Berry & Ors v Caboolture Shire Council & Ors [2001] QPEC 60

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Berry & Ors v. Caboolture Shire Council & Ors [2001] QPEC 060 PARTIES: DAVID JOHN BERRY, BARBARA ANN HANNELL, SHIRLEY ELAINE HANNELL, JOHN WILLIAM HANNELL, SONYA GAY VIDONI, MARCO VIDONI, SHIRLEY ANN GAIR, JOHN ANTHONY GAIR, DEBORAH MAY SPERMON and RONALD HENRICUS SPERMON Appellants and CABOOLTURE SHIRE COUNCIL Respondent and RODNEY WAYNE JOHNSTON and GIANNA JOHNSTON Co-respondents FILE NO/S: 3933 of 2000 DIVISION: Planning and Environment PROCEEDING: Submitters’Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 4 June 2001 DELIVERED AT: Brisbane HEARING DATES: 23, 24, 26, 27 April, 8, 9, 10, 11 May 2001 JUDGE: Judge Robin Q.C. ORDER: Appeal dismissed, conditions to be varied. CATCHWORDS: Submitter appeal against local government’s approval of an application for consent to quarry decomposed granite – proposed site of 2 hectares roughly in middle of 105 hectare property in hilly country such that the quarry would be largely concealed from outside view – extractive industry a consent use under existing zoning (Rural) – planning documents tended to favour extractive industry – immaterial that planning map did not identify the resource – issues included need (not excluded), viability of proposal, noise and -- 1 of 43 -- 2 dust, “intangible” impacts, possible closer settlement of local area from advantage being taken of possibility to erect a second dwelling unit on allotments zoned Rural, traffic impacts (especially in vicinity of primary school and at intersection where quarry traffic would enter Mt Mee Road) – court concerned that the construction of the side road as a ramp to Mr Mee Road would preclude direct access presently available to paddocks – court envisaged a condition to alleviate this situation dependent on neighbours’co-operation – neighbours had no right to have existing level of side road preserved. Arksmead Pty Ltd v. Gold Coast City Council (2001) 1 Qd.R 247; Queensland Investment Corporation v. Toowoomba City Council (2000) QPEC 36 (2 June 2000); Shellharbour Municipal v. Rovili Pty Ltd (1989) 16 NSWLR 104, 108; Mt Marrow Blue Metal Quarries Pty Ltd v. Moreton Shire Council (1996) 1 Qd R 34; Integrated Planning Act 1997 s.4.1.50(2), s.6.1.30(3)(b); Local Government (Planning and Environment) Act 1990 s.4.13(5) and (5A), s.7.1A(2); Local Government Act 1993 s.901, s.917, s.918. COUNSEL: S. Keim for the Appellants W. Cochrane for the Respondent M. Stewart SC for the Co-respondents SOLICITORS: Lestar Manning for the Appellants King & Co. for the Respondent Paul Everingham & Co. for the Co-respondents [1] This is a submitter appeal by ten of the hundreds of local people who unsuccessfully objected against an application made by the Co-respondents to the Respondent Council as long ago as 22 July 1998. The application was for a development permit for a material change of use for extractive industry of the applicants’ land, being part of Lot 4 on RP902520, Parish of Durundur, County of Canning, which is situated at the end of Monkeybong Lane at Mount Mee, just to the west of D’Aguilar. -- 2 of 43 -- 3 [2] The Council determined to approve the application subject to various conditions designed to reduce its adverse impacts. One of the conditions, requiring the upgrading of Monkeybong Lane to produce more suitable access for quarry trucks from and to Mount Mee Road, produces adverse impacts of its own, particularly upon access of neighbouring landowners to Monkeybong Lane. [3] The application was advertised and public submissions were invited, on three separate occasions. The Council’s original approval was vitiated by reason of failure to comply with relevant requirements under the Environmental Protection Act 1994. [4] According to Mr Priddle’s report, on the first occasion of advertising in August 1998, 92 submissions were received by Council objecting to the proposal with 15 submissions lodged in support. On the second occasion, there were 473 submissions lodged objecting and a final advertisement in May 2000 produced four submissions. The submissions were in evidence, but the parties made no particular reference to any of them. An objection in petition form was included. In Arksmead Pty Ltd v. Gold Coast City Council (2001) 1 Qd.R 247, 362, the Court of Appeal approved this court’s taking into account a non-statutory petition. The Judge in Queensland Investment Corporation v. Toowoomba City Council (2000) QPEC 36 (2 June 2000) at paragraph 45 and 46 took into account a petition supporting a development proposal for a new cinema complex. (Although the petitioners numbered some 10,000, they did not carry the day, perhaps because their views took insufficient account of what the actual impact of the proposal might be.) I have perused the submissions which, speaking generally, voice genuine and proper concerns, especially as to environmental and safety issues, and agree with Mr -- 3 of 43 -- 4 Keim’s submission for the Appellants that where a proposal is opposed so broadly and strongly within the community upon which it impacts, the court will scrutinise the proposal and its justification very carefully. [5] Although, as a practical matter, it is the Appellants who identify the issues for the court’s consideration, it is the Co-respondents (applicants) who bear the statutory onus to establish that the appeal should be dismissed: Integrated Planning Act 1997, s.4.1.50(2). Cf. s.7.1A(2) of the Local Government (Planning and Environment) Act 1990. Since the application was pursuant to a transitional planning scheme, s.6.1.30(3)(b) requires that this appeal be decided under s.4.13(5) and (5A) of the 1990 Act. [6] Mr and Mrs Johnston purchased Lot 4 not long before making their development application. It relates to a confined area of two hectares roughly in the middle of the 105 hectare parcel. While the site appears on maps to have a substantial frontage in the east to Webster Road, the road designated is unformed. The site’s only practicable access is by travelling the full length of Monkeybong Lane from Mount Mee Road. There was no evidence about this, but it would be difficult to avoid the inference that the sole purpose of the dedication of Monkeybong Lane was to provide access to Lot 4 when some subdivision occurred. Monkeybong Lane terminates at the boundary of Lot 4, which is the only property it serves, although it has the effect of providing access along the southern boundary of the property to the north of Mr and Mrs Vidoni (Appellants) and, on the south, to the northern boundary of Mr and Mrs Malcolmson’s property. Both those properties enjoy the benefit of a principal frontage to and access from Mount Mee Road. -- 4 of 43 -- 5 [7] Presently, Monkeybong Lane is an unsealed stretch about 200 metres long and effectively no more than 2 wheel tracks, usable only in good weather. For the first half of its length, it falls very steeply from Mount Mee Road, which is meets on the outside of a sharpish curve. Monkeybong Lane is thus entirely unsuitable for use by the truck and trailer combinations (carrying 20 m3 loads) contemplated by Mr Johnston. Unsurprisingly, the upgrading of this stretch of public road (at the Johnstons’expense) is part and parcel of the development permit and the conditions thereof made by the Council on 13 July 2000. Its advice requires the use permitted to be carried out “in accordance with Plans A-F1 (including Plan E – Sheets 1–3) prepared by Perry and Morphett Pty Ltd submitted with the application… unless amended by conditions of this approval”. Those plans, in particular the ones specifically identified, indicate that roughly the western half of the lane is to be reconstructed as a ramp using a much gentler grade (one in eight) to Mount Mee Road. [8] The approval incorporates conditions as contained in the EPA concurrence agency response attached as Appendix A and includes rehabilitation of the quarry site “so as not to create Contaminated Land” and “to the satisfaction of Council”. The approval relates only to the extraction of decomposed granite. By way of indicating the care taken by the Council, I note conditions 3 to 37:- “Amenity – General 3. There is to be no interference with the amenity of the area or detrimental effect on any person by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, waste water, waste products, grit, oil or otherwise. Landscaping 4. A rehabilitation landscaping plan shall be lodged with Council prior to the commencement of use and shall be adhered to at all times. This plan -- 5 of 43 -- 6 shall include the methods to be employed in revegetating the site, including ground preparation and maintenance and shall demonstrate the manner in which the issues outlined in the Environmental Protection Agency’s Condition (A10) are to be achieved. 5. All disturbed ground is to be rehabilitated promptly and effectively to eliminate erosion potential. Timing of site rehabilitation shall be in accordance with Section B5 and 1E Aust. (Qld) ESC Guidelines. 6. Topsoil shall be stripped from the site prior to earthworks and stockpiled for reuse in the rehabilitation. Environmental – Stormwater Quantity and Velocity Control 7. Land with a slope of greater than 1 in 6 shall not be left cleared of vegetation unless sound environmental protection measures can be identified and implemented. Extractive Industry – Specific 8. Prior to the commencement of the use hereby permitted the applicant shall submit a contoured site plan prepared by a licensed surveyor of the site at a suitable scale to enable a duly authorised officer of Council to fix the location of the limit of extraction in line with the requirements of this approval. The determined limit of extraction shall be clearly and permanently marked with delineator posts on the grounds. 9. The applicant shall also indicate on this plan or on a separate plan the method of shaping the extraction of the material from the site on a yearly basis and the method of progressive rehabilitation of those areas no longer used for the extractive industry. 10. The plan referred to in Condition 8 shall form part of this permit. 11. The method of extraction shall be by front end loader and rehabilitation of the site shall be carried out progressively in accordance with a plan indicating the reclamation by stages referred to in Condition 10 on completion of the extractive industry. 12. The screening plant to be operated on the site must be limited. 