The case of Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors (No. 3) [2024] QPEC 52 concerned an appeal to the Planning and Environment Court (Court) in respect of conditions to be imposed on a development approval to be given by the Sunshine Coast Regional Council (Council) relating to the maintenance of a haulage route which will primarily be used by heavy trucks in the transport of rock from a quarry in Yandina Creek, Queensland (Quarry) owned by Parklands Blue Metal Pty Ltd (Applicant).

The Quarry is accessible by a haulage route just under five kilometres long, largely unsealed, and subject to flooding in various places (Haulage Route). The Haulage Route is to be conditioned to undergo construction works by the Applicant, at no cost to the Council, with the sections affected by flooding to be concreted (at [18]). The minimum design life for the Haulage Route after construction works is 50 years for the concrete section and 20 years for the rest of the route (at [18]). 

The Council contended that the Applicant, as the Quarry operator, should be responsible for a detailed maintenance regime for the Haulage Route imposed by way of conditions on the development approval (at [2]). The Applicant contended that the development approval should instead include a condition for the Applicant to pay a levy to the Council for the costs of the Council maintaining the Haulage Route (at [3]). 

The Court decided that the levy of the type proposed by the Applicant is not lawful and agreed that a maintenance regime should be implemented through the amended conditions package proposed by the Council (see [123] and [124]).

The Court made orders to the effect that the Council is to make a conditions package consistent with the Court's reasons and for the Court to complete the hearing and decide the proceeding (at [132]).

The parties have been involved in legal proceedings in respect of the proposed development since 2011.

In May 2014, the Court in the case of Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors [2014] QPEC 24; (2014) QPELR 479 allowed an appeal against the Council's refusal of the development application made under the repealed Integrated Planning Act 1997 (Qld) (IPA) for the development approval and adjourned the matter to enable conditions to be formulated in accordance with the Court's reasons. The Queensland Court of Appeal in the case of Sunshine Coast Regional Council v Parklands Blue Metal Pty Ltd [2015] QCA 91; (2015) 208 LGERA 199 refused the Council's application for leave to appeal against the Court's decision.

In June 2017, the Court in the case of Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors [2017] QPEC 35; [2017] QPELR 809 considered conditions that were in dispute between the parties and made orders that conditions be imposed as agreed between the parties during the proceedings.

The parties did not give effect to the conditions and in December 2022 the Court in the case of Sunshine Coast Regional Council v Parklands Blue Metal & Ors [2024] QPEC 3 considered an application seeking declarations that the legislative planning regime applicable to the development application, any future infrastructure agreement, the June 2017 appeal, and any development approval was the IPA or the repealed Sustainable Planning Act 2009 (Qld) and not the Planning Act 2016 (Qld) (Planning Act). The Court dismissed the application because there was no support for finding that a prospective development approval would not be given or made under the Planning Act or that the Planning Act would not apply to any such approval.

The Court's decision in December 2022 was the subject of our May 2024 article.

In September 2024, the Court heard from the parties in respect of a dispute about the conditions relating to the maintenance of the Haulage Route.

The Court considered the following two questions and three sub-issues in respect of the conditions relating to the maintenance of the Haulage Route (see [5] and [7]):

1. Can the levy proposed by the Applicant be lawfully imposed? 

2. What should be the Applicant's responsibility for the routine maintenance of the Haulage Route?

3. Is the Applicant prevented from arguing that a levy is the appropriate mechanism?

4. If a levy could be lawfully imposed, should it be?

5. Is the Council prevented from arguing that it should not be responsible for the routine maintenance of the Haulage Route?

The Court noted that if there was a power to impose a levy as a condition on the development approval, it would be found in the following provisions of the IPA (at [34]):

"3.5.30       Conditions must be relevant or reasonable

(1)     A condition must—

(a)    be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or

(b)    be reasonably required in respect of the development or use of premises as a consequence of the development.

..."

"3.5.32       Conditions that can not be imposed

(1)    A condition must not—

...

(b)     for infrastructure to which chapter 5, part 1 applies, require (other than under chapter 5, part 1)—

    (i)    a monetary payment for the establishment, operating and maintenance of costs infrastructure; or 

    (ii)    works to be carried out for the infrastructure; or

..."

(1)       If a local government imposes a condition about non-trunk infrastructure, the condition may only be for supplying infrastructure for 1 or more of the following—

            (a)        networks internal to the premises;

            (b)        connecting the premises to external infrastructure networks;

 (c)        protecting or maintaining the safety or efficiency of the infrastructure network of which the non-trunk infrastructure is a component.

