Charters Towers Operations Pty Ltd v Charters Towers Regional Council [2025] QPEC 12

ENVIRONMENT AND PLANNING - PLANNING - PLANNING CONTROLS - QUEENSLAND - LOCAL PLANNNG INSTRUMENT - whether the planning instrument allows a non-resident workforce accommodation facility in the rural residential zone - where issues of social planning, economic need and character and visual amenity are raised by the issues in dispute where some aspects of the application are in conflict with provisions in the planning instrument - whether the application warrants acceptance, in whole or in part and with or without conditions, as an exercise of discretion.

Charters Towers Operations Pty Ltd v Charters Towers Regional Council [2025] QPEC 12 | Case summary | Zoe

[37]

[12] As the development application is impact assessable, my assessment must be carried out against the assessment benchmarks in the planning scheme, having regard to the matters prescribed by regulation, and may be carried out against, or having regard to any other relevant matter, other than a person's personal circumstances.[6] It is sufficient for present purposes to simply note that regs. 30 and 31 of the Planning Regulations 2017 list the matters prescribed by regulation_._ The latter regulation brings into consideration the common material.
[13] I am invested with broad powers in determining the appeal under s. 60(3) of the PA, including approving the application as a whole or in part, with or without conditions.[7] The power to approve the application in part is not constrained by considerations of whether the approved part amounts only to a minor change to the whole application. Although Metroplex Management Pty Ltd v Brisbane City Council & Ors[8] was decided under different legislation, I cannot detect any reason why the same outcome should not result under the PA.
[14] In exercising any of those powers, the observations of Mullins JA (as her Honour then was) in Abeleda v Brisbane City Council and Anor[9] are apposite. In particular, non-compliance with an assessment benchmark is likely, in most instances, to attract significant weight because the planning scheme is taken to embody the public interest in matters of this nature. However, non-compliance is only one of many relevant features that must be assessed and weighed in reaching the appropriate conclusion in the circumstances of the individual assessment.
[15] The same principles which apply to statutory construction apply to the construction of planning documents. Observations in Project Blue Sky Inc v Australian Broadcasting Authority,[10] were referred to in Zappala Family Co Pty Ltd v Brisbane City Council,[11] but more recent authorities including The Queen v A2[12] and AB v Independent Broad-based Anti-Corruption Commission[13] also provide assistance. The construction task must also be conducted bearing in mind the hierarchy of the assessment benchmarks,[14] and the methods prescribed for determining compliance with the assessment benchmarks for assessable development under the planning scheme.[15]
[16] As observed by Mullins P in Clarry & Anor v Brisbane City Council,[16] the nature of planning instruments is a relevant consideration in their construction, as there can be multiple provisions that are applicable to the same site. They must be read as a whole and in a practical manner, intending to achieve a balance between the outcomes.
[17] Although the present application is impact assessable, its determination in part raises satisfaction of code requirements. That assessment is to be undertaken as though that part of the application is code assessable.[17] Compliance with the code will be achieved if the proposed development complies with either the purpose and overall outcomes of the code, or the performance and acceptable outcomes.[18]

[39]

[18] The site is located within the rural residential zone ("RR zone"), as designated by the Charters Towers Regional Town Plan, version 2 ("the planning scheme") which was in force when the development application was lodged, and remains in force. More broadly, the Charters Towers LGA is a large geographical area; the planning scheme asserts it is larger than Tasmania. Unsurprisingly for an LGA of that size, it comprises a diverse array of land features and uses.
[19] I was assisted in understanding the evidence in this hearing by viewing the site. It is an irregularly shaped block of land of 4.104 hectares, and which is surrounded by five roads, of varying quality. In that sense, it has been described accurately as an island, because there is no common boundary to any neighbouring property.
[20] The site has a frontage of about 128 metres to Deanes Road, which is a bitumen sealed road that has no footpaths, kerbing or channelling and runs roughly north-north-east from its T-junction intersection with Phillipson Road. It borders the whole of the eastern boundary of the site. At the northern most end of Deanes Road is its intersection with Millchester Road, a designated arterial road. Although it is not precisely stated in the evidence, the length of Deanes Road appears to be in the order of 700 metres. It is proposed that the driveway access to the proposed development be placed at the far northern end of the eastern boundary, and then for it to run adjacent to the northern boundary, ultimately to the carpark at the far western end.
[21] Phillipson Road is also a bitumen sealed road that has no footpaths, kerbing or channelling. It runs essentially west from the T-junction with Deanes Road, although it turns to the southwest just before its four-way intersection with Nagle Street. the site has a frontage of about 206 metres to Phillipson Road. It borders the whole of the southern boundary of the site.
[22] Nagle Street runs essentially north-west from its intersection with Phillipson Road. It is an unsealed road and would, in layman's terms, be referred to as a dirt road although, in this part, it is roughly of the same width as the aforementioned sealed roads. Again, there are no footpaths, kerbing or channelling. Measured to its four-way intersection with Creek Street, it provides a frontage for the site of about 184 metres. It provides the boundary to the whole of the western side of the site.
[23] Creek Street runs essentially north-east and provides a frontage of about 109 metres for the site. It is described as an unmade road reserve, and intersects with Richard Road. I will refer to this frontage as the north-western boundary.
[24] Richard Road is angular, initially running roughly south-south-east from its intersection with Creek Street and then essentially west until it forms a T-junction with Deanes Road. It provides the site with a total frontage of about 291 meters. For reasons of convenience, I will refer to this as the northern border of the site. It too is described as an unmade road reserve. Both it and Creek Street would, in layman's terms, be referred to as undefined scrub tracks.
[25] The site has a relatively gentle slope dropping between five metres and nine metres from south to north, depending on the starting reference point. It is mostly grassed. There is some sparse vegetation, although nothing of environmental significance.
[26] The site currently contains a lowset dwelling house on its southern border, a domed fabrication workshop near the south-west corner and a handful of seemingly disused sheds. These structures ("the existing structures") will all be retained if the proposed development is approved.[19] There are also a number of demountable buildings that were previously used for non-resident workforce accommodation for the Survivor television series on a site near the airport, and which are temporarily housed on this site. They will not be retained if the proposed development is approved.[20]
[27] Historically the site had been used for light/medium impact industrial activities, in the nature of metal fabrication.[21] It is unclear when it was last used for those activities. The rates notices are still issued under that category,[22] but it is uncontroversial that the site is now zoned as rural residential.
[28] Millchester is a suburb to the south-east of the Charters Towers town centre. According to the 2021 census, the Millchester suburb and localities had a population of 543 persons, while the Charters Towers Local Government Area had a population of 11,794 persons.[23]
[29] The site sits within an area that presents as a low density rural residential setting. The area to the north-west of the site, also in the RR zone, is essentially an open area, with no dwellings for some distance.
[30] To the south and directly opposite the site, there are four single storey detached houses with sheds on rural residential lots of about 5000m2. The dwellings are set back from Phillipson Road, and each have fences, of varying heights and styles, fronting the roadway. Further east along Phillipson Road, and east of the intersection of Phillipson and Deanes Roads, is a fifth similarly described dwelling. Further east again is the field and clubhouse of the local rugby union club and the local netball club courts, of which there are seven. These grounds are a short walkable distance of a few hundred metres from the south-east corner of the site.
[31] Directly across from the site's western boundary is the Millchester State School, which has a student population of only 152 students.[24] The main entrance to the school is on part of Phillipson Road that extends past the intersection with Nagle Street, and continues to an intersection with Bluff Road, an arterial road. The school playgrounds are the aspect of the school that is closest to the site. The school buildings tend to be clustered further away, and mostly near the corner of Bluff Road and Phillipson Road. The closest school building is in the order of 150 metres from the Nagle Street frontage of the site, part of which will, if allowed, involve a 1.8 metre acoustic barrier on one side of the carpark which directly faces the school grounds, and about 267 metres from the nearest building in the proposed development. Nonetheless, there is a clear line of sight from the school buildings to the site.
[32] On the northern boundary of the site, north of Richard Street, is a roughly four hectare rural residential property, improved by a detached dwelling and ancillary outbuildings. They are clustered relatively close together near that property's frontage to Deanes Road, and also close to the notional northern most edge of Richard Street.
[33] The proposed development is intended to be delivered in seven stages:[25]
1. Stage 1 comprises 44 rooms, two separate laundry facilities, a kitchen/mess hall, first aid room and temporary reception area, water storage, sewer pump station, stormwater treatment areas, and a vegetation buffer on the eastern and southern boundaries.
2. Stage 2 comprises 60 rooms.
3. Stage 3 comprises 76 rooms and a further laundry.
4. Stage 4 comprises 100 rooms, a further laundry, the main reception/office area, an additional first aid area and a vegetation buffer on the western boundary.
5. Stage 5 comprises 40 rooms and an additional laundry.
6. Stage 6 comprises 40 rooms and an additional laundry.
7. Stage 7 comprises 44 rooms.
[34] The driveway and the associated carparks for stages 1 and 2 are aligned along the northern boundary. The initial buildings will occupy the north-eastern corner of the site. The buildings for stage 2 will reach towards the southern boundary, meaning the whole of the eastern boundary will effectively have buildings all along it. Subsequent stages will then extend the buildings further west, but further along the northern end of the driveway/carparks than along the southern boundary. Open space is maintained in the south-west corner, but that space is encroached upon by a gravel overflow carpark.
[35] It is proposed that a total of 320 carparks be provided during stages 1, 2, 3, 4 and 6. Those for stages 1, 2 and some for stage 3 are to be directly adjacent to the driveway, By the time stage 3 is completed they will be adjacent to almost the whole length of the longer part of Richard Street. The rest of those for stage 3 and all for stage 4 occupy all of the odd shape of the site created by the shorter angled length of Richard Street, the north-west frontage and part of the Nagle Street frontage. Stage 6 will provide a gravel overflow carpark to the southeast of that carpark, thereby fronting part of Nagle Street. No landscaping or fencing is proposed adjacent to the overflow carpark. All other carparks are sealed. Bus bays and turning areas are provided for in the different stages. Landscaping and fencing is planned for all other carparks.
[36] The accommodation rooms are to be housed within demountable buildings; 4 rooms per demountable. Each room is intended to accommodate an individual non-resident worker, and not families. The demountable buildings are to be placed 2.5 metres apart on their long sides and 3 metres apart on their short sides. The buildings will sit above ground level and will connect with each other by decked walkways. It is unclear to me if the walkways are to be covered or not. This is of no moment.
[37] The buildings will be set back between 10 and 40 metres from the southern boundary, about 75 metres to the western boundary (although the carparks are much closer), between 30 and 35 metres from the northern boundary (although a 2.5 metre high acoustic barrier is closer) and between 7.97 and 20 metres on the eastern boundary.
[38] The built form will occupy about 2.9 hectares of the site. The balance includes the overflow carpark,[26] and the rest will remain as is, inclusive of the existing structures, which will be used for storage and maintenance purposes.
[39] It is anticipated that the proposed development will provide employment for 20 people.
[40] The appellant proposed that certain conditions should attach to the approval. Those which remain contentious, or are otherwise relevant, are:[27]

[53]

[44] One is the CopperString project. It is intended that, overall, there be a number of non-resident workforce accommodation facilities at six different places along the length of the construction project, the first at Hughenden. One of the last such places is intended to be in the Charters Towers area, with construction of the proposed accommodation expected to commence in mid to late 2025, subject to approvals.[29] This is consistent with an earlier published Information Sheet, in March 2024, indicating that the construction of the eastern link of the electricity transmission line is expected to begin in 2026.[30] Overall the project is expected to be completed by 2029.[31]
[45] The final Environmental Impact Study ("EIS"), approved by the Australian Government in November 2022, referred to a "work camp" at Charters Towers for between 128 and 350 beds, and which was required for a three year period (then, indicatively stated to be 2024-2028).[32] The EIS included a camp site plan for a 128-bed facility on a privately owned site 17 kilometres outside of Charters Towers on the Gregory Development Road.[33] Part of a revised Project Description, dated January 2022 (and so prior to the approved EIS), noted the ability to use existing worker's accommodation facilities, where they exist.[34]
[46] Recent correspondence from the Coordinator General suggests that the construction of this "work camp" is to be undertaken by Powerlink, the operator of the project, and will be the subject of a Ministerial Infrastructure Designation ("MID") application.[35]
[47] However, the Coordinator-General's Change Report no. 1 - Hughenden workers accommodation camp, dated May 2024, contained amendments to the commitment given by Powerlink for the conduct of the project.[36] Despite the respondent's submissions to the contrary, I consider that they are properly understood as being amendments for the whole of the project, not just for the Hughenden stage of it. Among them was a recognition of the ability to gain approval for a works camp, including by a material change of use application, where it needed to be progressed in isolation from electricity infrastructure and where it cannot be approved under the MID process.