13. The use of the site for the purpose of extractive industry shall be at all times in accordance with the plan referred to in Condition 9 and any Acts, Regulations and Local Laws, and in particular Chapter 49 of such Local Laws, in force at the time be complied with. 14. The top of all excavation batter slopes must be trimmed to a slope of not steeper than one vertical to three horizontal and satisfactorily grassed. -- 6 of 43 -- 7 15. An Erosion and Sediment Control Plan (ESCP) must be submitted to Council with engineering drawings and approved prior to site clearing, construction or the commencement of earthworks. Erosion and sediment control plans shall be prepared in accordance with procedures specified in the Australian Institute of Engineers Publication, “Soil Erosion and Sediment Control – Engineering Guidelines for Queensland Construction Sites, (1996)” and any conditions imposed by the Environmental Protection Agency. 16. The route to and from the site shall be via the Mount Mee Road and the unnamed road to the west of the site. No access shall be allowed via any other road. Extractive industry trucks shall not use Mount Mee Road during hours which are identified as the school bus times being at present between the hours of 7.30 am to 8.30am and 3.00pm and 4.00pm during school days. These times shall be reviewed prior to the commencement of each school year. Outside of these hours trucks must observe a 70 km/hr maximum speed as they pass the Mount Mee/Delaney Creek School Road intersection. The operator is to advise the local Police Officer and the Delaney Creek State School of the intended times of proposed truck movements where these will exceed two trips per day. 17. The hours of operation shall be limited from 6.00am to 6.00pm Monday to Friday, and 6.00am to 12.00pm mid-day Saturday, with the use not permitted to operate on Anzac Day, Christmas Day and Good Friday. 18. The operation shall not be continued, if, in the opinion of Council, damage may be caused to the Council roads because of wet weather conditions. 19. The applicant shall, at his own expense, submit to Council prior to the commencement of the use hereby permitted and in May of each succeeding year a properly prepared contour plan of the excavation areas, prepared by a licensed surveyor, together with such calculations as to show the amount of material extracted from the site in the preceding 12 months. The plan referred to in condition 8 will be used as the base plan for the commencement of the first year. 20. No more than 10,000m3 of extracted material shall be removed from the site per year. 21. The applicant shall lodge with Council a cash bond or unconditional bank guarantee for an amount of $10,000 to ensure that rehabilitation works are carried out to Council’s satisfaction. Such cash bond or unconditional bank guarantee shall be lodged with Council prior to the commencement of the use hereby permitted. 22. The use hereby permitted shall not be commenced until all the conditions of the permit have been complied with. -- 7 of 43 -- 8 Miscellaneous 23. The use of land and buildings shall comply at all times with all relevant Acts, Regulations and Local Laws. Transportation Planning – access and Roads 24. Within the Monkeybong Lane road reserve off Mount Mee Road the applicant is to undertake the following construction: (a) Typical cross section of road to consist of a 9 metre formation with a 6 metre wide 2 coat spray seal. Refer to standard drawing CSC-R4. (b) Drainage to be designed for a 1 in5 year flood to be piped under road. (c) Design and construction of access road must be in accordance with Council’s Design Manual. 25. The applicant shall construct the access road embankment entirely within the road reserve unless consent is given by the adjoining property owners. 26. The intersection with Mount Mee Road is to be constructed in accordance with the requirements of the Department of Main Roads. The intersection is to be constructed to a no lesser standard than the Department of Main Roads’ Type 2 (amended) standard as detailed on the access Drawing No. D2-5. 27. Prior to the commencement of any works within the state-controlled road the applicant shall arrange for detailed engineering plans and specification to the proposed works to be submitted to Main Roads for assessment and approval. The engineering design, plans and specifications are to be prepared in accordance with this District’s document. “Basic Requirements for Engineering Design, Drawings and Specifications for Approval for Roadworks within Declared Road Boundaries.” Form DC02F6 (07/04/97). 28. The cost of all works associated with this proposal, including relocation of services, lighting etc, are to be at the applicant’s expense. 29. The applicant is responsible for obtaining all approvals, where applicable, prior to the commencement of any works. Any conflicting conditions imposed by other authorities, which may necessitate amendments, are to be brought to Main Roads attention. 30. Vehicular access shall not be permitted, and Main Roads may take all steps that are reasonable and necessary to prevent access to or from the subject land until such time as construction of the approved works has -- 8 of 43 -- 9 been completed to the satisfaction of Main Roads and the Local Authority. 31. Erosion control devices and stabilisation of the road batter along the embankment/head walls of the new road shall be provided by the applicant. 32. The applicant is advised that Council will not be carrying out maintenance of Monkeybong Lane in view of its purpose of only serving the subject land. The cost of carrying out maintenance on the access road is to be at the applicant’s expense. 33. Subject to the concurrence of the Department of Main Roads, the applicant is to monitor and clear roadside vegetation in the vicinity of the intersection of Mount Mee Road and Monkeybong Lane so as to maintain clear and unimpeded sight lines from the approach to the intersection from the south. Any such works will be undertaken to the requirements of the Department of Main Roads. 34. No more than 500 m3 of extracted material shall be removed from the site by road in any one week, provided the total extraction does not exceed 10,000m3 in any one year. 35. Assessment Manager Conditions 4, 8, 9, 10, 15, 21, 24, 25, 26, 27, 28, 29, 30 and 31 shall apply and must be complied with prior to the commencement of the use. All other Assessment Manager conditions must be complied with during the conduct of the use. 35. The following matters be addressed in accordance with South East Queensland Water Corporate advice: - the implementation of effective sediment and erosion control measures; - the effective management of stormwater flows to prevent sediment or contaminated water entering the river system (eg. Diversion banks, provision of detention ponds, etc); - protection of vegetation outside work areas; - rehabilitation of worked areas; and - appropriate monitoring arrangements. 35. The area adjoining properties affected by erosion caused by previous extraction be reinstated to the original ground levels and further fence line and fences be repaired at the Applicant’s expense.” (The reference in Condition 10 to Condition 10 should probably be to Condition 4 or to the EPA Condition (A 10).) -- 9 of 43 -- 10 [9] As the conditions acknowledge, Lot 4, but not the present two hectare site, has previously been home to an extractive industry in relation to the same product. Town Planning Consent 687 for an extractive industry was issued on 22 January 1987. The extraction of decomposed granite occurred until early in the 1990’s, when the Council cancelled that consent for reasons not presently important. This activity did not involve the Johnstons. [10] The proposed quarry site has some most unusual features. It is located in a hilly, rural area, zoned Rural. The two-hectare portion to be exploited forms part of a north facing ridge running off a higher east-west ridge line. The site is said to extend to within 700-800 metres from the house of Mr Chicken, an objector who gave evidence for the Appellants. Because the ridge or knoll to be mined (to the point of being removed) is otherwise screened by much higher surrounding ridges, Mr Chicken in his residence is likely to be the person most affected by noise, dust and visual impacts, across the intervening gully. The general area is developing rapidly, an indication of which is the increase in size of the Delaney’s Creek Primary School over the last 12 years from 56 children to 150. There is a growing subdivision known as Deer Park in the area north of Dwayne Road, in the general area of Mr Chicken’s, where the zoning is Rural Residential. The strong probabilities are that Rural Residential zoning will not extend south of Dwayne Road, so that Mr Chicken’s may be regarded the high water mark of adverse amenity impacts, quite apart from his assertion that being engaged in activity involving shift work, he needs peace during the day. [11] I note Mr Keim’s submission that the local residents are entitled “to be dubious about the ongoing effectiveness of rehabilitation in the wake of the existing scar on -- 10 of 43 -- 11 the landscape constituted by the old pit.” In similar vein, he suggested that the evidence of Mr Winders to the effect that EPA requirements as to noise and dust impacts will be satisfied by the proposal would be of little comfort to local residents either. He was entitled to refer in aid of these submissions to the significance of “intangible” impacts flowing from knowledge of the presence of a particular development. Whether or not the Court of Appeal was endorsing this approach in Arksmead at page 361, the Full Court has acknowledged the potential importance in appropriate cases of such subjective factors: see Broad v Brisbane City Council (1986) 2 Qd R 317, 320 and 325. I do accept that a use of land which from the point of view of neighbours may be seen as a nuisance may affect their amenity, even outside the times when activities are actually performed, when there is a possibility that the activities may start up again at any time. [12] In this appeal, while I would disagree with Mr Stewart SC (for the Co-respondents) in his castigation of the Appellants “for taking every possible point” (which I am inclined to think anyone opposing the granting of a discretionary application to approve a quarry would be likely to do), I think