.

[35]  Ibid, 468[77].

[36]PECA s 47.

[37] PA ss 45(6) to 45(8), as modified by s 29(9) (transitioned by ss 286 and 311 PA).

[38] PA s 45(8).

[39] PA s 45(5)(a)(i), as prescribed by r 30(2)(a) of the Planning Regulation 2017 (Qld) ('Planning Regulation').

[40] PA s 45(8)(a).

[41]Planning Regulation rr 31(1)(f) and 31(1)(g). ‘Common material’ is defined in sch 24 of the Planning Regulation to mean all of the material about the application that is received before the application is decided, including any properly made submissions about the application.

[42]  Exhibit 10 (Planning Scheme) p 20 s 4.2.

[43]  Exhibit 10 (Planning Scheme) p 20 s 4.2.

[44]  Exhibit 14 (JER Town Planning) p 33[140].

[45]  Exhibit 7A (Amended Consolidated List of Issues in Dispute).

[46] Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168, [16] (Bowskill CJ).

[47]  It was made clear in oral submissions that this was the only part of the provision relied upon.

[48]  Paragraph [3] of s 3.1.1 identified at para [1(b)(i)] of Exhibit 7A (Amended Consolidated List of Issues in Dispute) was abandoned in oral submissions.

[49] Lockyer Valley Regional Council v Westlink Pty Ltd & Ors (2011) 185 LGERA 63, 73[20], citing Glasshouse Mountains Advancement Network Inc. v Caloundra City Council & Anor [1997] QPELR 438, 440-441; Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2018] QPELR 982.

[50]  Exhibit 7A (Amended Consolidated List of Issues in Dispute) [3(a)].

[51]  Exhibit 7A (Amended Consolidated List of Issues in Dispute) [3(b)].

[52]  Exhibit 7A (Amended Consolidated List of Issues in Dispute) [3(c)].

[53]  Exhibit 53 (Updated Operational Plans).

[54] SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24, 28[24] (‘SDW Projects’); cited in Barro, 249[62].

[55] Nielsens Quality Gravels Pty Ltd v Brisbane City Council & Ors [2016] QPELR 709, 716[13] ('Nielsens’); Kin Kin Community Group Inc v Sunshine Coast Regional Council & Ors [2011] QPELR 349, 354[23] & 367[91] (‘Kin Kin’).

[56] Kin Kin, 354[23].

[57]  Exhibit 7A (Amended Consolidated List of Issues in Dispute) [3(d)].

[58] PA s 5(2)(a)(ii).

[59]  Macquarie Dictionary, Revised Third Edition.

[60] SDW Projects, 28[24]; cited in Barro, 249[62].

[61] Nielsens, 716[13]; Kin Kin, 354[23] & 367[91].

[62] Kin Kin, 354[23].

[63]  Ibid, 367[91].

[64] SDW Projects, 27-8[23]-[28].

[65]  Exhibit 31 (Separate Report of Dugald GRAY) p 15[47].

[66] PA s 45(5)(b); Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor [2022] QPEC 16, [177].

[67]  Exhibit 7A (Amended Consolidated List of Issues in Dispute) [7].

[68]  [2022] QCA 168, [30].

[69]  [2003] QPELR 414 (‘Isgro’).

[70] Isgro, 417-9[20]-[26].

[71]  Exhibit 1 (Co-respondent’s Written Opening) [147]. 

[72] Barro, 238-9[3]-[4], citing Sellars, 16-17. The same approach should be adopted here.

[73] Barro, 239[4], citing Duncanson & Brittain (Quarries) Pty Ltd v Brisbane City Council & Ors [1986] QPLR 330, 349-50.

[74] Mary Valley Community Group Inc. & Anor v Gympie Regional Council & Ors [2018] QPELR 345, 369[82] (‘Mary Valley’).

[75] Mary Valley, 372[99].

[76]Edith Pastoral Company Pty Ltd v Somerset Regional Council & Ors [2022] QPELR 1125, 1176[262] (‘Edith Pastoral’), citing Bunnings Building Supplies Pty Ltd v Redland Shire Council & Ors [2000] QPELR 193, 197[21].

[77]Marry Valley, 372[99].

[78] Barro, 239[6].

[79] Edith Pastoral, 1175[260], citing Luke & Ors v Maroochy Shire Council & Watpac Developments Pty Ltd [2003] QPELR 447, 455[35].

[80] Nielsens, 768[241].

[81]  [2022] QPELR 235, 272[185]-[186].

