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Spotlight on Boral Resources (Qld) Pty Limited v Gold Coast City Council

30 April, 2018

Gold Coast City Council’s (GCCC) refusal of a hard rock quarry in Reedy Creek, West Burleigh in SE Queensland has been unanimously upheld by the Queensland Supreme Court. The decision demonstrates that local councils play an integral role in protecting their local environment through careful drafting of their planning scheme and then by robustly enforcing that planning scheme in the face of contrary developments.

 

In 2010, construction giant Boral sought permission from  GCCC to materially change the use of land on which they planned to build a 65 hectare quarry, declared a key resource area under State planning policies.

EDO Qld has not acted in the matter, but we welcome the decision as a win for GCCC and the community action group Stop the Gold Coast Quarry, which have diligently worked together to preserve the natural environment, lifestyle and amenity of the Reedy Creek area.

 

The original application

Court documents show the site in question; Lot 105 on SP144215 (the land); comprised 216.7 hectares of land in the vicinity of Reedy Creek, west of Palm Beach at the Gold Coast. Of the land, around 65 hectares would be actively used in quarrying and related activities. Rich in hard rock resource known as meta-greywacke, the land had historically been used for grazing and a nursery but in the 1970s was extensively cleared, which meant by the year 2010 the land was extensively covered by mature growth.

In December 2010, Boral referred the proposed action to the Minister for the Environment (Cth) for a “controlled action” decision under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

If approved, the expected life of the quarry would be at least 40 years and from it an estimated 2Mt per annum would be mined, although Boral acknowledged output would be demand driven, so could be higher or lower. During quarrying phases, the mine would operate from 6am to 6pm Monday to Saturday and blasting could take place anytime between 9am and 5pm Monday to Friday. Some 4,200 adverse submissions were made against the proposal, which also had the potential to detrimentally impact the habitats of bird life, koalas and wallabies.

EPBC referral

In December 2013, and after an environmental assessment over more than three years, the Coordinator-General (Qld) recommended that the development proceed subject to conditions. The Minister for the Environment (Cth) issued an approval in January 2014, subject to a number of conditions. In May 2014, Boral submitted an application for an Environmental Authority for prescribed Environmentally Relevant Activities to the Department of Environment and Heritage Protection (DEHP). Boral concurrently submitted to GCCC a development application for a permit allowing material change of use to the land.

Gold Coast City Council rejection

On 11 July 2014, GCCC rejected the development application on a number of grounds; including the conflict the proposed development would have in respect of the planning scheme objectives designed to protect of the biodiversity value of the site and its surrounds, the green ridge line backdrop and urban amenity; concerns about noise and air quality; and concerns that Boral had failed to demonstrate an overall economic benefit to the community.

Court documents show Boral commenced an appeal in the Planning and Environment Court against the GCCC’s refusal, which was heard over seven weeks in 2016-2017. The decision was delivered by the Honourable Judge Richard Jones, in May 2017, dismissing the appeal. The decision found that the development was in material conflict with important objects and outcomes of the respondent’s planning scheme, particularly in respect of the protection of the biodiversity value of the site and its surrounds, the green ridge line backdrop and urban amenity.

Supreme Court appeal

In June 2017, Boral sought leave from the Supreme Court to appeal the decision.

Court documents show Boral raised six grounds in the appeal, including that the primary judge erred in law in interpreting the Respondent's planning scheme; the primary judge erred in law by failing to give adequate reasons for his decision and that the primary judge's determination that there were not “sufficient grounds” to justify approval was "irrational" and "illogical".

The bench reviewed all six grounds of appeal, allowing leave to appeal on only the ground relating to an alleged error of interpretation in the City’s planning scheme to succeed, which they then unanimously dismissed. Boral was then ordered to pay GCCC’s costs of the appeal and the application on a standard basis.

 

Lessons for the EDO

The decision is welcomed by the EDO as it represents the importance local authorities have in helping to protect and preserve local ecological and environmental assets. Local councils play an integral role in protecting their local environment through careful drafting of their planning scheme and then by robustly enforcing that planning scheme in the face of contrary developments.  The decision additionally demonstrates the role local communities can play in objecting to controversial developments and ensuring that extractive industry proposals address key issues such as residential amenity.