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  4. Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [No 3] - [2024] QPEC 52

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Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [No 3][2024] QPEC 52

Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [No 3][2024] QPEC 52

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors (No. 3) [2024] QPEC 52

PARTIES:

PARKLANDS BLUE METAL PTY LTD

(appellant)

v

SUNSHINE COAST REGIONAL COUNCIL

(respondent)

THE CHIEF EXECUTIVE ADMINISTERING THE TRANSPORT INFRASTRUCTURE ACT

(first co-respondent by election)

CHIEF EXECUTIVE OF THE DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION, AND CHIEF EXECUTIVE OF THE DEPARTMENT OF NATURAL RESOURCES AND MINES (FORMERLY CHIEF EXECUTIVE OF THE DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT)

(second co-respondent by election)

YANDINA CREEK PROGRESS ASSOCIATION

(third co-respondent by election)

FILE NO/S:

247/2011

DIVISION:

Planning and Environment

PROCEEDING:

Determination of conditions

DELIVERED ON:

17 December 2024

DELIVERED AT:

Maroochydore

HEARING DATE:

2 September 2024, 3 September 2024, 4 September 2024, 6 September 2024

JUDGE:

Cash DCJ

ORDERS:

  1. 1.Judge Cash is to complete the hearing of and decide the proceeding.
  2. 2.The respondent Council is to prepare a conditions package consistent with these reasons for the purpose of making final orders.
  3. 3.If necessary, I will hear the parties about any further orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – CONDITIONS OF APPROVAL – where the appellant applied to the Council for permission to operate a hard rock quarry – where the operation of the quarry will involve heavy trucks transporting rock along a flood-prone haulage route that presently carries almost no heavy trucks – where the respondent Council’s refusal of the application was successfully appealed and the proceeding was adjourned for the formulation of conditions – where a number of conditions relating to the development approval remain in dispute, including the extent to which the appellant quarry operator should bear responsibility for, or contribute to, maintenance of the haulage route – where the appellant proposes that they should pay the Council a contribution or ‘levy’ for the costs of Council maintaining the haulage route – whether, and to what extent, the appellant should bear responsibility for the maintenance of the haulage route – whether the Council’s proposed maintenance conditions can be lawfully imposed – whether conditions are relevant, and not an unreasonable imposition on, the development – whether the Council should be responsible for ‘routine maintenance’ – whether the levy proposed by the appellant can be lawfully imposed

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 14A(1)

Integrated Planning Act 1997 (Qld), s 3.5.30, s 3.5.32, s 4.1.15, s 5.1.2, s 5.1.4, ch 5, pt 1

Local Government Act 2009 (Qld), s 60, s 265

Planning and Environment Court Act 2016 (Qld), s 38

Sustainable Planning Act 2009 (Qld), s 450

CASES:

Brodie v Singleton Shire Council (2001) 206 CLR 512

Glass House Mountains Advancement Network Inc v Caloundra City Council and Excel Quarries [1997] QPELR 438

Glenvale Properties Pty Ltd v Toowoomba City Council & Ors [2008] QPELR 609; QPEC 20

Intrapac Parkridge Pty Ltd v Logan City Council [2015] QPELR 49; [2014] QPEC 48

McNab Developments Pty Ltd v Toowoomba City Council & Ors [2009] QPELR 361; [2008] QPEC 118

Sincere International Group Pty Ltd v Council of the City of Gold Coast [2019] QPELR 247; [2018] QPEC 53

Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [2014] QPELR 479; QPEC 24

Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [2017] QPELR 809; QPEC 35

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R v A2 (2019) 269 CLR 507

SZTAL v Minister for Immigration (2017) 262 CLR 362

Waverley Road Developments Pty Ltd v Gold Coast City Council [2011] QPELR 649; QPEC 59

COUNSEL:

D R Gore KC with J D Houston for the appellant

C L Hughes KC with A N S Skoien for the respondent

No appearance for the first and second co-respondents by election

L G Formosa (solicitor) for the third co-respondent by election

SOLICITORS:

P&E Law for the appellant

Sunshine Coast Council Legal Services for the respondent

No appearance for the first and second co-respondents by election

Andrew Morris Legal for the third co-respondent by election

  1. [1]
    More than a decade ago, Parklands Blue Metal Pty Ltd applied to the Council for permission to operate a hard rock quarry at Yandina. The operation of the quarry will involve heavy trucks transporting rock along a flood-prone haulage route, a route that presently carries almost no heavy trucks. The Council refused the application in 2011, but Parklands succeeded in an appeal to the P&E Court.[1] In May 2014, Judge Robertson ordered that the appeal be allowed and adjourned the proceeding to formulate conditions. Some conditions were agreed between the parties. Others were determined by Judge Robertson at a hearing in 2017.[2] But some conditions remain in dispute. Primarily, the disputed conditions concern the extent to which Parklands should bear responsibility for, or contribute to, maintenance of the haulage route.
  2. [2]
    The Council contends that the quarry operator should be responsible for a detailed maintenance regime which would require them to proactively investigate and respond to pavement defects, at the quarry operator’s expense, for the life of the quarry.
  3. [3]
    Parklands proposes that the quarry operator should pay the Council a contribution for the costs of Council maintaining the haulage route. They propose a levy per tonne of material extracted from the quarry, calculated in accordance with a report provided in early 2018.
  4. [4]
    The Council’s proposal should be accepted, and conditions should be imposed on the development approval which will require the quarry operator to maintain the haulage route for the life of the quarry.

What are the issues to be decided?

  1. [5]
    The dispute between Parklands and the Council distils to two questions. First, can a levy of the kind proposed by Parklands be lawfully imposed? Secondly, what should be Parklands’ responsibility for the maintenance of the haulage route?
  2. [6]
    The answer to the first question requires a consideration of long repealed planning legislation. Its determination affects how the second question can be answered. The first question also raises an issue about whether the maintenance regime proposed by the Council can be lawfully imposed as a condition of the development approval.
  3. [7]
    The submissions of the parties also suggest three sub-issues are raised concerning the second question:
  1. a.
    Is Parklands prevented, by estoppel or otherwise, from arguing that a levy is the appropriate mechanism?
  2. b.
    If a levy could be lawfully imposed, should it be?
  3. b.
    Is the Council prevented, by estoppel or otherwise, from arguing that it should not be responsible for ‘routine maintenance’ of the haulage route?
  1. [8]
    For the reasons set out below, a levy cannot be lawfully imposed as a condition on this proposed development. It follows that it is not necessary to decide the first and second of these sub-issues, though it is appropriate to make some observations about the merits of Parklands’ levy proposal. The third sub-issue is to be considered in the context of determining what should be Parklands’ responsibility for the maintenance of the haulage route and whether the Council should be responsible for ‘routine maintenance’.
  2. [9]
    There is also an issue to be resolved concerning a condition proposed by the Council which would require Parklands to obtain and consider the advice of a geotechnical expert before building the haulage route, and another about the inclusion of reference documents in the conditions.
  3. [10]
    One issue raised by the Council does not have to be decided. The Council said that Parklands was prevented, by estoppel or otherwise, from arguing that they should not bear any responsibility for the maintenance of the haulage route. But Parklands did not attempt to make such an argument.[3] The dispute between the parties concerns the extent of Parklands’ responsibility, rather than whether any responsibility should be imposed. In any event, if Parklands had attempted to argue that it should bear no responsibility for the maintenance of the haulage route, I would have rejected that argument for the reasons below. In these circumstances, the Council’s arguments about estoppel do not need to be addressed.
  4. [11]
    Before turning to these issues, it is helpful to describe the development, the proposed haulage route and some of the history of litigation that led to this hearing.

The proposed quarry

  1. [12]
    The quarry is to be operated on land at 945 and 954 North Arm-Yandina Creek Road, Yandina. The land is undeveloped, aside from a small house near the road. The decision of Judge Robertson in Parklands No. 1 in 2014, and the conditions of operation which are not in dispute, mean that Parklands may extract no more than 500,000 tonnes from the site each year. To address noise and other amenity concerns, there are limits on blasting, drilling, and the crushing and screening activity that can take place on the site. Extraction and processing operations are limited to the hours of 7.00 am to 5.00 pm each weekday and 7.00 am to noon on Saturdays.
  2. [13]
    The estimated reserves of hard rock on the land mean that the quarry is expected to operate for about 40 years.