[58]

[55] Ms Morrissy considered that the proposed development was sufficiently connected to two proposed major projects to mean that the proposed development achieved satisfaction of the requirements in s. 3.4.1.2(11), which she considered was not limited to tying the proposed development to one specific project. She considered that the provision did not preclude one facility servicing multiple projects. In reaching this conclusion she also had regard to the opinions of Mr Duane.
[56] Ms Morrissy considered that the planning scheme, in its policy intent, was informed by growth generation rather than growth management. She considered that the lack of locational requirement in s. 3.4.1.2(11), as compared with 3.4.1.2(12), confirms that a flexible approach to the location of the proposed development should be taken. She did not agree with Mr Buckley's observation that Charters Towers was a typical small to mid-sized town community given, in part, aspects of the planning scheme refer to the area being a major inter-regional education and healthcare hub with large areas of largely unconstrained rural land that can support major economic activities, and which has a strong rural economy that services local, state, national and global markets.
[57] Further, concepts of facilitating economic growth are inconsistent with requiring the development to be tied to one major project in order to ensure that the development is temporary in nature.
[58] Mr Buckley, as an overarching observation, considered that the proposed use is atypical in any urban environment, given the scale and intensity of the proposed use. They are atypical because they are "one-off" in their physical and operational nature and by their inherent connection to major projects. While the planning scheme recognises the importance of economic growth, the Strategic Framework strongly acknowledges the importance of character and lifestyle to its communities and residents.
[59] He considered that the distinctions between the strategic outcomes in ss. 3.4.1.2(11) and 3.4.1.2(12) illustrate the point that a construction-phases accommodation facility will operate separately to accommodation for operational workers and, while close to the project, remote from existing communities. He considered that there is a strong nexus between the planning purpose of the key planning provisions and the proposed developments' relationship to major projects. That is, it is the requirement that the proposed development be tied to the major project that suggests that it should be close to it. Similarly, a link to a possible major project would defeat the strategic outcome. In his view, there is no encouragement for the proposed development to be within or close to an established community.
[60] Further, in his opinion, a facility which ties itself to potential timeframes of projects not yet committed has a degree of permanency not envisaged by the Strategic Framework.
[61] In the terms of the planning scheme, reliance on probable and possible projects somewhere in the region and a suggestion that 15 years is a temporary use cannot be justified. Mr Buckley considers that the intent and planning purpose of s. 3.4.1.2(11) is to require special attention to the needs and location of individual projects, which is required in the case of this atypical proposal.
[62] To approve what would be considered a "square peg in a round hole" in the hope of providing accommodation for workers for major projects, which may provide its own accommodation in any event, would be a poor planning outcome, especially where the proposed time limitation is not truly temporary.
[63] Importantly, both experts agree that, despite their differences of opinion, each application must be assessed on a site-by-site basis, both in terms of the consideration of this assessment benchmark, and generally.

[61]

[67] Ms Morrissy considered that there was compliance with the strategic outcome in s. 3.4.1.2(11). She considered that it did not specify where non-resident workforce accommodation facilities for construction workers were to be located, and so it was open to locate them in the RR zone, if the specific locational attributes were assessed as being suitable, on a case-by-case basis. She considered that the development still retained the notion of a "lifestyle lot", as required by s. 3.2.2 - Rural Residential, and that it fell within the RR zone code ("RRZC") purposes at s. 6.2.7.4.2(2)(b). Notably, the region is said to be "adaptable, flexible and nimble" in order to adapt to changing economic circumstances, which demonstrates the region's level of resilience to accommodate population and economic growth.[40] The requirement for temporary use, she again considered, can be enforced through conditions.
[68] She observed that, in her opinion, the central divergence between her opinion and Mr Buckley's was the degree of guidance given by ss. 3.4.1.2(11) and 3.4.1.2(12) as to where developments such as the present should be located. Mr Buckley considered that it gave considerable guidance, whereas she considered that it came back to the locational attributes of the subject site.[41]
[69] She accepted that the proposed development did not satisfy s. 6.2.7.4.3 AO3, but she considered that that there was the required compatibility with PO3. However, she accepted that the proposed development was more intense than the nearby school, which she considered to be the most intense of character in the existing area.
[70] The application of town planning first principles, for reasons outlined, supported the approval of the application. In reaching that conclusion she drew support from aspects of Mr Duane's opinions and also those of Mr Butcher.
[71] She took issue with Ms Bennett's observations about the "walkability" issues concerning the site and the town centre. While accepting that the distance was not readily walkable, she noted that it was not an issue specifically raised by the planning scheme, and that the short distance involved meant that the town was readily accessible by car, shuttle bus or coach.
[72] Ms Morrissy considered that there was compliance with s. 3.2.1(12) as the proposed development will not, in her opinion, have a significant adverse effect on the character of the Charters Towers region. She also relied on aspects of Ms Ashford's opinion, particularly concerning the benefits to the local community.
[73] She also considered that the application is compliant with ss. 3.2.2(1), 3.2.2(2)(b) and 3.2.2(3)(b) as it reflects the prosperity in the region by facilitating the provision of new infrastructure projects and economic development, that Charters Towers is well suited to supporting a non-resident workforce and that the locational attributes and site characteristics are suitable for accommodating the proposed development. In this respect, she also drew on aspects of the social planning JER, and in particular Ms Ashford's conclusions in it.
[74] As earlier noted, Ms Morrissy considered that the proposed development was partially compliant with the strategic intent in s. 3.2.3 - Rural Residential. She acknowledged that the proposed development had an intensity that was inconsistent with a typical rural residential environment. However, she considered that the locational and site characteristics, the ameliorative aspects of the design, that the limited number of neighbours meant that any impact would be minimised and the fact that the use would be temporary meant that the proposed development meant that the proposed development would only have a minor and temporary impact on the rural residential area surrounding the site. She considered the proposed development would be compatible with its environs.
[75] In the JER, she also considered that the proposed development is compliant with the RRZC outcome at s. 6.2.7.4.2(2)(a), although the reasons provided indicate that she in fact may be referring to the RRZC outcome at s. 6.2.7.4.2(2)(b). She notes that the positioning, including the setbacks, the fencing and landscaping and the use of the topography of the land all assist in reducing the visibility of the built form. She also adopts the opinions of Mr Butcher to reach her conclusion.
[76] Referring to the appellant's reasons for approval, she considered that each of ss. 3.2.2(8) and 3.2.2(9) were complied with, as was the strategic outcome at s. 3.4.1.2(2).
[77] Mr Buckley did not agree that the proposed development aligned with the planning scheme, because:

[62]

a) The combined intent for the RR zone benchmarks and the key provisions of the Strategic Framework anticipate that a non-resident workers accommodation facility will be located other than in an area planned for houses on large lots. In particular, the strategic outcome at s. 3.4.1.2(2) must be read in light of s. 3.4.1.2(1). They do not mean that the RR zone is a zone of wide housing opportunity. > > b) The combined reading ss. 3.4.1.2(11) and (12) demonstrates different outcomes for worker's accommodation as between the construction and operational phases of major projects. Once it is accepted that the facility must be tied to a particular project, the inference is that it will draw the facility away from the communities and closer to the project itself. If the planning scheme had intended to house construction workers in the townships, it could have easily said so. > > c) Reliance on the strategic intent at s. 3.2.2(9) is drawing a long bow. The provision is a statement of context rather than a policy statement. The Strategic Framework supports economic growth but also gives guidance as to how that support might be achieved for uses like the proposed development. For similar reasons, reliance on ss. 3.2.2.8 and 3.3.1(1) is also misplaced. The way in which the non-resident workforce accommodation is provided is an important part of the strategic intent as part of the policy to support the delivery of major infrastructure projects. > > d) While there is an ability to apply for non-resident workforce facilities in most zones, that does not represent a positive representation of a planning intent. Consideration as to acceptability must be made on a case-by-case basis. The fact that the use is impact assessable in every zone of the local government area does not necessarily represent a strategic intent to have non-resident workforce facilities everywhere throughout the LGA. > > e) The proposal to monitor occupancy is prone to uncertainty. While the use of it was lawful, it would represent an enforcement burden on the respondent. > > f) The "guise" of the use being temporary does not diminish the degree of non-compliance.

[71]

[86] The appellant engaged Ms Thao Ashford and the respondent engaged Ms Vanessa Bennett to give opinions as to social planning issues. Of the two, Ms Bennett is the more experienced, but both are suitably qualified and experienced.
[87] The JER recognised that, of the potentially many large-scale projects operating or mooted to commence in the broader area, only two - the CopperString project and the Big Rocks project - were sufficiently proximate to Charters Towers to mean that they were relevant to the current appeal. They noted that the Coordinator General's Initial Advice Statement indicated that no temporary workforce camps "were proposed or considered to be required" for the Big Rocks project.[43]
[88] It also recognised that extraneous materials for the CopperString project indicated a likely duration for the non-resident worker's accommodation as being 18 months to 32 months, including commissioning and decommissioning.[44]
[89] Ms Ashford considered that, while there are issues with integration of non-resident workers into the community, they could enhance the local community, through social and financial contributions, facilitated by the implementation of an Accommodation and Social Integration Plan ("ASIP"). She considered the proposed ASIP to be a flexible document which could be modified to deal with changing conditions. Included in that flexibility was the notion of a 9.00pm curfew for a shuttle bus, which would conduct hourly services to the town centre, rather than a curfew on the facility itself. She understood the curfew was proposed as a means of dealing with possible noise issues, and which could be modified as needed. She considered the proposed development's operating hours as an operational management issue.
[90] Ms Ashford considered that the near-town location of the proposed development provided tangible opportunities for non-resident workers to participate with the community in town, bolstered by the availability of the shuttle bus. She also considered that the ASIP, including the provision of an on-site lifestyle coordinator, and the Workforce Management Plan to be implemented by CopperString, in combination, catered adequately for issues of personal health and wellbeing of the non-resident workers.
[91] Her opinions were based on the anticipated involvement of workers from both the CopperString project and the Big Rocks project, as she had not been apprised of more recent material put before the Court about the latter project. In any event, she considered the plans were appropriate for non-resident workers, regardless of what project they were attached to.
[92] Ms Ashford acknowledged that the local community would have safety concerns following an influx of a non-resident workforce, but considered that the fears were largely unfounded and could, in any event, be adequately managed through fencing and landscaping of the site, the use of CCTV at the site, the enforcement of a Code of Conduct, regular meetings with police and neighbourhood watch and the integration of the workforce into the community through the ASIP.
[93] Ms Bennett on the other hand considered that this style of development has the potential to cause considerable social impacts, both on the existing communities and the workers. In her opinion, these facilities should only be employed in response to a legitimate and demonstrated need, where they are well located and not at odds with the scales and values of the existing community, and only for a short period.
[94] She considered that given the likely differences in the expectations of and commitment to the Millchester area as between the non-resident workers and the resident population, the non-residents were unlikely to assimilate into the community. She accepted in cross-examination that her assessment was made on the basis of the immediate Millchester area, rather than considered on the larger scale Charter Towers LGA. In her view the ASIP did not particularly assist as it was a passive document that provided means for workers to create contacts in the community, but did not actually create them. Given the differing expectations, she thought it likely that few workers would in fact take up the opportunities, which would in any event likely be limited because they would leave the area on their days off, and the opportunities when working long days, involving strenuous work, were limited.
[95] Further, she considered that the three-kilometre distance from the proposed site to town to be a distance that was unlikely to be walked often, thereby relying on the shuttle bus, which had its scheduling limitations.
[96] She also considered that a sudden influx of non-resident workers in the Millchester area, which at full capacity would greatly increase the existing population,[45] would likely create perceived safety concerns, no doubt unintended, which would in turn tend to inhibit the integration of the workforce into the local community. She considered the proposed development would be better placed away from rural residential environments, especially from other uses that involve vulnerable persons, such as children at schools.
[97] She considered that the lack of recreation, sport and entertainment facilities on-site, excluding the grassed area, and the fact that the township is not a readily walkable distance meant that worker wellbeing would not be promoted, and was contrary to assessment benchmark 3.5.1.3(1), from a social planning perspective.
[98] She also considered that if the use of the proposed development was limited to 15 years, there would be significant and likely permanent changes to the existing sense of community, and community values, in Millchester. This period was at odds with her expectations that such a development would only be for a short/temporary period. Her opinion was not sought as to her view should the lifetime of the proposed development be limited to eight years, as suggested in closing submissions.

