Long-running battle ends in a win for residents, koalas and local council planning rules

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!

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!