Bowyer Group Pty Ltd v Cook Shire Council & Ors [2022] QPEC 33 [2023] QPELR 1193

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bowyer Group Pty Ltd v Cook Shire Council & Ors [2022] QPEC 33 PARTIES: BOWYER GROUP PTY LTD ACN 600 221 976 (appellant) v COOK SHIRE COUNCIL (respondent) and KALAN ENTERPRISES ABORIGINAL CORPORATION ABN 62 076 988 535 (co-respondent) and CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING (co-respondent by election) FILE NO: 10 of 2021 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Cairns DELIVERED ON: 16 September 2022 DELIVERED AT: Cairns HEARING DATE: 9-18 May 2022; 25 July 2022. JUDGE: Morzone KC DCJ ORDER: 1. Appeal allowed. 2. The development application is refused. 3. I will hear the parties as to any consequential orders. CATCHWORDS: PLANNING AND ENVIRONMENT – Appeal against approval of approval – support of council and chief executive department – whether a demonstrated economic, planning or community need for the proposed development – whether the -- 1 of 59 -- 2 proposed development result in unacceptable environmental and ecological impacts and, if so, can such impacts can be managed, including with reference to the precautionary principle – whether the proposed development gives effect to the Cape York Regional Plan – whether the proposed development complies with relevant assessment benchmarks – whether, in the event of any non-compliance with the assessment benchmarks, can any such non-compliance can and should be managed by the imposition of reasonable and relevant conditions – whether there relevant matters that favour approval despite any non-compliance with assessment benchmarks. LEGISLATION: Planning and Environment Court Act 2016, ss 5(1), 43, 45(5)(a), 45(5)(b), 45(6), s 45(7), 60(3) Planning Regulation 2017, s 31. CASES: Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 All-A-Wah Carapark v Noosa Shire Council [1989] QPLR 155 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 Bell v Brisbane City Council [2018] 230 LGERA 374 Berry v Caboolture Shire Council [2002] QPELR 96 Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193 Caloundra City Council v Pelican Links Pty Ltd [2003] QPEC 52 Clermont Quarries Pty Ltd v Isaac Regional Council [2021] QPELR 65 Cox & Ors v Maroochy Shire Council & Ors [2006] QPELR 628 Cut Price Stores Retailers v Caboolture SC [1984] QPLR 126 Cuthbert v Moreton Bay Regional Council [2016] QPELR 179 Fabcot Pty Ltd v. Cairns Regional Council & Ors [2021] QPELR 40 Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 Friend v Brisbane City Council [2014] QPELR 24 GFW Gelatine International Ltd v Beaudesert Shire Council [1993] QPLR 342 Harris v Scenic Rim Regional Council [2014] QPELR 324 Indooroopilly Golf Club v BCC [1982] QPLR 13 Intrafield v Redland Shire Council [2001] 116 LGERA 350 Isgro v Gold Coast City Council & Anor [2003] QPELR 414 Jadmont Pty Ltd v Council of the Shire of Miriam Vale [1998] QPELR 351. -- 2 of 59 -- 3 Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21 JSFNQ 1 Pty Ltd v Townsville City Council [2021] QPEC 28 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 KPRA v Brisbane City Council (2014) QPEC 64 Lipoma Pty Ltd & Anor v Redland City Council & Anor (2020) QCA 180 Mackay Resource Developments Pty Ltd v Mackay Regional Council [2013] QPEC 57 Mackay Shopping Centre Pty Ltd v Mackay Regional Council (2013) QPELR 661 McBain v Clifton Shire Council [1996] 2 Qd R 493 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Murphy v Moreton Bay Regional Council & Anor [2020] QPEC 10 Navara Back Right Wheel Pty Ltd v. Logan City Council Wilhelm v. Logan City Council [2020] QPELR 899 R v BCC ex parte Read (1986) 2 Qd R 22 Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPEC 26 Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD 58 Scott v Wollongong City Council (1992) 75 LGRA 112 Scurr v Brisbane City Council (1973) 133 CLR 242 TMP Holdings Pty Ltd v Caloundra City Council [2002] QPELR 1 Town Planning v Sunshine Coast Regional Council [2021] QPEC 36 Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 4 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95 United Petroleum Pty Ltd v. Gold Coast City Council & Anor [2018] QPELR 510 Watts & Hughes Properties Pty Ltd v BCC (1998) QPLR 273 Westlink Pty Ltd v Lockyer Valley Regional Council [2013] QPEC 35 Wilhelm v Logan City Council & Ors [2020] QCA 273 Wingate Properties Pty Ltd v Brisbane City Council (2001) QPELR 272 Yamauchi v Jondaryan Shire Council & Ors [1990] QPLR 13 COUNSEL: R Traves KC with N Loos for the Appellant M Batty with J Bowness for the Respondent J Houston for the Co-Respondent J Brien for the Co-Respondent by Election -- 3 of 59 -- 4 SOLICITORS: Miller Bou-Samra Lawyers for the Appellant King & Company for the Respondent Colin Biggers & Paisley for the Co-Respondent Holding Redlich for the Co-Respondent by Election -- 4 of 59 -- 5 Summary [1] The appellant submitter appeals the respondent council’s decision made on 12 February 2020 to approve the co-respondent applicant’s proposal to develop part of a granite outcrop known as ‘Twin Humps’ and surrounding land near Coen for a quarry, processing area and sediment pond, haul and access roads, caretakers’ accommodation and vegetation clearing. [2] The land is adjacent to the Peninsula Development Road about 25 kilometres from the town of Coen. The application was supported by the relevant referral agencies: the Department of Transport and Main Roads, in respect of access to the Peninsula Development Road; and the Department of Environment and Science, in respect of vegetation clearing. [3] The land is within the Rural Zone and the application is subject to assessment against the benchmarks of the Cook Shire Planning Scheme, and The Cape York Regional Plan. In the Rural Zone of the scheme, Extractive Industry is impact assessable and Caretaker’s Accommodation is code assessable. [4] The applicant maintains that the proposed development complies with relevant assessment benchmarks or, to the extent there is any non-compliance, the non- compliance would properly be characterised as minor and managed by conditions. It asserts that there is a strong community need for the proposal as a contributor to the physical wellbeing of the community, and that there is a strong planning need because of its location. It argues that the proposal will provide choice and competition in a market dominated by the appellant’s Archer River quarry. As to potential environmental impacts, the applicant asserts that they will be minimised and mitigated by the location and design, operationally controlled with an environmental management plan, and can be the subject of appropriate conditions. The applicant submits that approval of the proposal will advance the purpose of the Planning Act 2016 (Qld). [5] The council defends its decision and joins with the applicant in support of the development. The co-respondent by election department supports the decision, in respect of issues relating to ecology and the environment. [6] On the contrary, the appellant contends for refusal of the proposal in circumstances of little or no economic need and an unknown or unproven community need, and unknown but potentially significant ecological damage. It argues that the proposal is inconsistent with the assessment benchmarks, principally because the ecological investigations underpinning the proposal are so inadequate to know the true impacts, and therefore, what to manage. It also relies upon the dearth of evidence about the claimed monopolistic behaviour, the proposed quarry’s economic viability to effectively compete, and to deliver the claimed community benefit. [7] The critical questions for determination in the appeal are: 1. Is there any demonstrated economic, planning and/or community need for the proposed development? 2. Will the proposed development result in unacceptable environmental and ecological impacts and, if so, can such impacts be managed, including with -- 5 of 59 -- 6 reference to the precautionary principle? 3. Does the proposed development give effect to the Cape York Regional Plan? 4. Does the proposed development comply with relevant assessment benchmarks in the Planning Scheme? 5. In the event of any non-compliance with the assessment benchmarks, can and should any such non-compliance be managed by the imposition of reasonable and relevant conditions? 6. Are there other relevant matters that favour approval despite any non-compliance with assessment benchmarks? [8] I have considered the evidence and have been aided by a view, and assisted with very detailed written and oral submissions. [9] I have found a demonstrated economic need for the proposed quarry, which achieves compliance with the assessment benchmarks in this regard. It is not a particularly strong need since the quarry will struggle due to its location to robustly compete in the wider geographical market. Nevertheless, I am satisfied that its capacity to locally supply proximate road and infrastructure sites is real or substantive rather than trivial, immaterial, minor, or insignificant. A commensurate community need will be met by the proposed quarry in terms of choice, localised infrastructure and social benefits flowing from proximate quarry resources, indirect and direct employment, and business opportunities, although the magnitude of community benefits will depend upon the quarry being a successful operation, albeit not for profit or low profit. There is also a sufficient planning need for the proposal but not a strong one. [10] However, I am not satisfied of compliance with those benchmarks relating to the ecological impacts of the proposal. It seems to me that the necessary quarrying activities in the extraction area, including blasting and processing, will unavoidably remove or substantially modify essential habitat, and generate emissions of noise, dust and vibration impacting the surrounds beyond the immediate extraction area, including connectivity and continuity of water sources. There is insufficient foundational evidence about the assumed permanent resident population of the vulnerable Cape York Rock-wallaby colony on The Twin Humps; the population of individuals and their demographic, the parts of that landscape they utilise, why and when; the location of critical habitat resources, including shelter, forage and water; the seasonal changes and other natural impacts like fire and drought; the number, location or extent of proximate colonies; and the patterns of movement of individual rock-wallabies between different colonies. I am not satisfied that the evidence provides a sufficient factual foundation in support of the ecology opinion dealing with the nature, magnitude, duration and likelihood of potential adverse impacts of the proposed quarry, especially on the vulnerable Cape York Rock-wallaby and its habitat. [11] That non-compliance cannot, in my view, be managed by the imposition of reasonable and relevant conditions. In particular, the proposed condition regarding a habitat management plan impermissibly defers and delegates a decision of critical ecological impacts of the development, which could significantly alter the proposed quarry in a fundamental way, and so undermine the approval such that it could not be -- 6 of 59 -- 7 regarded as final. In addition, such a condition will circumvent a development assessment process, including proper public notification, and thereby block the rights of submitters. [12] I am not satisfied that the contended other relevant matters, most being a repetition of the matters relevant to the benchmarking assessment, are sufficient to outweigh or overcome the non-compliance with the assessment benchmarks in this case. [13] The proposal does not advance the purpose of the Act and an approval is not in the public interest. [14] For these reasons, I have decided to allow the appeal and refused the development application. I will receive further submissions on any consequential orders. Proposed Quarry [15] The applicant applies for development permits for a material change of use for Extractive Industry and Caretaker’s Accommodation and Operational Work (“Vegetation Clearing”), on land situated on the Peninsula Development Road (“PDR”), near Coen, in central Cape York, described as Lot 7 on SP171860 [16] The proposal includes: (a) a quarry extraction area occupying 5 ha at the base and lower north-eastern flank of a granite knoll that forms part of a geological formation known as The Twin Humps; (b) a processing area of about 0.76 ha and sediment pond occupying 0.82 ha. The processing area will contain the stockpiles of crushed rock material, offices, amenities and crib buildings, car parking and truck loading facilities, as well as a water detention basin; (c) a haul road being 400 m long and 6 m wide and occupying 0.24 ha. This is a private roadway, approximately 0.4 kms long to link the extraction area to the processing area; and (d) a graded gravel access road being 5,100m long and 7m wide and occupying 3.57 ha to link the processing area to the PDR. [17] Contoured aerial photography shows the overlay of the proposed quarry relative to the Twin Humps formation. I have been assisted with photographic and diagrammatic evidence of the quarry in relation to the immediate location, surrounding area, the Cook shire and broader Cape York area. I have also had the advantage of a site inspection to aid my understanding of the evidence. [18] Along the northern and eastern portions of the proposed extraction area the terrain is relatively flat. [19] The extraction area will occupy approximately 5 ha with extraction initially occurring partly into the lower northeast flank of the hill and partly below the ground at the base of the hill. The rock is to be won initially by the drilling and blasting of the higher ground immediately to the southwest, as the land rises into the plateaued granite knoll. Where practical, the extracted material will be loaded directly by excavator into a -- 7 of 59 -- 8 mobile modular crushing and screening plant, which will operate from a working platform on the flat terrain at the base of the granite outcrop. [20] The quarry management requirements include specific management of air quality, noise, blasting, and bund walls. [21] Three blast-related types of emissions will require particular management by drill and blast design and good practice blasting methods and procedures, being: (a) ground borne vibration caused by the propagation of the residual energy from the blast through the surrounding strata; (b) air blast overpressure, or ‘overpressure’ caused by the propagation of the residual energy of the blast through air; and (c) flyrock, being the unexpected movement of rock around and beyond the immediate local blast zone. [22] The quarry is expected to typically operate between May and October each year. Blast frequency and size will vary depending on production requirements and ground conditions. It is expected that the proposal will see between one to about five each year, allowing for some smaller blasts in peak demand periods. Blasts will typically range from less than 1,000 tonnes up to 50,000 tonnes, with 30,000 tonne blasts likely more common when the quarry benches are established. [23] The pit will be a progressively stepped bench, spaced at vertical intervals of 10 metres, with the sloped pit walls of about 45 degrees and inter-related connecting ramps as shown in a conceptual diagram. I have a three-dimensional representation of the quarry pit at the end of the quarry’s life. The uppermost bench will be formed in the southwest of the quarry pit at RL 210AHD. The resource experts estimate the life of the quarry to be 30-50 years. [24] Rehabilitation is a requirement of both the applicable Environmental Authority 0000779 and Council’s Negotiated Decision Notice. Rehabilitation is the subject of expert consideration. Land and Locality [25] The location for the proposal is Lot 7 on SP17180 and has an area of 17,880 hectares. It adjoins Oyala Thumotang National Park to the north and west, and Julla National Park to the east. It is divided by the Peninsula Development Road. [26] An access road runs off the PDR in a westerly direction for about 5.5 kilometres to a granite knoll known as the Twin Humps. Surrounding the granite knoll is a colluvial sandy plain. The extraction area is planned for the northern and eastern portions of the Twin Humps. The Twin Humps rises to about 90m above the surrounding plain to about 290 AHD. The land surrounding the Twin Humps is generally level and well vegetated with remnant open forest and woodland communities, described by the town planners as “typical of much of the local landscape with a variety of vegetation types within a comprehensive coverage”.1 1 Exhibit 9.1, Town Planning JER, p.8, para [20]. -- 8 of 59 -- 9 [27] The land does not have any built infrastructure apart from a number of gravel tracks throughout and several dams or watering points. It is covered by diverse remnant open forest and woodland communities that provide habitat for native wildlife. It allows for fauna movement across the land and vegetated connections to a wider landscape. It is currently used for cattle agistment and has never been used for extractive industry. It is crossed by Bourne Creek, which is located to the east of the Twin Humps formation, and three drainage features which flow into Bourne Creek. [28] There are no urban or sensitive land uses proximate to the proposed quarry. It is situated about two kilometres south of the Coen Airport and about 25 kilometres north of the township of Coen. It has the second largest population centre within the Cook Shire with modest population growth in recent years, increasing from 332 persons in 2011 to 340 in 2016 and 371 persons in 2020. About 80% of the residents are indigenous. The township has two service stations, each containing a small general store and one containing an Australia Post Office service; the Exchange Hotel; the Cape York Aboriginal Australian Academy (prep to year six); Coen Primary Health Care Centre; and a free camping area just outside the town along the Coen River. [29] Coen is 380 kilometres northwest of Cooktown and 252 kilometres southeast of Weipa via the PDR. The PDR is the main road transportation link within Cape York Peninsula. It connects the east coast to the town of Weipa as well as a number of remote indigenous communities. Assessment and decision framework [30] The appeal is to be heard by way of hearing anew2 and must be decided by the court standing in the shoes of the assessment manager.3 [31] The Planning Act 2016 and Planning and Environment Court Act 2018 apply to the appeal. As the development application required impact assessment, the decision of the court pursuant to s 62(3) must be based upon the assessment required by ss 45(5), (6) and (7) pursuant to s 59(3) and done in a way that advances the purpose of the Act.4 Accordingly, the court: (a) must carry out the assessment of the development application: (i) against the applicable assessment benchmarks in a categorising instrument in effect at the time the development application was properly made;5 and (ii) having regard to any matters prescribed by regulation to the extent the assessment manager considers those matters relevant to the development;6 and (b) may carry out the assessment of the development application against, or having regard to, any other relevant matter (other than personal circumstances, financial or otherwise);7 and 2 Planning and Environment Court Act 2016, section 43. 3 Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21 at [93]. 4 Planning Act 2016, s 5(1). 5 Planning Act 2016, ss 45(5)(a) & 45(6) & Planning Regulation 2017, s 31. 6 Planning Act 2016, ss 45(5)(a) & 45(6) & Planning Regulation 2017, s 31. 