[72]

[99] A joint expert report on traffic issues was prepared by Mr Douglas, retained by the appellant, and Mr Holland, retained by the respondent. In it, they were agreed that the proposed development can be accommodated in the existing road network and intersections without the need for any works, apart from, essentially, certain line markings, that extra provision of parking spaces were required and that all this could be dealt with by way of conditions on an approval of the application. These matters were dealt with by the minor change approval. It was expressly stated that there were no points of disagreement between them.
[100] On the basis of various assumptions being made, including that workers would use 58-seater coaches to travel to and from the work site and that all workers arrive and leave from the site at the same time on their respective three-week rosters (which seems unlikely), there would be a maximum traffic generation of 174 vehicles per day. The typical day would generate 26 vehicles per day, with 12 vehicles per hour in the typical peak.[46] Mr Holland considered this to be the lowest traffic generation figures, given the assumptions used.
[101] Mr Holland subsequently issued a separate report which dealt with some aspects of the approved minor change and also further explained his calculations used in the JER with respect to changes in traffic volumes if the proposed development was associated with the CopperString project and, alternatively, if associated with the Big Rocks project. In the latter respect, he provided documents used in the JER. He stated he had been asked to do so for the purposes of the character and amenity experts' opinions.
[102] Although the appellant noted that the ability to provide the report was doubtful,[47] no objection was taken to its admissibility. Evidence in chief touching on the newly raised issues was permitted from Mr Douglas, and both experts were cross examined.
[103] The JER reflected the agreed position that, based on traffic projections to 2034 (allowing for a 3% year-on-year increase) and drawing assumptions from known traffic flows at a worker's camp at Blackwater and other assumptions as to how the rooms would likely be utilised only by one worker, even when on days off, the relevant intersections near the site have sufficient capacity to handle the projected traffic flows. It was also assumed that the routes travelled would differ depending on which location was associated with the proposed development, given their differing locations in relation to the site. In Mr Holland's separate report, he in essence preferred not to rely on some of the assumptions made in the JER, and calculated a higher rate of traffic flow.
[104] For the purposes of his oral testimony, Mr Douglas converted the respective vehicles per hour calculations to a vehicle per day calculation. Mr Holland's calculations resulted in a range roughly 10% to 50% higher than Mr Douglas' from the JER.[48] Mr Douglas doubted some of the assumptions made by Mr Holland but, regardless, opined that, even working with the higher figures, they fell well under the expected threshold for the environmental capacity for any of the relevant roads.[49] The environmental capacity differs from the actual capacity of a road to physically handle the traffic using it, and refers to people's expectations in terms of amenity.[50] Mr Holland did not consider there was an issue with the application in so far as the environmental capacity was concerned.[51]
[105] More precisely, it was calculated that, if the proposed development were associated with the CopperString project, the current peak hour usage of 50 vehicles per hour would increase to a range of 160 - 270 on Phillipson Road, and if the proposed development were associated with the Big Rocks project, the current peak hour usage of 80 vehicles per hour would increase to a range of 130 - 240 on Deanes Road.
[106] In Mr Holland's separate report, he preferred not to rely on the assumptions adopted in the JER, and calculated a range of potential traffic generation if the proposed development were associated with the CopperString project of 80 to 190 vehicles per hour, in the peak hour. If the proposed development were associated with the Big Rocks project, he calculated a range of potential traffic generation of 80 to 190 vehicles per hour, in the peak hour. He assumed that the routes travelled would differ for the two projects given their differing locations in relation to the site.

[74]

[109] Mr Butcher was engaged by the appellant, and Mr Curtis by the respondent. Each are appropriately qualified to give expert opinion evidence on this topic, and each have considerable experience in the area. Their reports were directly concerned with ss. 3.2.2(3)(a) and 6.2.7.4.2(2)(b) and 6.2.7.4.3 PO3 of the planning scheme. The joint report was prepared before the approval of the minor change, and each provided a separate report after that occurred.
[110] Mr Butcher's ultimate opinion can be distilled into a few relatively concise propositions. Due primarily to topographic and floral features, the subject site is presently of low visibility. The existing character of the local area comprises a range of different elements. The proposed development would not substantially alter the existing character of its immediate surrounds, or the locality. This is due in part because of the combination of the natural slope of the land, the earthworks to be undertaken, the proposed setbacks of the structures on the site, the use of and type of fencing and acoustic barriers used and the landscaping to be applied, the internal structures of the proposed development will largely not be visible from any of the surrounding roads or lots. Similarly, while the proposed development will represent a different density to the surrounding area, that is unlikely to have a significant impact on the character of the local area due to the relative lack of visibility.
[111] While the adjacent rural lots along Phillipson Road do not have solid boundary fences similar to the proposed development, the staggered design of the proposed fence along that boundary, with pockets of landscaping at different parts, will break up the horizontal appearance of the fence, and create points of interest. For that reason, it could contribute to the local character.
[112] In cross-examination, Mr Butcher considered that the broader local context comprised a combination of lower intensity uses as well as some slightly higher intensity uses but accepted that, overall, there was a low intensity feel to the locality of the proposed development. He also accepted that the built form was characterised by detached residential dwellings on large lots, school buildings, rural sheds and sporting facilities. While the proposed development was comparable with other built form in the immediate area in terms of height, he accepted that the number of units and the coverage of the land they would occupy was unique to that area.
[113] In terms of the locality more immediate to the site, he considered that parts of it were more open, but also considered that as one moved north along Deanes Road, towards Millchester Road, there became a more traditional residential character to the area.[52]
[114] In terms of the vegetation, while the broader area had a more enclosed tropical character, he accepted that not all of the more immediate area had that same character, and that the immediate area was more open.
[115] Mr Butcher did not accept that the combination of fencing and vegetation created a continuous barrier. He considered that, bearing in mind the species used in the landscaping, it provided amenity to the edge of the units. Further, there were breaks in the fencing along Phillipson Road, and there would be no fencing in front of the existing structures. He considered it to be more of a buffer between two uses, but accepted that some parts would be impermeable due to the landscaping. However, he considered there were other parts where it was open. He considered that the bult form would be visible from Deanes Road looking along the driveway, that there may be areas along Phillipson Road where the built form may be visible, but in the context of vegetation, and similarly from Nagle Street. He accepted that the acoustic barrier along the Richards Street frontage was 2.5 metres high, and was unaware of any other development in the locality having a barrier of that height.
[116] He accepted that the landscaping plan provided for the large trees to be of different species, creating maximum heights of between 10 and 35 metres. He considered that meant that an observer of the proposed development would not be faced with a "wall of trees", because the canopy would be well above the development. Further, he considered that the local area had aspects where similar species could be located. While there would be nowhere else in the locality that shows a similar visual outcome, that did not, in his opinion, make it unusual in its appearance.
[117] The following passage is a good summary of his overall evidence on the issue of density of the proposed development from a visual amenity perspective:

[77]

[119] He did not accept that the proposed development was inconsistent with the character of the immediate setting, for the reasons earlier outlined.
[120] In terms of increased traffic flow, he considered that there would be additional visual impacts, but he could not assess the impact.
[121] Mr Curtis held contrary opinions. He did not agree that the site currently had low visibility. He considered the location to be highly visible from both Phillipson and Deanes Roads. As such, he considered that persons passing the site while en route to and from the school, and the sports facilities at the end of Phillipson Road have a clear view of the site and its relationship to the local context.
[122] Mr Curtis acknowledged the different types of structures in the local area, but considered that all are consistent in their built form and open landscape space with the intended character in the RR zone. Notwithstanding the differences, there was a degree of permeability to the structures to allow views into the properties. This created an "open visual setting" which contributed to the character and amenity of the streetscape as a public place.
[123] On the other hand, the proposed buildings represent an intense cluster of built form, with repetitive appearance and limited separation, with a risk that at least part of the built form would be visible from the adjacent areas, even with fencing and landscaping. The carpark at the western end contributes to the intensity of the development. The fencing and acoustic barriers will create a prominent visual barrier along the site's frontages, which in turn precludes the proposed development from having a positive engagement with the streetscape. Even allowing for the fencing and landscaping, the site will appear as something of a fenced compound isolated from the streetscape.
[124] While the continuous unarticulated appearance of the fence may be softened by the staggered design and pockets of landscaping, that will not alter its function as a visual barrier that isolates the site from its surroundings. Further, the dense landscaping, while partially screening the visibility of the built form, will accentuate the site's isolation from the local area. He also considered that the viability of the landscaping is questionable without mandated maintenance.
[125] In his separate report, Mr Curtis referred to the JER traffic report and noted that expected traffic increases along both Deanes Road and Phillipson Road could be in the order of a doubling to trebling the peak traffic volumes. He considered that, while the traffic experts concluded that the road system is able to accommodate the increase, it will diminish the setting of the residential community.
[126] In cross-examination, Mr Curtis accepted that the local context is comprised of both existing development and vacant properties within the RR zone, the community facility zone and the recreation and open space zone, and that there is a variety of built form intensities, built form visual appearance and uses within those zones. He accepted that the outcome achieved for the proposed development was, at worst, filtered views of the accommodation from the public realm because of the landscaping and fencing. He also accepted that just because something is visible doesn't necessarily mean it's not acceptable.
[127] He accepted that, while he had doubts about aspects of the onsite amenity of the proposed development, the greater focus is on the visual impacts of the proposed development from the public realm. Nonetheless, he considered that when a planning scheme refers to residential amenity, an aspect of that is residential amenity within the site. He considered that what should be in a worker's camp should be of a higher standard than what is provided for in the proposed development.
[128] He agreed with Mr Butcher that from parts of the public realm there would be filtered views of the built form. He agreed that the school forms part of the relevant locality, and that it would retain the highest visibility in the area. He also agreed that there is a variety of fencing employed in the area, but said that the majority of it is at least semi-permeable. He also agreed that there is at least one example where vegetation sits in front of the fencing.
[129] He agreed with Mr Butcher's definition of the relevant locality as shown in exhibit 36, but he would give greater weight to certain elements within that locality, depending on how close the element is to the site.
[130] He considered that if the landscaping plan was amended to allow more permeability, that would add more variety to the visual amenity, but it would also mean that the character of the built form would be more visible to the street and, in his opinion, that character is contrary to what is intended for that residential area and the intensity of it.[55] Even if it were assumed that the planning scheme allowed for that type of development in that area, the residential amenity issues mean that it is a poor example of this style of development.