The proposed haulage route

  1. [14]
    A necessary part of these activities is the transportation of crushed rock product from the quarry to other sites. Under conditions which are not in dispute, this will be by articulated trucks or rigid trucks with a dog trailer. No truck is to exceed 19 metres in length or have a maximum load exceeding 50 tonnes. The trips along the haulage route are limited to an average of 112 trips per day (calculated on an annual basis) of which half can be loaded with quarry product. This limit may be temporarily increased by the Council in response to a specific quarry project.
  2. [15]
    The part of the planned haulage route relevant to the present dispute runs west from the intersection of Toolborough Road and Yandina-Coolum Road.[4] At the intersection of Toolborough Road and North Arm-Yandina Creek Road the route turns north, continuing to the quarry site. The total length of the haulage route is a little less than five kilometres. At the moment, much of it is unsealed. It carries very little traffic. Traffic counts on Toolborough Road in 2016 suggested an average of around 450 vehicles per day. Nearly 90% of these were light vehicles. About 1% were heavy trucks (class 7 to 12). North Arm-Yandina Creek Road to the north of the Toolborough Road intersection is even quieter. In June 2016, an average of just 110 vehicles per day were recorded. 85% were light vehicles and only 0.1% were heavy trucks (this equates to about three heavy trucks in a month). No party presented evidence to suggest the traffic levels have changed significantly since 2016.
  3. [16]
    The section of the haulage route either side of the intersection of North Arm-Yandina Creek Road and Toolborough Road is low and flat. It is subject to frequent flooding from nearby Yandina Creek. About 1,300 metres of this part of the haulage route would be inundated in a 100-year flood event. About 1,150 metres of this part is also subject to inundation in a two-year event. Historical data shows that in the 20-year period from 1996 to 2016, the road was flooded about 55 times for a total duration of 83 days.
  4. [17]
    Disputes about how the road is to be constructed have largely been resolved. Parklands will cause the haulage route to be constructed at no cost to the Council. This is consistent with the observation of Judge Robertson in 2017 that:

The reality is that the major user and beneficiary of this part of the haul route for the life of the quarry will be Parklands. It is not unreasonable therefore for it to bear the whole cost of constructing the haul route.[5]

  1. [18]
    Parklands have agreed to construct the section of the haulage route affected by flooding out of concrete.[6] The balance of the haulage route will have flexible pavement. The minimum design life for the concrete section is 50 years. It is 20 years for the rest of the route.

Some litigation history and a preliminary point

  1. [19]
    This litigation has a long history. It was in May 2014 when Judge Robertson allowed the appeal by Parklands against the Council’s refusal of its development application and the proceeding was adjourned to permit the parties to consider conditions. It was another three years before the hearing about conditions. Judge Robertson’s order of 22 June 2017 was that ‘[c]onditions be imposed in accordance with Ex 2 (as amended 20.4.17) and these reasons’. Exhibit 2 set out some conditions that were not disputed and some which were.
  2. [20]
    The effect of Judge Robertson’s order was to invite the parties to formulate conditions which were to resolve the remaining disputes between them in a way that was consistent with his Honour’s reasons. In the years since, there has not been agreement about a set of conditions satisfying these requirements. This part of the litigation before Judge Robertson has not been finally determined.
  3. [21]
    Judge Robertson retired in May 2018. As a result, he cannot continue with the proceeding. In these circumstances the parties agreed that it was appropriate that I complete the hearing of the proceeding and decide the remaining matters in dispute. There will be an order to that effect.[7]
  4. [22]
    The first and second co-respondents by election have not participated in the proceeding since the 2017 decision of Judge Robertson. The third co-respondent by election had maintained an interest, in the nature of a watching brief, but they were formally excused from further participation in the hearing on 3 September 2024.
  5. [23]
    I note that in 2017 Judge Robertson expressed some views about appropriate maintenance conditions.[8] His Honour thought that a levy, as proposed by Parklands, would not be appropriate and preferred maintenance conditions that were broadly similar to those now proposed by the Council. The views expressed by Judge Robertson in 2017 do not assist in the present dispute. The proposal considered by Judge Robertson was different to what is now proposed. In 2017, Parklands intended to construct the entire haulage route at grade with flexible pavement. The present proposal is that the flood-affected part of the route will use concrete pavement. This is a sufficient reason to put to one side the views of Judge Robertson in 2017.

Why should Parklands bear some responsibility for the maintenance of the haulage route?

  1. [24]
    While it was not seriously argued for Parklands that they should bear no responsibility for the maintenance of the haulage route, it is helpful to briefly address the issue. The reasons why Parklands should have some responsibility assist in determining what maintenance conditions are relevant to, and not an unreasonable imposition on, the development.
  2. [25]
    Parklands’ acceptance that it must have some responsibility is an acknowledgement there are some unusual features to the haulage route and its intended use. In summary, they are:
  1. a.
    Presently, the route carries almost no heavy trucks. When the quarry is operating, practically all the heavy trucks using the haulage route will be quarry trucks.
  2. b.
    A substantial part of the haulage route is subject to regular inundation.
  3. c.
    Until the construction begins, and the existing subgrade is exposed, there is uncertainty about the geotechnical challenges which may be involved. As the geotechnical experts observed in 2021, ‘the difficulties in constructing this road pavement should not be underestimated’.
  1. [26]
    It is notorious that heavy trucks are more likely than light vehicles to cause damage to roads. The use of the haulage route as part of quarry operations will create a need for maintenance which would not otherwise exist. The prospect of damage to the haulage route, and the challenges involved in its maintenance, are likely to be exacerbated by flooding. Added to this is the uncertainty of what lies beneath the surface, and how that might affect the performance of the pavement, especially when it is inundated.
  2. [27]
    These matters compel the conclusion that a condition imposing a responsibility for maintenance on Parklands is one that is relevant to the proposed development. Whether such a condition is not an unreasonable imposition on the development depends on the detail of the responsibility and the terms of any condition. In turn, that depends on an analysis of what is proposed by each of Parklands and the Council. Before turning to this issue, it is necessary to consider the Council’s argument that a levy, as proposed by Parklands, cannot lawfully be imposed.

Can a levy be lawfully imposed?

  1. [28]
    As Parklands submits, there is an established history of levies being imposed on the operation of quarries to pay for infrastructure. But whatever the merits of such an approach in a particular case, a condition requiring the payment of a levy can only be imposed in accordance with the relevant statutory provisions.
  2. [29]
    In this proceeding, the parties agreed that the relevant statutory provisions are those found in the now repealed Integrated Planning Act 1997 (Qld) (‘IPA’). Neither Parklands nor the Council identified any other legislation which might provide the basis for a levy condition of the kind proposed by Parklands. The criteria for the imposition of a condition under the IPA were found in section 3.5.30, which is set out below.
  1. 3.5.30
    Conditions must be relevant and reasonable
  1. A condition must—
  1. be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
  1. be reasonably required in respect of the development or use of premises as a consequence of the development.