(2)     The condition must state—

(a)        the infrastructure to be supplied; and

(b)        when the infrastructure must be supplied."

When determining whether a levy could be lawful, the Court noted that the context of the above IPA sections should be considered in "its widest context" with regard to be had to the "apparent purpose of the legislation" (at [34]).

The Court noted that it was common ground that the Haulage Route was not trunk infrastructure and therefore "non-trunk infrastructure" (at [35]).

The Court accepted the Council's submission that section 5.1.2 of the IPA should be given its ordinary meaning, being that it permits a condition in relation to non-trunk infrastructure only where it is for "supplying infrastructure" (see [36] to [37]). The Court noted that section 5.1.2 of the IPA is "unambiguous" as it "…envisaged an arrangement for the provision of the infrastructure itself, rather than a payment to defray the costs of the infrastructure" (at [38]).

The Court noted that there is a distinct difference between the treatment of trunk infrastructure and non-trunk infrastructure in Chapter 5, Part 1 of the IPA (at [39]). Further, the Court noted that it was "no accident" that there was no express power to require a monetary contribution in section 5.1.2 of the IPA (at [40]). As a condition of the type proposed by the Applicant is not contemplated in section 5.1.2 of the IPA, it would be a prohibited condition under the section 3.5.32(1)(b) of the IPA (at 40]).

The Court concluded that the provisions of the IPA set out above "…cannot be read as providing a power for a local government to impose a monetary contribution for non-trunk infrastructure merely because it would be convenient" (at [43]).

Section 3.5.32 of the IPA does not permit a condition requiring works to be carried out for infrastructure, other than as permitted by Chapter 5, Part 1 of the IPA. Section 5.1.2 of the IPA permits a condition about non-trunk infrastructure for "…protecting or maintaining the safety or efficiency of the infrastructure network of which the non-trunk infrastructure is a component". As the conditions proposed by the Council were for works for the purpose of maintaining the safety and efficiency of the Haulage Route network, the Court noted that such conditions can be lawfully imposed (see [48] to [49]).

The Court considered the nature and extent of the Applicant's responsibility for maintaining the Haulage Route, noting that section 3.5.30 of the IPA required a condition to be relevant to, and not unreasonable imposition on, the development (at [51]). The Court considered the principles to be "kept in mind" when applying section 3.5.30 of the IPA summarised in the case of Waverley Road Developments Pty Ltd v Gold Coast City Council [2011] QPEC 59; [2011] QPELR 649 (at [51]). 

The Court noted that the power to impose conditions is subject to a "broad residual discretion" which must be "exercised for a proper planning purpose" (at [52]). The Court determined that the Applicant's responsibility for the maintenance of the Haulage Route is to follow the Council's maintenance regime, which is generally relevant to, and not an unreasonable imposition on, the development (at [126]).

In a joint expert report prepared in 2018 (2018 JER), experts for the Council and Applicant agreed that a levy for the Haulage Route could be calculated (at [55]). The Court held concern about the appropriateness of relying on the 2018 JER citing the age of the report, index method, Council's assumptions, and errors in the 2018 JER (at [59]). Whilst it was proposed that the 2018 JER could be updated, the Court had "…little confidence that a levy could be calculated to properly reflect the actual costs to the Council for maintaining the [H]aulage [R]oute…" (at [68]).

The Court noted that the Applicant proposed options for a levy, which the Court found to be "not conducive" to the goal of litigation which is to finally determine disputes between parties (at [66]). Even if the Court concluded that it was lawful to impose a levy condition, it would not have adopted the Applicant's proposal (at [68]).

The Council proposed a comprehensive suite of conditions for the maintenance regime of the Haulage Route (at [69]). The Court noted that it was "unsurprising" that the experts agreed that a bespoke maintenance regime was appropriate, given that the Haulage Route was subject to flooding and used to transport heavy trucks (at [72]). The Court considered that conditions were appropriate and "…there are good planning reasons for ensuring the road is not rendered inoperable by damage caused by quarry trucks" (at [73]).

The Council argued that the Applicant would be the "real and almost sole beneficiary" of the Haulage Route when the Quarry is operating, estimating that almost all of the traffic on the Haulage Route will be quarry trucks (at [76]).

