QCoal Pty Ltd v Isaac Regional Council (No 2)
[2023] QPEC 18
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- Unreported Judgment
- QCoal Pty Ltd v Isaac Regional Council (No 2)[2023] QPEC 18
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QCoal Pty Ltd v Isaac Regional Council (No 2)[2023] QPEC 18
QCoal Pty Ltd v Isaac Regional Council (No 2)[2023] QPEC 18
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | QCoal Pty Ltd & Anor v Isaac Regional Council (No 2) [2023] QPEC 18 |
PARTIES: | QCOAL PTY LTD ACN 010 911 234 AND QCOAL GROUP (Appellants) v ISAAC REGIONAL COUNCIL (Respondent) |
FILE NO/S: | 1480/2020 |
DIVISION: | Planning and Environment |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 19 May 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 May 2023 |
JUDGE: | Everson DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application for a Works Camp in the Rural Zone PLANNING AND ENVIRONMENT – ASSESSMENT – compliance with regional plan and planning scheme – whether there is a need for the proposed development – whether in the way the mine is operated it is reasonable to expect the appellants to accommodate their non-residential workers in or adjacent to Gelenden |
LEGISLATION: | Planning Act 2016 (Qld) Planning and Environment Court Act 2016 (Qld) |
CASES: | Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 QCoal Pty Ltd & Anor v Isaac Regional Council [2022] QCA 237 QCoal Pty Ltd & Anor v Isaac Regional Council [2021] QPEC 60 SLS Property Group Pty Ltd v Townsville City Council [2011] 2 Qd R 166 Wilhelm v Logan City Council & Ors [2020] QCA 273 Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147 |
COUNSEL: | G A Thompson KC, E J Morzone KC and K W Wylie for the appellants M J Batty and J Bowness for the respondent |
SOLICITORS: | Emanate Legal for the appellants King & Company for the respondent |
Introduction
- [1]This is a re-hearing after a successful appeal to the Court of Appeal. It is limited in scope as the appeal succeeded on only one ground.
- [2]The appeal is against the refusal by the respondent of a development application for a development permit for a material change of use for a Works Camp (“the proposed development”) in respect of the land situated at 529 Wollombi Road, Suttor (“the site”). The development application seeks to make permanent and to expand a temporary Works Camp at the site such that it can accommodate up to 600 persons and 650 rooms.[1]
- [3]The proposed development is intended to house workers at the Byerwen Coal Mine (“the mine”) which is anticipated to produce up to 10 million tonnes of hard coking coal per year and expected to have a life of more than 50 years.[2] At full production, the workforce of the mine is anticipated to be between 850 and 900 employees.[3] The proposed development is intended to incorporate ancillary services including a wet mess and a gymnasium.[4]
- [4]The site is located in the Regional Landscape and Rural Production Area under the Mackay Isaac and Whitsunday Regional Plan (“the Regional Plan”). It is included within the Rural Zone and outside the Urban Locality pursuant to the Nebo Shire Plan 2008 (“the Nebo Planning Scheme”) which was in effect when the development application was properly made. The site remains in the Rural Zone pursuant to the Isaac Regional Planning Scheme (“the Isaac Planning Scheme”) which commenced on 1 April 2021.[5]
- [5]There are significant facilities and community infrastructure located in the nearby town of Glenden including a police station, a church, a prep to Year 12 state school, a (now apparently vacant) medical centre, a post office, a library, licensed premises and supporting retail, mechanical and fuel operations and various sporting facilities including a 50-metre swimming pool. As at 2016 there were 594 private dwellings in Glenden, approximately 68% of which were unoccupied.[6] The approval of the mine by the Co-ordinator-General in 2014 was secured on the basis that the appellants would provide temporary and permanent housing for the mine workforce in Glenden and the workers would be transported by bus to and from Glenden. The travel time between the proposed development and Glenden is less than half an hour.[7]
The statutory assessment framework
- [6]
- [7]Section 46 of the PECA addresses the nature of an appeal and relevantly provides:
“(2) The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if-
- (a)the P&E Court were the assessment manager for the development application; and
- (b)the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.”