he is generally correct in his assertion that the Appellants and their witnesses, indeed the submitters in general, have been unduly fearful of what might be the consequences of the tiny quarrying operation presently proposed. Numerous objections pleaded against the advent of “another Bracalba”. A good number were fearful that, as apparently with Bracalba, the permitted production levels would double, and then be doubled again. Mr Keim disavowed any argument along those lines, for the obvious reason that the Co- respondents would be unable to expand in the absence of a further successful development application. -- 11 of 43 -- 12 [13] As indicated, the Johnstons have the unusual advantage that their site is effectively screened from view in all directions, except for the north, by ridges; to the north, screening by land forms is limited, but there is a good deal of vegetation both on and off Lot 4 which will screen visual impacts; beyond that, the prescribed method of operation requires “bund” or “berm” walls or barriers to minimise impacts and rehabilitation closely following extraction so as to minimise the extent of the “scar on the landscape”, which will necessarily be quite confined in any event. In this case, there is no reason to reject the views of Mr Winders. The quarrying operations on Lot 4 would not have any unacceptable impacts; they are of much less concern than consequential impacts off the site to do with transportation of the decomposed granite extracted. [14] In this connection, and indeed, in this appeal as a whole, the issues argued cannot be considered in isolation. Whether or not impacts are acceptable depends in part on what are the reasonable expectations of residents of an area. That in its turn depends on relevant local planning documents and, in my opinion, on things which have happened, such as Lot 4’s having a history of use for the extraction of decomposed granite. [15] As noted, the land is zoned Rural and so is the surrounding land, as opposed to Rural Residential. Much was made by Mr Stewart and Mr Cochrane (for the Council) of the noisy activities that may be associated with legitimate rural uses. Pleas for the retention of the “rural” character of the area beg the question, as extractive industry is a permissible use within the rural zone. The planning authority has a discretion to permit an extractive industry, and to identify appropriate conditions which are calculated to render its impacts acceptable. That -- 12 of 43 -- 13 the site is not zoned “extractive industry” has little significance in this case. The planning documents could not make it more clear that the existence of extractable resources in other areas is acknowledged and that they ought to be exploited. By definition, resources of decomposed granite in the region are finite. There was no evidence suggesting a glut of the product on the market. It seems to me that, other things being equal, such a resource is better exploited than sterilised. The Appellants’ planner, Mr Dillon, agreed that, as the general area developed, the timing could not get any better for exploitation of this resource. Mr Keim’s submission was that unless the local government declares the resource to be of “great strategic significance” it is already too late to exploit it. I do not accept this submission. [16] The Caboolture Shire Council Strategic Land Use Plan 1993 identifies objectives for rural areas so identified on the Strategic Land Use Plan Map. Relevant objectives are set out commencing page 22: “Objective 1. (a) Where a consent or rezoning application affects an area within the Rural Designation on the Strategic Land Use Plan, regardless of whether the land is currently cultivated, a detailed assessment of the agricultural quality of the land shall be required as part of the application. The requirements of the State Planning Policy 1/92- Development and Conservation of Agricultural Land shall be considered in deciding such applications. (b) Applications to facilitate non-rural uses in areas designated as Rural on the Strategic Land Use Plan Map will not be considered favourably by Council where the subject land is good quality agricultural land, or where the approval of the uses would prejudice the activities or functions of a legitimate rural use. (c) Where non-rural development is approved in accordance with the Strategic Land Use Plan adjacent to an area designated as Rural, Council will require an appropriate buffer area which uses natural features or is incorporated within the development to minimise -- 13 of 43 -- 14 conflicts with rural practices; and to demarcate the boundary between rural and other development uses. (d) The use of rural land for extractive industries is considered to be appropriate and such applications will be treated on their merits.” The other objectives are: “(2) To preserve and enhance the general rural character of “the Shire” (in my opinion, to be read subject to (1)(above)) and “(3) To ensure that water catchment areas within the Shire are adequately managed to protect water quality in rivers and water supply storages and maintain the long term integrity of the catchments.” [17] As to this last, while numerous submissions referred to water quality, and the impact on local creeks of run-off from mining, there was no evidence on this subject in the appeal. [18] Little flows from the non-identification of the Johnstons’ decomposed granite resource as a significant extractive resource in planning documents. The Strategic Land Use Plan provisions regarding extractive resources are: “Extractive Resources The significant extractive and mineral resources located within the Shire have been designated by a purpose symbol on the Strategic Land Use Plan Map. These areas are not the only resources in the Shire, and are only indicative of the actual resource location. The types of material extracted include sand, gravel, clay and hardrock and in some cases the processing of such substances occurs on the site. (1) Objective To protect valuable extractive and mineral resources from encroachment of residential and rural residential development in order to enable such resources to be utilised as required. -- 14 of 43 -- 15 Implementation (e) The Strategic Land Use Plan Map identifies extractive and mineral resource locations which should be protected to enable utilisation as required. (f) Residential and rural residential development will not be supported in locations which would preclude the utilisation of valuable extractive and mineral resources. Where extractive and mineral resources are located within residential or rural residential areas on the Strategic Land Use Plan Map, utilisation of the extractive and mineral resources will only be supported by the Council where adequate separation and buffering is provided within the extractive and mineral industry site from existing or future residential or rural residential areas. (g) The buffers shown on the Strategic land use Plan Map are only indicative of their location. The required dimensions of the buffer will be determined by Council when considering applications for development. (h) In assessing Rezoning or Town Planning Consent applications for extractive industries Council will have regard to among other things (i) the suitability of anticipated haul routes in engineering terms and also the potential impact upon residents along such routes; and, (ii) the adequacy of any separation from water courses, waterways or areas of environmental, archaeological, scientific, scenic, heritage or conservation value. (i) The requirements of the Local Government (Planning and Environment) Act with respect to Environmental Impact Statements shall be adhered to at all times. (j) In assessing applications before it, Council will have regard to the protection of environmental and conservation values of Pumicestone Passage. (k) Council will have regard to the findings of the Integrated Catchment Management Strategy and the Atlas of Natural and Cultural Resources in assessing any applications, in order to retain wherever possible any pockets of remnant vegetation of significance.” [19] Mr Dillon, the Appellants’ expert Town Planner was able to find little in the planning documents telling against the application except for (d)(i ) above. At 518 of the transcript Mr Dillon said: -- 15 of 43 -- 16 “In my mind I guess the main issue or the principal issue that I have difficulty with is that we are looking at a material change of use in an area that is designated rural, that is, in an area where we have a school community, where there is a tourist route and, in my experience, if you were developing a set of criteria against which you could consider extractive industries in this year, the year 2001, the sort of activities that you wouldn’t try and mix up with it are school routes, tourist routes. Now, I qualify that in the sense that it, again, comes back to the size of the quarry activity.” At transcript 519 Mr Dillon said: “Having a strategic plan that designates where quarries can go and taking a basic principle that you try not – you try to avoid mixing quarry trucks or any sort of trucks, if you can, with school children and tourist routes, I fall back to that basic principle that that dictates to me the types of risk management that I would be prepared to take and combined with that is an expectation that the strategic plan gives to the community.” [20] Traffic issues are dealt with elsewhere. The Strategic Plan Use Plan is supported by a planning study which includes relevant material from page 9, where section 2.4 makes reference to a detailed report on the quality and viability of extractive resources within the Shire prepared by a Mr M. O’Flynn on behalf of the Department of Mines in 1979, updated in 1986. There was a further review of extractive materials in the overall Eastern Moreton Region in 1992. The planning study continues in 2.4: “These reports have been summarised and included as part of the Strategic Land Use Plan analysis. It should be noted that each of the reports provided details on known deposits and an evaluation of the presence of additional deposits has not been carried out. 2.4.1 Extractive Resources Quality and Viability The following section is a summary of O’Flynn’s report (1986) on the quality and viability of extractive resources within the Shire (reference should also be made to Figure 2.7): (1) … (2) … (3) … (4) … -- 16 of 43 -- 17 Protection of all the