[78]

[131] The experts engaged in this area were Mr Duane by the appellant and Mr Musk by the respondent. Each are appropriately qualified in the area of economic need and impact assessment, although Mr Duane is the more, and extensively, experienced. It was apparent in the course of their testimony that each are well qualified to testify in this area. Each contributed to the JER, albeit with significant differences of opinions, and each provided separate reports updating the material they relied on the JER, amongst other things.
[132] The JER identified a number of relevant economic factors affecting the Charters Towers area. They included an expected small drop in the population between 2021 and 2031, that there were, on average, 19 new residential building approvals per annum, that there is a very low residential vacancy rate of 0.3%, and that the vacancy rate has been very low for a number of years. Also, unemployment in the Charters Towers LGA and locality has been trending downwards since 2020, and now sits generally in-line with Queensland and Australian averages.
[133] There were 13 hotel/motel facilities in the Charters Towers township, with a combined capacity of about 250 rooms. There were also 3 caravan/park sites, each with between 15 and 25 cabins and between 50 and 80 campsites.[56]
[134] For the purposes of the JER, Mr Musk designed a self-reporting survey of the hotels and motels in the town.[57] There were six replies. Broadly speaking, the responses showed that those establishments cater, to varying degrees, for construction workers. These accounted for between 10% and 70% of their room usage, although the number of rooms at the different establishments varied. Overall average occupancy rates varied, depending on the time of year, from between 10% to almost 100%. There was universal concern expressed by the six responses about the effect on their businesses should the application be granted.
[135] In essence, Mr Duane considered that there was a clear need and demand for the proposed development because of:

[80]

[136] In his oral testimony, Mr Duane considered that the CopperString project was, as far as anyone can say, definitely going ahead. For that reason, there is a definite need for a non-resident workforce accommodation facility at Charters Towers. In his opinion, the maximum benefits accrue by being at the proposed site rather than 10 kilometres out of town. Further, he could not see any evidence that the site on the Gregory Development Road had been progressed.
[137] The proposed site, if approved, would in his opinion be likely to be taken up because the major proponents of these sorts of projects don't want to build their own accommodation facilities, and would most likely use one already approved in the township. He however acknowledged that the representatives of CopperString know of the proposed development and have not made any commitment towards using it.
[138] Mr Duane accepted that there was some uncertainty about the Big Rocks project, although he understood that funding had been allocated from the State and Federal Governments across 2024/25 and so, while the return of the project to the State may delay things, he considered that there was some certainty to the project proceeding.[58] He gained some support for that opinion from the fact the project is still mentioned on the "state development infrastructure website", but he also accepted that can change.[59] He qualified his opinion in that he considered it would progress at some time in the future, but he could not say when that would be.[60]
[139] He accepted that if the proposed development were approved, there would likely be some downturn in the accommodation of construction workers in the local hotels and motels, but that would allow them to cater to tourists. However, he noted that there are no major construction projects currently operating in the area, and so any construction workers would be unlikely to be able to access the proposed development anyway.
[140] Mr Musk held the contrary overall opinion, essentially because:

[89]

[151] There is no provision in the planning scheme that expressly permits, or prohibits, a non-resident workforce accommodation facility in the RR zone, or any other zone. However, the planning scheme does recognise that the region has vast areas of rural land that can support major economic activities and uses that cannot be appropriately accommodated within urban and township areas because of adverse impacts.[68] It can therefore be seen that the appropriateness of the location of the use is expressly recognised as an issue in the scheme. In that sense, I agree with Ms Morrissy's opinion that the lack of an express locational requirement in s. 3.4.1.2(11) means that a flexible approach can be adopted to the location of the proposed development but, as observed below, it does not mean that non-resident workforce accommodation facilities can be approved in an unfettered manner; they are subject to impact assessment under the planning scheme.
[152] Express mention is made of non-resident workforce accommodation in s. 3.4.1.2(11). In my view some guidance as to the permitted location of this style of accommodation can be gleaned from the construction of this provision, and its companion provision at s. 3.4.1.2(12).
[153] The two provisions deal with accommodating employees for "any mining or major economic projects" ("relevant projects"). The former provision during the construction phases and the latter during the operational phases. The planning scheme expressly does not support non-resident workforce accommodation for operational employees at all; s. 3.4.1.2(12) mandates that those employees must be accommodated in the urban or township communities where necessary services, facilities and infrastructure are already provided. There is no such mandate, or even guidance, in s. 3.4.1.2(11) for construction workers in non-resident workforce accommodation. The two provisions are complementary, and the absence of any guidance in the former provision, but the presence of guidance in the latter suggests that the planning scheme creates no express or implicit expectation as to where such a facility will necessarily be located. Its permitted location will be the result of impact assessment by the assessment manager.
[154] Having said that, I accept that the proposed development is inconsistent with the intent for rural residential accommodation, as evidenced by s. 3.2.3 - Rural Residential. Indeed, I accept Mr Buckley's description of it being "incongruent" and Mr Curtis' descriptions referring to a lack of permeability and likening the proposal to being like a compound in its appearance. I will explain my reasons in that regard in more detail when explaining my conclusions on the character and visual amenity evidence.
[155] While it is a residential development, it cannot be said to be consistent with being on a large lifestyle lot, which term is further explained by the reference to the keeping of small numbers of working and companion animals. While the provision does not specifically exclude the proposed development from the RR zone, there is an inconsistency between the proposed development and the stated intent "of how land use and development is acknowledged and anticipated across the region within" the RR zone. Ms Morrissy's view that the proposed development did "technically" fit within the description of a residential development on large lifestyle lots was, with respect, unconvincing.[69]
[156] Although the respondent has raised s. 3.2.3 Urban - Neighbourhoods in its Amended Reasons for Refusal, it was only used as a comparison with the intent evidenced in s. 3.2.3 - Rural Residential, and it was not actively pursued in submissions. No further consideration of that provision is required.
[157] The issues in dispute in the appeal, in terms of the planning intent, also raise ss. 3.2.1(12), 3.2.2(1), 3.2.2(2)(b), 3.2.2(3)(a), 3.2.2(3)(b). Ms Morrissy also raised ss. 3.2.2(8) and 3.2.2(9), and Mr Buckley commented upon their application. In my view, these provisions are of varying assistance to the resolution of discerning whether the planning scheme intended that the proposed development be located in the RR zone.
[158] Notably, s. 3.2.1(12) is part of the overview of the strategic intent, and relates directly to the Urban area and surrounding townships and localities. Accepting that the site falls within that broad geographical description, the provision is so generalised and aspirational to be of no real assistance, in isolation.
[159] The provisions in Part 3.2.2 of the planning scheme are all concerned with the future vision of Charters Towers, looking towards 2038. They need to be read in light of the overview provisions, such as s. 3.2.1(12). Sections 3.2.2(1) and 3.2.2(2)(b) are concerned with the Charters Towers region as a whole and are generalised, aspirational statements, which are of no real assistance for determining the present issue of location. They were not particularly pressed by the respondent in closing submissions. What can be said is that they do not directly dictate where the proposed development must be situated, in light of that forward focus. Further, while it cannot be said that the proposed development is shown to positively advance those aspirational statements for the whole of the region, that does not necessarily mean that approval of the application is in conflict with the planning scheme.[70]
[160] Sections 3.2.2(8) and 3.2.2(9) are also focused on the whole region, rather than a specific community or zone. However, I accept, to an extent, Ms Morrissy's opinion in her separate report that the planning scheme is concerned with growth generation. The concept of population and economic growth is expressly mentioned in s. 3.2.2(9). These provisions, together, recognise the intents of adaptability, flexibility and nimbleness in, relevantly, providing services such as construction, to support economic opportunities across the region's urban areas and townships. That intended adaptability, etc is a relevant factor in the exercise of the discretion in determining this appeal in favour of the appellant.
[161] For those reasons, I cannot accept Mr Buckley's observation that s. 3.2.2(9) is more an expression of context than an expression of policy. I do however accept that the manner in which the accommodation is to be provided is an important aspect of the strategic intent. I accept that it cannot be delivered in an unfettered manner, but delivery will not be unfettered as it is subject to impact assessment, and the competing considerations involved in that process. As he and Ms Morrissy agreed, it will be considered on a case-by-case basis.
[162] Sections 3.2.2(3)(a) and 3.2.2(3)(b) are focused on the intended composition of the communities within the region, and so have a narrower focus than the aforementioned provisions. They draw on the issues attaching to social planning and character and amenity respectively, and I will consider them when considering the opinions in those areas of expertise.
[163] I turn then to the strategic outcomes in ss. 3.4.1.2(1)(a) and 3.4.1.2(8). The former provision refers to, in essence, the requirement for a mix of accommodation types to account for the majority of housing growth in the existing urban areas. It does not refer to rural residential areas. It suggests an outcome where the majority, not all, housing options in the urban areas are represented by a mix of styles. It therefore has no real bearing on whether the proposed development is appropriately located in the RR zone.
[164] The latter provision is concerned with limiting rural residential housing to the RR zone, rather than in other zones. It is not concerned with limiting the type of accommodation that can be developed in the RR zone. That construction is supported by the following provision, s. 3.4.1.2(9). The provisions do not assist with understanding the planning scheme's intention as to the location of the proposed development.
[165] The issues in dispute on the appeal also raise consideration, for the purposes of assessing the appropriateness of the land use, aspects of the RRZC, namely ss. 6.2.7.4.2(1) and (2)(a) and Table 6.2.7.4.3 PO3 and AO3. I consider s. 6.2.7.4.2(2)(b) to also be relevant.
[166] In my view, the proposed development satisfies the purpose of the RRZC at s. 6.2.7.4.2(1); it is a residential use on a large lot. However, it does not satisfy the overall outcomes for the RRZC when considered against ss. 6.2.7.4.2(2)(a) and (b). The proposed development does not fall within the use definition of "dwelling house", a term used in the former provision. Further, for reasons to be later explained, it does not, in its current form, provide a high level of residential amenity and character appropriate for the particular locality in the RR zone, as required by the latter of those provisions. While I acknowledge that provision refers generally to the RR zone, in my view attention to the particular site remains a relevant consideration so as to give context to the assessment of that provision.
[167] Turning then to the Performance Outcomes and the Acceptable Outcomes in Table 6.2.7.4.3, Ms Morrissy candidly, and correctly, accepted that the proposed development does not meet AO3. Indeed, the appellant at no stage suggested it was met. In those circumstances, it is necessary to assess compliance with the associated Performance Outcome. The appellant argues there has been compliance, essentially because the existing locality does not have a very low intensity, and the proposed development is consistent with the existing intensity of the locality.
[168] PO3 requires that the residential density reflect "the very low intensity character of the locality". The appellant accepts that the term "reflects" indicates a sense of sameness, but argues that the provision does not require the residential density of the proposed development to reflect only the residential intensity of the locality; it is the overall intensity of the locality that is the focus. It is submitted that the locality includes uses broader than the residential use in the RR zone, and includes sporting fields and clubs, schools,[71] a cemetery and differing landscape, vegetation and built form features which must be taken into account.[72] This broader consideration is said to be consistent with authority of this Court.[73] It is argued that it is the impact and the intensity that as associated with the density of the proposed development that is the key consideration in comparison with the locality, and not just the area adjacent to the site.[74] While the appellant accepts that the proposed development will cause some change to the character of the locality, it is submitted that the impact is acceptable in all of the circumstances.
[169] The respondent emphasises that the JER refers to the site being found in a low density, rural residential context together with other recreational and community activities. It is argued that the considerable scale and the "fenced compound" character of the proposed development is inconsistent with the existing context, and is unsuited for the site. It is further argued that the inconsistency between the proposed development and the land use strategy in the planning scheme is also reflected in the character and visual amenity and social impacts. Accordingly, it is said, the proposed development does not satisfy PO3.
[170] Mr Curtis took issue with the extent of the locality, as suggested by Mr Butcher and portrayed by him in exhibit 36. He would have limited it. While acknowledging that the ascertainment of the locality depends on a number of features, including zoning and geography, he considered that, for present purposes it would be better described as the streetscapes that adjoin and just extend from the site. On that basis it would be a more limited area than that proposed by Mr Butcher in exhibit 36.
[171] I need not resolve that dispute between Mr Curtis and Mr Butcher as, on either approach, I consider that the proposed development does not satisfy PO3.
[172] Before explaining why, it is convenient to note that the application therefore fails to satisfy both PO3 and AO3 of s. 6.2.7.4.3, and I have earlier found that it does not satisfy both the purpose and the overall outcomes of the RRZC.[75] The proposed development therefore fails to satisfy the code assessment.
[173] Turning now to the reasons for that finding, I accept that there are different intensities of uses within the locality, however understood. It can also be accepted that the schools, and in particular the one adjacent to the site, have aspects of density and intensity that are not, in themselves, of an open character. I also accept Mr Butcher's opinion that they are also pleasant and contribute to the character of the area.[76] It is consistent with Mr Buckley's observation as to them adding to the fabric of the area.[77]
[174] There is no evidence as to the frequency of use of the rugby union fields, or the netball courts, and their respective clubhouses. However, it can be safely assumed that rugby union will be played predominantly in winter, as it is in the rest of the country, especially given the climate in north Queensland. There is simply no evidence about the usage of the netball courts.
[175] Although the Goldfield Ashes are promoted as a large-scale cricket carnival held each year in Charters Towers, it is well-known that it is only held over a three-day period once a year. There is no evidence as to the intensity of the usage of the cricket grounds otherwise, although it can again be assumed to be a seasonal sport, as it is in the rest of the country. In any event, the cricket fields are not in the immediate area of the site, although some are in the Goldfields Sporting Complex, which is in the broader locality.[78]
[176] In the absence of evidence, it cannot be assumed that the sporting uses included in the locality are necessarily intensive. Similarly, there is no evidence as to the intensity of the use of the cemetery, and it cannot be assumed to be of a high order.
[177] The locality includes particularly open-style uses, such as open rural residential areas, and creek environs that are both open and heavily vegetated. It can be seen from the aerial maps that there is much sparsely occupied land immediately adjacent to the site.[79] While there are areas of densely occupied residential areas included in the locality as determined by Mr Butcher, these tend for the most part to be more distant from the site, and mostly to the north and west. Importantly, Mr Butcher accepted that the proposed development has a higher intensity or density than other uses in the locality. He however considered that the facility would not be so visible as to warrant refusal. For reasons to be explained, I disagree.
[178] For those reasons, I find that, overall, the locality has an openness to it justifying a description of having a "very low intensity character". Even if it does not justify the "very low" description, the proposed development does not reflect the same low intensity of the locality.
[179] I accept that the proposed development, in its current form, is incongruous with the character of the locality. I also accept the description of it presenting as a fenced compound and, to that extent, I accept the opinions of both Mr Curtis and Mr Buckley.
[180] I recognise that the south-west corner of the site will retain an openness, due to the lack of development in that corner, but the same cannot be said for the rest of the site, of which the proposed development's built form occupies all but about 1.2 hectares of the total land area of about 4.104 hectares, and, on occasion, part of that 1.2 hectares will have cars parked on it.[80]
[181] The landscaping and style of some of the fencing, together with the natural slope of the land, will tend to ameliorate the density of the proposed development to some degree, but it remains markedly more dense and intense than the rest of the locality, and I accept that it remains relevantly visible from the streetscape. I also accept that some of the harshness of the appearance of a fenced compound isolated from the streetscape could be alleviated by creating more "permeability" into the development, but that would in itself expose the dense bulk of the built form, the very thing the fencing and landscaping is intended to alleviate.
[182] While the school adjacent to the site will retain the highest visibility in the locality, it lacks, in my view, the same imposing character as the proposed development due to its density. The school, as earlier noted, in fact contributes to the character of the area. The same cannot be said for the proposed development which, given the number of anticipated tenants, will necessarily be intense in its use, particularly at certain times of the day and night.
[183] All applications for approval of non-resident workforce accommodation facilities, in any zone, are impact assessable under the planning scheme, so what must be assessed is the impact of the particular proposed development at the particular site. Both Ms Morrissy and Mr Buckley agree with that proposition. While some of Mr Buckley's statements may, in isolation, be taken to convey that such a facility should never be permitted in the RR zone, they should be understood to be expressions of the weight that should be given to aspects of the application which, in his opinion, detract from the appropriateness of the proposed development on that site in the RR zone.
[184] One such example is that facilities of this nature are atypical in any urban environment and are one-off in their physical and operational nature. I agree that they are atypical and one-off in the sense used, however the determination of their location is dependent on the impact assessment in light of all circumstances.
[185] I accept that the planning scheme does not necessarily preclude the proposed development in the RR zone, and I also accept that there are indicators that the proposed development is contrary to aspects of the planning scheme. The failure to align with some assessment benchmarks in the planning scheme is an important consideration, but it is not necessarily dominant or overwhelming in the exercise of my discretion. As noted by Kefford DCJ in Murphy v Moreton Bay Regional Council,[81] the outcome will turn on the facts and circumstances overall. The issue is whether the impact assessment means that this particular proposed development is appropriate for approval on the particular site.