7 Planning Act 2016, s 45(5)(b). -- 9 of 59 -- 10 (c) may give the weight the court considers appropriate to any amendments to the planning scheme (none are relevant here);8 and (d) decide to approve all or part of the application; or to approve all or part of the application but impose development conditions on the approval; or to refuse the application;9 and (e) when undertaking this task the court must perform its function in a way that advances the purpose of the Act.10 [32] It seems to me that the use of the phrases “carried out against” and “having regard to” is purposeful. The term “carried out against” connotes a comparative check analysis of the development against some recognised authoritative performance standard, guideline, or other document; whereas “having regard to” connotes regard being had to matters of fact and circumstance. [33] The expression “another relevant matter” or “relevant matter” is not defined in the Planning Act except as one “other than a person’s personal circumstances, financial or otherwise.”11 A “relevant matter” ought carry its ordinary meaning to capture a matter that has a bearing upon, or is connected with the assessment of the application other than a person’s personal circumstances, financial or otherwise. An “other relevant matter” may include all relevant matters of positive and negative attributes of the proposed development, including any particular community benefits or detriments that might weigh in favour of or against an approval even where a proposal is or is not consistent with the community expectations.12 And, the nature and extent of “other relevant matters” may overlap and blend with each other. The legislature have provided three examples for the purposes of s 45(5)(b) being: (a) a planning need; (b) the current relevance of the assessment benchmarks in the light of changed circumstances; (c) whether assessment benchmarks or other prescribed matters were based on material errors. [34] It is well settled, and relevant here, that regard may be had to the fact of council’s approval and persistence in this appeal as representing the views of the responsible planning authority as to the merits of the proposal.13 8 Planning Act 2016, s 45(7). 9 Planning Act 2016, s 60(3). 10 Planning Act 2016, s 5(1). 11 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 at [80]. 12 Cf. Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95 at [180]. Contrast, Bell, at [73] & [74]. 13 Lipoma Pty Ltd & Anor v Redland City Council & Anor (2020) QCA 180 at [41]; see also Scurr v Brisbane City Council (1973) 133 CLR 242 at 257; R v Brisbane City Council ex parte Read (1986) 2 Qd R 22 at 28; Wingate Properties Pty Ltd v Brisbane City Council (2001) QPELR 272 at [22]; Mackay Shopping Centre Pty Ltd v Mackay Regional Council (2013) QPELR 661 at [44]; Friend v Brisbane City Council [2014] QPELR 24 at [103]-[104]; KPRA v Brisbane City Council (2014) QPEC 64 at [100]- [104]. -- 10 of 59 -- 11 [35] Williamson KC DCJ in Ashvan Investments Unit Trust v. Brisbane City Council & Ors,14 well explained the regime under the Planning Act and found that non- compliance with an assessment benchmark no longer assumes primacy in the exercise of the planning discretion.15 The pertinent reasons have been well traversed in subsequent cases and do not need repetition here. Subject to recognition that the Planning Act has not changed the characterisation of a planning scheme as the embodiment of the community interest, the Court of Appeal endorsed the more flexible approach in Ashvan.16 [36] In Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors,17 Brown J (with Philippides and Mullins JJA agreeing) said: “[180] …The process adopted by a decision-maker may now be one which involves balancing a number of factors to which consideration was permitted under s 45(5) of the Planning Act in making a decision under s 60(3) of the Planning Act where the factors in favour of approval have to be balanced with the factors in favour of refusal of the application. The weight that is given to each factor is a matter for the decision-maker.” [37] The following principles can be distilled from the seminal Court of Appeal decision of Abeleda v Brisbane City Council:18 (a) Section 60 of the Act eliminates the two-part assessment process that involved finding non-compliance and then considering whether there was sufficient grounds to justify an approval, despite the non-compliance.19 (b) The change to the assessment and decision-making framework under the Act by eliminating the two-stage test has not altered the fundamental nature of a planning scheme as a reflection of the public interest in the appropriate development of land: Bell, K & K, and Redland City Council v King of Gifts (Qld) Pty Ltd [2020] QCA 41.20 (c) The absolute terms which McMurdo JA expressed in [67] and [70] of Bell that it is in the public interest that the planning scheme is applied, unless the contrary is demonstrated, are no longer applicable to the exercise of the discretion by the decision-maker under s 60(3) of the Act, as the outcome of the development application is not necessarily determined by the degree of compliance against the assessment benchmarks and the decision-maker is 14 Ashvan Investments Unit Trust v Brisbane City Council & Ors Ashvan [2019] QPEC 16. See also Murphy v Moreton Bay Regional Council & Anor [2020] QPEC 10; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 at [19] and [22]. 15 Ashvan Investments Unit Trust v Brisbane City Council & Ors Ashvan [2019] QPEC 16 at [51], [53], [54], [57], [58], [60], [67]-[69]. 16 Abeleda & Anor v Brisbane City Council (2020) 6 QR 41 at [40], [42], [53]; Cf. Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95 at [180]. 17 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95 at [180]. 18 Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003. 19 Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [36]. 20 Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [37]. -- 11 of 59 -- 12 permitted to have regard to other relevant matters, in addition to the mandatory assessment against the assessment benchmarks in the planning scheme. In most instances, where a planning scheme is not affected by changed circumstances of the type referred to in Bell at [68], the decision-maker would give significant weight to the public interest expressed in the planning scheme in undertaking the decision-making under s 60(3) of the Act.21 (d) The risk, identified by Sofronoff P (with whom Fraser JA and Flanagan J agreed) in the last sentence of paragraph [48] of K & K - that “the decision- maker will be doing no more than performing a general weighing of factors in order to determine whether, in the decision-maker’s own view, it would or it would not be better to permit a development on the site to go ahead” - should not be treated as anticipating the process of decision-making under s 60(3) of the Act.22 (e) The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the planning scheme benchmarks 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.23 (f) In view of the departure from the two-part test, it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved. The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the factors in favour of approval (or approval subject to development conditions) have to be balanced with the factors in favour of refusal of the application. The weight given to each of the factors is a matter for the decision-maker in the circumstances, particularly having regard to the purpose of the decision in the context of the Act and the obligation imposed on the decision-maker under s 5(1) of the Act to undertake the decision making in a way that advances the purpose of the Act.24 (g) The following statement of Sofronoff P in K & K at [67] does not apply to the decision-making under s 60(3) of the Act: “It is, in general, against the public interest to approve a development that conflicts with the Planning Scheme. To justify such a development it must be demonstrated that the desired deviation from the Planning Scheme serves the public interest to an extent greater than the maintenance of the status quo.”25 21 Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [40]. 22 Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [41] - [42]. 23 Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [42]. 24 Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [43]. 25 Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [45]. -- 12 of 59 -- 13 (h) The court agreed with the observations of Williamson QC DCJ referred to at [51] of Ashvan to the legislature’s intention in enacting s 60(3) of the Act to dispense with the two part test under s 326(1)(b) of the SPA and observed that “means that non-compliance with assessment benchmarks, which include planning schemes, no longer has assumed primacy in the exercise of the planning discretion” and “the discretion conferred by s 60(3) of the [Act] admits of more flexibility for an assessment manager (or this Court on appeal) to approve an application in the face of non-compliance with a planning document in contrast to its statutory predecessor”.26 (i) And, subject to recognition that the Act has not changed the characterisation of a planning scheme as the embodiment of the community interest, the court also agreed with the observations of Williamson QC DCJ at [53]-[54] of Ashvan on the role of non-compliance with a planning scheme in the exercise of the planning discretion under s 60(3) of the Act.27 (j) In view of the discretion that is conferred under s 60(3) of the Act, which is not fettered other than by reference to the purpose of the Act and the constraints under s 45 imposed on an impact assessment, the observations by Williamson QC DCJ at [60] of Ashvan are apposite: “The manner in which the balance between rigidity and flexibility is struck in any given case does not lend itself to a general statement of principle, or precise formulation. The planning discretion, and the inherent balancing exercise, is invariably complicated, and multi- faceted. It is a discretion that is to be exercised based on the assessment carried out under s 45 of the [Act]. It will turn on the facts and circumstances of each case, including the nature and extent of the non-compliances, if any, identified with an assessment benchmark.”28 [38] The more flexible assessment regime promotes synthesis in the impact assessment whereby the decision maker, in advancing the Act’s purpose, “must” carry out the assessment against the planning scheme benchmarks as the embodiment of the community/public interest “having regard to” the matters prescribed by regulation, and it “may” also carry out the assessment against, or having regard to, any “other relevant matter”. Notably, the Court of Appeal in Abeleda29 adhered to the principle, as unchanged by the Planning Act that the planning scheme remains the embodiment of the public interest albeit with less stricture than McMurdo JA expressed in [67] and [70] of Bell v Brisbane City Council.30 [39] In this way the assessment proceeds upon the premise that it is in the public interest that the benchmarks in the planning instrument be applied in each relevant respect, but in doing so the decision maker may cumulatively consider any “other relevant matter”, which may or may not promote the community/public interest embodied in 26 Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003at [53]. 27 Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003at [54]. 28 Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003at [56]. 29 Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003 at [40]-[43]. 30 Abeleda & Anor v Brisbane City Council (2020) 6 QR 41 at [53]; Wilhelm v Logan City Council & Ors [2020] QCA 273 at [77]; Cf. Bell v Brisbane City Council [2018] 230 LGERA 374. -- 13 of 59 -- 14 the instrument or demonstrate otherwise. The more important the benchmark, the more likely that non-compliance with it will be determinative31 subject to the nature and weight of any other relevant matter. [40] By virtue of s 5(1) of the Act, the court is obliged to fulfill its function to assess and decide the application in a way that advances the purposes, which includes applying the precautionary principle. Section 5(2)(ii) makes it clear that “advancing the purpose of this Act” includes following ethical decision-making processes that, inter alia, “apply the precautionary principle, namely that the lack of full scientific certainty is not a reason for delaying taking a measure to prevent degradation of the environment if there are threats of serious or irreversible environmental damage”. [41] The precautionary principle calls for an assessment of the nature and extent of the consequential risks posed by of the various options and the ways and means those risks can be addressed or managed.32 However, it does not call for a nervous approach or one which is intolerant of any risk under circumstances.33 Is there any demonstrated economic, planning and/or community need for the proposed development? [42] Consideration of need is relevant for the assessment against the assessment benchmarks, including: (a) in the Regional Plan – Regional Policy 1; and (b) in the Planning Scheme – the Strategic Framework in Part 3, including the strategic intent s.3.2 – strategic context; key challenges and the future; the economic wellbeing (s.3.3) – policy context (4), (5), (6) & (7); strategic outcome s.3.3.1(5) to protect existing gravel pits and quarries and contemplates supporting the expansion or establishment of new quarries “where there is a demonstrated need and impacts can be managed”; and specific outcomes 3.3.1.1(4) & (5) to protect identified hard rock quarries and resourced of regional economic significance; the land use patterns (s.3.4) – policy context (2)(g); strategic outcome 3.4.1(1); Strong communities – strategic outcome s.3.7.1(4). [43] In this context, the applicant also nominates the Extractive Resources Overlay Code, including its purpose s.8.2.5.2(4) and performance outcome PO1 in s.8.2.5.3 and Table 8.5. Whilst perhaps trying to attribute some wider strategic policy intent, those provisions only apply to land on and immediately surrounding existing extractive resource operations. That is not the subject land or the subject proposal. [44] In any event, the applicant also relies upon need as a relevant matter to have regard to in the exercise of the planning discretion in favour of approval. 31 Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 4 at [26]; I.B. Town Planning v Sunshine Coast Regional Council [2021] QPEC 36 at [71]; see also JSFNQ 1 Pty Ltd v Townsville City Council [2021] QPEC 28 at [67]. 32 Cf. Cuthbert v Moreton Bay Regional Council [2016] QPELR 179 at [129]; Yamauchi v Jondaryan Shire Council & Ors [1990] QPLR 13 at 460 quoting Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270 at 282; Clermont Quarries Pty Ltd v Isaac Regional Council [2021] QPELR 65 at [12]. 33 Clermont Quarries Pty Ltd v Isaac Regional Council [2021] QPELR 65 at [12]. -- 14 of 59 -- 15 [45] The seminal principles that inform and guide an assessment of need are conveniently summarised by Judge Wilson SC (as he then was) in Isgro v Gold Coast City Council,34 and have been refined in subsequent cases,35 as follows: (a) need is a relative concept to be given greater or lesser weight depending on all of the circumstances to be taken into account;36 (b) need in planning does not mean pressing need, critical need, widespread desire or connote a pressing urgency, but relates to the well-being of the community;37 (c) for community need, a range of qualitative factors are involved such as convenience, accessibility, choice, range, depth, competition, price, service, shopper amenity, etc;38 A use is needed if its provision, taking all things into account, will improve the physical well-being of the community,39 or will on balance improve the services and facilities available in the locality;40 or will improve the ease, comfort, convenience and efficient lifestyle of the community;41 (d) a need cannot be a contrived one, but based on the assumption that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met;42 A need does not have to be particularly strong to be a ‘demonstrable need’, but rather real or substantive (rather than trivial, immaterial, minor, or insignificant) need which is capable of being shown or logically proved.43 (e) the question of need is decided from the perspective of the community and not that of an applicant, commercial competitor or those who make adverse submissions;44 (f) the impact of a proposed development on existing like businesses is a matter which is to be taken into account adversely to the proposed new facility unless, for example, the extent of competition will cause an overall adverse effect on the extent and adequacy of facilities available to the community;45 34 Isgro v Gold Coast City Council [2003] QPELR 414 at [20]-[30]. 35 For example: Abeleda & Anor v. Brisbane City Council & Anor [2021] QPELR 1003 at [51]; Navara Back Right Wheel Pty Ltd v. Logan City Council; Wilhelm v. Logan City Council [2020] QPELR 899 at [297] & [330]; Fabcot Pty Ltd v. Cairns Regional Council & Ors [2021] QPELR 40 at [29] and undisturbed on appeal in Trinity Park Investments Pty Ltd v. Cairns Regional Council & Ors; Dexus Funds Management Limited v. Fabcot Pty Ltd & Ors [2021] QCA 95 at [22], [157] and [159]; McKay v Brisbane City Council [2021] QPEC 42 at [237]; and United Petroleum Pty Ltd v. Gold Coast City Council & Anor [2018] QPELR 510. 36 Intrafield v Redland Shire Council [2001] 116 LGERA 350 at [20]. 37 Watts & Hughes Properties Pty Ltd v Brisbane City Council (1998) QPLR 273 at 275. 38 Fabcot Pty Ltd v. Cairns Regional Council & Ors [2021] QPELR 40 at [29]. 39 Cut Price Stores Retailers v Caboolture Shire Council [1984] QPLR 126 at [131]. 40 Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD 58 at [60]. 41 Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 at 213; Bunnings Building Supplies Pty Ltd v Redland Shire Council [2000] QPELR 193 at 198C. 42 Indooroopilly Golf Club v Brisbane City Council [1982] QPELR 13 at 32-35. 43 United Petroleum Pty Ltd v. Gold Coast City Council & Anor [2018] QPELR 510. 44 Cf. Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 at [213]; TMP Holdings Pty Ltd v Caloundra City Council [2002] QPELR 1 at [9]; Isgro v Gold Coast City Council & Anor [2003] QPELR 414. 45 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, at 687. -- 15 of 59 -- 16 (g) the provision of competition and choice can be a matter which indicates a need.46 (h) a fundamental element of economic need is that the development, if approved, would be financially viable,47 as distinct from privately profitable. Economic need involves a typically more quantitative assessment as to whether the extent of demand for the proposal is sufficient to support it at a sustainable level.48 (i) Planning Need refers to an assessment of the extent to which the proposed development can be accommodated by existing planning provisions. This necessarily involves an assessment of the existence of competitive approvals and the availability of suitably zoned and/or designated lands to accommodate the proposed development.49 Economic need [46] The evidence concerned supply and demand of hard rock quarry material, suggested trends regarding gravel pit material, the PDR’s progressive construction and future maintenance, relative quarry location and transportation cost, suggested monopolisation and competition, choice and convenience. [47] There are four active quarries operating in Cape York, referred to as Archer River, Artemis, Butchers Hill (Lakeland) and Mt Amos. It is common ground that there are sufficient higher quality aggregates and road base materials available from those four existing and active hard rock quarries to well meet present and anticipated future demand without the proposal. Even so, I note there is material imported into the area from time to time.50 [48] Extensive gravel pit resources exist on Cape York – numbering 347, they vastly outnumber hard rock quarries. [49] Gravel pits are vital for the maintenance and improvement of unsealed road infrastructure. Section 3.3(6) of the Planning Scheme identifies and describes four gravel pits of significance because of road safety and the economy of Cook Shire being: (a) Bizant Pit – Located beside the Bizant airstrip in Lakefield National Park. This large gravel pit produces roadbase materials for roads frequently damaged during the wet season yet requiring constant upgrade due to increasing tourist numbers. These resources are very scarce and are critical for road safety and tourism. (b) Battle Camp Road gravel pits – These gravel deposits are ideal grading for road base, and loam materials are a valuable binding agent used in roads locally and regionally across the Cooktown and Laura regions. It is therefore critical that these gravel pits and nearby resources close to Battle Camp Road are not sterilised by expansion of the Lakefield National Park. There are no known 46 Intrafield v Redland Shire Council [2001] 116 LGERA 350. 