[82]  See, eg, Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2015] QPELR 21, 34[95].

[83] Bell v Brisbane City Council (2018) 230 LGERA 374, 391[66]; cited in Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46] (‘Developmental Watch Inc.’)

[84] Development Watch Inc., [46].

[85] Planning Regulation r 31(1)(g) and sch 24.

[86] PA s 45(5).

[87]  Exhibit 7A (Amended Consolidated List of Issues in Dispute) [8].

Close

Editorial Notes

  • Published Case Name:

    Bronco Dino Pty Ltd & Ors v Cassowary Coast Regional Council & Anor

  • Shortened Case Name:

    Bronco Dino Pty Ltd v Cassowary Coast Regional Council

  • MNC:

    [2023] QPEC 15

  • Court:

    QPEC

  • Judge(s):

    Fantin DCJ

  • Date:

    16 May 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
4 citations
Jump To
Cite 1 - [2020] QCA 257
Cite 2 - (2020) 6 QR 441
Cite 3 - (2020) 6 QR 441
Cite 4 - (2020) 6 QR 441
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16
1 citation
Jump To
Cite 1 - [2019] QPEC 16
Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793
2 citations
Jump To
Cite 1 - [2019] QPELR 793
Cite 2 - [2019] QPELR 793
Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18
1 citation
Jump To
Cite 1 - [2021] QPEC 18
Barro Group Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 235
3 citations
Jump To
Cite 1 - [2022] QPELR 235
Cite 2 - [2022] QPELR 235
Cite 3 - [2022] QPELR 235
Bell v Brisbane City Council [2018] QCA 84
1 citation
Jump To
Cite 1 - [2018] QCA 84
Bell v Brisbane City Council (2018) 230 LGERA 374
2 citations
Jump To
Cite 1 - (2018) 230 LGERA 374
Cite 2 - (2018) 230 LGERA 374
Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2018] QCA 75
1 citation
Jump To
Cite 1 - [2018] QCA 75
Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2018] QPELR 982
2 citations
Jump To
Cite 1 - [2018] QPELR 982
Cite 2 - [2018] QPELR 982
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
1 citation
Jump To
Cite 1 - [2020] QCA 253
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
2 citations
Jump To
Cite 1 - [2021] QPELR 987
Cite 2 - [2021] QPELR 987
Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193
2 citations
Jump To
Cite 1 - (2000) QPELR 193
Cite 2 - (2000) QPELR 193
Bunnings Buildings Supplies Pty Ltd v Redland Shire Council [2000] QPEC 1
1 citation
Jump To
Cite 1 - [2000] QPEC 1
Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor [2022] QPEC 16
2 citations
Jump To
Cite 1 - [2022] QPEC 16
Cite 2 - [2022] QPEC 16
Carbone v Esk Shire Council [2006] QPEC 16
1 citation
Jump To
Cite 1 - [2006] QPEC 16
Carbone v Esk Shire Council [2006] QPELR 496
2 citations
Jump To
Cite 1 - [2006] QPELR 496
Cite 2 - [2006] QPELR 496
Cases Kin Kin Community Group Inc v Sunshine Coast Regional Council & Ors [2011] QPELR 349
2 citations
Jump To
Cite 1 - [2011] QPELR 349
Cite 2 - [2011] QPELR 349
Development Watch Inc v Sunshine Coast Regional Council [2022] QCA 6
2 citations
Jump To
Cite 1 - [2022] QCA 6
Cite 2 - [2022] QCA 6
Duncanson & Brittain (Quarries) Pty Ltd v Brisbane City Council (1986) QPLR 330
2 citations
Jump To
Cite 1 - (1986) QPLR 330
Cite 2 - (1986) QPLR 330
Edith Pastoral Company Pty Ltd v Somerset Regional Council & Ors [2021] QPEC 52
1 citation
Jump To
Cite 1 - [2021] QPEC 52
Edith Pastoral Company Pty Ltd v Somerset Regional Council & Ors [2022] QPELR 1125
2 citations
Jump To
Cite 1 - [2022] QPELR 1125
Cite 2 - [2022] QPELR 1125
Glasshouse Mountains Advancement Network Inc v Caloundra City Council & Anor (1997) QPELR 438
2 citations
Jump To
Cite 1 - (1997) QPELR 438
Cite 2 - (1997) QPELR 438