[91]

[186] Resolution of this issue again requires consideration of s. 3.4.1.2(11) and its companion provision at s. 3.4.1.2(12). It is notable that their interpretation was the point at which the two expert witnesses diverged in their opinions on this topic, while acknowledging that the interpretation of the provisions was a matter for this Court. The interpretation is an important consideration in the assessment of each expert witness' opinion, and in the resolution of the appeal. As it happens, I do not completely agree with either of their constructions of these provisions.
[187] Section 3.4.1.2(11) includes the use defined term "non-resident workforce accommodation". In so far as there is an apparent conflict between this use definition and the administrative definition of "non-resident worker" for the purposes of the present appeal, it is of no moment given the administrative definition does not have meaning in relation to a use term.[82] Ultimately, the parties were agreed on this point. Section 3.4.1.2(11) also equates the non-resident workforce accommodation facility to that of a "construction camp". That term is not expressly defined in the planning scheme, but it is not suggested that it should take a meaning other than the commonly understood one. Nor is it argued that the proposed development is not a construction camp. Section 3.4.1.2(11) clearly applies to the proposed development.
[188] That provision not only limits, but "strictly limits" the lifespan of the facility to the construction phases of relevant projects. The strictness of the limitation is reinforced by the express requirement that the facility must be "decommissioned" once the construction phase is finished. These aspects of the provision give particular emphasis to the temporary nature of any such facility. Mr Buckley, a very experienced town planner, referred to the requirement to decommission as being "really unusual - in planning terms ... for a use to be terminated that way".[83] That opinion was not challenged. In my view, such an express and particular requirement is both consistent with a recognition of the atypical and one-off nature of such a residential use and strongly emphasises the requirement that the facility operates as a temporary use only.
[189] Adherence to that requirement will necessarily mean that the facility will constitute a temporary use, and the period of that temporary use will be determined by the length of time of the construction phases that are undertaken. Considerable weight attaches to compliance with the provision.
[190] I accept that, depending on the scale and extent of the relevant project, such a construction might mean that an approval will result in the facility operating for a considerable period of time. While that would not necessarily accord with the usual understanding of the term "temporary", it would accord with the administrative term definition of "temporary use" in the planning scheme. Accordingly, I cannot accept Mr Buckley's opinion that a period of 15 years is not, in the terms of the planning scheme, a temporary period. It may be, depending on the reasonably anticipated length of the construction phases of a relevant project. Also, I do not accept Ms Morrissy's opinion that the 15 year period attaching to this proposed development is a temporary use, given my later findings as to being satisfied that the application is tied to the CopperString project.
[191] The expected length of time a facility will operate is relevant in considering the broader issues of impact assessment, including town planning compliance, social impacts, character and visual amenity and economic need. An incursion by a non-compliant facility into a particular locality may be more acceptable for a shorter period than for a longer one. On my preferred construction, the expected period of operation is therefore a relevant consideration overall.
[192] Whether it is desirable to impose a condition nominating the actual end date of the approval will be influenced by many factors, including the overall assessed impact of the facility and its operation, and the precision with which the construction phases of any relevant project are identified at the time the application. The imposition of a condition setting a precise lifespan of the use will alleviate concerns about any uncertainty that might arise was to when the "construction phases" of the relevant project finish and will also provide certainty to the surrounding community about when the facility will cease to operate.
[193] The respondent's case is that, in order to succeed, an application must identify one, and only one, particular project that the facility will service. In argument on the issue, it was referred to as the application being "tied" or "linked" to a particular relevant project, as a convenient shorthand expression of the requirement in contest. I do not accept that submission, although I accept that it must identify, and be tied to, at least one relevant project which is identifiable at the time the application is made.
[194] Section 3.4.1.2(11) refers to "any" relevant "projects". The use of the plural also appears elsewhere in the provision. In any event, as the planning scheme is to be interpreted according to principles of statutory construction, if the word "any" can be understood as referring to only one relevant project (which I do not accept it is), the use of words in the singular includes the use of the plural.[84]
[195] Applications for facilities of this nature are always impact assessable under this planning scheme. By requiring that the proposed development be tied to one or more relevant projects, the assessment manager can assess the impact of the proposed development through the prism of the expected duration of the construction phases of the particular project or projects. It also allows assessment of the appropriate scale, bulk and density of the proposed facility or facilities. If not tied to one or more relevant projects, the assessment of these issues becomes speculative, which is inconsistent with the restrictive features of the planning scheme concerning this style of accommodation, including at 3.4.1.2(11).
[196] There is nothing inconsistent with that reasoning in recognising that the application may be tied to more than one relevant project, each of which are identifiable at the time the application is made. The ability to assess the relevant impact can be undertaken regardless of how many relevant projects are involved, and the appropriate lifespan for the facility can be determined based on the material before the assessment manager.
[197] It follows that there must be sufficient material before the assessment manager to provide an appropriate level of assurance that the proposed facility will, in fact, service the nominated relevant project or projects. An application cannot be tied to a relevant project unless that assurance exists.
[198] That is not to suggest that complete assurance must be established. Given the well-known lumpy and uncertain nature of the commencement of major projects, complete assurance would often be an impossible standard to achieve. What is required is comfortable satisfaction that the proposed facility will service the construction workers from the nominated relevant project or projects.
[199] It will be insufficient for an applicant to nominate one relevant project but expect that the application, and hence the lifespan of the facility, will ultimately be limited by a yet to be identified relevant project, in the hope one eventuates. That approach would not be "strictly" limiting the approval to the construction phases of the relevant project or projects. If another relevant project does happen to come along, further approval can be sought then.
[200] That other facilities have previously been approved and constructed in other local government areas without precise identification of the projects that they will service is not to the point. There is nothing before me to show that the planning instruments applying to those developments had the unusual and restrictive requirements that presently apply.
[201] Similarly, it is also not to the point that a non-resident workforce accommodation facility has previously been approved in the Charters Towers LGA without tying the application to relevant projects.[85] The approval for the particular facility in the Charters Towers LGA that is referred to is dated 10 December 2019, and so prior to the commencement of the current planning scheme. The terms of the prior planning scheme have not been put before me. The point seems to be raised vaguely on the basis of some unstated principle of fairness. It has not been established, in respect of any of those facilities, that the respective planning schemes contained a requirement analogous to the requirement in the present planning scheme.
[202] Accordingly, I find that, given the terms of this particular planning scheme, the applicant must establish to the assessment manager's comfortable satisfaction that the proposed development will service one or more identified relevant projects.
[203] In my view, by requiring that the proposed development be tied to one or more relevant projects, and by further strictly limiting the accommodation to workers during the construction phases of those projects, the planning scheme intends that only those workers be accommodated at such a facility. It would be illogical to require an applicant to satisfy the strict criteria in s. 3.4.1.2(11), and then permit any person, including those not engaged in the construction phases of the relevant project, to access the accommodation facilities while the project is, or projects are, in construction phases. Such an approach would create an undesirable disjunction between the rationale for approval and the basis of the actual use thereafter.
[204] In my view, the temporary nature of the proposed use and the associated tying of the application to a relevant project, as revealed by s. 3.4.1.2(11), are matters of considerable weight in the impact assessment.