…

  1. [30]
    The IPA also contained further restrictions on conditions that could be imposed on a development approval, the relevant parts of which follow.
  1. 3.5.32
    Conditions that can not be imposed
  1. A condition must not—

…

  1. for infrastructure to which chapter 5, part 1 applies, require (other than under chapter 5, part 1)—
  1. a monetary payment for the establishment, operating and maintenance costs of the infrastructure; or
  1. works to be carried out for the infrastructure; or

…

  1. [31]
    Section 3.5.32 contained exemptions for conditions requiring a monetary payment to maintain State owned or State controlled transport infrastructure or railways. Those exemptions are not presently relevant.
  2. [32]
    Chapter 5, Part 1 was concerned with infrastructure planning and funding. Its purpose was to—
  1. seek to integrate land use and infrastructure plans; and
  1. establish an infrastructure planning benchmark as a basis for an infrastructure funding framework; and
  1. establish an infrastructure funding framework that is equitable and accountable; and
  1. integrate State infrastructure providers into the framework.
  1. [33]
    Section 5.1.2 set out what conditions may be imposed in relation to non-trunk infrastructure. It provided—
  1. 5.1.2
    Conditions local governments may impose for non-trunk infrastructure
  1. If a local government imposes a condition about non-trunk infrastructure, the condition may only be for supplying infrastructure for 1 or more of the following—
  1. networks internal to the premises;
  1. connecting the premises to external infrastructure networks;
  1. protecting or maintaining the safety or efficiency of the infrastructure network of which the non-trunk infrastructure is a component.
  1. The condition must state—
  1. the infrastructure to be supplied; and
  1. when the infrastructure must be supplied.
  1. [34]
    If there is a power to lawfully impose a levy as a condition on Parklands’ quarry development, it is to be found in the provisions set out above. They are to be construed in a manner that it is ‘consistent with the language and purpose of all the provisions of the statute’ and the context of the provision that is being construed.[9] Context should be considered at the first stage and in its widest sense.[10] Regard must also be had to the apparent purpose of the legislation.[11]
  2. [35]
    Chapter 5, Part 1 of the IPA applied to non-trunk infrastructure. It was common ground that the part of the haulage route relevant to this proceeding was not ‘trunk infrastructure’ for the purposes of the IPA. It is therefore ‘non-trunk infrastructure’. A levy of the sort proposed by Parklands would amount to a ‘monetary payment for the … maintenance costs of the infrastructure’. By section 3.5.2(1)(b), such a levy may not be imposed other than in accordance with Chapter 5, Part 1. The only provision of Chapter 5, Part 1 relevant to this proceeding is section 5.1.2.
  3. [36]
    Section 5.1.2 permitted a condition in relation to non-trunk infrastructure only where it was for ‘supplying infrastructure’ for one or more of the purposes identified in the section. Parklands argues that ‘supplying’ is to be given a broad meaning and would include contributing money to defray the cost to the Council (or other responsible entity) of providing the infrastructure. The Council contends that the provision should be given its ordinary meaning, and that to be valid the condition must be concerned directly with the provision of infrastructure.
  4. [37]
    In my view, the Council’s submission must be accepted.
  5. [38]
    The text of section 5.1.2 is unambiguous. If a local government wished to impose a condition about non-trunk infrastructure pursuant to these provisions of the IPA, that condition could only be for supplying infrastructure for one or more of the identified purposes. ‘Infrastructure’ was defined in the IPA as including ‘land, facilities, services and works used for supporting activity and meeting environmental needs’. This definition indicates that ‘supplying infrastructure’ meant to supply land, facilities, services or works of this kind. That is, section 5.1.2 envisaged an arrangement for the provision of the infrastructure itself, rather than a payment to defray the costs of the infrastructure. While the definition was inclusive, rather than exhaustive, the text does not support a conclusion that ‘supplying infrastructure’ can be sensibly read as paying a levy to defray the costs of infrastructure.
  6. [39]
    Further support for this conclusion can be found in the remaining divisions of Chapter 5, Part 1. Division 3 dealt with trunk infrastructure. By section 5.1.4, a local government was expressly given a limited power to levy a charge for supplying trunk infrastructure. Divisions 4 and 5 dealt with the methods by which such charges might be levied. Subsequent divisions in Part 1 dealt with trunk infrastructure funding, charges and costs. There is a distinct difference between the treatment of trunk and non-trunk infrastructure in Chapter 5, Part 1 of the IPA. Division 2 was the only division dealing with non-trunk infrastructure. It contained one section and spoke only of a condition ‘for supplying infrastructure’. In contrast, the remaining divisions concerned trunk infrastructure and were the only parts of the Chapter which expressly conferred a power on a local government to charge and collect money to pay for such infrastructure.
  7. [40]
    The structure of Chapter 5, Part 1, and the context in which section 5.1.2 was found in the IPA, suggests that the absence of an express power to require a monetary contribution for non-trunk infrastructure was no accident. Such a power might easily have been included, as it was for trunk infrastructure. The fact that it was not provides support for the conclusion that section 5.1.2 did not contemplate a condition for a monetary payment for the construction or maintenance of non-trunk infrastructure. As a condition of this kind is not contemplated by section 5.1.2, it would be a prohibited condition pursuant to section 3.5.32(1)(b) of the IPA.
  8. [41]
    Parklands argued that support for a broader view of section 5.1.2 could be found in the observations of Robin QC DCJ in McNab Developments Pty Ltd v Toowoomba City Council & Ors.[12] That case concerned multiple appeals against decisions, or deemed decisions, of the Toowoomba City Council about competing shopping centre developments.[13] Judge Robin decided that one proposal, that of McNab Developments, should be approved, subject to conditions. The decision in McNab related in part to a dispute about the upgrade and signalisation of an intersection as part of the development. There was some agreement to the effect that a condition might be imposed requiring a contribution to the costs of the upgrade. The unsuccessful developer, who was still involved in the proceeding as a submitter, argued that such a condition was not permitted by the IPA. Judge Robin preferred the submission of the Council that ‘a condition requiring contribution … can properly be characterised as a condition for “supplying infrastructure” within s. 5.1.2(1) …’ His Honour thought that it would be an inappropriately narrow construction of the provisions to limit a condition to the provision of the whole infrastructure in specie.
  9. [42]
    His Honour continued,

Common sense and common experience indicate that there will be many cases where from any point of view a developer’s obligation ought to be limited to some portion of work necessitated by the development and where … it is not feasible to identify or separate out specific works from a greater whole to be done.

  1. [43]
    It may be seen that Judge Robin’s approach in McNab was informed by the facts of that case and the difficulties which his Honour imagined would arise in a case where it was not possible to separate out specific infrastructure works to be undertaken. The approach taken in McNab may have practicality to commend it, but with respect to Judge Robin, I do not think that it can stand when faced with the ordinary principles of statutory construction. The provisions of the IPA set out above cannot be read as providing a power for a local government to impose a monetary contribution for non-trunk infrastructure merely because such a result would be convenient.
  2. [44]
    Other cases cited by Parklands in their written submissions are of no assistance in deciding the present dispute. The conclusion of a different judge on different facts and often under different statutory regimes says nothing about what conditions should be imposed on this development.
  3. [45]
    For example, to support a submission that ‘the imposition of a levy on a quarry operator for the maintenance of roads affected by quarry trucks is a lawful and reasonable use of a general conditions power,’ Parklands cited (among other cases) Glass House Mountains Advancement Network Inc v Caloundra City Council and Excel Quarries [1997] QPELR 438. This was a decision of Judge Quirk concerning the expansion of a quarry at Glasshouse Mountains. The submitter appellant challenged the approval on grounds which included a concern about quarry traffic on Coonowrin Road. Judge Quirk dismissed the appeal, observing that the proposal did not involve any increase in the heavy traffic on Coonowrin Road. It is also to be noted that the conditions requiring a contribution by the quarry operator were agreed with the Council and not in dispute at the hearing of the appeal. The case did not involve any determination of whether a levy was a lawful, or reasonable and appropriate, condition. The facts of the case were very different, and the result does not help to resolve whether a levy can lawfully be imposed as a condition on Parklands’ development approval pursuant to the terms of the IPA.
  4. [46]
    For these reasons, a levy of the kind proposed by Parklands cannot lawfully be imposed as a condition of the development approval.

Can the Council’s proposed maintenance conditions be lawfully imposed?

  1. [47]
    Parklands advanced a submission to the effect that if the IPA did not permit a levy condition, it did not permit the maintenance conditions proposed by the Council either. That submission should be rejected.
  2. [48]
    The effect of section 3.5.32 is that a condition may not be imposed which requires works to be carried out for the infrastructure, other than as permitted by Chapter 5, Part 1 of the IPA. The maintenance proposal of the Council would amount to works being carried out in relation to the non-trunk infrastructure. To be permitted, they must be consistent with section 5.1.2. Section 5.1.2 allowed ‘a condition about non-trunk infrastructure … for supplying infrastructure for … protecting or maintaining the safety or efficiency of the infrastructure network of which the non-trunk infrastructure is a component’. The works involved in the maintenance of the haulage route would be infrastructure for maintaining the safety and efficiency of the network. Unlike a monetary payment, maintenance works were specifically contemplated by section 5.1.2.[14]
  3. [49]
    The conditions proposed by the Council can lawfully be imposed on the development approval.