47 All-A-Wah Carapark v Noosa Shire Council [1989] QPLR 155, 158. 48 Fabcot Pty Ltd v. Cairns Regional Council & Ors [2021] QPELR 40 at [29]. 49 Fabcot Pty Ltd v. Cairns Regional Council & Ors [2021] QPELR 40 at [29]. 50 Mr Gray, T3-10/7-11. -- 16 of 59 -- 17 replacement resources in the region and their sterilisation would have significant impacts on road safety, tourism and economic development. (c) Violet Vale Pit – this strategically located gravel pit is used for maintenance of state-controlled roads by the Department of Transport and Main Roads. This is a rare source of durable hard rock. (d) Black Pinch Pit – this pit services local roads south of Cooktown and the townships of Helenvale, Rossville and communities further south including Wujal Wujal, Shiptons Flat and Daintree. (e) Construction sand – access to clean, fine sand is important for the construction industry. Sand is currently extracted in small amounts from a variety of alluvial, riverine and estuarine environments. Access and extraction is often limited by land tenure issues and controlled via permits issued under the Water Act or administered under the Environment Protection Act. New opportunities to access construction sand and improve construction efficiency and viability will be supported. [50] In a consistent way, the resource quality experts, Mr Spencer and Mr Gray described the nature and utility of gravel pits like this: (a) gravel pits work surface deposits of differentially weathered rock and indurated soils where available; (b) they supply weathered rock and soil materials used in bulk, on a campaign basis for council road works, and have lower technical performance requirements and costs than hard rock quarries; (c) in terms of material properties, hard rock quarries produce much stronger and more durable aggregates and road construction material than gravel pits which typically extract clayey and weathered rock materials to produce products such as embankment materials, road maintenance gravel and Type 4 DTMR road base materials; and (d) conveniently located gravel pits close to an unsealed road maintenance project, for example, are much more cost-effective if their materials are fit for purpose, compared with procurement from hard rock quarries. [51] However, Mr Spencer and Mr Gray opined that for both accessibility/environmental and technical (formation/pavement design and serviceability) reasons and constraints, there is a trend of an increased reliance for some road pavement materials to be sourced from hard rock quarries, in preference to “weak” local gravel pit material. In that regard, they anticipate demand for hard rock quarry materials (in some product categories such as road base) will increase over time as gravel pits deplete and where replacement gravel sources are no longer available because of land constraints, land tenure changes, cultural factors, administrative burden in obtaining and maintaining lease agreements, and environmental conflicts. Mr Gray also pointed to the wider availability of hard rock quarry products and cost effectiveness. [52] Whilst Mr Spencer and Mr Gray opined that this trend was “somewhat evident” in the extractive material procurement data provided by the council, further interrogation of -- 17 of 59 -- 18 the data revealed temporal anomalies such that the mooted trend was not so evident in the Cook Shire. In their third joint expert report, the resource quality experts tabulated by source (excluding sand) in relation to the Cook Shire, shows increasing volumes of sales from gravel pit over the three financial years from 2019-2022. But they still maintained their thesis, albeit recognising that:51 “From our experience in assessing the engineering merits of gravel pit materials, it (is) not surprising that this trend exists: where HRQ materials are available and the purchasing cost is acceptable (eg funding becomes available to meet a higher engineering standard), Councils in our experience will substitute them for gravel pit materials, to improve their roads.” [53] The applicant submits that such a trend can be found in the Chart Data, where hard rock sales in the Cook Shire relative to sale from gravel pits increased progressively from 13% to 20% with a corresponding decrease in proportional sales from gravel pits from 87% of total sales to 80% of total sales. [54] It seems to me that the resource and quality experts did their best to extrapolate a trend from the available data. As Mr Gray said in cross-examination:52 “The thing is, within the database, within the disclosed information, there’s a lot more information than we summarised. We couldn’t summarise it all. So the – the attachment B2 is a summary, but if you go to the source documents within the database that was disclosed to all the experts, there’s evidence of gravel pits closing 25 down and hard rock quarry materials replacing them.” [55] No one has quantified the suggested trend, and Mr Gray conceded that he was unable to do so. He accepted that availability, cost and funding were very significant qualifications on the thesis. Money was crucial – “in the absence of it, we’re stuck with gravel roads for – in perpetuity”. He acknowledged that demand for extracted materials is known to be highly cyclical being dependent on seasonality, weather events, specific road funding and government funding of other civil infrastructure. Similarly, Mr Spencer said that because demand for extractive material in the Cape is highly cyclical, dependent upon seasonality, weather events, specific road funding, and government funding of other infrastructure, it is very difficult to pick a trend in a short time span, such as three years, in respect of extraction of material from gravel pits. [56] I do not understand Mr Gray and Mr Spencer to be suggesting that gravel pits will be phased out in Cape York, but rather that the trend asserted is towards increased use of hard rock material for road construction, consistent with higher engineering standards. But when the need experts sought information concerning the council’s “historical, current and future policy regarding use of materials from borrow pits”, its response through its solicitors was:53 “We are advised that the respondent does not have any written forecasts for quarry products to be used annually for the next 5 years. 51 Exhibit 6.5, RQA JER 3 at para. [38]. 52 T3-19/22-26. 53 Exhibit 15. -- 18 of 59 -- 19 Quarry product use is directly related to funding programs, weather events and maintenance requirements. These projects are typically identified, scheduled and allocated on an annual basis and completed within a 12 month period. Projects and their locations are unknown until funding programs are released by the relevant authorities or the impact of weather events and maintenance requirements are realised.” [57] It seems to me that whilst the mooted trend can be observed in other areas of Queensland as suggested by the resource experts, it is not supported by a factually credible basis for the Cook Shire local government area itself. It seems the trend is more in the nature of an ideal of higher engineering standards using extrapolated data from disparate experience, rather than persuasive opinion evidence founded on credible, factual and quantifiable data. I am not persuaded that the council has changed its purchasing preferences or sales such as to permit inferential finding of some trend away from gravel pits to hard rock quarries. [58] Quarry resources are mainly required for the PDR. The Planning Scheme describes: “Its extreme seasonality, with cyclones and monsoon rains regularly affecting road access to parts of the Shire for up to five months of the year.”54 [59] Reliable access will necessitate the PDR’s progressive construction, sealing and ongoing maintenance and re-construction. The original Cape York Region Package and Stage Two have been significant contributors to demand for road construction materials since approximately mid-2014.55 It is anticipated that the sealing of the PDR will be completed by about 2030.56 The average rate of paving of the PDR represents 68% of the average total Cape York hard rock quarry production in the last three years. The experts differed slightly, in the order of about 15%, as to ongoing demand after completion of the PDR sealing - Mr Norling reported 265,000 tonnes yearly by 2041 compared to Mr Ganly’s reported 200,000 tonnes yearly. However, during his evidence, Mr Norling moderated his assessment of ongoing demand to as low as 150,000 tonnes per year if funds are not dedicated to the sealing of the many other unsealed roads on the Cape after 2030. Mr Ganly characterised his estimate as a “reasonable high-water mark”. Of course, other relatively significant roads are subject of funding under the existing packages. Demand in any event will continue to be subject of fluctuations and spikes as described by Mr Norling at paragraph 113 of the Need second joint expert report and Mr Ganly at paragraph 96 referencing Rio Tinto’s Amrun mine project. Fluctuations are also described by the resource quality experts in RQA second joint expert report. [60] There is no dispute that the proposed quarry has suitable material for the PDR and other suitable projects. The testing and subsequent analysis during the joint reporting process confirmed the rock was hard, strong and durable and suitable as an aggregate and road-base material. But there is a tyranny of distance commensurate with delivery cost. Mr Gray said, “there’s got to be a quarry from there close enough to 54 Section 3.2 (Strategic Intent), Strategic Context (2)(h), Ex.3, at p.9. 55 Need JER2, Ex.7.2, p.13, para 42. 56 Ex.7.2, p.26, paras 113 and 116. -- 19 of 59 -- 20 make it worth the while and there’s got to be the money available”.57 He explained that constraints of cost and availability meant that there had to be a quarry within 50- 100 km. [61] Mr Ganly graphically identified the road paving status at different sections along the PDR. The unpaved sections are numerated. He tabled the distances from existing quarries, and the proposed quarry, from those numbered unsealed sections. While there are many intervals of unsealed sections along the PDR, by mid-2024, two sections covering 42km will be closer to the proposed quarry than other operating quarries, and one of them is almost as close to the Archer River quarry. [62] As to the other unsealed sections, Mr Ganly concludes that the cost of supply from the proposed quarry will be significantly higher than from the other more proximate quarries. He also opined that gravel pits currently supply about 80% of the hard rock requirements in Cape York. This is consistent with his view, which I accept, that gravel pit material is an economic substitute for the more distant hard rock quarry materials. This economical opinion is consistent with that of the resource and quality experts. Mr Gray explained how gravel pits located conveniently close to unsealed roads are much more cost effective if their materials are fit for purpose in an engineering sense, compared with material procured from hard rock quarries of higher strength and durability. According to Mr Spencer, material used from the side of the road without processing, just a strip, push and load out operation, could cost in the order of $5 per tonne. And likewise, Mr Gray opined that the cost may be between $5 and $6 per tonne for gravel pit material where crushing or screening was not necessary. [63] I agree with the appellant’s analysis that the evidence bears out the following, which I accept: (a) A geographic location for a quarry closer to markets is highly advantageous given the choice of quarry location is frequently considerably constrained because of geology planning and land use constraints. Where a quarry has an advantage over competitors such geographic advantage provides it with a principal competitive advantage given the high relative cost of transport of aggregates by road (Spencer, Gray). (b) Quarries tend to adopt gate pricing in a “barometric” way and set prices that closely reflect both: market conditions; and the competitive price for their products delivered to the customer (point of use); and the nature and form of pricing that occurs is that producer prices change, moving up and down with market conditions and following the competitive price, particularly when bidding for major contracts and tenders (such as State and local government infrastructure projects).58 (Spencer, Gray) (c) High-volume low-cost products are particularly sensitive to transportation costs and proximity is certainly a principal and major advantage from the perspective of the end user (Gray). And the linear market by virtue of the spine- like PRD presents additional problems for establishing quarries without the advantage of proximity (Gray). 57 T3-21/29-30. 58 Ex.6.3, p.51, paras 152-153. -- 20 of 59 -- 21 (d) Mr Ganly identified that the “the biggest differentiation is how far you have to cart the material”.59 According to his evidence, the distance and commensurate costs are by far the most significant factors in terms location and supply characteristics of quarries in the northern part of Cape York. He concluded that the distance penalty remains “severe” in the order of $30. (e) In respect of the PDR north of Archer River and south of Artemis, Archer River and Artemis have significant locational advantage over the proposed Coen Quarry (Spencer). (f) The average ex bin price of hard rock quarry material is in the order of $30 per tonne (Ganly). (g) The cartage cost is about $30 per tonne per kilometre (Gray, Spencer). That results in a cost differential of $11 per tonne extra cartage northbound from the proposed quarry at the intersection of the PDR and Quarry Road compared to the Archer River quarry. The cartage when travelling south of the Artemis quarry would be $78 per tonne per kilometre being an extra $48 per tonne compared to the Artemis quarry. [64] Apart from transport costs, there are also other market conditions at play that may impact a preferred quarries’ capacity to supply at the desired rate, including: coinciding orders; weather and road conditions, haulage truck availability and haulage production capabilities; and time constraints and construction deadlines imposed by funding bodies.60 [65] Even so, in the second need joint expert report, Mr Ganly opined that there was a low level of economic need. However, this was moderated in the course of his oral evidence. He said that there are no evident issues of supply during periods of peak demand and asserted that there was no economic need for the proposed quarry. In contrast, Mr Norling reported the economic need as moderate to strong. However, under cross-examination he could not point to any evidence in respect of inadequate supply from existing quarries at times of peak demand. He had no hard evidence of untimely supply or disaffection by end users in terms of the particular job, manner or time of supply. [66] The applicant argues that the proposed quarry will introduce choice and competition in an otherwise monopolised market in the northern part of the Cook Shire. The council also invites the court to determine there is a need on the basis of the additional choice, convenience and competition to a monopoly. [67] The applicant refers to the Macquarie Dictionary (2022 online) for the definitions: of monopoly as meaning “exclusive control of a commodity or service in a particular market, or a control that makes possible the manipulation of prices”; and of competition as meaning “the act of competing; rivalry … the rivalry between two or more business enterprises to secure the patronage of prospective buyers.” It points to the locations alone as evidencing that Archer River has a “position of market dominance, effectively a monopoly” in the northern part of the Cook Shire. It is argued that the proposed quarry would provide choice for customers (i.e. to choose 59 Ganly, T4-77/38. 60 RQA JER2, para. 56(f), (g) & (h). -- 21 of 59 -- 22 between suppliers) and inevitably provide competition and avoid a monopoly (with the possibility of manipulation of prices) and the introduction of choice and competition is in the community interest. [68] The applicant also relies upon Mr Norling’s promotion for competition amidst his concern about the further entrenched monopoly of the appellant as a result of its recent approval for increased extraction, and a greater need for choice and competition in the market. Mr Norling identified ways in which monopolistic behaviour can negatively impact consumers in ways well beyond pricing. However, there is no evidence of such characteristic monopolistic behaviour, such as price gouging by the appellant; or by way of a lower range of products; or by reference to the quality of the product; or poor reliability or timing delays. [69] In my view, it is too simplistic to characterise a monopoly or lack of competition by reference to the appellant’s location. The appellant is competing in a hard rock and gravel materials market, which is geographically limited and defined by the PDR. But the appellant is not the only quarry in the market supplying Cape York, in which there is ample supply to meet demand. Even if the market was more narrowly confined to the “northern part of the Cook Shire”, the proposed quarry faces severe locational disadvantages in terms of distance and delivery costs, as discussed above. As Mr Ganly said about the proposition that the proposed quarry would significantly improve the level of competition: “Well, that would only be the case if it was going to be a quarry which operated at a relatively high volume and that would only be the case if it would be a quarry that, in my opinion, could be competing within a marketplace that was big enough for it to make a successful entry and, in my opinion, given the cost impact of having to travel past other existing quarries in the vast majority of cases, that just simply isn’t going to result.” [70] I accept Mr Ganly’s evidence on the point. It seems to me that the proposed quarry will not be a viable competitor in any event with insurmountable delivery costs and relatively very low level of extraction. The extent of any local employment opportunities will also depend on its viability to sustain employment, and even if it could do so, it would likely result in a loss of some jobs or otherwise leach jobs from other quarries, including residents of Coen. Further, operational work could be confined to 7 months of the year, and employment will be reduced to caretaker and maintenance workers during the wet season. Mr Norling quantified the depletion as “zero to one” workers in the wet season.61 Even Mr Norling’s evidence evolved over time from his initial opinion of a “moderate to strong level of economic need”62 to describing it as “modest”63 being “above low and less than moderate”64, and acknowledging “… is relatively weak from the economic demand or economic need perspective…”.65 The extent of, and prospect of, reduced demand for the proposed quarry is unlikely to support it at a commercially sustainable level to provide any realistic choice, convenience or competition in a broader market already with ample 61 Norling, T4-12/30-32. 62 Need JER 2, Ex. 7.2, page 27, paragraph 121. 63 Transcript 3-55, line 25-27. 64 Transcript 3-55, line 25-27. 