outlined deposits is not considered feasible or necessary… The availability of economic deposits of rocks and minerals for construction purposes is essential for the expansion and maintenance of urban services. As urban or rural residential development sterilises or alienates viable extractive resources, the cost of urban infrastructure increases as resources are required for more remote locations. This increased cost is eventually borne by the entire community. Significant extractive resources should therefore be provided with appropriate environmental protections. O’Flynn has observed that there are a number of innovations that have occurred in the industry within the last decade or so, these include:- (i) The use of improved explosives, better blasting technique and more sophisticated pattern design and monitoring which together with other practices have enabled the impact of operations in proximity to urban development to be better managed. (ii) The increased public awareness of environmental issues has been significant. The industry is therefore more aware of ensuring that nuisance factors such as dust and noise are monitored and mitigated. To do this, new techniques and processes have been established. Also important is the visual amenity of the operations, together with the future use of sites and the rehabilitation techniques required. Opportunities and Constraints The following recommendations were made in the updated report and have been given due consideration: 1. Extensive urban development in the Shire since the last reconnaissance has resulted in the loss of significant quarry rock resources. Three large, conveniently located deposits are outlined at upper Burpengary Creek, Saddleback and Round Mountain. The future availability of the latter two is in doubt because of environmental constraints and urban development respectively. 2. The deposits of homfels, granite rocks and greenstones at upper Burpengary Creek are the most important in the Shire. They are also considered the more important of only two major potential areas on the northside of Brisbane, and are thus of regional significance. Future planning by Council should place a high priority on their protection and it is strongly recommended that they be designated appropriately. 3. The rapid spread of rural residential development is greatly increasing the demand for low quality road and fill, while at the same time reducing resources. Council should set aside deposits of these materials, strategically located to the developing sections of the Shire where possible. -- 17 of 43 -- 18 4 … 5 … 6 … Where possible, the Strategic Plan Land Use Map has protected significant extractive resources with an appropriate designation. Due consideration will be given to all of the recommendations detailed in this extract when making future planning decisions.” [21] It should be noted at page 181: “Rural, Rural Residential The extent to which rural areas can be retained is constrained by the need to accommodate future rural residential and urban development in the Shire outside the life of this Plan. Land which should be retained as rural includes land which is: 2. Good quality agricultural land; or 3. Unable to accommodate future urban or rural residential development; due to – (a) Its susceptibility to flooding; (b) The presence of steep slopes; (c) Its inability to be serviced; (d) Land which is contained within a clear water catchment area. Rural areas provide planning opportunities for: (a) the retention of good quality agricultural land; (b) the retention of the rural aspect which exists over much of the Shire; (c) the possible retention of significant areas of forest and open space in private ownership; (d) the protection of areas containing valuable extractive resources from the encroachment of urban and rural residential development; (e) the limitation of population capacity within the Pumicestone Passage Catchment; and (f) the retention of a land bank for future expansion of the urban and rural residential areas when such expansion is appropriate. Rural Designation on the Strategic Plan Use Plan include good quality agricultural land, extractive resource areas, and land which is unsuitable or not yet required for the expansion of the residential areas.” -- 18 of 43 -- 19 [22] In the Town Planning Scheme for the Shire of Caboolture, published in the Gazette of 12 March 1988, the intent of the Extractive Industry Zone is: “to provide for the extraction of earth, sand, rock and the like from land which is shown to contain a substantial quantity of such material.” (Part 1 Division II – 17) In most of the 23 zones, extractive industries are prohibited. They are a consent use, specifically so in Special Rural, and are in Rural Column IV which refers to any purposes other than those permitted by Column III or prohibited by Column V. Part V contains “specific requirements in relation to particular development” and in Division X – Extractive Industries provides: “9.(1) A person shall not erect or cause to be erected a building or other structure or use land or cause land to be used for an extractive industry unless such land is visually screened from an adjoining road or land to the satisfaction of the Shire Engineer either – (a) by virtue of existing vegetation or topography surrounding the extractive industry site; or (b) through planting or maintenance of trees and shrubs, including the planting of trees and shrubs which, when planted, do not satisfactorily screen the extractive industry site within the provisions of this clause but which will, in the opinion of the Shire Engineer, do so within a reasonable time given normal patterns of growth; (2) A person shall not carry on, nor cause permit or suffer to be carried on any process of an extractive industry within – (a) Twenty(20) metres of a road; or (b) Ten (10) metres of any adjoining property boundary; (3) Each entrance to or exit from a site of an extractive industry shall be – (a) Not less than six (6) metres wide and situated at least ten (10) metres from any other entrance or exit from the site; (b) Be constructed to a standard considered satisfactory by the Shire Engineer; or (c) So located as not to create a new traffic hazard or increase an existing traffic hazard; -- 19 of 43 -- 20 (4) It shall be a requirement of every use of land for the purpose of an extractive industry that the person so using the land shall make payment to Council such amounts as determined pursuant to clause 8 of Chapter 49 – Extractive Industries of the Council’s by-laws.” [23] In my opinion, the planning documents are indicative of a strong policy that mineral and quarry-type resources, subject to appropriate constraints to protect amenity and environmental values, ought to be exploited or protected so that they are not sterilised. The Johnstons’ resource, in my assessment, is significant enough to warrant extraction, notwithstanding that it has not been identified (as a limited number of major resources in the Shire have been) in the planning documents. I agree with the decision in CSR Limited v The Caboolture Shire Council, 3724 of 1999, 9 March 2001, especially at page 21 that the planning documents make it clear that the specifically identified extractive industry resources are not the Shire’s only resources and that the designated resources should not be taken as exhaustively identifying sites suitable for extractive industry development. Judge Quirk’s view (page 22) was that “the most that could be said is that locations designated by the symbol might enjoy a higher level of protection … than might be gained by areas not so designated.” [24] So far as planning law is concerned, inhabitants of this rural zoned area must be taken as aware of the planning documents set out above. It may well be contrary to the facts and to what their expectations truly were, but there really is no room in this appeal for arguments based on an extractive industry on the site frustrating legitimate expectations. Many in the area would have noticed the quarrying activity that occurred from 1987. The Vidonis knew about it when they purchased their -- 20 of 43 -- 21 property. So far as Mr and Mrs Malcolmson are concerned, when they purchased, they knew of the Johnstons’application. [25] The planning scheme related issues relied on by Mr Keim, apart from failure of their Strategic Land Use Plan Map to identify the Johnstons’ resource, concerned the suitability of the anticipated haul route, as referred to Implementation (d) and dealt with elsewhere in these reasons in relation to traffic issues, the minimum buffer distances of 500 metres for hard rock quarries, as required by figure 6.4 of the Planning Study (which appears to have no relevance here, where no blasting or crushing of rock will occur) and arguments as to the effect of Part V division XII of the Planning Scheme: “Division XII – Dwelling Units on Rural Land 1. Council may permit the erection of two (2) dwelling units on an allotment where – (a) The allotment is included in the Rural Zone; and (b) The allotment has an area of not less than four hectares; and (c) Such dwelling units are for the occupation and use by persons who are engaged in the use of the allotment for any purpose for which the development may be carried out in the Rural Zone without the consent of Council; or (d) Such dwelling units are for the occupation of the owner, for the spouse, child, mother or father of the owner or mother or father of the spouse. 2. For the purpose of this Division the term “dwelling unit” also includes a rural workers dwelling and a dwelling house. 