What should be Parklands’ responsibility for the maintenance of the haulage route?

  1. [50]
    The most important issue to be decided is the nature and extent of Parklands’ responsibility for maintaining the haulage route. Its determination rests on a consideration of the power to impose conditions in the IPA and the legal principles to be applied when exercising the power.
  2. [51]
    Section 3.5.30 of the IPA required a condition imposed upon a development to be relevant to, and not an unreasonable imposition on, the development. The legal principles to be kept in mind when applying this provision were summarised by Andrews SC DCJ in Waverley Road Developments Pty Ltd v Gold Coast City Council [2011] QPELR 649; QPEC 59. I agree with his Honour’s summary of the principles, and the parts of it relevant to this dispute are set out below (citations omitted).[15]
  1. the power to impose conditions on the approval of an application is expressed in general terms;
  1. the power to impose conditions is subject to the statutory tests for the lawfulness of conditions;
  1. whether conditions are reasonably required involves a consideration of the proposal and what changes may result from its completion;
  1. the condition must be a reasonable response to the change in the existing state of things;
  1. a condition which is not “required” in respect of a proposed development may nevertheless be relevant on the basis that it is imposed to maintain proper standards in local development or in some other legitimate sense, such as where it is reasonably imposed in the interests of rational development of the area;
  1. the mere fact that a condition is relevant to the proposed development will not necessarily be sufficient to justify its imposition;
  1. even if a condition is relevant, it must not be an unreasonable imposition on, the development or use of premises as a consequence of the development;
  1. the requirement that a relevant condition not be an “unreasonable imposition” focuses attention on the development or potential use of the subject land as a consequence of the development and the reasonableness of the proposed condition in light of the development or the potential use;
  1. there remains a relatively broad discretion in relation to the (lawful) conditions which may properly be imposed upon an approval;
  1. in exercising the discretion:

regard must be had to all relevant considerations, including relevant provisions of the planning documents, and improper considerations must be disregarded; and the result must not offend against common sense and the conditions must fairly and reasonably relate to the permitted development or the planning considerations affecting the subject land – it must be fair and reasonable in the circumstances of the particular case;

…

  1. [52]
    It has also been said that the power to impose conditions is subject to a ‘broad residual discretion’ which must be ‘exercised for a proper planning purpose’.[16] That is, there is no requirement to impose every condition which may satisfy the statutory criteria. There is a residual discretion to decline to impose a condition for reasons which would include that the condition does not serve a proper planning purpose. Whether a proposed condition is for a proper planning purpose is to be determined having regard to the governing legislation and the documents to which regard must, or may, be had in the assessment of the application.[17]
  2. [53]
    These principles inform my decision about what, if any conditions, should be imposed on the development approval. In this case the reality is that my decision about conditions is not at large. There are only two proposals to consider – Parklands’ levy or the Council’s maintenance regime – and the evidence presented by the parties is concerned only with these competing proposals.[18] There is no proper basis for me to consider imposing some other condition not proposed by the parties.
  3. [54]
    The effect of my conclusion that a levy cannot be lawfully imposed is that it is strictly not necessary to consider Parklands’ proposal. That does not mean that the Council’s proposal is to be automatically accepted, and it will be necessary to consider their proposal in light of the legislation and principles set out above. It is also appropriate to consider the merits of Parklands’ levy proposal, both in deference to the evidence and submissions of the parties and in case I am wrong about my conclusion that a levy cannot be a lawful condition.

The second sub-issue – if a levy could be imposed, should it be?

  1. [55]
    The calculation of a levy was considered by Mr McAnany and Mr Healey in their joint report of February 2018. Mr McAnany was retained by Parklands and Mr Healey by the Council. There was broad agreement in the 2018 report that an appropriate levy could be calculated, and Mr Healey acknowledged as much in his evidence at the hearing. But there were qualifications in Mr Healey’s evidence.
  2. [56]
    In his first report and his evidence at the 2017 conditions hearing before Judge Robertson, Mr Healey identified the bases of his concern that a levy would not be a suitable method to ensure the costs of maintaining the haulage route were appropriately shared between Parklands and the Council. These reservations are discussed further below. Judge Robertson delivered his reasons in the conditions hearing in June 2017. Then, in February 2018, Mr Healey collaborated with Mr McAnany to prepare the levy joint expert report. This report was prepared pursuant to consent orders made by Judge Robertson in December 2017 and February 2018, and required ‘a joint report considering maintenance levy calculations’. The orders did not invite any reconsideration of the merits of a levy.
  3. [57]
    In the joint report, Mr McAnany provided tables of maintenance costs with which to calculate a levy. Mr Healey agreed with the costs identified by Mr McAnany, subject to a reservation about the quality of the data available. Mr Healey did not further comment upon, or resile from, the concerns he expressed in his first report and evidence in 2017.
  4. [58]
    Seen in this context, Mr Healey’s evidence was not an endorsement of the idea of a levy for this development. Rather, Mr Healey conceded it was possible for one to be calculated, albeit with the reservation that some of the inputs used in the calculation were questionable.
  5. [59]
    I share Mr Healey’s concern about the appropriateness of relying on the 2018 joint expert report as the basis for calculating a levy. The problems of such reliance include the following.
  6. [60]
    First, and most significantly, the report is now nearly seven years old. It is notorious that the costs of construction in all areas have increased significantly since 2020. There was no attempt made to account for what can safely be assumed to be a greater than inflation increase in the cost of maintaining the haulage route.
  7. [61]
    Secondly, there has been no attempt to identify an appropriate method to index the 2018 calculations to arrive at figures that are valid today and which will be valid across the life of the haulage route.
  8. [62]
    Thirdly, while the levy report considered the cost of maintaining concrete pavement on the section of the road below the Q100 flood level, this was based on assumptions drawn from the Council’s maintenance costs of other ordinary roads in the local government area. This road is not an ordinary road and there is a legitimate concern that ‘usual’ maintenance costs will not be apposite. There is also the matter that the fine detail of the road design is not yet settled, and there is uncertainty about the state of the subgrade and its potential effect on the road. This adds to a concern that the assumptions underpinning the 2018 report may not be sound. It is difficult, on the evidence before me, to reach a firm conclusion. But it remains the case that there is no evidence about whether, and to what extent, there is a need to update the 2018 figures to take this into account.
  9. [63]
    Fourthly, there are at least two acknowledged errors in the assumptions made for the 2018 joint expert report. The errors concern the length of the road and the width of the pavement in some areas. Individually the errors are not significant, but they have not been addressed and add to my concern about reliance on the 2018 report.
  10. [64]
    These problems are highlighted in Parklands’ own suggestion that there were three ‘basic options’ in relation to a levy. The first option was that I direct a levy be calculated in accordance with the 2018 joint report, adjusted to take into account the two acknowledged errors in the report and ‘applying an appropriate index from 2018’. The second option was that I direct the experts prepare an updated report to take into account current construction and maintenance costs. The third option proposed by Parklands was that I direct the experts prepare an updated report following operational works approval, by which time more will be known about estimated maintenance costs based on approved construction plans.
  11. [65]
    None of these options are attractive. The second and third options would defer the finalisation of a levy condition to some later time. Given the litigious history of this proposed development, it is safe to conclude that there is ample scope for future disagreement between Mr McAnany and Mr Healey. If that were to happen there would need to be yet another hearing to settle the dispute. Such an outcome would be obviously undesirable. Even the first option would involve a deferral of a final calculation and would include the vague expression that the further report is to be written ‘applying an appropriate index from 2018’.
  12. [66]
    The purpose of litigation is to finally determine disputes between parties. The three options proposed by Parklands are not conducive to this goal.
  13. [67]
    The exact terms of the condition proposed by Parklands should also be borne in mind. Parklands proposes,

[a] condition requiring a contribution towards the maintenance of the integrity of the haulage route taking into account the design life of the road and the council’s existing responsibility to maintain the road, calculated as a levy per tonne of material extracted in accordance with the Joint Expert Report of Mr Healey and Mr McAnany dated 15 February 2018.