[93]

[205] As will be seen below, Ms Anderson, Ms Bennett, Mr Duane and Mr Musk, all considered the availability of a number of relevant projects in the greater region. The desirability of being within a half hour's drive from the project was a weighty consideration in their opinions. All agreed that the only two projects of relevance to this proposed development were the Big Rocks project and the CopperString project, essentially because all other projects were too distant from the site to be safely accessed from the proposed development. Ms Morrissy and Mr Buckley also concentrated on those two projects for the purposes of their opinions. I accept the enquiry should be limited to those two projects.
[206] The ground shifted in the course of the hearing, in terms of the likelihood that either or both proposed developments would accommodate workers during the construction phase of each project, but particularly in respect of the Big Ricks project.
[207] It will be recalled that, in the course of the hearing, it was revealed that the respondent had recently taken steps to relieve itself of its responsibility as the proponent of the Big Rocks project, due to financial reasons. It intended to return the project to the State Government, although that had not then occurred. In any event, the respondent had no plans to progress the project.[86]
[208] It will also be recalled that both Mr Duane[87] and Mr Musk[88] considered the likelihood of the project proceeding in light of those recent events. Ms Bennett's and Ms Anderson's opinions were premised on the assumption the Big Rocks project would proceed, as initially planned.
[209] The appellant has failed to satisfy me that the Big Rocks project is likely to proceed, either ever or within a timeframe by which it can be said to be relevantly tied to the proposed development. I accept that there is a genuine desire for it to proceed, but history is littered with unfulfilled desires.
[210] I accept that the Big Rocks project is likely to be handed back to the State. The uncertainty that creates as to the continuation of the project is illustrated by the respondent CEO's expectation,[89] on which he was not required for cross-examination. Any time frame as to when it will proceed, if at all, is presently elusive.
[211] The State obviously has "deeper pockets" than a regional council, but the very reason that these major projects are taken on by regional councils is, in part, the lack of desire, or perhaps ability, of the State to take on every one of them. It is likely that an alternative proponent will need to be appointed before the project can progress, and the estimated offset costs of $110 million to $310 million, payable by the proponent, are not an obvious incentive to accept appointment. In all the circumstances, I accept the respondent's submission that the status of the Big Rocks project is tenuous at best, for present purposes.
[212] Further, there is some doubt that many construction workers from the Big Rocks project would utilise the proposed development, although I do accept that the current low rental vacancy rate in Charters Towers and relatively low unemployment rate means that the Initial Advice Statement's expectations that the majority of workers would be locally based may now be seen as being overly optimistic. In any event, Mr Czislowski's own expectations were that the majority of clients would come from the CopperString project, and so a demonstrated need relating to the Big Rocks project is tenuous on that basis also.
[213] On the other hand, I accept that the CopperString project is proceeding. There has been a substantial commitment to start the project, further funding allocations in both State and Federal budgets for 2024-25, and there is no reason to suspect that it will divert from its intended course close to Charters Towers. Mr Musk, called by the respondent, accepted that if the CopperString project proceeded, there was a need for a non-resident workforce accommodation facility, and accepted that up to 350 beds would be required. I agree. On the presently available material, that need will be from 2026 for a period of about 3 years. The current low vacancy rental market and tight housing sales market means that such a demand is unable to be accommodated by the existing housing stock. The short-term accommodation market also does not have the vacancy capacity to suitably house that number of construction workers, even if it legally could do so under the planning scheme.
[214] However, the issue, more precisely, is not only whether there is a need for some form of accommodation, it is whether the appellant has established that the proposed development is likely to provide services for the construction workers for the CopperString project. In the short-hand terminology used in submissions, is the proposed development tied to that project?
[215] Although not clear cut, I am satisfied that the proposed development is sufficiently "tied" to the CopperString project. That is, I am comfortably satisfied that workers on the construction phases of the CopperString project are likely to access the proposed development for accommodation, if approved. I accept that there is no assurance that will occur, but complete assurance is not required.
[216] As is apparent from the Coordinator-General's Change Report - no 1,[90] the so called worker's camp can be approved via a material change of use application, and separate to the MID processes. I accept Mr Duane's evidence[91] that, if constructed, the proposed development is likely to be utilised, given the project owner is likely to prefer to use another entity's facilities rather than have to construct and manage their own. It seems to me that this is consistent with common business practices of leveraging off facilities operated by another so as to avoid the cost and trouble of operating a facility.
[217] Notably, there is no evidence of a pending application for any other site for these purposes, including the Gregory Development Road site referred to in the EIS, or the airport site mentioned by Mr Czislowski and Ms Thompson. That must be seen in the context of an expected commencement of the construction phases on the project commencing in 2026, and therefore expected construction of the worker's camp, wherever it might be located, in mid to late 2025.
[218] Theoretically, consideration of another site may have already been commenced under the MID process without the respondent being notified, but there simply is no evidence of that, and it is speculative. In any event, given I have formed the view that the proposed development cannot be approved, partly because of the scale, bulk and density sought, and given my view is that a facility of less than the maximum proposed size of 350 beds could, subject to other conditions, be approved, any further facility, if required, can be catered for by the MID process, or by a material change of use application.

[97]

[221] In this case, the experts are in considerable disagreement on the joint issue of character and amenity. I am not bound to accept expert evidence, particularly where it conflicts with other expert evidence, or where I consider it is not supported by foundational evidence that I accept. It falls to me to make an assessment, guided by some of the criteria used by the experts and by my own assessment of the evidence to determine the issue, bearing those earlier mentioned principles in mind.
[222] There is agreement between Mr Butcher and Mr Curtis that the proposed development is intense, and that its density is higher than in the rest of the locality, although the school may retain the highest visibility. What is put in issue is the extent of the visibility of that density and intensity, and its impact on the visual amenity and existing character of the locality, and the more immediate area around it.
[223] I earlier made some observations about the impact of the proposed development, on existing character and on visual amenity.[95] Those observations were the result of my weighing the evidence. The observations concerning s. 6.2.7.4.3 PO3 and what I consider to be the incongruous nature of the proposed development in the locality are obviously applicable to the consideration of the character and amenity issues more broadly. In effect, I have accepted the opinions of both Mr Curtis and Mr Buckley in this respect. It follows I have not accepted Mr Butcher's and Ms Morrissy's contrary opinions.
[224] As a starting proposition, I do not accept Mr Butcher's assessment that the site currently has low visibility, although I do accept that its visibility is lessened by the topography of the area and by some vegetation features. I accept Mr Curtis' opinion in this respect, which is supported by a consideration of a number of the photos of the area in exhibit 7, as understood by my view of the site. It is sufficiently visible that any improvements on the site will themselves become visible.
[225] The demountable accommodation buildings, including the other buildings used for administrative and other non-accommodation purposes, are placed closely together, and have generally similar appearance. As a collection, they are an imposing and unattractive bulk. They are accurately described as an intense cluster of built form. Although there is no evidence as to the precise area the buildings will cover without the carpark, it appears to be at least half the site.
[226] In this instance, the impact of the built form is sought to be ameliorated by the fencing, acoustic barriers and landscaping. It is common ground that there will be some areas where the built form will be partially viewable from some perspectives, but the fencing and landscaping will achieve its purpose, for the most part. It has been specifically designed to inhibit views of the built form.[96]
[227] However, the consequence of that is that the fencing, acoustic barriers and landscaping will, itself, be highly visible from all perspectives, notwithstanding the amelioration effected by the slope of the land and the existing structures and vegetation. Further, it inhibits any engagement with the streetscape from within the development. For those reasons, terms such as being like a fenced compound and having a lack of permeability are justified. It is apparent from those findings that I have preferred the opinions of Mr Curtis over those of Mr Butcher, where they are in conflict.
[228] Notwithstanding the mixed uses in the locality resulting in differing densities and intensities of use, the otherwise open visual setting of the locality is in stark contrast to the intense cluster of built form, surrounded by fencing, acoustic barriers and vegetation which, in my view, results in the appearance of a fenced compound. While the built form of the proposed development is limited to one level, and so is consistent with the surrounding residential buildings, it is not the height of the proposed development that results in that conclusion. The proposed development does not satisfy s. 6.2.7.4.3 PO3; it does not reflect, or have a sameness as, the very low intensity character of the locality. In fact, it is significantly at odds with it.
[229] Additionally, ss. 3.2.2(3)(a) and 6.2.7.4.2(2)(b) arise for consideration. The former provision requires a focus on the assessment of the community in which the proposed development is located, rather on the immediate vicinity of the proposed development. Nonetheless, the contribution of the proposed development to the more immediate area remains a relevant consideration. The latter provision requires focus on the RR zone, as well as the more immediate area.
[230] In my view, the proposed development, in its current form, is inconsistent with the open character of the immediate area and, as identified above, with the broader locality. The visual impact, even allowing for the partial amelioration by the topographical features of the site and by the proposed fencing and landscaping, is significantly inconsistent with the existing nature and character of the area.
[231] The proposed fencing and landscaping will result in observers of the development, depending on their perspective, being faced with a combination of fencing or acoustic barriers, combined with landscaping which may, at maturity, reach as high as 35 metres tall. There is little permeability through this barrier like construction, and it is inconsistent with the open nature of the surrounding area.
[232] While the landscaping makes the visual appearance more acceptable than viewing the bare fencing and acoustic barriers, and while the vegetation to be deployed is consistent with some vegetation in the broader area, the overall effect it is not consistent with its locality. It cannot be said that it would contribute to a community that has a high level of amenity[97] or that it provides a high level of residential amenity and character appropriate for the RR zone.[98] It is the scale, bulk and density of the proposed development, and the marked inconsistency with the locality and the surrounding areas which means it departs from those requirements. In my view it is clearly inconsistent with those parts of the planning scheme.
[233] In so far as ss. 3.2.3(3)(a) and 6.2.7.4.2(2)(b) touch upon issues of on-site amenity of the proposed development from the perspective of the tenants, I accept that there is a lack of meaningful on-site amenity, with a lack of recreational facilities other than the dining room/mess hall and some open areas. However, that must be seen in light of its relatively close proximity to the town centre, and the amenities available there.
[234] Further, the fenced compound effect of the proposed development means that there is relatively little opportunity for the tenants to connect visually with the surrounding community. That is, once inside the tenants are effectively isolated from the outside world. However, that must be seen in light of the expectation that the workers will often work through most of the daylight hours, will travel home on days off and will otherwise have access to the town centre.
[235] In the circumstances, neither of those factors tells strongly against the approval of the proposed development.
[236] Evidence was also received as to how increased traffic flow may affect the character and amenity of the area. Both Mr Holland and Mr Douglas considered that the increased traffic flow, regardless of which calculations were relied upon, fell below the acceptable levels found in guidelines. Further, I accept Mr Holland's unchallenged opinion that the increased traffic flows are well below the environmental capacity of the roads.
[237] There will obviously be increased traffic flow in the immediate area of the proposed development, if approved, but I need not make any findings as to the precise extent of it. I note that, as is often the case when assumptions are relied on, that there is room to doubt some that have been used but, again, I need not dwell on that.
[238] The fact that there will be increased traffic flows, to some extent, is a matter to be taken into account in the overall consideration of the application, but it is not to an unacceptable level, however measured. That is especially so given my finding that the planning scheme would only permit the proposed development to house workers during the construction phase of the CopperString project. While I note Mr Curtis' opinion that the increased traffic will diminish the setting of the residential community around the site, I am satisfied that it is not to an unreasonable extent.