3. (a)Nothing in this Division will prohibit or restrict the erection of more than one dwelling unit in a site where such site has been subdivided in a group titles plan; and (b) Provided that not more than one dwelling unit will be erected on any lot on a group titles plan and no dwelling units will be erected on the common property in group titles plan.” -- 21 of 43 -- 22 [26] The evidence suggested a number of instances close by where the exceptional facility allowing two dwelling units on a single rural allotment had been taken advantage of. Mr Dillon’s view was that where conditions (a) to (d) were met, the Council’s permission was a formality; the whole matter would be dealt with by an appropriate officer. I understand the Appellants’ suggestion to be that the closer settlement thus invited tends to produce incompatibility with an extractive industry nearby. Both the Malcolmsons and the Vidonis have contemplated taking advantage of Division XII, the Vidonis contemplating sites roughly halfway between their present residence and the Monkeybong Lane intersection close to the boundary with Mt Mee Road and another site on a ridge some considerable distance back from that Road. The Malcolmsons have contemplated accommodating a relative in a relocatable home on an elevated position overlooking the middle part of Monkeybong Lane and set back from it and also construction of a new residence for themselves on a very high site on the Mt Mee Road frontage well to the north of their present residence. The thought that such a building could be used in the interim as a tourist cabin appears to be frustrated by the Town Planning Scheme, which does not allow any “accommodation building” in the Rural zone. [27] Of the four putative additional “dwelling units”, no more than an aggregate of two (1 on each property) could possibly come to fruition. Whether there will be any is a matter of pure speculation, no proposal having yet been put to Council. Of all four, the relocatable home proposal would suffer the greatest impact from the proposed quarry operation, in the form of trucks passing close by on Monkeybong Lane. In my opinion, Council has sufficient discretion under Division XII to refuse its consent if the amenity was thought sufficiently greatly impaired by the trucks, just as, in my opinion, it might properly refuse its consent for other sufficient reasons, -- 22 of 43 -- 23 for example if the proposed location of a dwelling unit was considered unsafe. I do not regard it as a sound planning approach to forbid a development which is ready to go on the basis of mere possibilities that some other development, theoretically permissible, may occur nearby, at least in the particular circumstances of this case. I am, however, inclined to consider imposing conditions which might go some distance towards preserving legitimate expectations regarding access. [28] I turn to traffic issues. While some of the objectors seem to oppose the introduction of further traffic on Mt Mee Road, which is a relatively narrow two-lane road which would constitute the haul route from the site to the D’Aguilar Highway, Mr Keim’s traffic arguments focussed on safety issues, rather than the capacity of the road to cope. Nonetheless, he referred me to Pinjarra Hills v Brisbane City Council (1995) QPLR 334. Judge Newton rejected a developer’s appeal against refusal of an application to rezone land from Future Urban and Rural Residential to Residential A and Particular Development Zones. There were to be 623 residential allotments and 21 lots within the second of the new zones. His Honour Judge Newton said at 342 that: “to approve the proposed development would significantly increase an existing traffic problem and detrimentally effect to an unacceptable degree the efficiency of the existing road network. I do not accept that a possible future construction … and upgrading … are mitigating circumstances in the absence of a commitment by the developer or the Department to undertake such works.” [29] South of Monkeybong Lane, Mt Mee Road is steeper and winding. Questions might arise regarding the appropriateness of this section as a haul route based on considerations of visibility, introduction of increased numbers of slow heavy vehicles, and the like. However, the market is such that if there were any use by the Johnstons’trucks of this southern section of Mt Mee Road, it would be a rarity. On -- 23 of 43 -- 24 the evidence before the court, there are no problems of visibility by either driver in respect of trucks moving on to or off Monkeybong Lane. That situation depends upon the performance of a condition requiring the Appellants to keep cleared vegetation on the inside of the curve of Mt Mee Road opposite the mouth of Monkeybong Lane, such vegetation being located on Main Roads land. Appropriate consent to the work has been indicated. There is no reason to think the condition will not be performed. I would think there will be no shortage of vigilant local people to report to the Council if this condition (or others relating to traffic or other matters) should be breached. [30] Traffic safety concerns arise (a) in Mt Mee Road generally, along the stretch that will become the haul route, (b) at the intersection of Monkeybong Lane, where trucks will be entering and leaving and (c) in the vicinity of the Delaney’s Creek Primary School. Members of the School community, concerned for the safety of the children, have voiced serious concerns. In line with the commendable recent tendency to provide on safe set-down and pick-up zones for schools, this school may be seen as protected from Mt Mee Road traffic, its main entrance and parking areas being located on a side street. However, practically, the vehicles that get to this area will usually be using the nearby part of Mt Mee Road and more importantly, there will be school children on foot in Mt Mee Road, including (one fears) some who could more safely use the bike path and other paths providing safer alternatives. As to one of these, on inspection I was shown a low set section of path crossing a creek, and told that if the creek runs high, children will walk on the road. There is an expanding residential area to the south of the school extending to Dwayne Road. School buses take older children to and from high schools in -- 24 of 43 -- 25 Caboolture. For them, there are stops along Mt Mee Road at intervals. The safety of young people is a most proper concern. [31] The traffic safety issues canvassed extended further. The court was told of a fatal accident in 1996 close to the school (involving a molasses truck) which the school children heard (if they did not see) occurring, to the distress of numbers of them. Mr Dillon’s strictures against the mixing of school or tourist traffic and heavy vehicles deserve respect. (It might be noted that Mt Mee Road is justifiably designated a tourist route sporting the familiar brown and white signage. It may be accepted that tourists would prefer not to encounter quarry trucks, quite apart from safety considerations. Perhaps fortunately, tourist traffic tends to be concentrated on weekends and holidays when quarries are unlikely to be working.) [32] I note in connection with the traffic issues being discussed Mr Williams’ analysis (a very late addition to the Appellants’ expert evidence which I permitted) attempting to place a dollars and cents value upon social costs attributable to the quarry in the form of additional costs of accidents (4.5c per vehicle km) and emission and pollution costs (2.5c per vehicle km); costs of that nature (even if not of that order) are generated here because, so far as the road system is concerned, there is additional usage of roads if decomposed granite is sourced from the site, as opposed to from Bacalba Quarry. (This is another illustration of the way in which the issues raised in this appeal tend to be inextricably bound up with each other.) [33] In the end, I am unable to give effect to objections focussing on traffic safety, either on their own or in combination with other considerations. Mt Mee Road is a relatively busy State road. There are no controls on what vehicles may use it, no -- 25 of 43 -- 26 one in the area can predict what traffic might be encountered on the road. A substantial part of the traffic already will be heavy vehicles, sometimes to do with rural pursuits, and other times simply passing through, maybe because drivers with the time and inclination to do it select the slower, more scenic route. The evidence contained a summary of accidents that have occurred, some involving heavy vehicles. Most, in the area under consideration, interestingly, were single vehicle accidents. In at least one incident, an animal was involved. Mt Mee Road is already a place on and near which people should use caution. The small scale of the Johnstons’ operations will add to the traffic problems only marginally, although the addition will be solely of (almost universally) unwelcomed heavy vehicles. [34] I accept Mr Johnston’s evidence that all trips from the quarry will be fully loaded vehicles. The restrictions imposed by the Council’s conditions mean that in a year there will be no more quarry traffic than a total of 1000 vehicle trips along Mt Mee Road (500 unloaded, heading south, 500 loaded, heading north). That averages out at fewer than 3 per day. Even significantly larger numbers, would, to quote one witness, be “unnoticed”. Of course, the pattern will not be as just described. The likelihood is that the new quarry will be worked fairly intensively on particular days to satisfy orders, and not work at all on other days. The worst case scenario would see the weekly limit of 500 tons transported on a single day, with 25 trips in each direction. The evidence suggests the unladen trips will create more noise nuisance; the others may be relatively inoffensive; Mr Johnston, in advance of industry regulation, has for some years been covering all the loads with tarpaulins, to reduce spillage, and presumably, dust nuisance. The worst case scenario is the hardest one to let pass as an “acceptable” adverse impact. However, anticipating the views I outline elsewhere on other issues, the conclusion reached is that the traffic impacts -- 26 of 43 -- 27 on the proposal are acceptable in planning terms. In relation to the area near the primary school, the court would emphasise the importance it places on strict adherence by the quarry operator to the prohibition on use of the relevant section of Mt Mee Road in the separate hours when students are likely to be dropped at and likely to be picked up from the primary school. I think it is not feasible to make further arrangements to protect children and others (including high school students) who may be about earlier or later or off on excursions of various kinds during normal school hours. (It occurs to me that condition 16 (above) might be more workable if the advices mentioned could be given by e-mail or fax.) [35] Further south, at the Monkeybong Lane intersection, considerable efforts have been put into designing the upgrading of the intersection, in association with reconstruction of the western part of Monkeybong Lane as a ramp of gentler gradient. Those efforts have been continuing. The court was offered four different proposals designed