65 Transcript 3-55, lines 32-34. -- 22 of 59 -- 23 supply. The proposed quarry will struggle to compete in the wider geographical market where more proximate existing quarries are ready and able to provide a more economical supply. [71] However, the applicant and the council argue that these matters may tend more towards profitability than feasibility or viability. Of course, profitability per se, as distinct from feasibility or viability, is one of private economics and is irrelevant in the exercise of the planning discretion under s 60(3) of the Planning Act 2016 (Qld). [72] The applicant joins in the council’s submission that this court should follow the approach of Robin QC DCJ in Mackay Resource Developments Pty Ltd v Mackay Regional Council66 and give little weight to the appellant’s concerns, given there would be no disbenefits were this approval not implemented due to profitability issues. In that case it was Robin QC DCJ that said:67 “The court would be disinclined to approve an extractive industry, assuming one were applied for, if there were no evidence that a quarry resource existed on the site. This is not the present case. Mr Gray’s evidence satisfies me that there is a resource there. The appellant will not be able to complain that it had not been warned by the Council’s experts, should it turn out that there is nothing worth digging up on its site, or that its hopes of unearthing customers were misplaced. The present case strikes me as one of those where no “disbenefits” threaten should an approval fail to be implemented, as in Westlink Pty Ltd v Lockyer Valley Regional Council [2013] QPEC 35, [12] – [21].” [73] Of those referenced paragraphs in Westlink,68 the following are relevant: “[17] A number of the Council’s expert witnesses expressed opinions that the proposal would never go ahead, even if approved. Reasons advanced were that gas would not be available, that if gas were available, given dramatically escalating prices for gas in Australia, it would become too expensive for Westlink, rendering the project unviable, that Westlink’s costs of production would price it out of the market, i.e. no retailer of electricity would buy it, there would be no unmet demand in the market anyway. [18] The appellant’s case was criticised by Mr Gore QC, for the Council, for failure to demonstrate that such considerations would not defeat its plan. Logic and common sense say that Westlink must start by acquiring a site with the necessary development approval, next find a market for its electricity and then secure the necessary raw materials, specifically natural gas. The last two steps may be taken in tandem with each other, and, needless to say, with securing affordable financial arrangements to fund construction…The starting point must, I am convinced, be the development approval sought. Mr Kelp gave a clear summary of the commercial steps Westlink would be expected 66 Mackay Resource Developments Pty Ltd v Mackay Regional Council [2013] QPEC 57 at [24]. 67 Mackay Resource Developments Pty Ltd v Mackay Regional Council [2013] QPEC 57 at [25]. 68 Westlink Pty Ltd v Lockyer Valley Regional Council [2013] QPEC 35 at [17], [18] & [21]. -- 23 of 59 -- 24 to pursue to establish that its project should advance to actual construction at T4-58. … [21] From the foregoing, I take it that everything in this regard depends on the particular circumstances. There is no reason whatever for thinking that Westlink’s proposal is pursued with any view other than getting it implemented; there is no suggestion that it represents some ploy to fend off a competitor…The evidence the court has supports the likelihood that the requisite commercial arrangements will be negotiated. The appellant’s experts in this regard, Mr Bones and Mr Kelp were far more persuasive than their counterparts who offered gloomy prognostications. Should commercial factors kill off the project, that will surely happy before the generators are constructed. It is impossible to identify any disbenefit in that outcome (setting aside the non-emergence of a new competitor for existing generators of electricity) …” [74] I have concluded that there is a demonstrated need for the proposal and for the establishment of a new quarry while protecting existing gravel pits and quarries in terms of strategic outcome s.3.3.1(5) and 3.3.1.1(4) & (5) of the planning scheme. [75] It seems to me that whilst there is a demonstrated economic need for the proposed quarry it is not a particularly strong one since it will struggle, due to its location, to robustly compete in the wider geographical market. Its capacity to supply proximate road and infrastructure sites is real or substantive rather than trivial, immaterial, minor or insignificant. It is an indisputable resource of desirable quality material that is hard, strong and durable and suitable for aggregate and road-base material needed for the continued development and construction of the PDR, other roads and applications in the Cook shire. There are no weighty disbenefits militating against the proposal – it will likely be developed as a community project with strong community links without impacting larger more proximate existing gravel pits and quarries;69 nor will it be a blight bequeathed to the community;70 nor distort the market.71 The proposed quarry can be feasibly designed and operated as proposed. Mr Creek, a director of the applicant, provided unchallenged evidence that since 2016 the applicant has investigated the feasibility of a local hard rock quarry to complement and optimise the work of Kalan Civil, and that he expects continuing economic development in Coen to create demand for Kalan Enterprises’ quarry material. Community need [76] There is considerable overlap between the issues of economic and community need. [77] The applicant argues that the proposed quarry will positively contribute to an improvement in the physical wellbeing of the community: (a) generally in providing competition choice; and 69 Cf. Jadmont Pty Ltd v Council of the Shire of Miriam Vale [1998] QPELR 351. 70 Cf. Berry v Caboolture Shire Council [2002] QPELR 96 at [41]. 71 Cf. Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPEC 26 at [205] to [217]. -- 24 of 59 -- 25 (b) specifically, in respect of Coen, as a localised community but also more extensively as a centre for the northern region of the Cook Shire; and (c) providing and contributing to business opportunities for the indigenous clans in the Southern Kaantju territory. [78] The magnitude of community benefit in terms of providing competition and choice, is relative to the proposed quarry’s success and sustainability as I discussed above. The evidence did not comprise of any feasibility analysis for the quarry, or rates or levels of tonnage supply or production to employ seven to nine people, or business case for the applicant to operate the quarry. The locational disadvantage suffered by the proposed quarry was a central plank of the appellant’s argument that the quarry would not be financially viable. Mr Ganly opined that there was not a real or substantive community need for the proposed quarry rather than a trivial, minor or insignificant need which is capable of being shown or logically proved. However, I think that is to be too economically confined in terms of community need. [79] It seems to me that the quarry may be viable and feasible to successfully provide positive economic and social benefits in terms of employment and community business opportunities even if it the operation itself is effectively ‘not for profit’ in the sense of being successfully profitable. It will likely provide direct employment, as well as indirect employment through Kalan Enterprises facilitated and supported by the ready availability of material from the quarry. Its existence will provide some increased level of choice of hard rock quarry operators. It is not to the point that the current situation does not disadvantage the community, but rather I accept that a local addition in the proposed quarry will be beneficial in terms of choice. It will also significantly improve the locational convenience of small-scale hard rock quarry materials in the local area around Coen, albeit with a low level of extraction to service the more proximate applications, in circumstances where transport costs are higher further afield. The limited generation of economic activity will nevertheless improve the strength, independence, resilience, amenity, mobility and lifestyles of the Coen community. [80] For these reasons, I opine that there is a community need for the proposed quarry as a positive contributor to improving the physical wellbeing of the local Coen community. Town planning need [81] The applicant argues that there is a strong level of planning need for the proposed quarry to be located on land in a Rural Zone. [82] Planning need involves consideration of the extent to which a proposed development can be accommodated by existing planning scheme provisions – on suitably zoned or designated land. [83] Extractive industry is intended for the Rural Zone Code as recognised in the Purpose, s.6.2.9.2(2)(d), and in the Performance Outcomes – PO6(a) and PO7. However, the planning scheme Strategic Framework in Part 3, especially strategic outcome s.3.3.1(5) seeks to protect existing gravel pits and quarries and contemplates only supporting the expansion or establishment of new quarries “where there is a demonstrated need and impacts can be managed”. Specific outcomes 3.3.1.1(4) & -- 25 of 59 -- 26 (5) also seek to protect identified hard rock quarries and resources of regional economic significance. Strategic Map 1 (within Ex. 3) identifies ‘Extractive Resources (Potential)’. There is a location identified on that map as ‘Lochnivar’ between the subject land and Coen. There are many other potential locations identified elsewhere within the council area. [84] Even accepting, that the planning scheme itself recognises that resources may not have been known at the time it was prepared, having concluded that there is a demonstrated need, albeit of a lower order and (for the reasons below) being satisfied that impacts can be managed, I’m bound to conclude that there is a town planning need for the proposed quarry. Conclusion [85] It seems to me that whilst there is a demonstrated economic need for the proposed quarry it is not a particularly strong one since it will struggle due to its location to robustly compete in the wider geographical market. Its capacity to supply proximate road and infrastructure sites is real or substantive rather than trivial, immaterial, minor or insignificant. The commensurate community need will be met by the proposed quarry in terms of choice, localised infrastructure and social benefits flowing from proximity to quarry resources, indirect and direct employment, and business opportunities. The magnitude of community benefits will depend upon the quarry being a successful operation albeit not for profit or low profit. There is also a sufficient planning need for the proposal but not a strong one. Will the proposed development result in unacceptable environmental and ecological impacts and, if so, can such impacts be managed including with reference to the precautionary principle? [86] Consideration of environmental and ecological impacts is relevant for the assessment against the assessment benchmarks, including– (a) in the Regional Plan – Environmental Wellbeing in Regional Policy 2 in s.3.5, and Schedule 1 provides a list of ‘Strategic Environmental Area attributes’; (b) in the Planning Scheme – strategic and specific outcomes at ss.3.4.1(3) and 3.4.1.1(9) and policy context of s.3.5(2); strategic and specific outcomes of the planning scheme at section 3.5.1(1), (2) and (3), sections 3.5.1.1(2), (3) and (4) and 3.6.1(1); Rural zone purpose in ss.6.2.9.2(1)(b)(ii) and (2)(d), and performance outcome P06(c) at s.6.2.9.3; Extractive industry development code ss 9.3.1.2(1) and (2)(b), and performance outcomes PO1, P05 and P06 at s.9.3.1.3; Biodiversity overlay code purpose at ss.8.2.2.2(1)(a),(b), (d) and (e) and at section 8.2.2.2(2)(a), (b) and (c), and performance outcomes PO1, P02, P03 and P05 in s.8.2.2.3; and the Bushfire hazard overlay code at s.8.2.3.2(1) & (2) and PO1, P02, P04, PO5, P06, and P09 in s.8.2.3.3. [87] By virtue of s 5(1) of the Act, the court is obliged to fulfill its function to assess and decide the application in a way that advances the purposes of the Act, which includes applying the precautionary principle. Section 5(2)(ii) makes it clear that “advancing the purpose of this Act” includes following ethical decision-making processes that, inter alia, “apply the precautionary principle, namely that the lack of full scientific -- 26 of 59 -- 27 certainty is not a reason for delaying taking a measure to prevent degradation of the environment if there are threats of serious or irreversible environmental damage”. The precautionary principle calls for an assessment of the nature and extent of consequential risks posed by the various options and the ways and means those risks can be addressed or managed.72 However, it does not call for a nervous approach or one which is intolerant of any risk under any circumstances.73 [88] Three ecologists were called to give evidence – Mr Tucker by the Department, Mr Caneris by the applicant and Mr Delaney by the appellant. The experts have prepared two joint expert reports dated 4 August 2021 and 14 February 2022, and individual statements – by Mr Tucker dated 7 April 2022, by Mr Caneris dated 29 March 2022 and by Mr Delaney dated 31 March 2022. I was aided in my understanding of the evidence by a view of the proposed extraction area and surrounds of the Twin Humps. [89] The appellant contends that the proposed quarry has unacceptable environmental and ecological impacts due to the loss of essential habitat of the Cape York Rock-wallaby including loss of a running water source. The appellant further argues that the environmental investigations are inadequate to enable a proper assessment of the potential for serious and irreversible impacts contrary to the precautionary principle. [90] On the contrary, the applicant, variously supported by the council and department, argues that the lost habitat area is a relatively small footprint, suboptimal, will be subject of a management plan and progressively rehabilitated, and the drainage will be managed and replaced. The applicant also relies upon the absence of any significant, detrimental or unacceptable environmental impacts, and the available conditions to avoid, mitigate or manage any potential impacts, as relevant matters to have regard to in the exercise of the planning discretion in favour of approval. [91] The department supports approval in its capacity as a referral agency. Section 55(2) of the regulation prescribes the matters the referral agency may, must, or must only assess a development application against, and what it may, must or must only have regard to for the assessment. Schedule 10, Pt III, Div 4 of the regulation provides that the referral agency’s assessment for the clearing of native vegetation must be against the state development assessment provisions. The application required assessment against: State code 16 - Native vegetation clearing; State code 1 - Development in a state-controlled road environment; and State code 6 - Protection of state transport networks. On 28 August 2020, the State Assessment and Referral Agency provided a response requiring identified conditions to be attached to any development approval.74 In relation to the aspect of the application seeking the clearing of native vegetation, the department required four conditions. [92] The parties and experts are polarised about the need for, and extent of any, further and better investigation contended by the appellant. 72 Cf. Cuthbert v Moreton Bay Regional Council [2016] QPELR 179 at [129]; Yamauchi v Jondaryan Shire Council & Ors [1990] QPLR 13 at 460 quoting Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270 at 282; Clermont Quarries Pty Ltd v Isaac Regional Council [2021] QPELR 65 at [12]. 73 Clermont Quarries Pty Ltd v Isaac Regional Council [2021] QPELR 65 at [12]. 74 Ex 1 pp. 532-544. -- 27 of 59 -- 28 [93] The appellant relies upon Mr Delaney’s consistent opinions that without targeted flora and fauna surveys he was unable to make a fully informed assessment of the likely impacts of the proposal. He maintained that the following guidelines ought to be applied to make an informed decision: (a) Terrestrial Vertebrate Fauna Survey Guidelines for Queensland – Ecological Sciences, Queensland Herbarium June 2018 (V 3.0)75; (b) Survey guidelines for Australia’s threatened mammals – Guidelines for detecting mammals listed as threatened under the Environment Protection and Biodiversity Conservation Act 1999;76 (c) Australian Government, Department of Environment, Matters of National Environmental Significance;77and (d) Flora Survey Guidelines – Protected Plans Nature Conservation Act 1992, prepared by Wildlife and Threatened Species Operations, Department of Environment and Science.78 [94] The applicant, council and department submit that there is sufficient information to make the assessment required by the Act. They rely upon the considered opinions expressed by Mr Caneris and Mr Tucker drawing on their extensive experience, qualifications, and inspections. Whilst they acknowledge Mr Delaney’s professional preference for the guidelines, and that they may afford a more detailed understanding of the relevant impacts, they argue that they are not mandatory for the planning assessment and ought not diminish the expert judgment of the other ecologists. [95] The Commonwealth Survey Guideline arises out of the Fauna Guideline. Mr Delaney insists that the Fauna Guideline for Queensland was relevant because there are no other published and widely accepted guidelines, leaving this guideline as the most relevant to use when undertaking fauna surveys designed to assess the likely impact of a proposed development on threatened fauna species known, or considered likely, to occur within or adjacent to the proposed quarry. In respect of flora, Mr Delaney identified the State Flora Survey Guidelines – Protected Plants Nature Conservation Act 1992. Again, he insists that the Flora Guideline for Queensland is relevant because there are no other published and widely accepted guidelines. [96] Mr Delaney has adopted a more cautious approach throughout the appeal process – he maintains that there is insufficient information to understand what the impacts are likely to be, to enable the court to make an informed decision as to whether or not those impacts are acceptable or unacceptable. He explained why:79 “…In essence, it comes down to the fact that we’re dealing with matters of environmental significance. We’re dealing with areas of essential habitat … for a threatened species, in particular, the Cape York rock-wallaby. The species is a vulnerable species. It’s – notwithstanding the fact that it’s sort of restricted to the Cape York 75 Ex. 8A.3. 76 Ex. 8A.4. 77 Ex. 8A.1. 78 Ex. 8A.2. 