  1. [68]
    The difficulties identified above in relation to the 2018 report concerning updating the report and indexing the figures used in it mean that such a condition would lack certainty and have every chance of leading to further litigation. They also cause me to have little confidence that a levy could be calculated to properly reflect the actual costs to the Council for maintaining the haulage route once the quarry is operating. Even if I had concluded it was lawful to impose a levy condition, I would not have adopted Parklands’ proposal for these reasons.

Should the Council’s proposed maintenance regime be imposed?

  1. [69]
    The Council’s proposed maintenance regime is a comprehensive suite of conditions. It is detailed both in terms of what work may be necessary for maintenance and in providing the triggers for investigation and repair of the pavement. There was largely agreement among the experts that the conditions were suitable to ensure that the haulage route remained safe and in good repair.
  2. [70]
    Mr Corrigan, a civil engineer retained by the Council, endorsed the conditions, as did Dr van Wijk, the Council’s geotechnical engineer. Mr Hurley, a geotechnical engineer retained by Parklands, did not disagree with Mr Corrigan as to the general suitability of the maintenance regime and otherwise said that maintenance is the domain of civil or pavement engineers.
  3. [71]
    Mr McAnany was not so sanguine and thought that the maintenance regime proposed by the Council was more than necessary and that the ‘standard’ Council regime should apply. This opinion was premised on the view sometimes expressed by Mr McAnany that the haulage route did not represent a unique or even unusual piece of road engineering. Given the nature of the haulage route described above, this view was surprising. To be fair to Mr McAnany, at other times he at least accepted that what is proposed is ‘not common’. In contrast, the other engineers were definite in their view that the haulage route was at least unusual and represented a considerable engineering challenge because it is flood-prone and to be used by heavy trucks. Mr Hurley agreed in 2021 that ‘the difficulties in constructing this road pavement should not be underestimated’.
  4. [72]
    As to whether the proposed haulage route would be an unusual, if not unique example of such a road, I prefer the evidence of Mr Corrigan, Mr Hurley and Dr van Wijk. Even without the benefit of their expert evidence, it is obvious that a mile long road which is subject to flooding every couple of years and which is to be used to transport heavy trucks laden with rocks is very unusual. It is unsurprising that these engineers agreed that a bespoke maintenance regime was appropriate.
  5. [73]
    Putting the question of responsibility aside, there can be no doubt that the Council’s proposed maintenance conditions are relevant to the development. It is a reasonable response to the change which will be brought about by the development and the quarry’s use of the haulage route. It is a regime which is necessary to maintain the safety and proper standards of the road, and there are good planning reasons for ensuring the road is not rendered inoperable by damage caused by quarry trucks. In general terms, the conditions are appropriate.
  6. [74]
    In final written submissions, Parklands took issue with the wording of some of the Council’s proposed conditions. It will be necessary to address Parklands’ concerns about the detail of the conditions, but it is preferable to first determine whether Parklands should be responsible for the maintenance regime.

Should Parklands be responsible for the maintenance regime?

  1. [75]
    The conditions concerning the maintenance regime are relevant to the proposed development for the reasons discussed above. The real issue is whether requiring Parklands to be responsible for the maintenance regime would be an unreasonable imposition on the development. Whether or not a relevant condition is an unreasonable imposition ‘focuses attention on the … potential use of the subject land as a consequence of the development and the reasonableness of the proposed condition in light of … the potential use’.[19]
  2. [76]
    Council’s argument that Parklands, who will be the real and almost sole beneficiary of the haulage route, should be responsible for the maintenance regime is compelling. On the only evidence before me concerning traffic on the haulage route, very few heavy trucks use the road. When the quarry is operating, almost all the heavy truck traffic on the route will be quarry trucks.[20] This fact no doubt influenced the result that Parklands, rather than the Council, will upgrade the haulage route before quarry operations commence. It may also have influenced Parklands’ more recent decision to construct the flood-prone section with rigid concrete pavement.
  3. [77]
    This heavy truck traffic is more likely to damage the road than light vehicle traffic. If there is a need for maintenance or repair of the haulage route, it will almost certainly be because of the quarry trucks. This is an important fact in these proceedings. The need for this maintenance would not arise, but for the operation of the quarry and the use of this unusual haulage route. The obligation of maintenance would be for the ‘life of the development’. Once the quarry stops operating, the need for maintenance because of the quarry trucks will disappear and the operator’s obligations will be at an end. From this point the ordinary position will apply, and the Council will be responsible for maintenance of the road.
  4. [78]
    It is hard to see how it would be unreasonable to require the operator of the quarry to maintain the haulage route which is for the benefit of the quarry, necessary to its operation and which will be the main cause of the need for maintenance.
  5. [79]
    Parklands’ arguments to the contrary do not persuade me that Council’s proposal would be an unreasonable imposition on the development. Primarily, Parklands argued that the Council’s conditions were an attempt to avoid the Council’s responsibilities for local roads at common law and under statute, and would risk legal confusion and complexity.
  6. [80]
    Parklands identified various cases and statutory provisions, the effect of which is that in the ordinary course of events the Council has control of roads (which are not private roads) in its local government area and owns the material from which the road is constructed. The Local Government Act 2009 (Qld) in section 60 provides that local government control of roads extends to such entities ‘being able to … construct, maintain and improve roads’.[21] The provision is arguably facilitative, rather than mandatory. But whether or not it gives rise to an obligation on the Council to maintain the road, as Parklands suggests, does not matter. There is nothing in the provision, or the rest of the Local Government Act 2009 (Qld), which would contradict my conclusion regarding the conditions power in the IPA as discussed above. Put plainly, an ability conferred by one statute for a local government to construct, maintain or improve a road does not imply that a power in another statute to impose a condition on a development for the developer to supply works to protect or maintain infrastructure is invalid.
  7. [81]
    Section 265 of the Local Government Act 2009 (Qld) provides that the material from which a road is constructed is the property of the local government, even where the road is constructed by a developer pursuant to a condition imposed on a development approval. This provision makes it clear that a developer cannot assert property over the construction materials after building the road and avoids the complications which would arise if that were to happen. It does not mean that a local government must be solely responsible for the maintenance of the road.
  8. [82]
    Next, Parklands argued that the Council’s proposal was an ‘attempt to shift its responsibility to maintain public roads’ which would ‘cause complexities and complications’ in the event of a claim in negligence arising from some defect in the pavement. It has been many years since ‘highway authorities’ have been able to avoid liability for negligence for failing to repair a road under the so-called ‘highway rule’.[22] Other than where the position is modified by statute, the liability of a highway authority will be determined according to the ordinary principles of the tort of negligence. Parklands’ in terrorem argument is to the effect that an injured party alleging negligence would have to sue both Parklands and the Council, which would lead to complexity and confusion.
  9. [83]
    A claim against two defendants may be more complex than a claim against one, though much will depend on the nature of the claim and what is alleged. But what Parklands calls a ‘quandary’[23] is in truth anything but. The solution to Parklands’ theoretical dilemma is found in the ordinary application of the law, by which the liability of any defendant will be determined and, where appropriate, apportioned as between defendants. If a claim of this kind does arise in the future, its outcome will depend on what facts are proved by the parties. A court will then apply the law to these facts to determine liability, whether it be against Parklands, the Council or anyone else. Parklands recognise this in their submission that ‘how a Court would resolve that suit will depend upon facts and circumstances simply not presently known’. The same might be said of any theoretical suit.
  10. [84]
    For instance, the theoretical suit feared by Parklands is unlikely to be any more complex or difficult than a suit which might arise even if Parklands’ proposal was accepted. In such a case Parklands would build the road, and presumably would be responsible for the harm resulting from any negligent defect caused by its actions. The Council would maintain the road, and presumably be responsible for the harm resulting from any negligent defect caused by its actions. It is not hard to imagine a situation in which an injured party alleges that a combination of defective construction and inadequate maintenance caused them harm, and so would be required to sue both Parklands and the Council.[24] Such a proceeding is not to be desired, but it need not be feared. The law has the tools necessary to determine any such suit without special difficulty.
  11. [85]
    I do not think that Parklands’ argument in this regard provides a reasoned basis for concluding the Council’s proposal would be an unreasonable imposition on the development.
  12. [86]
    An argument raised by the Council and addressed by Parklands should be mentioned. The Council suggested, in effect, that it lacked the knowledge and expertise to maintain a rigid concrete pavement of the length and in the location proposed. Parklands challenged this suggestion. I agree with Parklands. While the Council may not have direct experience with a road of this kind, it has access to standards for concrete pavement maintenance which would inform how such a task could be undertaken. Some of these standards are cited in the Council’s own planning scheme. I do not accept that the Council is incapable of maintaining the haulage route or that this is a reason for adopting the Council’s proposal.
  13. [87]
    For these reasons, Parklands should be responsible for maintaining the haulage route for the life of the quarry.
  14. [88]
    All that remains to be determined are the details of some disputed conditions and the responsibility for ‘routine maintenance’.