The Applicant argued that under section 60 of the Local Government Act 2009 (Qld) (LGA), the Council has control of roads in its local government area (at [80]). The Court noted that section 60 of the LGA is "…arguably facilitative, rather than mandatory" and does not contradict the Court's conclusion about the power to impose a condition requiring the maintenance of non-trunk infrastructure under the IPA, as "put plainly" an ability conferred by one statute, does not imply a condition in another statute invalid (at [80]).

Section 265 of the LGA provides that material from which a road is constructed is the property of a local government, even if the road is constructed by a developer by way of condition. The Court noted that section 265 of the LGA "…makes it clear that a developer cannot assert property over the construction materials…" and "[i]t does not mean that a local government must be solely responsible for the maintenance of the road" (at [81]).

The Applicant argued that "complexities and complications" would arise in the event of a claim in negligence arising from some defect in the pavement of the Haulage Route due to the liability of the Council and Applicant (at [82]). The Court noted that "[a] claim against two defendants may be more complex…" but the solution is found in the ordinary application of the law, being that the liability would be determined and apportioned, where appropriate, between defendants and cited that this is not a reasoned basis for concluding that the Council's maintenance regime is an unreasonable imposition (see [83] and [85]).

The Court determined that the Applicant should be responsible for maintaining the Haulage Route for the life of the Quarry (at [87]). 

The Court considered this issue in the context of the Council's proposed conditions (at [89]).

Proposed conditions 38 and 59 read together require the Applicant to maintain the Haulage Route free of potholes and pavement defects, with routine maintenance every six months and set timeframes to address potholes and drain issues (see [90] and [91]). The Court agreed with the experts that "timely repair" is important to maintain the Haulage Route in good condition, finding that the conditions are "reasonable and relevant" as required by section 3.5.30 of the IPA (see [96] to [97]). The Court noted that there was potential difficulty with the proposed conditions if a development permit for operational work was required each time the Applicant were to carry out the routine maintenance works (at [98]).

In February 2025 in the case of Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors (No. 4) [2025] QPEC 2 the Court determined that there was a remote possibility that the routine maintenance works could be categorised as "operational work" requiring a development approval. The Court concluded that this remote possibility was not an unreasonable burden on the development.

Proposed condition 60 includes a program for the resurfacing, rehabilitation, or reconstruction of the pavement which includes reporting requirements (at [100]). The Applicant contended that this condition was confusing and unnecessary, while the Court noted that it "…is perhaps not a model of lucid drafting" the condition is not unnecessary (at [102]). The Court held reservations about the use of the word "investigate" in the condition and suggested the word be removed as it is "superfluous" in the context of the other conditions (at [104]).

The Court determined condition 60(c) to be unnecessary as it requires the Applicant to install a "weight in motion" monitoring device, which would be in addition to the requirement for a weighbridge imposed by a separate condition (at [105]).

Proposed conditions 60 to 67 are about monitoring, and where necessary, resurfacing, rehabilitating, or reconstructing the pavement with a requirement for advice from a geotechnical engineer to be obtained (at [107]). There was concern that the drafting of these conditions could trigger the requirement for advice from a geotechnical engineer even for routine maintenance, but the Court determined that it is only appropriate where a significant defect has been detected (at [107]). The Court accepted the Applicant's proposal to insert words to the effect that a geotechnical engineer is required if considered necessary by the inspecting engineer or pavement designer (at [108]).

Proposed condition 61, which relates to a proposed timeframe for rectification works, was considered by the Court to be "too rigid" and required amending to clarify the Council's position (at [111]).

Proposed condition 65 requires any repair, resurfacing, rehabilitation or replacement, or construction work to be designed, supervised, and certified by a registered engineer (at [113]). The Court determined that given the nature of the Haulage Route, this is not an irrelevant or unreasonable imposition on the development (at [114]).

Proposed condition 51 sets out the requirements to upgrade a section of the Haulage Route (at [115]). Condition 51(b) set out the minimum design life of the Haulage Route, which requires "consideration of the scope of geotechnical testing…" (at [115]). The Court noted that this wording "may be a little imprecise" but it is still sufficient to convey the effect of the condition and is not an unreasonable imposition on the development (at [119]).

A levy for the maintenance of the Haulage Route as proposed by the Applicant cannot lawfully be imposed. The Court ordered the Council to prepare a conditions package consistent with the reasons provided by the Court.

In this case a condition under the repealed IPA cannot include a condition requiring the payment of a levy for the maintenance of non-trunk infrastructure.