79 Delaney, T7-4/1-23, T7-7/16 to T7-8/31. -- 28 of 59 -- 29 Peninsula, where there’s extensive areas of remnant vegetation remaining in the landscape, but the threatening processes that sort of have led to the listing of that species continue to operate irrespective of the extent of remnant vegetation that’s present. The species is one that’s listed at a national and state level of conservation significance, and there’s a – there’s a body of regulation and conventions that’s … are directed towards the conservation and recovery of threatened species, ensuring that’s sort of – the [indistinct] decisions have sort of – have the potential to have an adverse impact on threatened species, such as the Cape York rock-wallaby, are appropriately informed and sort of – you know, that decision-making process proceeds with a level of caution regarding sort of the potential for significant adverse impacts on the species. My assessment of the material that was submitted in support of the application, insofar as it relates to understanding sort of the particular habitat values of the Twin Humps formation for the Cape York rock-wallaby, both the colony that sort of, we understand, may reside within the Twin Humps formation and also the broader population that occurs within the Coen landscape. The level of assessment sort of – that’s been undertaken is not consistent with the number of guidelines that have been developed to assist in the design and planning of fauna surveys and assessments that are intended to give a robust basis of information to enable informed decisions to be made. … … if you look at it at its broader sense, the species is a threatened species, even without considering the extractive industry. It’s a species that sort of is under pressure from a number of threatening processes that operate within the broader landscape and that will continue to operate whether or not this proposal proceeds. There’s also concern sort of regarding sort of climate change and how – how that will influence the viability of populations of a wide range of sort of flora and fauna species. So I think in – in – in the broader sense sort of, you know, would be we’re – we’re – we’re dealing with a threatened species, so we’d need to proceed with caution in the first instance. If we look specifically at The Twin Humps formation, it’s not a large area. It’s a small – relatively small area compared to, you know, the – the other areas of habitat that we – we know are occupied by the Cape York rock-wallaby. The – the quarry itself, the quarry extraction area: there’s various assessments of how much of these mapped areas of essential habitat will be directly impacted. It ranges from five hectares up to about 6.8, I think is the – is the figure that sort of we ultimately agreed on in the – the ecology JR2. Now, not all parts of the – so – so that’s the direct footprint of the extraction area within mapped areas of essential habitat. There’s also areas that’ll be impacted indirectly through a range of, you know, admissions associated with the extractive industry: noise, dust, vibration, flyrock. There’s – so there’s – and that will extend over a much broader area, I think in the order of – some of the evidence I heard from Mr Gray and Mr Tucker yesterday and the day before, I think, was to the effect that sort of those impacts could extend for up to 500 metres beyond the actual sort of quarry footprint itself. So we’re starting to – to get, -- 29 of 59 -- 30 you know, from a – a small part of the – The Twin Humps formation that’s being impacted to quite a substantial part of it. The Twin Humps formation is not homogeneous. It’s – it’s variable in terms of its characteristics. The – you know, the – the nature of the rocky outcrops. I think the – the Perry – the old sort of survey work that they present indicated that – that their survey, from recollection, sort of covered an aerial survey – covered an area of approximately 90 hectares within which they found approximately six hectares of rocky outcrop habitat. So that particular type of habitat: it is – represents a relatively small proportion of sort of what’s – what’s present within The Twin Humps formation. And the – the extraction footprints sort of occupies, you know, a – a approx – by my estimates, approximately 12 per cent of – of that available habitat. The – the other issue is that you’ll have – you know, it’s not correct to assume that sort of all of The Twin Humps habitat is going to be suitable habitat at all times for the – the Cape York rock-wallaby. One of the things that, you know, can affect habitat sort of quality and – and suitabilities sort of, for example, forage habitat, there’s frequently fires through this landscape. So, you know, if you have a proportion of the – The Twin Humps formation is subject to a bushfire, it takes out sort of a lot of the herbaceous plants and – and grasses, etcetera, that sort of may have been sort of providing forage for the Cape York rock-wallaby. Until that there’s post-fire recovery, the – the wallabies will need to move into other areas of the – The Twin Humps formation. It may not be their preferred areas, but they’re areas that they’ll need to access if they’re going to sustain their sort of population on the – on the formation. All of those things, to me, suggest that sort of it’s, you know – we – we need to do a proper assessment to get a better understanding. The other, I think, critical point for me is understanding water – water resources in this – what can be a very dry landscape, where does this species sort of – where and how does the Cape York rock-wallaby sort of obtain its water requirements. We know – well, we know very little about the water resources on the Twin Humps formation. The only thing that we do know is that within the base of the quarry – within the quarry extraction area, there is a water course – or a drainage feature – I’ll call it a drainage feature – that sustains surface water or seepage for extended periods of time following any substantial rainfall. Based on my observations and the observations of Mr Giles, who – my observations were in July of 2021. Mr Giles, I understand, sort of – who’s provided a statement to the court, attended the site in December of that same year. We’ve both recorded sort of surface water within that feature in the area of the proposed extraction pit. And the persistence of water after up to a period of over eight months of – in the absence of any substantial rainfall is something of particular note in this type of landscape, and there should be a proper assessment done of whether that is unique to this location or are there similar features elsewhere within the Twin Humps formation. If this is the only location where this feature occurs, then the removal of it could have critical consequences for the local population of Cape York rock-wallaby.” -- 30 of 59 -- 31 [97] Mr Caneris spent about four hours walking over the five-hectare site for the appeal. He did not conduct a targeted flora survey and agreed that unless a targeted systematic survey of the area was completed, there is a reasonable likelihood that flora species of concern would not be detected. He accepted that a more detailed flora survey would have provided more certainty about the presence or non-presence of significant species and made for a more thorough application. But he maintained that the Flora Guideline proposed by Mr Delaney in relation to a Protected Plant Flora Survey is only required where land is identified by a Protected Plant Flora Survey Trigger Map. Therefore, it is inapplicable since the area to be developed is not included in the relevant Protected Plant Flora Survey Trigger Mapping.80 He remained confident of his support for the proposal. [98] Mr Tucker conducted a two-hour inspection of the development site and did not complete a full survey of the site. He did not change his support for the application as set out in the joint expert ecology report and his individual statement of evidence. However, he agreed that the flora and fauna guidelines are frequently applied, and if it was his application, he would have surveyed in accordance with the guidelines to establish a use which might have impacts on flora and fauna. He would also have surveyed in the wet and the dry seasons and used cameras for longer periods. Mr Caneris described the guidelines as “something that’s given a lot of regard depending on the - the relevance of your report and who it’s going to and what’s the purpose”.81 He agreed that the scientific survey to the recognised standard had not been done. [99] The Terrestrial Vertebrate Fauna Survey Guidelines for Queensland – Ecological Sciences, Queensland Herbarium (Fauna Guideline) outlines the Department of Environment and Science minimum requirements, standards and appropriate practice for the survey of terrestrial vertebrate fauna in Queensland. In Queensland all native terrestrial vertebrate animals and their breeding places are protected under the Queensland Nature Conservation Act 1992. That is not triggered for this application. The Fauna Guideline itself admits of a level of discretion in its application to fauna survey design, for example in section 3.2 which states: “The guidelines also provide details on two types of fauna survey approach. They are generic fauna survey methods (Section 8), and targeted fauna survey methods (Section 9), and can be used singularly or together in an area, depending upon the objectives and requirements of the project…” [100] Section 9 of the Fauna Guideline provides ‘Targeted Fauna Survey Methods’ to be where a survey’s object is ‘to target a particular species, taxon or suite of taxa, usually because of particular habitat features (for example - rocky outcrop or wetland).’ Mr Delaney accepts that the combination of generic and targeted fauna survey methods used, was consistent with the guidelines for the Cape York Rock-wallaby but maintains that the survey guideline has not been complied with in relation to the survey effort.82 80 Exhibit 8.3, Statement of Mr Caneris, p.23. 81 Caneris T5-25/15-20. 82 Exhibit 8.4, Statement of Mr Delaney, p.63-66. -- 31 of 59 -- 32 [101] The Flora Survey Guidelines – Protected Plants Nature Conservation Act 199283 (Flora guideline) bring to bear the requirements under the Nature Conservation (Plants) Regulation 2020 for flora surveys about protected plants under that legislation. [102] The purpose of the Matters of National Environmental Significant (Cth) – significant impact guidelines is to assist any person to take an action under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The purpose of the Survey guidelines for Australia’s threatened mammals (Cth) is to provide proponents and assessors with a guideline for surveying Australia’s threatened non-flying mammals listed in the Commonwealth Act. These guidelines may help determine presence or the probability of presence, they are predictive of species that may occur. But since the Cape York Rock-wallaby is not included in Table 1 the guidelines do not apply here. This is also reinforced in the section titled ‘How to use these Guidelines’ of the Survey Guideline, as follows: “These guidelines are not mandatory. Proposals failing to meet these survey guidelines for reasons of efficiency, cost or validity will not necessarily default to a judgement that referral is required (that is, that a significant impact is likely), especially where the proponent issues an evidence-based rationale for an alternative survey approach. Alternatives to a dedicated survey may also be appropriate. For example, a desktop analysis of historic data may indicate that a significant impact is not likely. Similarly, a regional habitat analysis may be used to inform judgement of the likely importance of a site to the listed mammals. Proponents should also consider the proposal’s impact in the context of the species’ national, regional, district and site importance to establish the most effective survey technique(s) … Executing a survey to this standard and identifying listed species presence does not in itself predict a significant impact. The presence of a species is one of many factors that will increase the likelihood of a significant impact. Proponents should use the presence of a species as a consideration in establishing whether a significant impact is likely or certain…”. [103] In my view, whilst the various guidelines nominated by Mr Delaney provide for an ideal survey process to achieve greater certainty, they are not a mandatory requirement for this assessment. The guidelines are not a categorising instrument against which the development application ought to be assessed under the Planning Act 2016 (Qld), nor is it mandated by the Nature Conservation Act 1992 (Qld), or the Nature Conservation (Animals) Regulation 2020 (Qld). At best the guidelines may be ‘a relevant matter’ going to the exercise of the discretion, but in the end, I think the extent of any use of the respective guidelines is a matter of professional judgment of the particular ecology expert depending on the circumstances. [104] For this proceeding, it falls to the court to undertake the impact assessment as required by the Act in a way that advances the purpose of the Act, including the precautionary principle. In doing so for consideration of issues of ecology, the court is assisted by 83 Ex 8A.2. -- 32 of 59 -- 33 expert opinion evidence of Mr Caneris, Mr Tucker and Mr Delaney, each with specialist knowledge and experience in their field of expertise. The relevance and weight to be afforded to expert opinion depends upon the proof of the factual basis supporting it. Where there is a lower correlation between proved facts and assumed facts – the expert opinion is less weighty. Conversely, where there is a high correlation between the proved facts and the facts assumed – the expert opinion is weightier. However, if the proof of facts is so tenuous for want of certainty tending towards conjecture or supposition – the point might be reached where the opinion evidence carries so little weight that it is not probative. [105] The appellant argues that there is so little information available that the impacts of the proposal are intolerably uncertain and render the assessment conjectural. The other parties maintain that the proof of evidence is adequate for the purposes of the court’s assessment and approval with conditions to properly manage any ecological impacts. [106] It seems to me that the necessary quarrying activities in the extraction area, including blasting and processing, will unavoidably remove or substantially modify essential habitat, generate emissions of noise, dust and vibration impacting the surrounds beyond the immediate extraction area including connectivity and continuing water sources. The starting point is to understand the status quo of the Cape York Rock- wallaby & other fauna & flora, which will be impacted by the proposal. Cape York Rock-wallaby & other fauna & flora [107] It is common ground that the rocky out-crops characteristic of the Twin Humps formation is essential habitat for the Cape York Rock-wallaby. It is accepted that the Twin Humps is the home of a colony of Cape York Rock-wallaby, but no one knows how many. [108] The development application was supported by an ecological assessment undertaken by Mr Caneris for the purpose identifying the ecological values within the proposed quarry extraction and operations area and determine the potential impacts to those values as a result of the proposed quarry. The report was written without inspecting the land or other independent work. Instead, Mr Caneris relied upon the fauna surveys and reporting by Mr Perry of CSIRO in the Coen region between 2010-2019. The 2019 CSIRO survey is an earlier and unrelated “rapid assessment” to survey for the presence of Cape York Rock-wallabies and to explore the location and extent of potential rock-wallaby habitat generally. It was never geared to deal with the particular potential impacts of the proposed quarry. Some doubt is cast on the reliability of the 2019 CSIRO findings as to the extent and isolation of the surveyed habitat. The uncontested evidence of Mr Delaney is that the area of the rocky-outcrop habitat is 10.6ha, not the 6.4ha as found in the 2019 CSIRO report. The report also fell well short of Fauna Survey and Flora Survey guidelines in terms of thoroughness. [109] Mr Tucker described the 2019 CSIRO survey as a “quick analysis of the site”84 and agreed that the survey was not evenly distributed over the site. If he was leading the research, Mr Tucker would have surveyed in both the wet and dry seasons, undertaken trapping using 20 traps at 5 to 10 metre intervals along a 100 metre transect over 4 84 Tucker T5-75/37-38. -- 33 of 59 -- 34 nights, and deployed more camera traps for as long as possible but ideally longer than 2 weeks. [110] Actual sightings or other evidence of presence of this vulnerable mammal are few and far between. There were two separate recorded sightings of the Cape York Rock- wallaby in 1981 in the database maintained by the Queensland Department of Environment and Science. There were sightings of 2 individual rock-wallabies by CSIRO staff in 2008 which was noted in the 2019 report of Mr Perry of CSIRO. Mr Perry conducted a “rapid assessment” to survey for the presence of Cape York Rock- wallaby in the Coen region between 2010-2019. Rock-wallaby scat was located at 2 locations over a 3-day period in June 2019. In June 2020, a pair of the rock-wallabies were sighted as part of the applicant’s targeted camera survey in an area about 12km to the south-east of the Twin Humps formation. The department has also recorded sightings further afield including: one in 1936 at a location adjacent to the Coen Township, about 22km to the south-east of the Twin Humps; one at about 80km to the north of the Twin Humps; two separate sightings in 1976 about 7 km and 8 km to the southeast of the Twin Humps; and one in 1978 about 10 km east of the formation; and a further two separate sightings in 2005 at about 8km and 12 km to the southeast of the Twin Humps. [111] Mr Caneris described the Twin Humps as “an extremely important rock wallaby habitat”.85 He spent 4 hours walking over the area. On the basis of the absence of any known occurrence on the disturbance area and his site inspection, he opined that the Cape York Rock-wallaby do not utilise the proposed disturbance area in any regular or notable way. Beyond that, Mr Caneris did not know what were the key shelter, forage and water resources within the Twin Humps formation available to sustain the Cape York Rock-wallaby population. He did not know the distributions and extents of the home ranges of the Twin Humps Cape York Rock-wallabies. He did not know, and asserted that it would take many years to establish, the levels and frequencies of movement of individual rock-wallabies between the Twin Humps population and other populations that exist in the broader locality. He did not know the routes taken by individual Cape York Rock-wallabies that are moving between the Twin Humps formation and other occupied areas of habitat in the broader locality. [112] Mr Tucker also readily acknowledged the Twin Humps had the essential habitat factors for the Cape York Rock-wallaby, and that the quarry is proposed to be constructed in the essential habitat area. He conducted a two-hour inspection of the development site. He did not find any scat evidence of Cape York Rock-wallaby but opined that there were resident Cape York Rock-wallabies in the heterogenous sections of the Twin Humps formation, which may occasionally venture into the southern portion of the development site, where it abuts the Twin Humps. He agreed that the area between the edge of the extraction area and Twin Humps is obviously high quality habitat and that the high quality habitat extends some hundreds of metres south of there as well. [113] The case largely focused on the nature, magnitude and duration of the potential impacts on the vulnerable Cape York Rock-wallaby. However, much of the expert opinion of those things is founded on the unrelated 2019 CSIRO quick survey, various historical records of sightings of the mammal and scat, and the expert’s own limited 85 Caneris T5-48/30. -- 34 of 59 -- 35 site inspections. The weight and cogency of the evidence must be considered in light of the dearth of scientific research and a paucity of publications and knowledge about the habits, ecology and conservation of the Cape York Rock-wallaby. Indeed, it is common ground between the ecology experts that there is insufficient data available to derive a robust understanding of: (a) the number, location and aerial extent of Cape York Rock-wallaby colonies in the Coen-Twin Humps locality; (b) the number of individuals within each colony; or (c) patterns of movement of individual Cape York Rock-wallabies between different colonies. [114] The ecological experts also considered other threatened fauna or flora, known, or considered as having the potential to be present or supported.86 The only threatened plant species identified was Glassocardia orthochaeta. It was agreed that the other threatened flora and fauna species likely to be adversely impacted by the proposed development are species with specialised and restricted habitat requirements that are not well represented in the surrounding landscape. Habitat loss [115] The ecological experts identified that the proposal would result in the direct loss of habitat resources for native flora and fauna associated with the alienation and degradation of existing habitat resources linked with the clearance of habitat to facilitate extractive industry operations, including: (a) areas of remnant open forest and woodland; (b) water sources that may contribute to sustaining local fauna populations; (c) sheltering habitats including old growth hollow bearing trees, rock caves and crevices; and (d) foraging habitat. [116] The Twin Humps is covered by diverse remnant open forest and woodland communities that provide habitat for native wildlife. It is located entirely within an area of Essential Habitat for the vulnerable Cape York Rock-wallaby. The habitat resources are also known or considered to have the potential to support populations of a diversity of threatened flora and fauna species identified by the experts. [117] The proposed extraction area is located entirely within an area of Essential Habitat for the vulnerable Cape York Rock-wallaby. The clearing of vegetation in Essential Habitat cannot be avoided for the quarry extraction area, processing and sediment areas, drainage system and haul road. [118] The applicant, council and department argue that this is a comparatively very small proportion of the