[98]

[239] Consideration of social impact issues raises consideration of ss. 3.2.1(12), 3.2.2(2)(b), 3.2.2(3)(a), 3.2.2(3)(b), 3.4.1.2(11) and 3.5.1.3(1) of the planning scheme.
[240] From a social planning perspective, I accept that there are some positive aspects to the proposed development, and some negative.
[241] I accept that an influx of non-resident workers into what is a relatively quiet rural residential area is likely to be confronting for the residents, even though it would be staged. At full occupancy, the proposed development substantially increases the existing population of the Millchester area; it will represent an increase of about 74% based on 2021 census figures. I also accept that there are likely to be perceived fears about personal and community safety from members of the community. These issues will not assist with social integration and acceptance into the community. That is consistent with common experience and is not in dispute as between Ms Anderson and Ms Bennett. While from the broader perspective of the very large Charters Towers LGA they are simply another community in a large geographical region and thereby unlikely to have any particular adverse effects on that larger region, the impact of the proposed development on the more immediate community cannot be ignored. That is particularly so where the region is approximated to be the size of Tasmania.
[242] That impact must also be assessed against the proposal that the development operates for 15 years. As Mr Buckley observed, that is a very long time in town planning terms, and I consider that it is a relevant consideration in terms of social impacts, as did Ms Bennett. The reality is that over such a long period there will be a high turnover of different workers coming and going from the facility, compounding the issues raised by social integration and community fears and expectations. It cannot be said that the proposed development would be a relatively transient imposition on the community.
[243] Ms Anderson and Ms Bennett agreed that a social integration plan is a helpful tool, but disagree as to the effectiveness of the one proposed for use here.
[244] I accept that the proposed ASIP has its limitations because of its passive nature, and the limited opportunity for many of the non-resident workers to integrate into the community, if they wanted to in the first place. However, it is important that non-resident workers be aware of facilities and services that can be accessed, should they wish to do so. Workers cannot be forced to integrate, and so even a more dynamic style of plan has that essentially limiting feature.
[245] The provision of an on-site lifestyle co-ordinator is also positive, but it is difficult to assess just how much impact it would have at a practical level. Likewise, the provision of the shuttle bus is a positive step, although there is much uncertainty about just how that would operate. Indeed, there is much uncertainty about the effective reach of the ASIP, which makes it difficult to assess just how effective it would be in its current terms. However, it is intended to be a dynamic document capable of amendment as the circumstances require.
[246] Ms Bennett was particularly critical of the distance of the proposed development from the township in terms of social integration; a distance of about three kilometres. While I accept the tenor of her criticisms, I cannot accept the extent of them.
[247] Given the nature of the work performed by these workers, it can be assumed that they will be capable of walking that distance, both ways, even if fatigued. While I accept that a three-kilometre distance will not always want to be walked by all workers, it is not so long as to preclude it being undertaken at all. Also, there would be an option to use the shuttle bus, or courtesy bus from one of the hotels, on one or both legs of the trip. In any event, given their expected working hours and the fact that they will presumably leave Charters Towers on their days off, the access to the town's facilities appears to me to be of less importance, in a practical sense.
[248] Further, Ms Bennett accepted in cross-examination that the non-resident workforce facility operated for the Survivor television series was a success, although she qualified that by noting it was a different "make up of a work crew". It was a further distance from the town's facilities than the proposed development, although Mr Czislowski deposes that it was only 800 metres further away.[99] Regardless, it suggests that particularly close proximity to the town centre is of less importance than Ms Bennett suggested in her evidence. Further, the establishment of a facility on the current site is more likely to promote community integration, for the benefit of both the community and the workers themselves, than if it were located adjacent to the construction worksite, many kilometres out of town.
[249] From the perspective of compliance with the planning scheme, and in terms of ss. 3.2.1(12) and 3.2.2(2)(b), I consider that there are likely impacts on community wellbeing given the scale of the proposed development and the proposal that it operate for 15 years. On the other hand, it would help promote regional identity, which is underpinned by, in part, infrastructure services.[100]
[250] Section 3.2.2(3)(b), although perhaps not actively supporting the proposed development on the site, does not disqualify it either. The extent of compliance depends upon the efficiency and effectiveness of the ASIP, which is difficult to assess.
[251] In terms of s. 3.5.1.3(1), the proposed development itself has little by way of recreational facilities contained within it, although there is some open space in the south-west corner. However, there is access to those facilities in the town centre. The promotion of community interaction and a healthy lifestyle is again largely dependent on the effectiveness of the ASIP. This provision does not suggest that the location of the proposed development is inappropriate, even if it does not fully embrace it.

[99]

[252] One of the fundamental propositions on which need is identified by the appellant is to provide a buffer of accommodation to cater for future demand created by other projects, and to avoid the difficulties encountered in identifying the extent of that need. Given the construction I have favoured of s. 3.4.1.2(11), requiring a facility to be tied to one or more particular relevant projects at the time of the application, concepts of future need and providing an accommodation supply buffer for this style of accommodation are not relevant considerations under this planning scheme. While there will often be some obvious desirability to plan for the future in appropriate cases, as explained by Williamson KC DCJ in Room2Move.com Pty Ltd v Western Downs Regional Council,[101] it is not for this Court to go behind the deliberate strategic outcomes adopted by the respondent in this particular planning scheme. They are taken to represent the collective wishes of the community. Need for this facility cannot be justified on the basis of future need (other than in relation to the CopperString project), and the desirability of creating a buffer of suitable non-resident workforce accommodation in Charters Towers is not justified.
[253] As earlier identified, I consider that the proposed development is sufficiently tied to the CopperString project to be satisfied of compliance with s. 3.4.1.2(11). The evidence establishes that construction of such a facility would be anticipated to commence in mid to late 2025, so as to accommodate construction workers for the powerline from 2026 until 2029.
[254] There is a very low rental vacancy rate and a tight housing sales market in the area and the planning scheme does not permit non-resident workers to occupy hotels, and short-term accommodation,[102] although in reality they may tend to do so if faced with no option. In any event, there simply is not enough appropriate short-term accommodation availability in the town to cater for the whole of the expected construction workforce of between 128 and 350 workers requiring accommodation.
[255] I do not accept that there is an unacceptable risk that, if approved, the proposed development will threaten the viability of some or all of the hotels and motels in Charters Towers.
[256] I have already expressed my view that only workers on the construction phases of the relevant projects that are tied to the proposed development can be accommodated at the facility under the planning scheme.[103] Putting aside any criticisms of the manner in which the survey was undertaken and the reliability of some responses, some of the survey replies suggest a concern that all workers will stop using the existing accommodation, if the proposed development is approved. Those fears are unfounded, provided appropriate controls are put in place monitoring the employment status of workers using the facility.
[257] There is no evidence to suggest that there is any relevant project currently underway. It can therefore be deduced that none of the existing tenants of the hotels and short-term accommodation providers would qualify for residency at the proposed development on the basis of their current employment. Therefore, approval of the proposed development is unlikely to affect the viability of any existing accommodation provider in Charters Towers. It also follows that there is no justifiable concern about the loss of employment and income arising from a detrimental impact on existing short-tern accommodation providers, providing the appropriate checks are put in place.[104]
[258] As earlier observed, there is no evidence to suggest any other application for a facility of this nature has been made, or approved, nor that the approval of such a facility has been considered under the MID process. I have earlier accepted that the operator of the CopperString project is likely to take advantage of any facility already in existence, or approved.
[259] Accordingly, I accept that there is an unsatisfied demand[105] for a non-resident workforce accommodation facility in the Charters Towers area to cater for the CopperString project.

[100]

[260] In respect of the 90 objections lodged by the town planning firm, the appellant has correctly submitted that some of them do not comply with the definition of "properly made submissions" at Schedule 2 of the Planning Act 2016, predominantly because of the failure to fully state the name or names of the objectors and/or to expressly state the residential or business address of the submitters. While it is arguable that some of the addresses provided in the impugned submissions clearly enough imply the address, that is an issue I need not determine.
[261] Although I have not counted the precise number of submissions to which objection is taken, and the number was not quantified in submissions, it appears to be a small minority of the 90 lodged.
[262] Further, the appellant correctly notes that all 94 objections were made before the approval of the minor change. However, that does not, in my view deprive them of some remaining utility in the hearing.
[263] First, it should be noted that the "objection" from the Department of Education is not so much an objection to the proposed development, as a concern that the proposed conditions be enforced, and not relaxed. On that basis it can be put to one side.
[264] Of the remaining 93 objections, if the complaints the subject of the minor change were removed from them, they still raise issues of amenity, economic need and compliance with the planning scheme.
[265] On that basis, and allowing for the fact that some of the objections are not properly made, it can be seen that a sizable majority of the submissions are properly made and are opposed to the proposed development, in its current form, on bases that remain in issue in this hearing. The planning scheme informs the community's reasonable expectations as to the development that may occur on the land. These objections are a credible source of evidence as to the expectations of the local community.[106]
[266] The weight to be attributed to the properly made submissions, given the above observations, is a matter that must be determined in light of all other relevant considerations, including the fact that the planning scheme itself is said to represent the expectations of the community.