- [8]As the proposed development was impact assessable, s 45 of the Planning Act 2016 (Qld) (“PA”) provides that the assessment must be carried out against the relevant assessment benchmarks in a categorising instrument for the development which, in the circumstances before me, are the relevant provisions of the Regional Plan and the Nebo Planning Scheme.[10] I must assess the development application against the Nebo Planning Scheme as it was in effect when the development application was properly made,[11] however I may give the weight I consider appropriate in the circumstances to the Isaac Planning Scheme as it has replaced the Nebo Planning Scheme prior to the determination of the appeal.[12] Additionally, the assessment may be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[13]
- [9]Pursuant s 60 of the PA, the Court in determining an appeal about a development application is conferred a wide discretion. The section relevantly states:
- “(3)To the extent the application involves development that requires impact assessment, and subject to section 62, the assessment manager, after carrying out the assessment, must decide-
- (a)to approve all or part of the application; or
- (b)to approve all or part of the application, but impose development conditions on the approval; or
- (c)to refuse the application.”
- [10]In undertaking this task, the observations of Mullins JA in Abeleda & Anor v Brisbane City Council & Anor are instructive:
- “[42]…The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.”
- “[43]…The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the factors in favour of approval (or approval subject to development conditions) have to be balanced with the factors in favour of refusal of the application. The weight given to each of the factors is a matter for the decision-maker in the circumstances…”[14]
- [11]Mullins JA further observed in Wilhelm v Logan City Council & Ors:
- “[77]…The change in the decision-making regime has not affected the fundamental nature of a planning scheme as the reflection of the public interest in the appropriate development of land.”[15]
- [12]As Henry J described the task of this Court in Brisbane City Council v YQ Property Pty Ltd:
- “[59]…The ultimate decision called for when making an impact assessment under s 45 and s 60 Planning Act is a broad, evaluative judgement.”[16]
- [13]The applicable principles for the construction of planning documents were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council.[17] Notably, the same principles which apply to statutory construction apply to the construction of planning documents,[18] and such documents need to be read as a whole in a way which is practical and as intending to achieve a balance between outcomes.[19]
The scope of the remitted hearing
- [14]In circumstances where an appeal to the Court of Appeal is only available to a party by leave on the ground of error or mistake of law or jurisdictional error,[20] the error of law the subject of the remitted hearing is extremely narrow in scope.
- [15]In QCoal Pty Ltd & Anor v Isaac Regional Council,[21] the Court of Appeal rejected all of the alleged errors of law argued by the appellants with the exception of one. Relevantly, in giving the judgment of the Court, McMurdo JA stated:
- “[66]I come then to the QCoal arguments described in its outline of submissions as the “Need errors”. The judge said that one essential plank to QCoal’s argument was that 98 per cent of its current and prospective workforce would in all likelihood prefer to reside at the mine site rather than in Glenden. QCoal submits that there were three errors in that reasoning, namely:
- (a)it proceeded upon a misunderstanding of QCoal’s evidence;
- (b)the issue was not one which was identified by the parties in an agreed List of Issues; and
- (c)the issue imposed upon QCoal an unnecessary and irrelevant burden.
- [67]The first of those suggested errors does not involve an error of law. However there is substance in the second and third complaints. This issue was not one which the parties had presented for the Court’s determination. QCoal did not contend that 98 per cent of its current and prospective workforce would in all likelihood prefer to reside at the mine. QCoal did contend that it was unreasonable to expect it to locate its entire workforce in Glenden, as opposed to only those workers choosing to live there. But that was quite a different issue.
- [68]The preferences of QCoal’s workforce would matter to QCoal. It might be assumed that its proposal for this development at the mine site was made upon an understanding that this would be acceptable to sufficient of its workforce (and those representing their interests as employees) as to make it worthwhile for this development proposal to be pursued. But the preferences of a certain percentage of the workforce were irrelevant to any issue, let alone being an essential plank of QCoal’s case.
- [69]The judge made no finding of the reasonableness or otherwise of requiring QCoal to locate the entirety of its workforce in or adjoining Glenden. He apparently accepted evidence that there were “potential challenges and impacts that could be experienced by non-residential workers”, and appeared therefore to question the merits of the way in which the mine was being operated. However, that was not an issue which the parties had included in the List of Issues which they presented to the Court. The issues for determination were not whether QCoal’s workforce should be non-residential or whether the workers should have shorter shifts. It was whether in the way the mine was and would be operated, it was reasonable to expect the applicants to accommodate their non-residential workers in Glenden.
- [70]In my respectful opinion, the judge thereby erred in law. These were errors which, it plainly appears from the Reasons for Judgment, were material to the judge’s ultimate conclusion.”
- [16]On 9 March 2023 I made the following order:
- “The issue for determination at the remitted hearing of the appeal be whether, in the re-exercise of the Court’s discretion under ss. 45 and 60 of the Planning Act 2016, the development application the subject of the appeal should be approved or refused having regard to whether, in the way the Byerwen Mine was and would be operated, it is reasonable to expect the appellants to accommodate their non-residential workers in or adjacent to Glenden having regard to the evidence adduced pursuant to order 2 below and the findings of fact set out in QCoal Pty Ltd & Anor v Isaac Regional Council [2021] QPEC 60 which remain undisturbed.”