mapped areas of Essential Habitat for the Cape York Rock-wallaby. That is, 6.8116 hectares of a total 1847.6161 being only 0.37% of the essential habitat 86 Ex.8.2, p.23, para. 43. -- 35 of 59 -- 36 being removed. However, Mr Delaney calculated the extent of direct and permanent loss of areas of rocky outcrop habitat subject of the 2019 CSIRO report by analysing the associated aerial photography. I prefer his calculation that the extraction area comprises 1.28ha being 12% of the existing rocky outcrop dominated habitat associated with the Twin Humps formation (including a 50m buffer zone in which drainage structures will be established). [119] The applicant, council and department also argue that the level of support provided by the development site is insignificant, in the context of the land and surrounding habitat resources. They point to the conclusions of both Mr Tucker and Mr Caneris that the habitat within the quarry excavation area is ‘sub-optimal’. Mr Caneris says that the loss of essential habitat during the operational phase of the quarry is relatively short-term in the context of ecological processes, potential impacts will be subject to a Habitat Management Plan as recommended in the second ecology joint expert report, and the Quarry Excavation Area will be progressively rehabilitated. Mr Tucker opined that the actual development site contained ‘sub-optimal’ habitat for the Cape York Rock-wallaby, because there is a prevalence of exotic vegetation in the area, in particular horehound; there is a lack of specific habitat features such as overhangs and crevices that are critical for rock-wallaby reproduction, resting or escape; and there is ‘optimal’ core habitat already on the undisturbed land, on the Twin Humps formation proper, south of the proposed quarry site. He opined that the potential impacts were acceptable because substantial areas of analogous habitat will remain in the local landscape; Twin Humps does, and will continue to provide undisturbed core habitat and abundant foraging habitat; habitat connectivity will remain as the site is completely surrounded by analogous habitats. Mr Tucker also expressed the view that impacts can be appropriately managed, concluding they will be temporarily and spatially discrete and that their ecological effect can be mitigated through appropriate conditions. [120] Mr Delaney emphasised that the area was still one of essential habitat for the Cape York Rock-wallaby, which is vulnerable even in its current state; decision-making regarding the potential for significant adverse impacts on the species ought to proceed with a level of caution; the Twin Humps formation is a relatively small area compared to the other areas of habitat; the 2019 CSIRO report survey of a wide area only found about 6 hectares of suitable rocky outcrop habitat; the quarry footprint will occupy 12% of that available habitat; quality and suitability of the other habitat is not constant, for example, forage habitat will be affected by bushfire, requiring the rock- wallabies to move into other areas of the Twin Humps, which may not be their preferred areas; and a valuable water source of unknown provenance will be lost at the site of the excavation pit. [121] It seems to me that the conclusions of by both Mr Tucker and Mr Caneris that the habitat within the quarry excavation area is ‘sub-optimal’ were based on their respective impressions while walking over the site for 2 hrs and 4 hrs respectively. There is no quantitative assessment of the matters negatived. Whether parts of the habitat are “suboptimal” compared to core “optimal” parts is of little consequence when all ecologists agreed that the habitat, including the quarry area, satisfied all relevant criteria and is all “essential habitat”. The prevalence of exotic vegetation is difficult to fathom absent an understanding of preferred forage. There is no survey of the nature and extent of specific habitat features to understand the “lack” thereof. In those circumstances the opinion evidence should be given little weight. -- 36 of 59 -- 37 [122] Direct impacts will also extend to the available water sources. [123] Mr Giles reported on water quality and is the hydrology expert for the proposed quarry. The land is crossed by Bourne Creek, which is located to the east of the Twin Humps formation. There is Regulated Category B (remnant) vegetation associated with Bourne Creek (where a crossing is proposed on the access road) and the drainage feature in the quarry extraction area. Three drainage features flow into Bourne Creek. The drainage features (and unmapped watercourses) are shown on the identification map in Figure 3 of his Statement of Evidence. Ordered streams and unmapped watercourses are also shown on the Site Layout Plan on Exhibit 2. The quarry design also includes diversion or catch drains that will divert surface runoff around the perimeter and away from the quarry pit. [124] The source of water through the extraction area that will be removed is characterised as a ‘drainage feature’, as distinct from a recognised ‘watercourse’. It traverses relatively close to rocky outcrops of the Twin Humps habitat. The experts agree that the ‘drainage feature’ may provide an important dry-season source of water for native fauna species. As observed by Mr Delaney and Mr Giles, the drainage feature sustains surface water or is fed by subsurface seepage for extended periods of time following any substantial rainfall. They also observed surface water within that feature in the area of the proposed extraction pit. The experts have measured the length to be removed at 250 metres rather than the 400 metres originally thought. Apart from possible ponding elsewhere on the Twin Humps, Bourne Creek located 650m to the east is the nearest known alternative source of surface water during dry periods. [125] The applicant contends that the lost 250 metres should be seen in the context of the proximity to the drainage feature, and the Quarry Extraction Area of other drainage features/unmapped watercourses. Mr Caneris’ says there are lots of drainage features and nevertheless asserts that the proposed diversion drain will effectively replace the removed 250 metres of the drainage feature and provide the same ecological features. Mr Tucker opined that Bourne Creek is likely to be the main source of water for wildlife that require standing water, and this watercourse will continue to provide that function. [126] Mr Delaney does not accept that the proposed diversion drain will be an adequate replacement. He emphasises the importance of the natural drainage feature, much lower in the landscape, as a critical proximate water source for the resident Cape York Rock-wallabies. There is no in-depth assessment of the nature, quality or comparative characteristics of other drainage features proximate to the Twin Humps that might be available for the needs of the resident rock-wallaby colony. In that regard Mr Delaney considers it necessary to carry out a designed field survey program to better understand whether other alternative water sources are available to meet the needs of the local colony. [127] It seems to me that the experts have reached a state of reasonable consensus, despite the lack of scientific rigour in its factual foundation. They all agreed in paragraph 56 of their second joint expert report that: “The experts do not know if there are other alternative watering points present within the Twin Humps formation, however, given the larger catchment and extended rock outcrops it is reasonable to assume there -- 37 of 59 -- 38 is alternative ponding elsewhere. Should there not be alternative ponding sources in the Twin Humps formation, Bourne Creek, is the most likely alterative reliable source of surface water during dry periods and is located approximately 650m to the east of the Twin Humps formation. Rock wallabies are known to be capable of traversing this distance to access water if required. “ [128] The applicant also relies upon a positive outcome of investigations as part of the preparation for this appeal, the mapped essential habitat in the area has been increased by 78.5397 ha. Mr Caneris and Mr Tucker also pointed to some ecological gains made by the implementation of conditions relating to a habitat management plan, including in relation to feral animal and weed control. Mr Delaney did not agree. It seems to me that the point is moot in light of the undisputed loss of essential habitat for the proposed quarry in the first place. [129] The scope of the proposed habitat management plan requires (using the paragraphing in paragraph B of pages 84 and 85 of the second ecological joint expert report): 7(a) Check habitat (vegetation, logs, rock outcrops) for fauna and breeding sites, 12. A Cape York rock-wallaby monitoring plan which involve, at a minimum, the conduct of annual wet season and dry season transect and camera trapping survey equivalent to those documented in Perry et, al. (2019). 13. An outline of a habitat restoration requirements, with a particular focus on the restoration of rocky outcrop and vegetation which aligns with the applicable regional ecosystem to provide ongoing habitat for the Cape York rock-wallaby. [130] It seems to me that these are the core quantitative deficiencies to enable a qualitative assessment of potential impacts to the Cape York Rock-wallaby by the establishment and operations of the proposed quarry. Noise, vibration, dust, etc. [131] The ecological experts identified the indirect adverse ecological impact from the proposal of degradation of habitat quality within the surrounding landscape associated with extractive industry operation, including impacts associated with: (i) noise and vibration impacts associated with blasting; (ii) miscellaneous noise emissions from plant and equipment; (iii) emission and deposition of dust over the surrounding landscape; (iv) an increased prevalence in non-native predators (e.g., cats and dogs) and weeds; and (v) light emissions. [132] I accept Mr Gray’s evidence that dust will blow up the slope towards the peak in the prevailing winds from the east to south-east; vibration from blasting may occur 200m -- 38 of 59 -- 39 away; flyrock 50m away; air blast overpressure a few hundred to 500 metres away; and noise a few hundred metres away. Therefore, the quarrying activities in the extraction area, including blasting and processing, will generate emissions of noise, dust and vibration that extend beyond the boundaries of the extraction area. In this regard, the peak of the Twin Humps is located about 420m from the edge of the proposed Extraction Area and a substantial proportion of the mapped areas of essential habitat of Twin Humps is within 300m of the area where blasting operations will occur. [133] I accept Mr Delaney’s evidence that the majority of the Twin Humps formation to the east of the primary peak will be subject to some disturbance, direct or indirect, as a result of the proposed quarry. He also opined that rock-wallabies are known to be sensitive to various forms of disturbance, and I infer that the emissions from blasting will spook the local colony, but the extent of likely impact is unknown. [134] Mr Gray addressed quarry management in detail in his individual statement of evidence. Mr Caneris expressed the view that the ecological impacts are relatively minor when viewed in context with the surrounding landscape and that they can be readily mitigated to ensure no unacceptable impacts by a Habitat Management Plan, as recommended in Ecology second joint expert report.87 Mr Tucker observed noise and vibration impacts will be seasonally limited and demand driven, and remote from areas of higher habitat value; during the dry season, localised dust has had no visible impact on vegetation adjacent to the PDR – any dust impacts from the site are likely to be spatially and temporally discrete, and its effects inconsequential; light emissions can be managed through directional lighting (and nocturnal species may benefit from this); a risk of road kill arises no matter where or by whom resources are extracted. Mr Tucker accepted that the blast effect in terms of noise might be felt and heard up to half a kilometre away, and potential impacts may extend from the quarry site upward to the peak of Twin Humps. [135] Nevertheless, there is no specific evidence about the sensitivity of the Cape York Rock-wallaby, in this location or generally, to noise, dust and vibration. And there has been no deliberate attempt to better measure and assess the risk of potential impacts of the proposed quarry activity in respect of noise, dust and vibration on the Cape York Rock-wallaby. Connectivity [136] The Twin Humps also provides for relatively uninterrupted fauna movement and vegetated connections to the wider landscape. [137] Mr Delaney asserts (and others disagreed) additional adverse impacts on local and broader landscape movement corridors, including the potential importance of the Twin Humps as a stepping-stone for species making broader movements through the landscape. He considered that the Twin Humps formation plays a critical role in facilitating movement of Cape York Rock-wallaby colonies between other rocky outcrop habitats and to the east and west. Similarly, Mr Caneris agreed that the Twin Humps is quite possibly or likely the point of connection between three ecological communities consisting of rocky outcrops to the west and the east. Mr Caneris also acknowledged a likely connection and genetic dispersal between the Cape York 87 Ex.8.2, pp. 84-85, paras B1-17. -- 39 of 59 -- 40 Rock-wallaby population of the Twin Humps and the rocky outcrop habitats to the west and east. However, he did not know how many Cape York Rock-wallabies were in other colonies on the Cape or the patterns of individual rock-wallabies between different colonies. Mr Tucker opined that habitat connectivity will remain as the site is completely surrounded by analogous habitats. [138] While I accept it is likely that other Cape York Rock-wallaby colonies exist in the Twin Humps and the rocky outcrop habitats further abound, there has been no assessment of the quarry operations on their connectivity. Transportation risks [139] The ecological experts further identified resultant impacts associated with the transportation of extracted resources on the local road network (e.g., an increase in the potential for “road kill”). This did not feature to any great extent in the dispute. Conclusion [140] It seems to me that the necessary quarrying activities in the extraction area, including blasting and processing, will unavoidably remove or substantially modify essential habitat, generate emissions of noise, dust and vibration impacting the surrounds beyond the immediate extraction area including connectivity and continuing water sources. [141] Whilst the experts correctly, I think, assume that a colony of the vulnerable Cape York Rock-wallaby inhabits the Twin Humps (including the proposed quarry areas), nothing is known about the colony itself or its individual make up or their interactions with the landscape and beyond. There is insufficient foundational evidence about the assumed permanent resident population of rock-wallabies on the Twin Humps; the population of individuals and their demographic, the parts of that landscape they utilise, why and when; the location of critical habitat resources, including shelter, forage and water; the seasonal changes and other natural impacts like fire and drought; the number, location or extent of proximate colonies; the patterns of movement of individual Cape York Rock-wallabies between different colonies. [142] I am not satisfied that the evidence provides a sufficient factual foundation in support of the ecology opinion dealing with the nature, magnitude, duration and likelihood of potential adverse impacts of the proposed quarry, especially on the vulnerable Cape York Rock-wallaby and its habitat. Does the proposed development give effect to the Cape York Regional Plan? [143] The Cape York Regional Plan covers eleven local government areas, including the land in question. The land is subject of the Cape York Regional Plan being mapped Strategic Environmental Area. Coen and its surrounds are identified as a priority living area. [144] The purpose of the Regional Plan is to enhance the quality of life throughout the region by facilitating opportunities for appropriate economic development while recognising the need to protect Cape York’s regionally important environmental -- 40 of 59 -- 41 areas.88 The Regional Plan is part of a suite of policies and legislative instruments that guide land use planning and development in order to influence economic, social and environmental outcomes in Queensland (Figure 3).89 [145] Regional Policy 1 requires the provision of economic opportunities and appropriate development by facilitating economic and employment opportunities in the region. Having reached the conclusions regarding the demonstrated economic, community and planning need, this policy is met. [146] Regional Policy 2 seeks to safeguard areas of significant biological diversity and ecological function (map 1) by protecting the ecological integrity of Strategic Environmental Areas from incompatible development. [147] The Regional Plan provides: “Economic activities that are able to co-exist with the environmental attributes detailed in Schedule 1, allow for the sustainable development and exploitation of the region’s natural resources and balance economic and social interests of the people in the region may be facilitated. Areas in and around SEAs can facilitate appropriate commercial tourism opportunities such as eco-tourism, short term accommodation, recreation trails, camping and nature-based experiences. Development in these localities will need to co-exist with the environmental attributes detailed in Schedule 1.”90 [148] This is followed by the Editor’s note to that provision which states: “Consideration will be given to mining activities in SEAs other than designated precincts where on-ground evidence suggests that adverse environmental impacts can be avoided or minimised through appropriate conditioning.” [149] Having regard to my discussion and conclusion about the insufficient on-ground ecological evidence, I am unable to conclude that adverse environmental impacts can be avoided or minimised through appropriate conditioning. Therefore, on the state of the evidence I do not accept that that the proposed quarry can co-exist with the environmental attributes of the Cape York Rock-wallaby and its habitat in the immediate site, the balance of the Twin Humps location, and the greater landscape. [150] In any event, planning schemes are required to reflect these policies, and the regional plan is to be given effect to the extent that it is not appropriately reflected. The Minister has identified that the planning scheme appropriately advances the Regional Plan.91 Does the proposed development comply with relevant assessment benchmarks in the Planning Scheme, identified below in respect of: Strategic Framework; 88 Ex.14, Chapter 2 (Introduction) p.7. 89 Ex.14, Chapter 2 (Application and effect), p.8. 90 Exhibit 14, p.19, Chapter 5 – Regional policies, p.19. 