by Mr Hendricks, over and above what the Caboolture Shire Council has approved. Mr Stewart, accused by Mr Keim from early in the appeal hearing of mounting an informal appeal against conditions, with a view to reducing the cost to his clients, disavowed any such intention. He characterised Mr Hendricks’ work as a series of proposals designed to make what might happen at the intersection more congenial to the Appellants, who might indicate assent to one or other of the proposals. In the end, that did not happen, and Mr Stewart indicated that the existing conditions were what his clients contended for. [36] The Appellants’ traffic expert, Mr Holland, was helpful, as were the others. At the end of the day, I do not regard him as raising any safety issues at the intersection which would stand in the way of the Johnstons being allowed to proceed. An -- 27 of 43 -- 28 additional factor emerged in the evidence of Sergeant Schagen, who is in charge of the local police. (Mr Cochrane expressed complete confidence in the Sergeant’s ability to keep an eye on the events on Mt Mee Road in a way that would ensure Mr Johnston’s drivers and others did the right thing.) Sergeant Schagen expressed concern that the surface of Mt Mee Road at the intersection might be rendered slippery and accordingly unsafe through leakage of diesel. Mr Johnston had, I think, already protested that his trucks did not have that deficiency. It seems to me it might be a useful additional condition to impose that some check be made for spilt diesel and any necessary (defined) rectification measure implemented. [37] As to the last zone of traffic safety concerns, these focus on the relative narrowness of Mt Mee Road and the unsuitability of the shoulders for quarry traffic. Consistency with the already expressed view that the proposal will involve no more than an acceptable addition to heavy traffic that already utilises the road denies here the existence of any traffic safety issue sufficient to justify rejecting the development application. [38] The next of the interrelated issues requiring attention is need. Given that extractive industry is a consent or “permissible” use in the Rural Zone, the Applicants do not confront a specific statutory regime requiring consideration of need (being community need) for their proposal as they would if the matters enumerated in s.4.4 (3) of the Local Government (Planning and Environment) Act 1990 were relevant. (See sub-section(b).) However, proved absence of need may (not necessarily must) defeat such an application as the present, particularly if in the circumstances amenity impacts become unacceptable. This has been authoritatively determined in Arksmead, where the Court of Appeal said at 355 they could see “no reason in -- 28 of 43 -- 29 principle … why an issue of need, or its absence, cannot properly arise on an application for consent.” The Court was dealing with the appellant’s argument before it that while proved need for “licensed facilities” could work in favour of an application, proved absence of need could not work against it. At 356-57, there was an examination of a number of cases in this Court and its predecessor. Their Honours commented: “In each of those cases the effect on amenity and need were considered and in each a detrimental effect on amenity together with an absence of need was decisive. It is difficult to see how it could be said that their Honours proceeded upon a wrong principle in treating the absence of need as a relevant consideration. In such a case, if it is decided that the proposed development would have a detrimental effect on the amenity of the area in question, the judge must then decide whether, notwithstanding the detrimental effect on the amenity of the area, there has been shown to be a need for the proposed use which would render the effect on the amenity of the area justifiable.” At 359 their Honours said: “The appellant’s argument in reliance on the Liquor Act nonetheless has we think some merit, for to reject it results in acceptance that need may be an issue in two fora. There is, however, nothing express in either the Liquor Act or the Local Government (Planning and Environment) Act to that effect. The result of accepting the appellant’s argument would be to eliminate an obvious issue that the ordinary course of things could arise in a case in which a detrimental effect on amenity is the principal issue, as in the Readymix and the Trio Pearl cases – and of course in this case. Such cases would then be unnaturally circumscribed. There is also the important consideration that members of the public cannot have their legitimate concerns aired on appeal from a decision of the chief executive… Taking those matters into account, we conclude that the legislature did not intend to deprive the Planning and Environment Court of the authority to consider the question of need or the absence of it in a case like the present one … the amenity issue and the need issue are necessarily related… ” [39] The applicants, or entities associated with them, operate in the heavy transport industry and have a sizeable truck fleet. Their idea in acquiring Lot 4 and making the application is to generate freight for the transport operation. As Mr Johnston -- 29 of 43 -- 30 tells it, the application was made and pursued because he lost his former favoured status with the large Bracalba Quarry, some seven kilometres away on the D’Aguilar Highway. Decomposed granite is an inexpensive filling material used in road construction and building construction, for example as a base for house pads. The freight component is always a significant one in determining price to the consumer. Sometimes the consumer deals with the supplier quarry; sometimes the consumer deals with the transport company. Mr Johnston, a few years back, ceased to get the benefit of a price discount from Bracalba Quarry, which acquired its own trucks. Not long afterwards, it repented of that expansion in the nature of its activities and sold its fleet to an operator other than the Johnstons, who no longer enjoy any preferred status. It is unnecessary to make any findings about the existence or otherwise of anti-competitive or other inappropriate commercial behaviour - which Mr Chapman, a director of the company which operates Bracalba Quarry, denied. Mr Johnston may have overstated the extent of price fluctuations in respect of the Bracalba products. He has continued to purchase to meet his own orders, but I accept the general thrust of his evidence that he has encountered problems to do with the certainty of supply and/or price of products of which Bracalba Quarry, given its location, is the obvious supplier. It seems to be a feature of the industry that quarry operators take an interest in the identify of the ultimate customer, against the possibility of obtaining that customer’s business for themselves. Much was made of the small scale of Mr Johnston’s proposed operation. He sees its value to him largely in his becoming known in the industry as an independent source of supply which would moderate Bracalba Quarry’s pricing. Mr Johnston anticipates that, essentially, the freight for his trucks will continue to come from Bracalba and other quarries. It is the applicants’ case that -- 30 of 43 -- 31 the proposed quarry operation, although tiny, will keep prices down in the market, to the general benefit of consumers. [40] I accept Mr Keim’s submission that the Johnstons’ need, in terms of what might advance their commercial interests in the marketplace, is irrelevant. It is not the function of planning authorities or of this Court, in particular, to promote or regulate competition in the marketplace. Notwithstanding that advancing the Johnstons’ ability to compete, with Bracalba Quarry in particular, is an irrelevant consideration, I regard as a relevant consideration and planning principle that the Johnstons ought, subject to the proper restrictions flowing from planning law, be able to use their land as they choose. (See Indooroopilly Golf Club v Brisbane City Council (1982) QPLR 13, where Carter DCJ said at 21-22 that: “whilst town planning is essentially designed to achieve the overall good of the community, it cannot but have regard to individual rights such as those inherent in the ownership and, to the extent that the exercise of such rights does not offend the community good. There is no town planning principle which lays down the rule that a town planning application which is profit-oriented must fail.”) [41] Interesting evidence (of questionable relevance) was given by Mr Gray, called by the Johnstons, and Mr Williams, called by the Appellants, bearing on the economic feasibility of the proposal from the Johnstons’ point of view and on the likelihood of benefits to consumers through lower prices than they might otherwise have to pay for decomposed granite. Mr Gray’s expertise flows from his commercial background in quarrying, Mr Williams’ was that of an economist specialising in transportation, with a particular focus on cost-benefit analyses. They held opposed views as to whether Mr Johnston would “go broke”, an issue which seems to me irrelevant in present circumstances. Jadmont Pty Ltd v Council of the Shire of Miriamvale (1998) QPELR 351 shows that the unlikelihood of a proposal coming -- 31 of 43 -- 32 to fruition may count against its being approved. I think that the likelihood of the Johnstons’ business failing might be relevant if it involved a risk of some blight or eyesore being bequeathed to the community. There is no real risk of that here, given the secluded location of the site. Mr Williams noted the large establishment costs (I would question the appropriateness of including the cost of the land, given that the applicants already own it), in particular the cost of works in Monkeybong Lane. Since those must be completed before any quarrying can begin, I would regard it as most unlikely that the community would be left with a half-finished ramp; the applicants would be mad to embark on construction unless they were sure they could see it through. [42] As to the prospect of benefit to consumers, this is another issue the court need not resolve. However, a useful “straw in the wind” is the detailed objection of Alzino Bros & Co Pty Ltd, operators of Bracalba Quarry, of 28 August 1998 submitted to the Council when the application was first advertised. See pages 961-965 of Exhibit 13A. That company was not a party before the