- [17]Thereafter leave was given to both the appellants and the respondent to adduce further limited evidence at the remitted hearing.
- [18]Given the context in which the error of law as found by the Court of Appeal arose, namely as a relevant matter,[22] it is difficult to discern how the error of law falls outside the concept of “a person’s personal circumstances, financial or otherwise” which is precluded from consideration as a relevant matter pursuant to s 45 of the PA. I am nonetheless bound by the decision of the Court of Appeal and obliged to give effect to the order and reconsider the matter in the terms set out above.
- [19]The scope of the remitted hearing is constrained by numerous findings made by the Planning and Environment Court at first instance. In addition to various findings of fact set out above, other relevant findings are that:
- 1.there is a strong theme running through the Regional Plan which takes precedence over the Nebo Planning Scheme and the subsequent Isaac Planning Scheme, to consolidate urban growth and efficiently utilise land and infrastructure;[23]
- 2.the Regional Plan also intends that a mix of dwelling types are provided and that non-resident worker accommodation is located “to ensure access to services and community integration and social cohesion within the existing community”;[24]
- 3.these themes are reflected in the Nebo Planning Scheme where Glenden is nominated as the primary residential area for the coal mining industry and isolated workers camps not within or adjoining urban localities are not contemplated unless they are in locations “not able to be conveniently serviced by accommodation within an urban locality”;[25]
- 4.a Works Camp is not envisaged other than within an adjoining urban locality, unless it is in a location not able to be conveniently serviced by accommodation within an urban locality;[26]
- 5.the Isaac Planning Scheme demonstrates the consistent and continuing policy position of the relevant assessment benchmarks in the Regional Plan and the Nebo Planning Scheme.[27]
- [20]When considering the question of need, the Planning and Environment Court found that there is no doubt that there is a significant need for accommodation for both existing and prospective workers employed at the mine, but that what is contentious is whether the appellants have discharged the onus of proving that this need cannot be met in Glenden as contemplated by the assessment benchmarks referred to in the findings set out above.[28]
- [21]One of the essential planks of the appellants’ arguments in this context was identified as being that there was alleged to be no suitably zoned land in Glenden that is available to the appellants to meet their need for workers’ accommodation.[29] In this regard, the Court found that the appellants had failed to progress commercial negotiations to obtain suitable land and accommodation with the owner of significant residential land and houses in Glenden. Further, the appellants had not acted upon previously obtained development approvals for various accommodation which had now lapsed, in circumstances where no explanations had been given as to why the development approvals had been allowed to lapse and have otherwise not been acted upon.[30] Thereafter, planning evidence was accepted that an opportunity to offer a significant number of workers choice of housing within Glenden had not been taken up by the appellants,[31] and that there was significant freehold land adjoining the urban area of Glenden which could be utilised for a Works Camp. Further, there was no evidence of any attempt by the appellants to secure any of this land for a Works Camp.[32]
- [22]Finally, the Court found that providing bus transportation to accommodation in Glenden after a 12-hour shift was not an unreasonable impost on the appellants,[33] that there was evidence before the Court which established that even on their current shifts workers living in Works Camps utilise recreational facilities in Glenden,[34] and that the proposed development will not create housing diversity or result in the efficient use of existing significant infrastructure in Glenden, contrary to what the identified assessment benchmarks contemplate.[35]
The new evidence
- [23]Both the appellants and the respondent adduced limited further evidence pursuant to the order made on 9 March 2023. The appellants principally relied upon affidavits of Mr Leary, the Executive General Manager – Planning and Operations for the appellants which were filed on 17 February 2023 (“the first affidavit”) and on 2 May 2023 (“the second affidavit”).