91 Exhibit 3, p.7, s.2.2. -- 41 of 59 -- 42 Rural Zone Code; Biodiversity Overlay Code; and Extractive Industry Use Code? [151] The land is identified on the Strategic Framework map of the Cook Shire Council Planning Scheme 2017 (version 2.0) with two designations being the Rural and the Strategic Environmental Area. It is in the Rural zone. [152] It is the subject of two overlays: (1) the Biodiversity overlay – mapped within and identified as Matter of Environmental Significance area for wildlife habitat and Regulated Vegetation (essential habitat) in the Biodiversity Overlay Maps OM1.7, OM1.5 and OM1.4; and (2) the Bushfire overlay – mapped medium, high and very high bushfire hazard according to the Bushfire Hazard Overlay Maps OM2.7, OM2.5 and OM2. [153] The following codes are applicable: Biodiversity overlay code; Bushfire overlay code; Rural zone code; Extractive industry use code; Residential use code; Parking and access code; and Works services and infrastructure code. [154] Relevantly here, the proposed development is impact assessable as extractive industry, but the caretakers’ accommodation and operational work components are code assessable. Whilst extractive industry is accepted development in the Rural zone where it is for a borrow pit, it is otherwise, impact assessment assessable. Development which is not specified in the tables of assessment is not categorised ‘inconsistent’, and the biodiversity and bushfire overlays do not change the level or nature of the assessment required in any way. [155] The application must be assessed against, or have regard to, the following benchmarks in the planning scheme. [156] Part 3 Strategic Framework provides: 3.1 (1) “The strategic framework sets the policy direction for the planning scheme and forms the basis for ensuring appropriate development occurs in the planning scheme area for the life of the scheme.” [157] Pursuant to s 3.1(3)(b)(i) & (iii) two of the five themes that collectively represent the policy intent of the scheme are economic welling and environmental well-being. Section 3.2 provides for the strategic intent including strategic context, key challenges and the future as follows: 3.2 Strategic intent (1) Development in Cook Shire over the next 20 years will deliver an efficient land use pattern, sustainable economic growth, sound environmental management, infrastructure security and resilient communities. The Cook Shire Community Plan 2011-2021 identifies the priority issues of public interest including the delivery of road and communications infrastructure, the need for secure employment and a diverse economy, maintaining culture and history, the liveability of townships, and increasing housing diversity. Given the size, remoteness and tenure issues confronting -- 42 of 59 -- 43 Cook Shire, these issues involve a wide range of stakeholders and all levels of government. (2) Following on from the Community Plan, Cook Shire Council prepared the Cook Shire Tourism Strategy July 2012 and the Cook Shire Economic Development Plan 2013- 2015. It commissioned detailed analysis of the following key policy areas: (a) Rural land use constraints and opportunities (b) Potential flood impacts on township (c) Potential bushfire risks for township (d) Aligning the planning scheme with Traditional Owner aspirations for getting back on country (e) Identification and protection of extractive and mineral resources in Cook Shire. (3) At the time of preparing the planning scheme, the above documents provided detailed strategic context and identified key challenges and informed preferred development outcomes as discussed below. [158] Section 3.3 relevantly provides for economic wellbeing, including relevant policy contexts in (4), (5), (6) and (7). (4) Also important to a strong economy are the townships and industries contributing to the economy and enriching the lifestyle, including: (a) Cooktown – the major township for public administration, business, accommodation, education and services; (b) Coen – the service centre for the northern region of the Shire; (c) Laura – famous for its amazing rock art and the Quinkan and Regional Cultural Centre; (d) Lakeland – key farming and grazing industries. A large proportion of the finite supply of agricultural land with good access to markets but limited access to water; and (e) Rossville, Ayton, Portland Roads and the Endeavour Valley – recognised for their low impact lifestyles and niche horticulture and eco-tourism ventures. (5) The following hard rock quarries and major resources have been identified in Cook Shire.6: (a) Archer River Quarry – The only operating hard rock quarry north of Lakeland capable of producing strong and durable materials and aggregates for road base, road surfacing and airfields. This is of regional significance for the Cape. -- 43 of 59 -- 44 (b) Musgrave Quarry – A greenfield hard rock quarry strategically located between Lakeland and the Archer River, expected to produce road bases, aggregates and rock products to reduce reliance on imports into the region. This is of regional significance for the Cape. (c) Butchers Hill Quarry – A basalt quarry well positioned off the Mulligan Highway at Lakeland and a source of high- quality aggregates for road surfacing, concrete and drainage media. This is of regional significance for local and State- controlled roads and to the building and construction industry. (d) Mt Amos Quarry– A small to medium sized hard rock quarry close to Cooktown with long-term capacity to supply the south-east region with aggregates and pavement materials. This quarry, together with nearby resources to the north, is of regional significance. (e) Hard rock resources at Archer River and Mount Amos (Wegryzniak resource), Melody Rocks limestone resource, and the Lochinvar hard rock resource (near Coen) are of regional significance to fulfil future demands. (f) Wongai Coal Mine – Future production of coking coal located in the Laura Basin, 150 km north-west of Cooktown on land owned by the Kal Powar Aboriginal Land Trust under a heads of agreement with Aust Pac Capital P/L. (6) Gravel pits of significance because of road safety and the economy of Cook Shire are: (a) Bizant Pit – Located beside the Bizant airstrip in Lakefield National Park. This large gravel pit produces roadbase materials for roads frequently damaged during the wet season yet requiring constant upgrade due to increasing tourist numbers. These resources are very scarce and are critical for road safety and tourism. (b) Battle Camp Road gravel pits – These gravel deposits are ideal grading for road base and loam materials are a valuable binding agent used in roads locally and regionally across the Cooktown and Laura regions. It is therefore critical these gravel pits and nearby resources close to Battle Camp Road are not sterilised by expansion of the Lakefield National Park. There are no known replacement resources in the region and their sterilisation would have significant impacts on road safety, tourism and economic development. (c) Violet Vale Pit – This strategically located gravel pit is used for maintenance of State- controlled roads by the Department of Transport and Main Roads. This is a rare source of durable hard rock. -- 44 of 59 -- 45 (d) Black Pinch Pit – This pit services local roads south of Cooktown and the townships of Helenvale, Rossville and communities further south including Wujal Wujal, Shiptons Flat and Daintree. (e) Construction sand – Access to clean, fine sand is important for the construction industry. Sand is currently extracted in small amounts from a variety of alluvial, riverine and estuarine environments. Access and extraction is often limited by land tenure issues and controlled via permits issued under the Water Act or administered under the Environment Protection Act. New opportunities to access construction sand and improve construction efficiency and viability will be supported. (7) It is recognised that future industries, infrastructure, energy and resources may not be known at the present time; however this does not limit the potential for exploration and investment into new technology to realise future opportunities in Cook Shire. [159] Policy context (5) identifies hard rock quarries and major resources at the time the Planning Scheme was prepared. Subparagraphs (a)-(d) identify hard rock quarries. Subparagraph (e) identifies hard rock and limestone resources. Subparagraph (f) identifies a coal mine. The quarries identified are the four currently operating hard rock quarries – Archer River, Musgrave (Artemis), Butcher’s Hill and Mt Amos, which are also identified on Strategic Map 1. [160] Policy context (6) recognises the significance of gravel pits for road safety and economic reasons. I have found that there is no trend of decline in the shire. [161] Consistent with Policy Context (7), I accept that the proposed quarry is the kind of future industry, infrastructure and resource that may not have been known at the time of implementing the scheme. Subject to protection of existing quarries, demonstrated need and management of impacts (ss.3.3.1(5) & 3.3.1.1(4) & (5)) the scheme does not limit the potential for exploration and investment to realise future opportunities in Cook Shire. [162] Strategic outcome s.3.3.1(5) seeks to protect existing gravel pits and quarries and contemplates supporting the expansion or establishment of new quarries “where there is a demonstrated need and impacts can be managed” and is particularly relevant to the appeal. The specific outcomes in s.3.3.1.1(4) & (5) seek to protect identified hard rock quarries and resources of regional economic significance. 3.3.1 Strategic outcomes … (5) Sources of extractive materials such as gravel pits and quarries (hard rock, loose rock, sand and soils) used for the construction of roads, buildings, pipelines and other infrastructure essential to the economy are protected. Expansion or establishment of new quarries will be supported where there is a demonstrated need and impacts can be managed. -- 45 of 59 -- 46 3.3.1.1 Specific outcomes … (4) Hard rock quarries and resources identified on Strategic Map 1 and their associated infrastructure are protected for their regional economic significance. These resources are protected from encroachment of incompatible uses in the area or on main transport routes. (5) Gravel pits identified on Strategic Map 1 are critical to road infrastructure in Cook Shire and these are protected against sterilisation. [163] I have found that there is a demonstrated economic, community and planning need for the proposed quarry particularly in its local market. But it will be disadvantaged by its position and capacity to compete in the wider market, which is amply resourced by other more proximate quarries. I find that the hard rock quarries and gravel pits, and their associated infrastructure and resources (as identified on Strategic Map 1) are protected, therefore the proposal complies with ss.3.3.1.1(4) and (5). [164] By operation of s 3.3.1(5), demonstrated need and management of impacts are key criteria for the establishment of new quarries. Whilst I have found that there is a demonstrated need for the proposed quarry, I am less sanguine about the sufficiency of proof about the management of impacts. For my reasons regarding the ecological issues, particularly the unsatisfactory state of foundational facts to assess the indirect and direct impacts on the Cape York Rock-wallaby and its habit, I find that the applicant has not proved the pre-condition that the potential impacts can be managed, even with conditions (as discussed below). On that basis the proposal does not comply with the benchmark comprising s 3.3.1(5). [165] The land use patterns in s.3.4 relevantly provide for policy context (2)(g), strategic outcomes ss.3.4.1(1); 3.4.1(3) and 3.4.1.1(9) as follows: 3.4 Land Use Pattern Policy context … (2)(g) Coen – 390km north-west of Cooktown and 252km south- east of Weipa, Coen has a population of 322. It services the northern part of the region and is an important supply point for travellers. Key issues are housing and the need and opportunity for growth; … 3.4.1 Strategic outcomes (1) The planned distribution of residential, industrial, rural, commercial, community, open space and conservation land in conjunction with the delivery of infrastructure and services provides certainty for investment and economic growth. Development in conflict with the intended land use and built form outcomes may be supported if there is an overwhelming need in the public interest. Further it is acknowledged there may be major industries, infrastructure and energy projects and resource enterprises of benefit to -- 46 of 59 -- 47 the community that are not known at the time of writing this planning scheme. … (3) Natural resources, extractive resources and productive rural land are protected from incompatible land uses. … 3.4.1.1 Specific outcomes (9) Development inconsistent with the planned location, intensity or type of land use must demonstrate there is a community need for such development, no adverse amenity or environmental impact and adequate access to infrastructure or orderly extension of that infrastructure, including community infrastructure. [166] Section 3.4.1(1) is directed to land use strategic outcomes, and acknowledges that major industries, infrastructure and energy projects and resource enterprises of benefit to the community may not have been known at the time of writing the planning scheme. It again reinforced the proposition that the scheme is open for additional resource enterprises outside those known and identified in the scheme. Those which are so identified again enjoy the stated protection from incompatible uses in s.3.4.1(3). The proposed quarry does not offend against these benchmarks. [167] However, that cannot be said for s 3.4.1(9). In so far as the proposed quarry may be considered inconsistent with the otherwise planned locations of known and existing resources, I affirm my view that, notwithstanding my findings about community need, the applicant has failed to prove that the proposal will have no adverse amenity or environmental impacts regarding the vulnerable Cape York Rock-wallaby and its essential habitat. Where the other factors s 3.4.1(9) are not affected by those deficiencies, they are neutral in this application. [168] The relevant strategic and specific outcomes of the planning scheme are found in ss.3.5.1(1), (2) and (3), 3.5.1.1(2), (3) and (4) and 3.6.1(1), as follows: 3.5.1 Strategic outcomes (1) Development avoids significant adverse environmental impacts or mitigates significant impacts where they cannot be avoided. (2) Areas of environmental significance are protected and enhanced. Where development occurs within or adjacent to these areas, it is designed, located and constructed to minimise disturbance to the natural landform, ecology and wildlife habitats. (3) Natural drainage, coastal environments, coastal resources, coastal processes, groundwater levels and landscape features are protected or enhanced. 3.5.1.1 Specific outcomes (2) Development protects and enhances other areas of environmental significance including: -- 47 of 59 -- 48 (a) Coastal habitats, wetlands, waterways and coastal vegetation; (b) Prominent ridgelines and foothills, such as Grassy Hill; (c) Areas of known rare and threatened species; and (d) Ecological linkages and buffers for continuity of habitat. (3) Development within protected areas will be limited to: (a) Small-scale maintenance buildings, depots and visitor facilities; (b) Essential infrastructure; and (c) Outcomes in accordance with an Indigenous Land Use Agreement, as reflected in the Eastern Kuku Yalanji Local Plan. (4) Development is designed to ensure water quality is protected and enhanced by: (a) Minimising disturbance to riparian habitats in and adjoining waterways and wetlands; (b) Minimising the discharge of contaminants and silt; (c) Specific management techniques must be incorporated into development to avoid the harmful consequences of disturbing or generating acid sulphate soils; (d) Responding to local climate and landscape characteristics; (e) Protecting natural drainage lines and overland flow paths and mitigating potential erosion risk; and (f) Avoiding ground water contamination. 3.6 Infrastructure and servicing 3.6.1 Strategic outcome (1) Cook Shire’s infrastructure and services are delivered, managed and augmented in an orderly manner that supports the planned land use pattern. Development matches infrastructure demand with capacity so that community needs are met and the surrounding environment is protected. [169] The protection of natural environmental resources is a key policy issue in this appeal. Sub-sections 3.5.1(1), (2) and (3) are in strong terms in respect of the environment and landscape features, including ‘avoids’ ‘mitigates significant impact’ ‘protected’ ‘enhanced’, ‘minimize disturbance’. In my view the applicant has failed to prove avoidance, mitigation or protection of environmental values. I am not satisfied that the proposal will avoid significant adverse environmental ecological impacts or mitigate significant ecological impacts where they cannot be avoided. Nor am I -- 48 of 59 -- 49 satisfied that the proposed quarry area, being of environmental significance as essential habitat of the vulnerable Cape York Rock-wallaby, will be protected and enhanced. And I am not satisfied that the quarry operations in terms of blasting can be managed to minimise disturbance to the ecology and wildlife habitats in adjacent areas. Further, there is also uncertainty regarding the destruction and unknown prominence of the natural drainage water source. In my view the proposed quarry does not comply with benchmarks in ss. 3.5.1(1), (2) and (3). [170] I also consider that there is noncompliance with ss. 3.5.1.1(2) and (3). The land is a protected area under the Biodiversity Overlay Code – development in such areas is limited to things quite unlike a quarry. It could not be said that the proposal will protect and enhance other areas of environmental significance for the reasons set out in the ecology discussion above, including the destruction of the essential habitat of the vulnerable Cape York Rock-wallaby, destruction of a water source drainage feature and replacement with diversion drainage of Bourne Creek, and indirect impacts on the vulnerable Cape York Rock-wallaby. There is no dispute that the water diversion and drainage of and around the quarry area is adequate to afford protection required by 3.5.1.1(4). [171] Benchmark s.3.6.1(1) links development to infrastructure demand needs whilst also protecting the surrounding environment. The proposed quarry is intended for critical infrastructure like roads. I note that s.3.6.1.1(9)(g) of the Scheme identifies that gravel pits are critical to road infrastructure. Having regard to what I’ve said about ecology, I am not satisfied that the surrounding environment is protected by the proposal. [172] The rural zone purpose in ss.6.2.9.2(1)(b)(ii) and (2)(d), and performance outcome P06(c) at s.6.2.9.3 is also relevant: 6.2.9 Rural zone code 6.2.9.1 Application 6.2.9.2 Purpose (1) The purpose of the rural zone is to — (a) provide for rural uses and activities; and (b) provide for other uses and activities that are compatible with— (i) existing and future rural uses and activities; and (ii) the character and environmental features of the zone; and (2) The purpose of the code will be achieved through the following overall outcomes; (d) Existing extractive industries and known resource deposits are protected and provide opportunities for new extractive industry operations. All new and existing operations are located and designed to mitigate environmental impacts; 6.2.9.3 Criteria for assessment -- 49 of 59 -- 50 Rural land use PO6 Development ensures the following rural outcomes are achieved: (a) new or existing rural or extractive industries will not be prevented from establishing and/or expanding. … (c) rural landscape values, water resources and environmental quality are protected. AO6.1 Development complies with minimum lot size and dimensions identified in Schedule 1 of the Reconfiguring a Lot Code. And AO6.2 Development does not occur within the Annan River Resource Buffer on the Water Resource area identified on OM11- Water Resources Overlay. [173] Section 3.4.1.1, Specific Outcome 9 provides for extractive industry as an activity intended to be located in the Rural Zone. The contention again is environmental. For reasons already traversed in relation to ecology, I am not satisfied that the proposal complies with that purpose of the Code to provide for uses and activities that are compatible with the environmental features of the zone. [174] Section 6.2.9.2(2)(d) repeats the theme from the Strategic Framework. I also note PO6(a) encourages that new and existing extractive industries will not be prevented from establishing and/or expanding; and PO6(c) reinforces protection of environmental quality. Apart from existing extractive industries and known resource deposits, which the proposal is not, the benchmark also intends for “new operations” to be located and designed to mitigate environmental impacts. Again, this falls short, for the reasons given, regarding the ecological matters going to the vulnerable Cape York Rock-wallaby and its habitat and the findings on conditions. I am not satisfied of compliance in this respect. [175] The Biodiversity overlay code is also relevant for assessment against its purpose at ss 8.2.2.2(1)(a), (b), (d) and (e) and at ss 8.2.2.2(2)(a), (b) and (c), and performance outcomes – PO1, PO2, PO3 and PO5 in s 8.2.2.3; and table 6.9 regarding accepted development requirements and assessment. 