The third sub-issue – Parklands’ estoppel point and should the Council be responsible for ‘routine maintenance’?

  1. [89]
    Consideration of this issue must begin with the conditions proposed by the Council and Parklands, and the identification of what exactly the parties are fighting about.
  2. [90]
    The Council’s proposed condition 38 provides that, ‘The haulage route is to be maintained free of potholes and routine pavement defects for the life of the development, at no cost to Council in accordance with the requirements of Advisory Note 12.’ The underlined portions of the condition represent relatively recent additions to the Council’s proposed condition. Advisory Note 12 forms part of the Council’s proposed conditions package. It defines what is a ‘pothole’ and describes ‘maintenance triggers’. It also lists ‘routine pavement defects’ as certain defined types of blocked or non-functioning drains or drainage swales, pavement cracks or problems with joint seals.
  3. [91]
    The Council’s proposed condition 59 would then impose on Parklands a responsibility to ‘undertake routine maintenance in accordance with Condition 38.’ The combined effect of conditions 38 and 59 would be to require Parklands to:
  • Visually inspect the haulage route for potholes or other routine maintenance issues at least every six months.
  • Address potholes within a day, five days or ten days, depending on the size of the pothole.[25]
  • Address blocked or non-functioning drains, cracks or joint seal issues within one month.
  1. [92]
    The effect of these proposed conditions is that ‘routine maintenance’ becomes a defined term, and one limited to the defects described in Advisory Note 12. No other maintenance obligation is imparted by conditions 38 and 59. There is no condition which would require Parklands to carry out maintenance involving ‘non-surface’ activities. Mr Healey considered these to be things like ‘slashing, sign replacement and broader verge management’. In written submissions, the Council made clear that they would remain responsible for–

all the maintenance of a local government road unrelated to the performance of the upgraded road pavement required to facilitate the proposed quarry, for traffic safety and amenity reasons.

  1. [93]
    Parklands resists the underlined part of condition 38 set out above and all of condition 59. Their complaint about the Council’s present position seems to be that it is only recently that the Council expanded the proposed condition to cover ‘routine pavement defects’ as well as potholes.
  2. [94]
    Parklands says this change of position should not be permitted, because it is inconsistent with the decision of Judge Robertson in 2017. I do not accept that submission. Judge Robertson did not adjudicate on this issue. His Honour recorded regarding the position of the Council that ‘it will still be required to perform routine maintenance that is not captured by the requirements of the conditions of approval.’ But beyond expressing the conclusion that conditions should be imposed in accordance with the package then before the court, Judge Robertson did not descend into the detail of what was ‘routine maintenance’. As such, I do not think either estoppel or res judicata are relevant.
  3. [95]
    Conditions 38 and 59 as now proposed by the Council are different to their early proposals. They would expand the maintenance obligation beyond potholes to include the defects defined as ‘routine pavement defects’. This change is neither remarkable nor prejudicial to Parklands, in the sense that the change did not disadvantage Parklands in the hearing of this matter. In my view the Council was entitled to amend or alter its proposed conditions in this way.
  4. [96]
    That leaves as the determinative issue whether conditions 38 and 59 are reasonable and relevant, as required by section 3.5.30 of the IPA.
  5. [97]
    This sort of maintenance is obviously desirable. There was agreement among the geotechnical and civil engineers that potholes can quickly develop into more serious pavement and subsurface defects. Timely repair is important if the haulage road is going to be maintained in good condition. The conditions are in my view relevant to the proposed development, and for the same reasons expressed above, it is not an unreasonable imposition to require Parklands to carry out this maintenance.
  6. [98]
    The only potential for difficulty with these conditions would be if Parklands were required to secure approval for operational works each time they were to carry out this routine maintenance. This should be avoided. Otherwise, the Council’s proposed conditions 38 and 59 (with Advisory Note 12) should be imposed.