- [24]In the first affidavit, Mr Leary deposes to the majority of workers engaged by the appellant being required to work up to 12.5 rostered hours a day on a 28-day roster. This roster consists of 7 days of day shift, 7 days off, 7 days of night shift and 7 days off.[36] The majority of workers are governed by enterprise agreements under the Fair Work Act 2009 (Cth), the most recent of which, dated 22 November 2022 and 6 February 2023, are exhibited to the first affidavit.[37]
- [25]Mr Leary asserts it would be unreasonable and impracticable to compel these workers to reside in Glenden. He emphasises the fact that this would result in a 14-hour day for workers when the time taken to travel to and from their accommodation is accounted for, increasing worker fatigue.[38] The assertion that a 12.5 hour shift equates to a “14 hour day (door to door)” for workers residing in Glenden appears an exaggeration given the previous finding of fact that the travel time between the proposed development and Glenden is less than half an hour and his previous evidence that it already takes approximately 10 minutes to travel between the mine site and the proposed development.[39] Nothing really turns on this. Other arguments about unreasonableness or impracticability, such as the need to have meals readily available for workers and difficulties in requiring workers to share a dwelling, do not appear to be a necessary consequence of the accommodation of workers in Glenden, given the ability of the appellants to provide accommodation in a Works Camp regardless of the location. A perusal of the enterprise agreements referred to above reveals that the appellants retain flexibility in terms of the duration of shifts.[40] As was conceded by Mr Thompson KC at the further hearing of the appeal, there is no express requirement in either of the enterprise agreements that the workers must live at the mine.[41]
- [26]In the second affidavit Mr Leary exhibits an open letter from the solicitors for the appellants to the solicitors for the respondent dated 2 March 2023.[42] The position of the appellants now is that they will limit the proposed development to accommodation for 450 workers in circumstances where a number of workers will not be required to work consecutive 12.5 hour shifts.[43] To enable workers to be accommodated in Glenden, the appellants are prepared to either acquire industrial land at Glenden from the respondent, negotiate to acquire a vacant camp facility in Glenden from Glencore, or construct a Works Camp to accommodate 200 people on land the appellants currently own in Glenden.
- [27]Finally, in the first affidavit Mr Leary also deposes to telephone conversations he had with two adjoining land owners to Glenden and that they said they had no interest in selling or leasing land for the establishment of a Works Camp on their properties.[44] No details of such conversations were placed before the Court, nor was any evidence of any offer or attempt to negotiate the purchase or lease of a prospective site in a realistic commercial way.
- [28]Further evidence adduced by the respondent was in the form of an affidavit filed on 18 April 2023 of Ms Uren, an officer of the respondent, deposing to changes in Glenden since the hearing of the appeal. The essential information the subject of this affidavit was reduced to an agreed statement of facts which is Exhibit 2 before me. The material changes since the hearing of the appeal are that the Glenden Police Station is now only open from 9.00am to 5.00pm on a Wednesday, that the medical centre is in the process of closing and that the massage therapist has now closed.
Discussion
- [29]The appellants argue that while the issue for determination at the remitted hearing is a relevant matter, the requisite assessment must also be carried out against two assessment benchmarks in the Nebo Planning Scheme. The first of these is desired environmental outcome 2.2.3(16) which states:
- “The urban localities accommodate a range of uses, new coal mining workers camps, associated services and residential types and lot sizes to reflect community needs. Isolated workers camps, that is (sic) not within or adjoining the urban localities of Coppabella, are not envisaged within the Shire unless located adjacent to mines in locations not able to be conveniently serviced by accommodation within an urban locality or within Coppabella.”[45]
- [30]The other assessment benchmark is overall outcome 4.2.3.2(i) in the Rural Locality Code which states:
- “Residential uses, only where they cannot be practically located in an Urban Locality, are located, designed and operated so as not to adversely affect or restrict the operation of rural uses and associated buildings, structures and/or infrastructure. In such cases, there (sic) location should desirably be adjacent to an Urban Locality…”[46]
- [31]It is uncontentious that Glenden is an Urban Locality.[47] The appellants argue that the non-residential workers referred to in the first affidavit of Mr Leary are not able to be conveniently serviced by accommodation within Glenden pursuant to the first of the assessment benchmarks quoted above and further, they cannot practically be located in Glenden or adjacent to Glenden pursuant to the second of the assessment benchmarks quoted above.[48] This is essentially because Mr Leary submits workers on 12.5 hour shifts would be effectively subject to a 14-hour day if accommodated in Glenden when commuting times are taken into account.[49]
- [32]At the hearing of the appeal, the appellants sought an approval of part of the development application, limiting accommodation at the proposed development to 450 persons. Ultimately a layout was tendered demonstrating the configuration that was being sought in this regard.[50] This outcome was sought in the exercise of the Court’s discretion pursuant to s 60(3) of the PA applying the principles enunciated in SLS Property Group Pty Ltd v Townsville City Council.[51] I am not attracted to this course for the reasons which follow.