8.2.2 Biodiversity overlay code 8.2.2.2 Purpose (1) The purpose of the Biodiversity overlay code is to protect biodiversity through: (a) avoiding development within biodiversity areas; (b) minimising the adverse impacts of development on biodiversity; … -- 50 of 59 -- 51 (d) strategic rehabilitation occurs through restoration of terrestrial and aquatic ecosystems; (e) encourage expansion of habitat connectivity; (2) The purpose of the code will be achieved through the following overall outcomes: (a) Conservation, consolidation, connection and restoration of the network of lands with environmental significance. (b) Protection and enhancement of waterways, wetlands and coastal environments with environmental significance and their hydrological value and water-cleaning functions. (c) Avoidance of impacts to areas of environmental significance through the appropriate design and location of development. PO1 Development avoids areas of environmental significance. AO1.1 Development does not result in the clearing of vegetation and is set back a minimum of 20 metres from a wetland or water course mapped on OM12 – Wetland and Watercourses Overlay Map. PO2 Development is sited in a State environmental area only where there is no reasonable opportunity to avoid the area and where the extent of development in the State environmental area has been minimised. AO2.1 No Acceptable Outcome PO3 Development minimises or mitigates adverse impacts on areas of environmental significance where such impacts are unavoidable. AO3.1 Development within an area identified on OM1 – Biodiversity Overlay Map does not involve vegetation clearing. Or AO3.2 Where development within an area identified on OM1 – Biodiversity Overlay Map is unavoidable, measures recommended by a suitably qualified ecologist are incorporated to protect and retain the environmental values and underlying ecosystem processes within -- 51 of 59 -- 52 or adjacent to the development site to the greatest extent practical. PO5 An adequate buffer to wetlands identified on OM1 – Biodiversity Overlay Map is provided and maintained. AO5.1 A buffer for an area of state environmental significance (wetland protection area) has minimum width of: (a) 200 m where the area is located outside an urban area; or (b) 50 m where the area is located within an urban area [176] The purpose of the Code is to protect biodiversity through specifically identified means. Biodiversity is not defined, and those areas are not identified in the planning scheme. However, Matters of State Environmental Significance are identified on Overlay Map OM 1.7 which includes the land mapped as Regulated Vegetation (essential habitat) and Wildlife habitat. So much is common ground. Having regard to my view about the ecology matters, it seems to me that the proposal involves direct impacts associated with vegetation clearing, especially for the extraction and processing areas, in the biodiversity area. I am also not satisfied that it will encourage habitat connectivity and I do not agree that the fundamental evidentiary deficiencies can be met by appropriate conditions. In my view, the proposal fails each of those specifically identified means in ss 8.2.2.2(1)(a), (b), (d) and (e). [177] Contrary to s.8.2.2.2(2) (a), (b) and (c), for the same reasons, it seems to me that the proposed development fails to conserve, consolidate, connect or restore the network of lands with environmental significance. Those benchmarks are not complied with. [178] There also non-compliance with s.8.2.2.3 PO1, PO2 and PO3 having been tainted by the same ecological deficiencies. The proposal does not avoid the essential habitat since it necessarily involves the clearing of vegetation, especially in the extraction area. Whilst the resource location is fixed, there is no reasonable opportunity for the proposed development to avoid the state environmental area. The loss associated with the extraction areas is unavoidable and cannot be minimised or mitigated by the imposition of conditions – that would be too late. Otherwise, at least there is some minimisation of impacts on the mapped habitat protection by locating the processing area outside the habitat protection area. [179] It seems to me that PO5 in s.8.2.2.3 does not apply since there is no mapped wetland proximate to the site by reference to Biodiversity Overlay Maps. [180] The Bushfire hazard overlay code at s.8.2.3.2(1) & (2) and performance outcomes PO1, PO2, PO4, PO5, PO6, and at s.8.2.3.3 and performance outcome PO9 is also relevant. I am satisfied of their compliance, in the absence of any areas of disagreement between the Bushfire Management experts in respect of the Bushfire Hazard Assessment and Bushfire Management. -- 52 of 59 -- 53 [181] The extractive industry development code ss 9.3.1.2(1) and (2)(b), and performance outcomes PO1, PO5 and PO6 at s.9.3.1.3 provide: 9.3.1 Extractive industry use code 9.3.1.2 Purpose (1) The purpose of the Extractive industry development code is to ensure operations do not cause significant loss of amenity or threaten life or property in the locality. (2) The purpose of the code will be achieved through the following overall outcome: … (b) Operations follow leading environmental practice for extractive industry and sites are effectively rehabilitated. PO1 The extractive industry is designed and operated to avoid or minimise potential impacts on nearby areas. AO1.1 No extraction or processing of extractive materials is carried out within: (a) 20m from any public road; (b) 10m of any land not used for extractive industry purposes; (c) 40m of a watercourse, unless the extractive industry site is located in a watercourse. PO5 Extractive industry incorporates mitigation measures to minimise the likely adverse impacts on environmental, ecological and hydrological processes and noise and dust nuisance. AO5.1 Extracted materials, overburden and waste materials are transported and stored on site so as to avoid contamination of waterways, drainage areas, sewers or sewer easements. A plan is submitted demonstrating: (a) Erosion controls; (b) Sediment basins; (c) Stormwater management devices; (d) Containment/suppression of dust, sand and soil to prevent blowing onto public roads or adjoining premises. PO6 The extractive industry operations provides for the progressive rehabilitation of the site to provide for the optimal future land use and land form after extraction is completed. AO6.1 A rehabilitation plan is prepared and submitted. The plan shall: (a) Demonstrate the site will be rehabilitated to a stable, useable and functional state; -- 53 of 59 -- 54 (b) Indicate staging of the rehabilitation, to allow revegetation of areas where excavation is completed; (c) Indicate ongoing rehabilitation, including spreading of overburden stockpiles and restoration of the soil profile; (d) Show storage of materials, overburden and waste to avoid contamination of waterways, drainage areas and sewers; Provide for removal of disused buildings, structures, plant, machinery and materials from the site after extractive industry activities are complete; and (e) Provide for the return of the land to a stable, non-polluting landform, which does not pose a risk to humans, livestock or native fauna. [182] Mr Giles was not contradicted or challenged in relation to these benchmarks.92 I am satisfied that the proposal can be conditioned to comply with AO5.1. Erosion control, sediment basins, stormwater management devices have been addressed by Mr Giles. Containment suppression of dust and sand to prevent escape onto public roads or adjoining premises, has been addressed in the report of Mr Gray. There would be progressive rehabilitation of the extraction area and conditions that can be imposed to provide for rehabilitation within practical limits. I am satisfied of compliance with these benchmarks. Whether any such non-compliance can and should be managed by the imposition of reasonable and relevant conditions? [183] This issue is particularly poignant in relation to non-compliance with the assessment benchmarks under the planning scheme flowing from my negative findings about management of the ecological impacts. [184] The applicant accepts the recommendations of the ecology experts for the preparation and approval of a Habitat Management Plan prior to the commencement of the use,93 and relies upon the evidence of Mr Caneris and Mr Tucker in respect of the timing and the way it might be recorded as an overview of identified outcomes. The applicant also accepts the recommendation for preparation and implementation of a “Post Extractive Industry Cape York Rock-wallaby Habitat Restoration Plan”.94 This 92 Exhibit 11. 93 Ex.8.2, pp. 84-85, paras B1-17. 94 Ex.8.2, p.85, para B18. -- 54 of 59 -- 55 is also consistent with Condition PSL 005(s) on EA 0000779,95 the proposed Council Condition 20 requiring a rehabilitation plan and measures supported by Mr Gray. [185] The council and department join with the applicant in this approach. [186] The proposed condition includes detail on the contents of the future Habitat Management Plan such that it can be accepted that the following positive ecological outcomes would occur from the proposal: (a) a weed and pest species management plan; and (b) a monitoring plan which would assist in gaining greater knowledge about the Twin Humps Cape York Rock-wallaby population and could assist in understanding the response of rock-wallabies to development generally. [187] The proposed conditions also require measures to manage the impacts arising from the proposed development, including by: (a) a fauna spotter/catcher being present during vegetation removal and preparation works to check habitats and ensure appropriate treatment of animals; (b) strict controls on operations including “no go” areas to restrict disturbance and access to those areas absolutely necessary for the construction and operation of the quarry in accordance with other conditions of approval; (c) habitat restoration requirements; (d) a monitoring program to assess the impact management performance indicators; and (e) an annual review of the habitat management plan by an ecologist. [188] The appellant contends that such a course invites the court to surrender its role in deciding the application and leaves the ultimate question of whether the proposed development ought to happen, and in what form, up to the council. The appellant argues that the proposed condition offends against the finality principle because: the effect of leaving the investigation for later is that an approval that would be significantly different from the development for which the application was made;96 or a condition which impermissibly leaves for later decision an important aspect of the development and the decision on that aspect in the future could alter the development in a fundamental way.97 [189] The council submits that at the development assessment stage, it is relevant that all impacts are “potential” and can never be exacted with certainty, until the land is developed. It is submitted that this is why the court has long resisted the attractions of avoiding responsibility for allowing a proposal which has been demonstrated to 95 Ex.1, Vol. 1, tab 10, p.338. 96 Harris v Scenic Rim Regional Council [2014] QPELR 324 at [229], Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737, Scott v Wollongong City Council (1992) 75 LGRA 112 at 118. 97 McBain v Clifton Shire Council [1996] 2 Qd R 493 at 496-7, Caloundra City Council v Pelican Links Pty Ltd [2003] QPEC 52 at [51]. -- 55 of 59 -- 56 have some risk unless handled appropriately.98 As to the characterisation of a “threat of serious or irreversible environmental damage”, reliance is placed on Telstra Corporation Ltd v Hornsby Shire Council99 and the non-exhaustive factors that may be considered when determining whether the first element has been satisfied, namely: (a) the spatial scale of the threat; (b) the magnitude of possible impacts; (c) the perceived value of the threatened environment; (d) the temporal scale of possible impacts, in terms of both the timing and the longevity (or persistence) of the impacts; (e) the complexity and connectivity of the possible impacts; (f) the manageability of possible impacts, having regard to the availability of means and the acceptability of means; (g) the level of public concern, and rationality of scientific or other evidentiary basis for the public concern; and (h) the reversibility of the possible impacts and, if reversible, the time frame for reversing the impacts, and the difficulty and expense of reversing the impacts. [190] In my view the submissions fail to recognise that the nature of the non-compliance results from a failure to establish the foundational facts with sufficient degree of certainty to identify and understand the potential impacts and whether the impacts can be managed to avoid threats of serious or irreversible environmental damage. The ecology experts all agreed that the proposed quarry will result in the identified adverse ecological impacts including impacts on the vulnerable Cape York Rock-wallaby and its essential habitat. And, I accept Mr Delaney’s assessment that: (a) The proposed quarry will have adverse impacts on matters of environmental significance as discussed in sections 3.2 to 3.5 of the second ecology joint expert report; (b) There is a substantial lack of scientific certainty concerning the likely significance of adverse impacts of the proposed quarry and the likely effectiveness of proposed impact monitoring and mitigation strategies, including uncertainty that is caused by the limitations of the ecological surveys and assessments undertaken to inform the proposal, referring to the first ecology joint expert report; and (c) There is a risk that the direct, indirect and cumulative impacts of the proposed quarry on some matters of environmental significance, particularly the Cape York Rock-wallaby, will be both serious and irreversible. 98 Clermont Quarries Pty Ltd v Isaac Regional Council [2021] QPELR 65 at [12]; GFW Gelatine International Ltd v Beaudesert Shire Council [1993] QPLR 342 at 353. 99 Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256 at 269. -- 56 of 59 -- 57 [191] In Ecology JER1, Ex 8.1, p12 (4)(b), Mr Delaney said: “A properly informed and formulated P. coenensis Impact Assessment and Management Plan is reasonably required to form a basis for: (a) assessing whether or not the impacts of the proposed development on P. coenensis could be mitigated to acceptable levels; and (b) the imposition of associated conditions, if it was determined that the proposed development should be approved.” [192] Again, I agree with his opinion. It is regrettable that a well-informed ecological impact assessment was never done, and that has resulted in an inadequate basis for assessing whether the impacts can be managed and form a proper basis for any conditions. The applicant, council and department in effect propose a condition subsequent to remedy this fundamental deficiency in the evidence by first identifying the impacts, then measuring them, and then making an evaluative assessment as to their management. In that way, it seems to me that the condition leaves for later decision critical ecological impacts of the development, which could significantly alter the proposed quarry in a fundamental way, and it will so undermine the approval such that it could not be regarded as final. In addition, such a condition would operate to circumvent an approval assessment process, including proper public notification, and thereby block the rights of submitters.100 [193] It seems to me that those matters of assessment are properly for the development approval process and ought not be deferred and delegated to the council by way of a conditional process. The latter will perpetuate the delay of taking a measure to prevent degradation of the environment in circumstances of threats of serious or irreversible environmental damage. In my view the proposed condition offends the precautionary principle and finality principle and is invalid. Are there relevant matters that favour approval despite any non-compliance with assessment benchmarks? [194] The council relies upon the Other Relevant Matters as relevant to the assessment under s 45(5) of the Planning Act dated 16 April 2021, and maintains that: (a) The proposed development enjoys support from the State Assessment and Referral Agency (the referral agency for the relevant development application) and consistent with the proposed limits for intended activities, the proposed operator holds an environmental authority (EA0000779) for the following environmentally relevant activities: (i) ERA 16(2) Threshold (a) - Extracting, other than by dredging, in a year, 5,000 tonnes to 100,000 tonnes; (ii) ERA 16(3), Threshold (a)- Screening in a year, 5,000 tonnes to 100,000 tonnes. (b) There is a need for the proposed development. 100 Cox & Ors v Maroochy Shire Council & Ors [2006] QPELR 628 at [93] – [95]. -- 57 of 59 -- 58 (c) The proposed development is well located to provide increased choice, convenience, competition and employment opportunities in the region. (d) Approval of the proposed development is in the public interest. [195] The applicant joins with the council’s submissions, and relies upon the following additional relevant matters: (a) The proposed development advances the purposes of the Planning Act 2016. (b) The proposed development will not result in any significant, detrimental, or unacceptable: (i) environmental impacts, including with respect to flora and fauna; (ii) amenity impacts. (c) The proposed development will be designed, constructed, and operated to meet environmental obligations in accordance with Environmental Authority EA0000779. (d) The proposed development can be conditioned to comply with any measures which may be necessary to avoid, mitigate or manage any potential impacts on the environment or the community. Any non-compliance with an applicable assessment benchmark can be addressed through the imposition of lawful conditions. [196] The department advances the following relevant matters: (a) The common material for the development application; and (b) The State Development Assessment Provisions (version 2.6). [197] The appellant contends that none of these “other relevant matters” are sufficient to outweigh or overcome the non-compliance with the assessment benchmarks in this case. [198] For the reasons discussed under the topic, I accept that there is an economic, community and planning need for the proposed quarry, limited to a localised market involving proximate applications. In that sense it is well located to provide increased choice, convenience, competition and employment opportunities associated with the local community. [199] Like the support of the Council, it is positive that the proposed quarry has the support of State Assessment Referral Agency. The authority EA 0000779 was issued by the Department of Environment and Heritage Protection on or about 20 April 2017. It identifies legislative requirements to be complied with and imposes conditions. The proposed quarry will be constructed and designed accordingly and the operation to be managed in accordance with written procedures through an Environmental Management Plan. [200] It seems to me that the ecological evidence in relation to the essential habitat of the vulnerable Cape York Rock-wallaby lacks sufficient scientific certainty. I do not -- 58 of 59 -- 59 accept that it has been shown that the proposed quarry will not result in any significant, detrimental or unacceptable environmental impacts. In my view, on the current state of the evidence and the risk of threats of serious or irreversible environmental damage, I do not accept that the proposal can be conditioned to comply with any measures which may be necessary to avoid, mitigate or manage any potential impacts on the environment or the community. [201] For these reasons, the proposal does not advance the purpose of the Act and approval of the proposed development is not in the public interest. Conclusion [202] For these reasons, I will allow the appeal and refuse the development application. [203] I will hear from the parties about any consequential orders consistent with this decision. Judge DP Morzone KC -- 59 of 59 --