The remaining disputed conditions

  1. [99]
    There remains some dispute about the wording of a few conditions.
  2. [100]
    Condition 60 is the first of a series of conditions proposed by the Council which would impose a program for the resurfacing, rehabilitation, or reconstruction of the pavement. It is concerned with metrics for determining if intervention is required, which are called ‘investigation triggers’. Parklands’ objection to the condition begins with its structure.[26]
  3. [101]
    Condition 60 starts with two sub-clauses, (a) and (b). These guide the application of the condition. Sub-clause 60(a) would require the quarry operator to investigate the condition of the pavement in accordance with a program for ‘pavement monitoring’, which is found in sub-clauses 60(c) to (h). The investigation must be done with the advice of a registered engineer with relevant experience who is required to report in accordance with condition 61. The results of the pavement monitoring investigation are then to be assessed against the criteria listed as ‘investigation triggers’ for either the flexible or rigid pavement, which will determine what further steps are to be taken. The purpose of sub-clause 60(b) seems to be to make sure any investigation by the registered engineer occurs within two months of the quarry operator becoming aware that one of the investigation trigger criteria has been met. The investigation triggers are found inserted between sub-clauses 60(b) and 60(c).
    1. [102]
      Condition 60 is perhaps not a model of lucid drafting. It is no doubt the product of many attempts to redraft a lengthy conditions package in this long-running matter. Some infelicities may be excused. More importantly, I think its purpose is sufficiently clear and I have set out its effect above. I do not accept Parklands’ submission that proposed condition 60 is unnecessary, nor do I think it is confusing to such a degree as to be inappropriate.
    2. [103]
      Next, Parklands submits that sub-clause 60(b) is unnecessary because of condition 61. I disagree. Condition 61 is aimed at something different. While sub-clause 60(b) is concerned with making sure any required investigation happens promptly, condition 61 is about requiring the registered engineer to report on their findings and stipulating the minimum content of the report, including having the engineer recommend timeframes for remedial work. These proposed conditions are complementary rather than repetitive.
    3. [104]
      Parklands does have a point concerning the drafting of the investigation triggers for the rigid pavement section of the haulage route. These would require the quarry operator to ‘investigate and report’ when certain criteria are met. The requirement to ‘investigate’ seems superfluous given the other conditions. But the requirement to report to the Council should remain, because this is an important means of bringing to the attention of the Council defects in the pavement. This requirement in condition 60 is not, as Parklands suggests, unnecessary because of condition 61. As I have noted, condition 61 is about the content of an engineer’s report, while the reporting requirement in condition 60 to which I have just referred is about informing the Council of pavement issues discovered by the quarry operator. Condition 62 would require a report prepared in accordance with condition 61 be provided to the Council, but I do not think this renders meaningless the reporting requirement of condition 60.
    4. [105]
      Sub-clause 60(c) begins the section about pavement monitoring. If imposed, it would require the quarry operator to install ‘weight in motion’ monitoring devices at the entry and egress point of the quarry to monitor truck movements, unless ‘suitable accurate records’ are otherwise kept by the quarry. This would be in addition to the requirement for a weighbridge and record keeping imposed by other conditions.[27] The condition is unnecessary. The rest of condition 60 is about monitoring the pavement for defects. Counting and weighing the quarry trucks, while important for other reasons, is not necessary for this purpose.
    5. [106]
      In respect of the investigation triggers set out in condition 60, it should be noted that the engineers agreed as to their suitability. Mr McAnany and Mr Corrigan agreed as to a set of triggers in the fourth civil engineering joint expert report in July 2024. There is no suggestion that the agreed investigation triggers are not faithfully reproduced in condition 60.
    6. [107]
      Condition 61 has been mentioned. Parklands is concerned about the requirement for ‘recommendations from a Geotechnical RPEQ’. The same concern is raised about condition 65. Parklands submits that such a requirement is unnecessarily prescriptive. I disagree. The only engineer who raised a concern with the inclusion of these words in conditions 61 and 65 was Mr McAnany and even then, his opinions shifted a little as he gave evidence. Ultimately, Mr McAnany’s concern seems to have come from a misunderstanding that the advice from a geotechnical engineer would be required even for routine maintenance, such as potholes. That is not the effect of the conditions. Conditions 60 to 67 are about monitoring and, where necessary, resurfacing, rehabilitating, or reconstructing the pavement. This will only be appropriate where some significant defect has been detected, in which case the advice of a geotechnical engineer would most likely be appropriate.
    7. [108]
      Having said that, Parklands’ alternative proposal is to change the condition to ‘including, if considered necessary by the inspecting engineer or pavement designer, recommendations from a Geotechnical RPEQ’. This seems to me a sensible change which strikes a good balance. It would mean that the civil engineer who reports pursuant to condition 60(a) can advise whether geotechnical advice is necessary, which would permit these conditions to operate more efficiently. In my view the words proposed by Parklands should be added to conditions 61 and 65.
    8. [109]
      Parklands’ remaining concerns about condition 61 were not the subject of detailed evidence or submissions of substance. Parklands’ position is articulated in a table attached to their final written submissions. Doing the best I can with the material I have, my views are these.
      1. [110]
        Condition 61(c) would require the investigation report to make recommendations about improving road safety and minimising noise impacts. It is not clear to me what purpose this condition serves in the context of pavement maintenance. If the Council maintains that it should be imposed, they should make their position clear to Parklands about how this condition is relevant and reasonable. In the absence of agreement about this condition it may be necessary, regrettably, to schedule a further brief hearing to decide the matter.
      2. [111]
        Condition 61(d) would require the investigation report to recommend a timeframe for the completion of works. This timeframe would then become binding pursuant to condition 66. As proposed, the condition is too rigid. The reporting engineer might underestimate the time necessary to plan, seek approval for, and carry out the work. And while the maximum time limits in condition 60(d) may be desirable, they may not work in every case. Conditions 61(d) and 66 should allow for the possibility of an extension of the timeframe beyond the initial estimate, or the maximum time limits in condition 60(d), where that extension is justified in the circumstances. One solution may be a provision which permits the Council to agree to a longer timeframe. Another may be that suggested by Mr McAnany and Mr Corrigan in the fourth civil engineering joint expert report, that the time run from the date the Council issues any necessary approval. I note that the Council are not opposed to an adjustment of this sort, and I think the conditions should be redrafted to include something of this kind.
      3. [112]
        Condition 61(e) would require the investigation report to ‘provide clear justification’ if no work is required following a maintenance investigation. Contrary to Parklands’ objections, I see no difficulty with this requirement. It is to be expected that any report will include the reasons and justifications for any recommendations. The stipulation in condition 61(e) is not onerous or inappropriate. The second part of condition 61(e) is poorly worded. Parklands’ suggestion should be adopted, and the wording be changed from ‘recommend when a further investigation must be undertaken’ to ‘recommend if a further investigation is required and, if so, when.’
      4. [113]
        Condition 65 requires that any repair, resurfacing, rehabilitation, replacement, or construction work must be designed, supervised, and certified by a registered engineer. It would also require the engineer’s certification to be provided to the Council. Parklands’ concern with condition 65 relates to the proposed addition of a requirement that the engineer must be a registered geotechnical engineering expert where the works involve the subgrade. The only witness who spoke against this addition was Mr McAnany. His concern rose no higher than his view that,

      [I]f you’ve got … any issue with the subgrade you must call a geotechnical engineer; I think that’s a bit of an overkill. It – it just needs to be worded down a little bit, but that’s a feeling – my interpretation.

      1. [114]
        Mr McAnany had agreed with conditions 61 to 67 in the fourth civil engineering joint expert report. I do not think his reservation expressed above is a sufficient basis upon which to conclude that the condition as proposed is irrelevant or an unreasonable imposition on the proposed development. At the risk of repetition, what is proposed is unusual. Requiring the advice of a geotechnical expert for subgrade work is not unreasonable for a road carrying heavy trucks and subject to regular inundation.
      2. [115]
        The final condition to consider is sub-clause 51(b). Condition 51 sets out the requirements for the upgrade of Toolborough Road. Sub-clause 51(b) requires the upgrade to have a minimum design life of 20 years for the flexible pavement section and 50 years for the rigid section. Parklands agrees with this part of the condition. The Council proposes an additional sentence, which is opposed by Parklands. The additional sentence, underlined below, would result in the following.
      1. a minimum design life of 20 years (except where concrete is to be used in which case the minimum design life is to be 50 years), based on the 36 month average annual traffic volume of the proposed development and existing traffic volumes. Meeting the minimum design life will include consideration of the scope of geotechnical testing for design as well as construction by a geotechnical expert in this field prior to works being carried out.
      1. [116]
        Parklands says the addition of this sentence creates uncertainty because the requirement is only that there be ‘consideration’ of the advice of a geotechnical engineer.
      2. [117]
        The additional words derive from observation in the second joint expert report of geotechnical engineers, in this instance Mr Hurley for Parklands and Mr Shaw for the Council. This report was completed in November 2021. It is the report in which the geotechnical engineers agreed that the difficulties in constructing the haulage route should not be underestimated. Mr Hurley and Mr Shaw set out some of the potential difficulties in constructing a subgrade sufficiently dense to support the pavements and traffic. One option discussed was to replace existing subgrade with geofabric wrapped rock. They agreed that an assessment of whether such replacement is required should be carried out by a geotechnical engineer. Mr Hurley and Mr Shaw went on to agree on an approach to subgrade assessment which would involve exposing the subgrade for inspection by a geotechnical engineer.
      3. [118]
        Subsequent geotechnical reports have not sought to resile from this position and Mr Corrigan, the Council’s civil engineer, proposed this amendment in the fifth civil engineering joint expert report. Mr McAnany was against the amendment. He said that the design life requirement is simply a basic input into road pavement design which is unrelated to foundation investigation. In the context of the present matter, I do not accept Mr McAnany’s opinion that foundation investigation is unrelated to achieving a minimum useful life from a pavement design. The geotechnical engineers make it clear that problems with the subgrade will lead to problems with the pavement. For example, if the ground underneath the concrete pavement is not uniformly stiff there is a greater risk of fatigue cracking or differential settlement. These are problems which will affect the useful life of the pavement.
      4. [119]
        The concerns raised in the second joint expert report of geotechnical engineers mean that geotechnical input must be required and considered when designing the road. The requirement for ‘consideration of the scope of geotechnical testing’ may be a little imprecise, but it is sufficient to convey the effect of the condition. I do not think it is so uncertain as to be inappropriate. The amendment to condition 51(b) proposed by the Council should be imposed, as it is relevant to, and not an unreasonable imposition on, the development.
      5. [120]
        That leaves only the dispute about which documents are to be included with the conditions as reference documents. Hardly a word was said about the topic during the hearing, presumably because this was far from the core of the dispute between the parties. And, as noted by Mr Skoien during final submissions, the relevance of some documents depends on my findings about the more important matters, such as whether Parklands should be responsible for maintaining the haulage route. Parklands acknowledged the same in their annotations to the proposed conditions.
      6. [121]
        In the result, I am in no position to determine what documents should be referenced in the conditions. It is very much to be hoped that with the benefit of these reasons, the parties can agree about this. A further hearing about such a matter should be avoided if possible.