court, although a director, Mr Chapman, gave evidence for the Appellants under subpoena. Mr Stewart did not pursue the possibility that it was assisting to fund the appeal once the suggestion was denied in cross examination of Mr Vidoni, one of the Appellants. It would be entirely wrong for the court to make any findings about the company in the circumstances. (Thus, Mr Johnston’s view or characterisation of things it may have done is accepted by me as no more than his genuine view.) While there were suggestions that the company had no fear of competition that might arise from the Johnstons’quarry, and while Mr Keim suggested that the point of the objection may simply have been to insist that the applicants should be required to satisfy the same onerous procedures as it had been (notably under the Environmental Protection -- 32 of 43 -- 33 Act), I think the natural inference to be drawn from the objection is that the company, given a choice, would prefer not to face competition. I am unpersuaded by Mr Williams’ view that the entry of the applicants into the market would not moderate prices. Developments in the domestic airline industry in the last year or so tend to show that a new entrant, even a tiny one, may force down prices in a market. [43] So far as demand for and supply of decomposed granite are concerned, there is, of course, no evidence of unsatisfied demand. Quite apart from the evident policy of the planning documents which favours exploitation of the resource, I would take the approach that in the absence of sufficiently weighty countervailing considerations, this resource ought to be exploited, and sooner rather than later. [44] A “need” is a somewhat elusive concept in planning law, as to how pressing and desparate one ought to be to qualify for the description. In Intrafield Pty Ltd v. Redland Shire Council (2000) QPELR 337, McLauchlan Q.C. DCJ considered that the attraction and convenience for motorists of having access to an additional service station (and possibly shop) did not constitute need; this was in the context of a notional re-zoning and of need being “a matter relevant to the application … by reason of a provision in a local planning policy” – see paragraph 5 of his Honour’s reasons. An appeal was dismissed: see (2001) QCA 116, appeal No. 5412 of 2000, 30 March 2001. Reference should also be made to the application for leave to appeal reported at (2001) QPELR 81, where their Honours (at least a majority of them) expressed the view that a finding of absence of need was not conclusive against an applicant, accompanied by their suggestion that a balancing exercise would ordinarily be expected to be undertaken. Although, in this case, to the extent -- 33 of 43 -- 34 that the applicants have argued it, need was sought to be shown, by reference to general principles, the important point, to my mind, is that the appellants have failed to show a lack of need. With or without the balancing exercise (which I have done my best to undertake) there is no justification for rejecting the present proposal on the basis of a demonstrated lack of need, or of adverse impacts outweighing such need as there might be. The appellants relied on Holt’s Hill Quarries Pty Ltd v Gold Coast City Council (1999) QPELR 415, appeal dismissed (2001) QPELR 5, in which the court (as the local government had) rejected a hard rock quarry proposal. It was a very different case from the present; noise impacts were of serious concern, Hanger SDCJ found there was no need; conflict with the planning scheme made it a ”rezoning” case. [45] The next matter for consideration is the one that has caused me most concern, namely the effect on neighbours of specific amenity impacts flowing from the work required by the approval conditions to be done in Monkeybong Lane. This will increase the height of the lane for about half its length, and in places by as much as four metres. That is going to impede access, and it may preclude access by vehicle which the owners have occasionally availed themselves of, from Monkeybong Lane into their adjacent paddocks along that stretch of the lane which is to be raised. Presently, access is unrestricted, except by wire fencing. The land falls away from the south to the north, so that the Malcolmsons’ land is rather higher than the lane, the Vidonis’ rather lower. There can be considerable flows of water under and across the bottom of the lane in wet weather, often damaging it. The soil in the area (what remains of the old quarry workings on Lot 4 even more so) tends to erode easily. From the Vidoni side, at the bottom of the lane, the land is quite boggy. I am prepared to find this is a situation significantly contributed to by a long -- 34 of 43 -- 35 established dam “downstream” on the property. Unusual expense might be involved in rendering useful access from some point further to the east along Monkeybong Lane. The activities which have led to paddocks being accessed from the lane include movement of animals and feed for them, slashing and spraying of weeds. For the future, access to the locations of second dwelling units is a concern. [46] The Vidonis and the Malcolmsons have exercised their undoubted right to decline to “co-operate” in the “up-grading” (a description they would reasonably contest) of the lane. One consequence is that all work must be done entirely within the narrow road reserve, resulting in steeper embankments and a higher cost of working, since there may be no activity on adjoining private land. In a command economy, one might expect to see the haul route diverted onto the private land, taking advantage of natural contours to produce an appropriate gradient; that is not our system. The Vidonis complain that the ramp will be an eye-sore (leading to Mr Stewart’s suggestion they plant screening trees); both sets of neighbours complain of their loss of access. I regard such complaints as legitimate, and perhaps, particularly so, given that the unwelcome change in the lane comes about in aid of the Johnstons’ private interests. In the past, access has been availed of not only through conventional gates; in at least one place provision for an ad-hoc opening through the wire fence has been made. [47] To this point, the neighbours have been unwilling to identify the access they would like to have in the long term, assuming the application is successful. I accept there may be legitimate tactical reasons for this, but it makes it difficult for the court to devise appropriate protective conditions. My impression is that on both sides, there is a concern to have an access around the bottom of the lane (there is no threat to -- 35 of 43 -- 36 such access in the Malcomsons’ case) and another near the top, close to Mt Mee Road, in relation to the second dwelling unit. The evidence leaves me uncertain of the likelihood that equivalent access from Mt Mee Road itself would be achievable. It is a State controlled road, and there may be requirements that access be some long distance from the intersection, forcing their location somewhere where the terrain presents difficulties; like uncertainty affects what might be achieved on either side at the top of Monkeybong Lane. Mr Vidoni mentioned a particular concern about some Telstra installation off the shoulders of Mt Mee Road. [48] Some attention was devoted to the neighbours’ common law rights, as affected by statute. The common law was discussed in the New South Wales Court of Appeal in Shellharbour Municipal v. Rovoli Pty Ltd I (1989) 16 NSWLR 104, 108: “It is an established principle of the common law that the owner of land adjoining a highway has a right of access to the highway from any part of his premises. The statement by Lord Atkin in his speech in Marshall v Blackpool Corporation [1935] AC 16 at 22, is generally accepted as expressing this common law principle. His Lordship said: ‘...The owner of land adjoining a highway has a right of access to the highway from any part of his premises. ... The rights of the public to pass along the highway are subject to this right of access: just as the right of access is subject to the rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway.’ It is important to emphasise that the right is one of access to the highway. It is a private right enjoyed by the owner of the land which adjoins the highway. It is, however, to be distinguished from the public right which every member of the public enjoys to pass, subject to any special statutory provisions, along the highway. This distinction, which may be difficult to grasp, was expressed in terms which are not regarded as authoritative by Page Wood V-C in Attorney-General v Thames Conservators (1862) 1 H & M 1 at 32- 33; 71 ER at 15: ‘Independently of the authorities, it appears to me quite clear, that the right of a man to step from his own land on to a highway is something quite different from the public right of using the highway. The public have no right to step on to the land of a private proprietor adjoining the road. And -- 36 of 43 -- 37 though it is easy to suggest metaphysical difficulties when an attempt is made to define the right as distinguished from the public right, or to explain how the one could be infringed without at the same time interfering with the other, this does not alter the character of the right.’” I was also referred to Pratt & Mackenzie’s Law of Highways 21st Edition (1967) at 58-61. [49] The Local Government Act 1993 in Chapter 13 Local Government Infrastructure provides in section 901: “901.(1) A local government has control of all roads in its area. (2) Control of roads includes capacity to take all necessary steps for – (a) survey and resurvey of roads; and (b) construction, maintenance and improvement of roads; and (c) regulation of use of roads; and (d) regulation of movement of traffic and parking vehicles on roads.” and in relation to road levels in particular: “Fixing road levels 917.(1) The owner or occupier of land adjoining a road may give written notice to the local government requiring it to advise the owner or occupier of the permanent level fixed or to be fixed for the road. If the local government has not, within 6 months after receiving the notice, given to the owner or occupier written advice about the permanent level of the road, the local government is taken to have fixed the apparent level of the road when the notice was given as the permanent level of the road. Compensation for change in road level 918.