..


The Conversation

  • Written by Philippa England, Senior Lecturer, Griffith Law School, Griffith University

Gold Coast City Council has won a four-year legal battle with Boral Resources, with the courts upholding the council’s refusal to approve a proposed quarry because of its impacts on the amenity of local residents – including the area’s koalas. In some rare good news for local government in Queensland, which has been under a cloud lately, the Court of Appeal’s decision confirms that councils are entitled to rely on their own planning schemes when deciding on local development applications. Even though Boral had secured approvals from the Commonwealth and Queensland governments, the Queensland Court of Appeal has upheld the council’s decision to refuse Boral’s application to develop a quarry.

A quarry quarrel

The council took on Boral and won after a four-year battle. In May 2014, Boral Resources had applied to the council for a permit to develop a quarry over 65 hectares of land at Reedy Creek, west of Palm Beach. State planning instruments had identified this land as a key resource area of state significance. For Boral, the quarry would generate hard rock and overburden worth A$1.4-1.5 billion.

In January 2014, the federal environment minister, acting under the Environment Protection and Biodiversity Conservation Act 1999, approved the development. In July 2014, Queensland’s Department of Environment and Heritage Protection did likewise.

All that remained was council’s consent. But, even though its own planning officer recommended approving the development, on July 11 2014, the council refused Boral’s application. When the local protest is loud enough and big enough – 4,200 objections were received – then even the Gold Coast Council will hear!

Long-running battle ends in a win for residents, koalas and local council planning rules Residents’ opposition to the quarry development was organised, loud and ultimately, after several years, successful. Stop the Gold Coast Quarry/Facebook

Not surprisingly, Boral immediately appealed that decision to the Planning and Environment Court. The court had to balance numerous competing interests to re-decide the merits of the case.

To some extent, the economic arguments were on Boral’s side. If the proposal did not proceed, competition could be reduced and the additional costs to the community could be around A$240 million over the life of the quarry, as even the Court of Appeal later accepted.

On the other side of the equation, the development would have adverse impacts on the amenity of nearby residents. These included creating ugly views and generating noise and dust by introducing an extra 450 haulage truck movements per day on local roads.

Judge Richard Jones decided the balance favoured refusing the application, confirming the council’s refusal.

Now the Court of Appeal has upheld that decision. The council, local residents and koalas have won the day.

The case also raises some points of more general planning interest. These relate to:

  • the respective roles of state and local planning instruments

  • whether profitable economic development may legitimately be delayed to another day

  • whether protecting koalas requires protecting their habitat as well.

State versus local planning instruments

In Queensland, the state planning policy identifies 16 state interests arranged under five broad themes. No one state interest is given priority over the others.

The Court of Appeal’s decision confirms it is the rightful business of local governments to balance and resolve competing state interests at the local level in their own planning schemes. Notwithstanding the site’s designation as a key resource area in state planning policy, the council had acted lawfully in relying on its own planning instruments to decide that adverse environmental and amenity impacts justified refusing the application.

Should good economic development be postponed?

Despite refusing the application, the judge conceded the resource should be protected for future exploitation when appropriate.

Boral argued this was an “irrational decision”. How would the amenity of residents and the survival of koalas be any less of concern in the future if they were so important even now? In Boral’s view, if this was a valuable economic resource (and everyone agreed it was), development now was the only sensible decision.

The Court of Appeal paid short shrift to this notion. It held that although the local planning instruments currently prevailed against an approval, amendments to these over time might alter the balance in favour of development. Local government, once again, is in the driving seat.

Do koalas need their trees?

Koalas are a recognised matter of environmental significance at Commonwealth and state levels. Developing the quarry would involve, over time, clearing 30,000 trees, including 23,000 koala habitat trees. The Planning and Environment Court judge recognised this would have an adverse impact in relation to a matter of environmental significance.

Boral had, like every other developer, argued conservation efforts at other sites (imposed as offsets) could produce a better outcome overall for koalas in southeast Queensland. The court dismissed this claim because the local planning scheme specified matters of environmental significance should be protected in situ.

Not to be defeated, Boral argued the judge confused koalas (a recognised matter of environmental significance) with koala habitat (of no particular status in this case). The Court of Appeal denounced this logic:

It cannot seriously be disputed that to destroy its habitat is to fail to conserve and protect it as a listed threatened species.

What are the broader planning implications?

The Boral litigation explores some really interesting principles for planning law and local governments.

Let’s just imagine, for a moment, a land use planning world where state planning policy is always applied with reference to the affected community’s vision for its neighbourhood; where councils regularly protect habitat for endangered species; and where, just occasionally, the drive for ever more resource development gives way to a holistic view of sustainable development … oh, what a different world that would be!

Authors: Philippa England, Senior Lecturer, Griffith Law School, Griffith University

Read more http://theconversation.com/long-running-battle-ends-in-a-win-for-residents-koalas-and-local-council-planning-rules-96263

Politics

Union demands paint a bleak future under Shorten

It’s time for Bill Shorten to come clean and rule out extreme changes to Australia’s industrial relations laws that would wind the clock back to the strike-torn Whitlam era.   As the ACTU prepares...

Doorstop at AKD Sawmill with Trevor Ruthenberg, LNP Candidate for Longman

MR TREVOR RUTHENBERG, LNP CANDIDATE FOR LONGMAN: Well morning folks. Welcome to Caboolture, welcome to Longman. This is a fantastic day for local jobs. This is a fantastic day for our community. ...

Australia’s resource and energy export figures are on track to set a new record

Resources and energy exports setting NEW records   Australia’s resource and energy export figures are on track to set a new record of $226 billion in 2017–18 – and go even higher this year – accor...

Business News

What is the best structure to use when starting up a business

Coco Hou, tax specialist and accountant, has shared her advice for people who are starting up their own businesses, setting up side gigs, or moving into consultancy work. The start of the new financ...

Leading Employment Firm in WA 2018

Only a certain few start their careers as the boss. For most of us, we get employed by companies and in most cases, we never really find the need to hire employment lawyers. But if we do, hiring an ...

Hertz collaborates with UbiPark to develop simpler mobility solution

Today, smart parking solutions provider UbiPark and leading vehicle rental brand Hertz Australia have announced a strategic collaboration to develop smarter mobility solutions. The collaboration ...

Travel

Adina Apartment Hotel Brisbane

TFE Hotels has opened the doors of the spectacular new Adina Apartment Hotel Brisbane, which offers stunning views over the Brisbane River and awe-inspiring interiors that transport guests back to t...

Winter In Rotorua: Things To Do

While many travelers consider the summer months to be the prime traveling season, there are thousands and thousands of travelers who love to take to their campervan hire australia journeys when the ...

Discover Hong Kong Your Way With Ecruising

From July – November 2018, Ecruising in partnership with Hong Kong Tourism and Royal Caribbean, including Azamara and Celebrity Cruises are offering travellers new and exclusive cruising itinerari...

You might also like