- [33]I have already found that the proposed development is inconsistent with the relevant assessment benchmarks in the Regional Plan, the Nebo Planning Scheme and the Isaac Planning Scheme. I have already found that the consequences of approving the proposed development would be detrimental to the ongoing utilisation of significant social and administrative infrastructure which is already located in Glenden and not an appropriate planning outcome.[52] It is evident from the further evidence of Mr Leary that there are significant opportunities to accommodate workers from the mine, regardless of the length of their shifts, at up to three nominated sites within Glenden.[53] Judgment in the appeal was initially handed down on 1 November 2021 and no meaningful steps have been taken to develop any of the three options as a Works Camp, or as other accommodation, in the meantime. Furthermore, no evidence has emerged of any serious proposal to acquire any right to develop a Works Camp adjacent to Glenden. The telephone conversations Mr Leary deposes to with adjacent land owners fall well short of attempts to secure a site through a course of negotiation and commercial offers. Furthermore, as Mr Thompson KC conceded in the course of the hearing, there is no guarantee that an approval in part of the proposed development, as now sought by the appellants, will result in workers actually being accommodated in Glenden.[54]
- [34]In circumstances where the appellant operates and intends to operate the mine utilising the current rostering arrangement, I am of the view that it is still reasonable to expect the appellants to accommodate non-residential workers in or adjacent to Glenden. I make this finding cognisant of my previous finding about the utilisation of infrastructure in Glenden by workers living in Works Camps. I make this finding even if a 14-hour absence from accommodation will now be required for a worker working a 12.5 hour shift at the mine, should the worker be accommodated in Glenden. I am not persuaded that the relatively short bus trip to and from a Works Camp or other accommodation facility in or adjacent to Glenden creates an unreasonable impost from a fatigue management perspective or otherwise. It follows that I find that the mine can be conveniently serviced by, and non-residential workers there can be practically located in, accommodation either within Glenden or adjacent to it. All of the facilities available to workers in the proposed development can be provided by the appellants in or adjacent to Glenden, in addition to the facilities otherwise available in Glenden, in conformity with the identified assessment benchmarks, including s 2.2.3(16) and s 4.2.3.2(i) of the Nebo Planning Scheme.
Conclusion
- [35]The development application should be refused, even taking into account the way the mine was and would be operated. On the evidence before me, it is still reasonable, particularly when regard is had to the relevant assessment benchmarks and the implications for Glenden, to expect the appellants to accommodate their non-residential workers in or adjacent to Glenden.
- [36]I therefore dismiss the appeal.
Footnotes
[1] QCoal Pty Ltd & Anor v Isaac Regional Council [2021] QPEC 60 at [1] – [2].
[2] Ibid, [3] – [4].
[3] Ibid, [4].
[4] Ibid, [6].
[5] Ibid, [5].
[6] Ibid, [6] and Ex. 2.
[7] Ibid, [7].
[8] Planning and Environment Court Act 2016 (Qld), s 43.
[9] Ibid, s 45(1)(a).
[10] Planning Act 2016 (Qld), s 45(5)(a)(i).
[11] Ibid, s 45(7).
[12] Ibid, s 45(8)(a).
[13] Ibid, s 45(5)(b).
[14] [2020] QCA 257.
[15] [2020] QCA 273.
[16] [2020] QCA 253.
[17] [2014] QCA 147.
[18] Ibid at [52].
[19] Ibid at [56].
[20] Planning and Environment Court Act 2016 (Qld), s 63.
[21] [2022] QCA 237.
[22] QCoal Pty Ltd & Anor v Isaac Regional Council [2021] QPEC 60 at [27] and Ex. 23.
[23] QCoal Pty Ltd & Anor v Isaac Regional Council [2021] QPEC 60 at [28].
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Ibid, [29].
[28] Ibid, [31].
[29] Ibid, [32].
[30] Ibid, [38].
[31] Ibid, [39].
[32] Ibid, [40].
[33] Ibid, [42].
[34] Ibid, [43].
[35] Ibid, [44].
[36] Para 21.
[37] Para 17.
[38] Para 28(a).
[39] Paras 26 – 27.
[40] Ibid, p 68, Clause 28 and p 99, Clause 3.1.
[41] T1-28, ll 5 – 15.
[42] Ex. A1.
[43] Para 10.
[44] Paras 5 – 10.
[45] Ex 4, p 15.
[46] Ibid, p 27.
[47] Ibid, pp 21 and 120.
[48] Appellants’ Written Outline of Submissions on rehearing, para 8.
[49] First Affidavit of Mr Leary, paras 21 – 28.
[50] Ex. 3.
[51] [2011] 2 Qd R 166.
[52] QCoal Pty Ltd & Anor v Isaac Regional Council [2021] QPEC 60 at [45].
[53] Second Affidavit of Mr Leary, Ex. A1, p 1.
[54] T1-24, ll 39 – 46, T1-25, ll 1 – 5, T1-35, ll 1 – 12.