Intrafield Pty Ltd v Redland Shire Council (2001) LGERA 350
1 citation
Jump To
Cite 1 - (2001) LGERA 350
Isgro v Gold Coast City Council (2003) QPELR 414
3 citations
Jump To
Cite 1 - (2003) QPELR 414
Cite 2 - (2003) QPELR 414
Cite 3 - (2003) QPELR 414
Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21
1 citation
Jump To
Cite 1 - [2018] QPEC 21
Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPELR 763
2 citations
Jump To
Cite 1 - [2018] QPELR 763
Cite 2 - [2018] QPELR 763
Karalee Land Partners Pty Ltd v Ipswich City Council [2014] QPEC 34
1 citation
Jump To
Cite 1 - [2014] QPEC 34
Karalee Land Partners Pty Ltd v Ipswich City Council [2014] QPELR 603
2 citations
Jump To
Cite 1 - [2014] QPELR 603
Cite 2 - [2014] QPELR 603
Kin Kin Community Group Inc. v Sunshine Coast Regional Council [2010] QPEC 144
1 citation
Jump To
Cite 1 - [2010] QPEC 144
Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358
1 citation
Jump To
Cite 1 - [2011] QCA 358
Lockyer Valley Regional Council v Westlink Pty Ltd & Ors (2011) 185 LGERA 63
2 citations
Jump To
Cite 1 - (2011) 185 LGERA 63
Cite 2 - (2011) 185 LGERA 63
Luke v Maroochy Shire Council [2003] QPEC 5
1 citation
Jump To
Cite 1 - [2003] QPEC 5
Luke v Maroochy Shire Council & Anor (2003) QPELR 447
2 citations
Jump To
Cite 1 - (2003) QPELR 447
Cite 2 - (2003) QPELR 447
Mary Valley Community Group Inc v Gympie Regional Council [2018] QPEC 58
1 citation
Jump To
Cite 1 - [2018] QPEC 58
Mary Valley Community Group Inc. & Anor v Gympie Regional Council & Ors [2018] QPELR 345
2 citations
Jump To
Cite 1 - [2018] QPELR 345
Cite 2 - [2018] QPELR 345
Murphy v Moreton Bay Regional Council [2019] QPEC 46
1 citation
Jump To
Cite 1 - [2019] QPEC 46
Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328
2 citations
Jump To
Cite 1 - [2020] QPELR 328
Cite 2 - [2020] QPELR 328
Neilsens Quality Gravels Pty Ltd v Brisbane City Council [2016] QPEC 39
1 citation
Jump To
Cite 1 - [2016] QPEC 39
Neilsens Quality Gravels Pty Ltd v Brisbane City Council [2016] QPELR 709
2 citations
Jump To
Cite 1 - [2016] QPELR 709
Cite 2 - [2016] QPELR 709
SDW Projects Pty Ltd v Gold Coast City Council (2007) QPELR 24
2 citations
Jump To
Cite 1 - (2007) QPELR 24
Cite 2 - (2007) QPELR 24
Sellars Holdings Ltd v Pine Rivers Shire Council [1988] QPLR 12
2 citations
Jump To
Cite 1 - [1988] QPLR 12
Cite 2 - [1988] QPLR 12
Sellars Holdings Ltd v Pine Rivers Shire Council (1987) 30 APA 407
1 citation
Jump To
Cite 1 - (1987) 30 APA 407
Trinity Park Investments Pty Ltd v Cairns Regional Council [2021] QCA 95
1 citation
Jump To
Cite 1 - [2021] QCA 95
Trinity Park Investments Pty Ltd v Cairns Regional Council [2022] QCA 261
1 citation
Jump To
Cite 1 - [2022] QCA 261
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309
2 citations
Jump To
Cite 1 - [2022] QPELR 309
Cite 2 - [2022] QPELR 309
Wattlevilla Pty Ltd v Western Downs Regional Council [2014] QPEC 47
1 citation
Jump To
Cite 1 - [2014] QPEC 47
Wattlevilla Pty Ltd v Western Downs Regional Council [2015] QPELR 21
2 citations
Jump To
Cite 1 - [2015] QPELR 21
Cite 2 - [2015] QPELR 21
Wilhelm v Logan City Council [2020] QCA 273
1 citation
Jump To
Cite 1 - [2020] QCA 273
Wilhelm v Logan City Council & Ors [2021] QPELR 1321
2 citations
Jump To
Cite 1 - [2021] QPELR 1321
Cite 2 - [2021] QPELR 1321
Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168
3 citations
Jump To
Cite 1 - [2022] QCA 168
Cite 2 - [2022] QCA 168
Cite 3 - [2022] QCA 168

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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