      Summary of conclusions

      1. [122]
        Given the number of issues discussed, it is appropriate to summarise my conclusions.
      2. [123]
        A levy of the kind proposed by Parklands cannot lawfully be imposed.
      3. [124]
        A maintenance regime of the kind proposed by the Council can be lawfully imposed.
      4. [125]
        If a levy could be lawfully imposed, I still would not impose the levy condition proposed by Parklands.
      5. [126]
        The Council’s proposed maintenance regime is, generally, relevant and not an unreasonable imposition on the proposed development. Subject to the conclusions about specific conditions summarised below, the Council’s proposed conditions should be imposed.
      6. [127]
        The quarry operator should be responsible for this maintenance regime.
      7. [128]
        The Council’s proposed conditions 38 and 59 (along with Advisory Note 12) should be imposed, subject to the concern I raise about operational works approval (see paragraph [98] above).
      8. [129]
        The Council’s proposed condition 60 should be imposed, subject to my observations about the word ‘investigate’ in the investigation triggers for the rigid pavement (see paragraph [104] above), and sub-clause 60(c) (see paragraph [105] above).
      9. [130]
        The Council’s proposed conditions 61 and 65 should be imposed, subject to the following. Parklands’ proposal to add the qualification concerning geotechnical advice to conditions 61 and 65 (see paragraph [108] above) should be adopted. I am uncertain of the relevance of condition 61(c) (see paragraph [110] above). If the parties do not agree about this condition, I will schedule a further hearing to deal with this matter. Condition 61(d) should be amended to allow for a longer timeframe to complete maintenance (see paragraph [111] above). Condition 61(e) should be amended in accordance with Parklands’ suggestion to improve its clarity (see paragraph [112] above).
      10. [131]
        The parties should agree what documents are to be referenced in the conditions.

      Orders

      1. [132]
        The orders I make are:-
      1. Judge Cash is to complete the hearing of and decide the proceeding.
      1. The respondent Council is to prepare a conditions package consistent with these reasons for the purpose of making final orders.
      1. If necessary, I will hear the parties about any further orders.

Footnotes

[1]Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [2014] QPELR 479; QPEC 24 (‘Parklands No. 1’).

[2]Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [2017] QPELR 809; QPEC 35 (‘Parklands No. 2’).

[3]Parklands’ suggestion that the maintenance conditions be deleted, leaving responsibility wholly with the Council, was not pursued.

[4]Yandina-Coolum Road is a state-controlled road and is the subject of different conditions.

[5]Parklands No. 2, [55].

[6]Parklands has decided to do this despite the observation of Judge Robertson in Parklands No. 2 at [51] that flexible pavement, rather than concrete, for the entire haulage route would be a reasonable and relevant condition.

[7]Planning and Environment Court Act 2016 (Qld), section 38; Sustainable Planning Act 2009 (Qld), section 450; Integrated Planning Act 1997 (Qld), section 4.1.15.

[8]Parklands No. 2 (n 2), [56]–[60].

[9]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69].

[10]SZTAL v Minister for Immigration (2017) 262 CLR 362, [14].

[11]Acts Interpretation Act 1954 (Qld), section 14A(1); R v A2 (2019) 269 CLR 507.

[12][2009] QPELR 361, 369; [2008] QPEC 118, [21].

[13]Glenvale Properties Pty Ltd v Toowoomba City Council & Ors [2008] QPELR 609; QPEC 20.

[14]It is to be recalled that the definition of ‘infrastructure’ includes ‘works’.

[15]Waverley Road Developments Pty Ltd v Gold Coast City Council [2011] QPELR 649, 659; QPEC 59, [47].

[16]Intrapac Parkridge Pty Ltd v Logan City Council [2015] QPELR 49; [2014] QPEC 48, [24]; Sincere International Group Pty Ltd v Council of the City of Gold Coast [2019] QPELR 247, 253; [2018] QPEC 53, [24].

[17]Sincere International Group Pty Ltd v Council of the City of Gold Coast [2019] QPELR 247, 253; [2018] QPEC 53, [25].

[18]Cf. McNab Developments Pty Ltd v Toowoomba City Council & Ors [2009] QPELR 361, 362; [2008] QPEC 118, [2].

[19]Waverley Road Developments Pty Ltd v Gold Coast City Council [2011] QPELR 649, 659; QPEC 59, [47].

[20]There was some evidence from Mr Beard, a traffic engineer, that once the road is upgraded ‘both vehicle volumes and vehicle speeds will increase’. This kind of ‘induced’ traffic may be expected, but there was no evidence to suggest that the upgraded road would draw heavy truck traffic, apart from those involved in operating the quarry.

[21]Local Government Act 2009 (Qld), section 60.

[22]Brodie v Singleton Shire Council (2001) 206 CLR 512.

[23]The Macquarie Dictionary defines ‘quandary’ as ‘a state of embarrassing perplexity or uncertainty, esp. as to what to do’.

[24]This assumes Parklands builds the road itself, rather than sub-contracting the work as is more likely. If that happens more parties may be involved in this theoretical lawsuit.

[25]Advisory Note 12 sets out three types of potholes in a table and categorises them as ‘urgent’, ‘high’ and ‘medium/low’. Both ‘urgent’ and ‘high’ are defined as potholes with a diameter larger than 300 mm and a depth of more than 100 mm. ‘Low/medium’ are those with a diameter less than 300 mm and a depth of less than 100 mm.

[26]Attachment A to Parklands’ final written submissions, p. 24.

[27]Conditions 18(m), 27(d) and 73.

Close

Editorial Notes

  • Published Case Name:

    Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors (No. 3)

  • Shortened Case Name:

    Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [No 3]

  • MNC:

    [2024] QPEC 52

  • Court:

    QPEC

  • Judge(s):

    Cash KC DCJ

  • Date:

    17 Dec 2024

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QPEC 5217 Dec 2024-
Primary Judgment[2025] QPEC 217 Feb 2025-
Notice of Appeal FiledFile Number: CA 1275/2527 Mar 2025-

Appeal Status

Appeal Pending

Cases Cited

Case NameFull CitationFrequency
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512
2 citations
Jump To
Cite 1 - (2001) 206 CLR 512
Cite 2 - (2001) 206 CLR 512
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
Glenvale Properties Pty Ltd v Toowoomba City Council & Ors [2008] QPELR 609
2 citations
Jump To
Cite 1 - [2008] QPELR 609
Cite 2 - [2008] QPELR 609
Intrapac Parkridge Pty Ltd v Logan City Council [2014] QPEC 48
2 citations
Jump To
Cite 1 - [2014] QPEC 48
Cite 2 - [2014] QPEC 48
Intrapac Parkridge Pty Ltd v Logan City Council [2015] QPELR 49
2 citations
Jump To
Cite 1 - [2015] QPELR 49
Cite 2 - [2015] QPELR 49
McNab Developments Pty Ltd v Toowoomba City Council [2008] QPEC 118
3 citations
Jump To
Cite 1 - [2008] QPEC 118
Cite 2 - [2008] QPEC 118
Cite 3 - [2008] QPEC 118
McNab Developments Pty Ltd v Toowoomba City Council [2009] QPELR 361
3 citations
Jump To
Cite 1 - [2009] QPELR 361
Cite 2 - [2009] QPELR 361
Cite 3 - [2009] QPELR 361
Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors [2014] QPELR 479
2 citations
Jump To
Cite 1 - [2014] QPELR 479
Cite 2 - [2014] QPELR 479
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
Sincere International Group Pty Ltd v Council of the City of Gold Coast [2018] QPEC 53
3 citations
Jump To
Cite 1 - [2018] QPEC 53
Cite 2 - [2018] QPEC 53
Cite 3 - [2018] QPEC 53
Sincere International Group Pty v Council of the City of Gold Coast [2019] QPELR 247
3 citations
Jump To
Cite 1 - [2019] QPELR 247
Cite 2 - [2019] QPELR 247
Cite 3 - [2019] QPELR 247
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Waverly Road Developments Pty Ltd v Gold Coast City Council [2011] QPELR 649
4 citations
Jump To
Cite 1 - [2011] QPELR 649
Cite 2 - [2011] QPELR 649
Cite 3 - [2011] QPELR 649
Cite 4 - [2011] QPELR 649

Cases Citing

Case NameFull CitationFrequency
Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [No 4] [2025] QPEC 21 citation
1

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