A dispute over conditions attached to a proposed quarry at Yandina Creek will return to the Planning and Environment Court – 16 years after the development application was first made to Sunshine Coast Council.
The state’s Court of Appeal, a division of the Supreme Court, has ruled that requirements imposed on Parklands Blue Metal Pty Ltd to maintain its haulage road were unreasonable, sending the matter back to the lower court to determine what conditions should apply.
The appeal decision, handed down on October 28, overturned an order by Judge Glen Cash in the Planning and Environment Court in February that made Parklands solely responsible for the road’s ongoing maintenance.
“It is hard to see how it would be unreasonable to require the operator of the quarry to maintain the haulage route which is for the benefit of the quarry, necessary to its operation and which will be the main cause of the need for its maintenance,” the judge wrote in his reasons.
Parklands had instead proposed to pay a per-tonne “levy” to offset the additional costs caused by its trucks on North Arm-Yandina Creek Road, but that option was rejected by Judge Cash.
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But Justices Shane Doyle, John Bond and Lincoln Crowley agreed the lower court had erred in finding the maintenance condition was not an “unreasonable imposition” or “reasonably required”.
“They work upon the developer a wholly unreasonable burden of maintenance not only arising from its use of the road, but from the use of the road by all users, and however impacted by storms, flooding or other events,” Justice Doyle wrote. “In that way (it) shifts wholly the financial burden of the current maintenance costs from the council and the local government area as a whole, to the developer and owner of one site.”
The court documents also provide a background summary of the long-running saga.
“In 2009, Parklands applied for a development approval to operate a hard rock quarry at Yandina. The council rejected that application, and that rejection was successfully appealed to the Planning and Environment Court,” it stated.
“What remained outstanding after the initial hearing of that appeal was the determination of conditions to be attached to the development approval. Most of them are now resolved. Parklands is to upgrade the current partly unsealed road to make it suitable for use as a haulage road. This is not in issue.
“The remaining disputed question concerns the means by which and the extent to which Parklands should be responsible for the ongoing maintenance of that haulage road.”
“It was common ground between the parties below that at least some contribution towards maintenance of that haulage road should be made by Parklands. Parklands contended that it should pay what it referred to as a ‘levy’ towards the additional costs of the maintenance of the road to be calculated as a figure per tonne of material extracted from the quarry (the levy condition).
“The council on the other hand contended for conditions that impose upon Parklands the obligation for maintaining the haulage road for the life of the development (the maintenance condition). These remain the primary positions of both parties.”
The so-called maintenance condition imposed in February’s orders included that Parklands build a sealed haulage road with asphalt or concrete, keep it free of potholes and defects for the life of the development – which was estimated at 40 years – and conduct six-monthly inspections with annual maintenance reports to council.
The quarry would impose a maximum of 112 trips per day (half each way), with maximum loads of 50 tonnes.
The court document stated that an average of about 450 vehicles per day used the road in 2016, with very little heavy truck traffic.
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But Parklands argued the council would also benefit from the upgraded haulage route and maintenance condition.
“Parklands is not the sole beneficiary of the haulage road, because it is used by others, and further the council would otherwise have to maintain the current (unsealed road), the costs of which are to be saved by a combination of the construction of the new road and its proposal that Parklands meet the whole costs of maintenance. There is nothing in the form of the maintenance conditions to recognise these features,” Justice Doyle wrote.
Parklands also argued that it may be exposed to claims by anyone who suffered loss or damage as a result of alleged defects in the road, and that the council had not previously imposed such conditions.
“The matter should be remitted to the Planning and Environment Court for further consideration as to what if any further conditions ought to be imposed. I do not think it is essential that the proceedings be heard by a differently constituted Planning and Environment Court and there may be some advantage in the judge who has most recently dealt with this matter continuing to do so. That, however, is a matter which should be left to that court to determine,” Justice Doyle wrote.