(1) This section applies if – -- 37 of 43 -- 38 (a) after a local government has fixed the permanent level of a road, the local government changes the level of the road; and (b) owner of occupier of land adjoining the road is injuriously affected by the change. (2) The owner or occupier, or the person’s successor in title, is entitled to the reasonable compensation because of the injurious affection that is agreed between the local government and the person or, failing agreement, decided by the Planning and Environment Court.” [50] It appeared to be common ground on the appeal that these provisions were relevant and that no level has been fixed or requested to be fixed in respect of Monkeybong Lane. In the circumstances, the Vidonis’ and the Malcomsons’ rights in respect of construction of the ramp appear to be strictly limited. I doubt that any more remains of the common law right than one to have no physical barriers created along the boundary which exclude access to the road. It seems to me that, having regard to the 1993 Act, there could be no complaint that such access was changed to a difficult one requiring clambering up a quite steep embankment. Nonetheless, in my opinion it is open to this court to set a condition which would require the applicants, as the beneficiaries of what seems an obvious adverse amenity impact upon their neighbours, in the enjoyment of their private property, to make some appropriate contribution towards restoring or preserving that amenity. Because the neighbours have declined to co-operate, the court cannot presently identify what ought to be done. Inevitably a good part of any work will be outside the road reserve on the neighbours’ property. My view is that in the circumstances the respective owners should be responsible for that work and that they must accept any impacts of it that occur on their own land. I would refer to Mrs Malcomson’s suggestion that an access created from Mt Mee Road would compromise a stand of -- 38 of 43 -- 39 mature trees. The evidence suggests that an “off ramp” at an acute angle would be a feasible means of access for the Vidonis. [51] I am contemplating a condition which would make the applicants responsible for construction, as far as the neighbours’ boundary only, of access to replace any access formerly availed of to Monkeybong Lane and destroyed by the proposed work, the new access being to the ramp in Monkeybong Lane or to Mt Mee Road. I am acutely aware of the need to avoid infringing the finality principle, but Mt Marrow Blue Metal Quarries Pty Ltd v. Moreton Shire Council (1996) 1 QdR 347 shows that some matters may be left by condition to be fixed in the future, if clear objective standards are identified. Practical considerations suggest that the neighbours ought to be placed on a time limit to commit themselves, failing which the applicants should be freed of any such condition. I have invited all parties to consider this matter and submit their own suggestions as to the wording of a condition satisfying the finality principle, and also satisfactory to them. Nothing has been forthcoming so far. [52] Although I apprehend the appellants called him in hopes of establishing engineering obstacles in the way of getting the work presently proposed in Monkeybong Lane achieved, I think Mr Ord’s evidence confirms that the ingenuity of civil engineers may be relied on to produce whatever outcome is envisaged by the conditions finally set, whatever the difficulties (including those flowing from the neighbours’ non-cooperation) that have to be faced. [53] It must be said that the Malcolmsons’ claim to the protective condition I envisage is the weaker one. The evidence at page 662 shows they entered into a contract to -- 39 of 43 -- 40 purchase from Mrs Aird about Christmas 1999, and that they saw maps showing the site adjacent, that is Lot 4, marked “proposed extractive industry” or something similar. They were in a position to ascertain (and should probably be treated as having known of) the “upgrading” as Mr. Cochrane euphemistically called it, of Monkeybong Lane. Mrs Aird had been an objector. See Exhibit 13A page 1020. This was her letter:- “I own the property – Description: Sub.3 of Por. 28 V, Deed Vol. 4238, Fol 1105 which has the “unnamed road” as its Northern boundary. According to the proposal as stated above, “the applicant has engaged the services of an engineer to carry out a design for the construction of the unnamed road to enable trucks leaving the site to enter the intersection AT THE SAME LEVEL as the road pavement on the Mt Mee Road”. At present, I have access to both paddocks fronting on to the road. As I see it, to have the road heightened enough to bring the road to the same level as the Mt. Mee Road, the amount of fill necessary could make access to either of my two paddocks impossible. Another problem I foresee is that the road would be like a dam wall constructed at the foot of a mountain – not with solid concrete walls, but only of decomposed granite which washes away very easily during a heavy downpour. The material used to heighten the road over the two large pipes at the foot of what is a natural run off from my hill during a normal rain fall, has already begun to wash under the fence on to the next property. One can only imagine what will happen in a heavy downpour bringing water down from the hills, and banking it up against the under part of almost the entire road. Whereas my main concern is to ensure I will still have road access to each of my paddocks, (which in the future may become separate blocks suitable for sale), I am also concerned about the viability of the road itself in the event of heavy rain. As I have witnessed the deep erosion that has occurred on the slopes besides the winding roadway only a few hundred metres in the direction of Mt. Mee, I am consequently concerned that similar problems may occur in the location under question. This would necessitate ongoing damage control which would be the responsibility of the local council. -- 40 of 43 -- 41 My assertion is that rate payers’ monies would be wasted in the interest of one landowner. As accountability, as well as “user-pays” (as a component of economic rationalism) appears to be the main focus of contemporary direction, I would suggest that the interests of the general community have a higher priority than a single landowner. The main focus of direction I would suggest, would be served by ensuring that any inconvenience caused by changes due to Mr. Johnson’s proposal be addressed by him and not become the responsibility of the local council or ratepayers. I request you assess all probable consequences of the proposal made by Mr. Johnston so that a sensible outcome may be assured in the interests of myself as a ratepayer and other ratepayers in general. Why should one individual’s interests be placed in a higher priority than the interests of many. I therefore request this proposal as it NOW stands be rejected.” Reference to the conditions fixed by the Council indicates that arguments such as Mrs Aird’s were effective. [54] No-one should be critical of the local people who submitted objections. Although we all expect to have the products of extractive industries available wherever they are useful, nobody is likely to accept willingly a quarry close at hand and with it the inevitable effects of quarry traffic, if it is possible to argue that the quarry should be somewhere else. In material in Exhibit 13 (which I have examined) arguments have been presented for protection of native flora and fauna (likewise water supply). By way of contrast with Holt’s Hill Quarries, no issues of that nature were raised in the appeal and there is no evidence enabling the court to give effect to them. Considerable trouble has been gone to to mitigate the adverse impacts that people such as Mrs Aird complained of. In my assessment the conditions that have been set reduce the adverse impacts to acceptable levels from the point of view of the community, including the very local community, which will bear the brunt of them. -- 41 of 43 -- 42 [55] This case raises a number of special features, such as the occurrence of quarrying activity on the applicants’ land and close to the site now of concern within the last decade. On the traffic front, the case is different from many, insofar as the proposal does not involve the introduction of heavy traffic on roadways where there has hitherto been little of it. While accepting that the applicants bear the onus of showing the appeal should be dismissed, I regard it as a factor in their favour (not by any means a determinative factor) that the Council, after long and repeated consideration, has looked favourably upon the application. [56] The applicants (Co-respondents) have satisfied the onus cast by the legislation upon them. Accordingly the appeal will be dismissed. If the Johnstons had been appellants against an actual or deemed refusal of this application, their appeal would have been allowed. I would hope the parties can arrive at some agreement in those circumstances, as to appropriate conditions to deal with Sergeant Schagen’s concerns and what access for the neighbours in or near Monkeybong Lane might be provided. [57] Late in the appeal, but unsurprisingly, Mr Stewart sought an amendment of the conditions in one respect, that is by way of permitting the use of a bull-dozer to extract decomposed granite, as well as a front-end loader. There seems to have been an omission to include the bull-dozer from the outset. It seems obvious one would have been needed to clear over-burden to get the site ready for operations by the front-end loader. Mr Winders’ evidence regarding the noise of bull-dozers and the additional noise one would create working alongside a front-end loader, was not particularly reassuring, from the point of the view of the change requested by the applicants not making noise impacts worse, particularly for Mr Chicken and others -- 42 of 43 -- 43 nearby. It is open to the court to approve minor changes, but I regard it as problematical whether a doubling of the permitted earthmoving type equipment is a minor change. I will hear the parties further, if they wish to make submissions. As at present advised, my inclination is to permit use of a bull-dozer, subject to the noise limits which would be applicable to the front end loader. Further, my inclination is to require that only one of the machines may operate at a time. -- 43 of 43 --