[101]

[267] It follows from my earlier findings and observations that some of the proposed conditions reproduced at paragraph 40 herein do not serve to make the proposed development in its current form compliant with the planning scheme, nor sufficiently compliant to warrant allowing the appeal.
[268] In particular condition 4, limiting operation of the facility to a 15-year period is unsustainable. In oral submissions, the appellant accepted that the life of the facility may be limited to 2032, presumably in deference to the renaming of the project as CopperString 2032. That too would be non-compliant, in terms of the planning scheme. It is unclear what the use of "2032" in the project name is intended to represent, as the evidence establishes that construction is expected to be completed in 2029. Perhaps it is envisaged that the project will not become fully operational for three years after construction is completed in the Charters Towers area. In any event, it does not matter. Hinging the length of the proposed development's operations to the name of the project, where the reason for the name is obscure, does not satisify the strictness required by the assessment benchmark.
[269] An appropriate condition might require, for example, decommissioning on the completion of the construction phases of the project in the Charters Towers area, but no later than 30 June 2030, to allow for the project running over time. If a time extension was perceived to be necessary due to the late completion of the construction phases, the appropriate application could be made.
[270] Consistent with my construction of s. 3.4.1.2(11), and to better reflect the precise wording of that provision, the proposed condition 5 would need to include the words "mining or major economic" before the word "project" where it twice appears. The same can be said for condition 6(b) where the word "project" appears.
[271] I accept the respondent's submissions to the effect that the monitoring and enforcement of condition 6 in its current form is unenforceable, at a practical level. While it can be presumed that the appellant will abide by any imposed conditions,[107] the issue is the practical ability to enforce the conditions. In most jurisdictions there are many authorities about the inappropriateness of imposing a condition that cannot be complied with, or enforced. One such authority in this jurisdiction is Harris v Scenic Rim Regional Council.[108]
[272] The respondent also relies on the observations of Williamson KC DCJ in Woodlands Enterprises Pty Ltd v Sunshine Coast Regional Council.[109] While the observations are of obvious assistance as statements of principle, they must be seen in the context in which they were made. The conditions the subject of that appeal were unenforceable because the respondent could not, in a practical sense, ensure adherence, regardless of how they were drafted. Although the condition as presently drafted is not realistically enforceable, no doubt a condition could be formulated, that is.
[273] The currently proposed conditions rely on the honesty of the worker in declaring what type of work he or she is undertaking and on which project. I assume that, if not input into a cloud-based booking system by the worker, that would be faithfully recorded by the appellant's staff, or agent. Under the currently proposed conditions, there is no requirement for independent proof of the project at which the worker is employed, nor the style of work being undertaken. Further, there is no ability to mandate verification of those details. While the appellant's further written submissions on conditions refer to the powers provided by the legislation, I cannot identify any that allow for mandatory verification of the employment details provided. Proposed condition 7 would facilitate the respondent obtaining access to the records that were no doubt faithfully recorded by the appellant's staff or agents, but that does not assist with ascertaining the veracity of that information. The fact that these systems are commonly used at other accommodation sites does not deal with the issues raised by this specific planning scheme.
[274] Although I do not presently purport to rule on the propriety of any amended condition, it seems to me that it is not difficult to craft a condition that requires, for example, an intended tenant of the facility to upload into the online booking system a copy of some form of letter of engagement or other proof of engagement, or to provide a hard copy to the appellant's staff or agent if booking in manually. In either instance, the condition could require that the appellant, through its staff or agent, be satisfied that the intended tenant is in fact engaged in the construction phases of the CopperString project before accepting the booking. If thought desirable, the details could be required to be updated at regular stated intervals. The uploading of documents into an online platform is quite nowadays commonplace, commonly by taking a photograph of the document on a phone and uploading it that way. It would not be overly onerous.
[275] I emphasise that I am not indicating the type of condition that would be appropriate. I merely postulate that to demonstrate that there are means by which the appellant can remain responsible for checking the veracity of the information provided, and thereby facilitating enforcement, if necessary.
[276] The respondent also complains that it would be unable to verify if a tenant of the proposed development were an employee at the relevant project, or a contractor. In my view, the concern is misplaced.
[277] None of the terms "employee", "worker" or "contractor" are expressly defined for the purposes of the planning scheme. Section 3.4.2.1(12) refers to "operational employees", and sits in a complementary fashion with s. 3.4.2.1(11), thereby suggesting the use of the term "worker" in s. 3.4.2.1(11) encompasses an "employee". It would be an odd result if contractors could be accommodated at the facility, but actual employees could not.
[278] Regardless, I do not accept that the planning scheme intended to differentiate between employees and contractors, in the sense the common law has recognised.[110] The object of the provisions is to regulate the types of accommodation that those working on the construction phases of the relevant projects are housed, not the terms of engagement by which they are engaged on the project.
[279] It is also telling that the use definition of the term "non-resident workers accommodation" includes, as an approved use, a "contractor's camp", suggesting an interchangeability between the two, and that the planning scheme envisages contractors being housed in non-resident workforce accommodation. The terms should understood in this planning scheme without consideration of the legal differences recognised by the common law. Both contractors and employees working on the construction phases of the relevant project are "workers" for the purposes of s. 3.4.1.2(11).
[280] The impost on the respondent in checking compliance is a relevant consideration, as observed in Woodlands Enterprises Pty Ltd v Sunshine Coast Regional Council, but I cannot imagine that there would realistically be a need to check all tenancies every time there was a turnover of even one worker at the facility, as suggested in cross-examination. Notwithstanding the respondent's submission to the contrary,[111] I did not understand Ms Morrissy to be saying in her testimony that it would be necessary to do that.[112] While she acknowledged there was a level of risk, I understood her evidence to be that she didn't think that level of checking would be necessary to ensure compliance. I agree.
[281] Also, it is not to the point that workers may have moved on by the time any non-compliance is discovered. If liability can be established, proceedings can be commenced against the appellant, or a tenant, regardless of whether they maintain a physical connection with Charters Towers or not.
[282] Lastly, proposed condition 12 refers to the use of the ASIP. While I accept that it is a living document that is designed to be amended as the proposed development changes, it is difficult to assess its utility. The condition appears to be appropriate, but that is not to suggest the parties should not consider further early refinement.

[102]

[283] The appeal cannot be allowed on the basis of the application in its current terms, including the currently proposed conditions.
[284] As can be seen from the above analysis, the proposed development is clearly inconsistent a number of assessment benchmarks, namely the mandated requirement that it be a temporary use as required by s. 3.4.1.2(11), with the strategic intent at ss. 3.2.2(2)(b), 3.2.2(3)(a) and 3.2.3 - Rural Residential, and with the RRZC at ss. 6.2.7.4.2(2)(a), 6.2.7.4.2(2)(b) and 6.2.7.4.3 at both PO3 and AO3.
[285] The length of time the facility can operate can be the subject of conditions, but non-compliance with the other assessment benchmarks attracts significant weight in the balancing exercise, but is not an overwhelming feature. The extent of inconsistency with the mandated requirement of being a temporary use is self-evident once these reasons are considered, but the extent of other inconsistency is, in large part, determined by the scale, bulk and density of the built form, including the proposed fencing and landscaping.
[286] It is that aspect of the proposed development which features highly in the overall impact assessment, and the corresponding exercise of discretion as the assessment manager. In its current form, it is unacceptably incongruent with both the locality and the immediate surrounds, thereby affecting the visual amenity and character of the locality to an unacceptable level, even if the use were limited to the eight years currently proposed.
[287] The description of the site as being something of an island because it is surrounded by roads, is accurate in the sense that there is no common boundary to any other property. However, bearing in mind that I have described both Creek Street and Richard Road as unmade road reserves and, colloquially, as undefined scrub tracks, the property is not in reality physically isolated from its surrounds, on those frontages, although they are not the most utilised perspectives of it.
[288] The built form of the proposed development in its current form occupies much of the roughly three-quarters of the four hectare site. This is notably different to most of the locality, and all of the immediate surrounding area within the RR zone. While the setbacks are acceptable in terms of the planning scheme's requirements, the scale and bulk of the proposed development creates an imposing impression on the area to an unacceptable level, notwithstanding the partly ameliorative effect of the fencing and landscaping, and the slope of the site.
[289] Further, I accept that the proposed development in its current form would disrupt the existing cohesion of the community in which it is proposed to be situated. The extent of this disruption is again largely related to the scale of the proposed development and the number of workers that it proposes to accommodate, even when introduced in stages, and the time frame over which it is proposed that the facility would operate. A reduction in both the bulk and scale of the facility and limiting the period over which it can operate will not eliminate this disruption, but it will ameliorate it considerably and, depending on the extent of the reduction, to an acceptable level.
[290] On the other hand, there are features which support aspects of the proposed development.
[291] First, I accept there is a need for a non-resident workforce facility in the Charters Towers area given the foreseeable arrival of the CopperString project, for the reasons earlier given.
[292] Second, the position of the site does bring with it some advantages, notwithstanding its impact on the cohesion of the existing community. It is relatively close to the town centre and so is likely to provide some economic benefits to the businesses in the town centre, even though meals are provided on-site and the workers' hours are long. It is far more likely than if the site were positioned many kilometres out of town. The provision of a shuttle bus, through the adoption of an ASIP, will help facilitate that outcome. While it may not provide the whole answer to the issue, it does assist.
[293] While I doubt that there will be comprehensive social integration of the workers into the fabric of the Charters Towers community given the expected hours they will work and the presumption they will leave town when rostered off, the ASIP provides a means to facilitate that, to some degree. Again, the location of the site will make that more likely than if it were located many kilometres out of town.
[294] While I am satisfied that the current proposed conditions make policing of the bookings unfeasible, thereby making the enforcement of those aspects of the planning scheme unworkable, for the reasons set out earlier, that is a matter that should be able to be resolved through the imposition of appropriate conditions.
[295] Balancing all of those matters, and subject to the consideration of further submissions, I consider that a smaller version of the proposed development may represent an acceptable impact and justify approval, notwithstanding its departure from the provisions of the planning scheme.
[296] Subject to those further submissions, the minimum reduction from the current proposal which would warrant granting the application in part, in the overall exercise of discretion, may be, by reference to the layout plan in Exhibit 2 page 1, to approve the accommodation buildings in stages 2, 3 and 4 to the extent they extend south only so far as the same line as the currently proposed far southerly end of the accommodation buildings in stages 5, 6 and 7 in the current proposal, and to not approve the accommodation buildings in stage 7. Those changes would have the effect of reducing the accommodation capacity to 240 beds; a decrease of about 41% on the current proposal. In that event, the various fencing, acoustic barriers and landscaping would then need to be moved so as to remain immediately adjacent to the remaining built form, as is currently proposed.
[297] From a character and visual amenity perspective, the facility would retain the appearance of an impermeable fenced compound, but would be notably less intrusive because of its reduced bulk and scale. Its intrusion would be acceptable, particularly in light of the reduced time period it would be permitted to operate. Those changes would result in a lesser societal impact from the facility, although it may not eliminate it, and a lesser traffic impact on the community.
[298] From the perspective of Phillipson Road, the further setback achieved by reducing the reach of stages 2, 3 and 4 to the south means it would be notably less obvious because of the natural slope of the land away to the north. The removal of the proposed stage 7 will have little impact from this perspective as visually much of it is already impacted by the presence of the existing structures.
[299] From the perspective of Nagle Street and the school, the reduction in size of stages 2, 3 and 4 will have little effect, but the removal of the proposed stage 7 will add to the open space in the south-west corner of the site, and the existing structures will provide some visual cover for the remainder of the built form and fencing, etc. Additionally, it may be that the reduction in the scale of the proposed development will mean that the overflow carpark is not required, or being reduced in size. If that were to occur, that would add to the open space appearance from this perspective, but I consider the removal of stage 7 would likely be necessary regardless.
[300] From the perspective of Deanes Road, the facility would still be obvious, but the reduction of stages 2, 3 and 4 means that about one-third of the development area fronting that road will be removed, thereby reducing the visual impact and the impact on the existing character of the area.
[301] I accept that the reduction in scale will be unlikely to noticeably change the appearance and visual amenity of the facility from the Creek Street and Richard Road perspectives, but these perspectives are not likely to be often used to observe the proposed development, the facility will be limited in its operation to a relatively short timeframe, and conditions could be considered concerning the removal of all built form and fencing and acoustic barriers as part of the conditions of being decommissioned. I note that the appellant has already undertaken to give consideration to similar action on cessation of the approval, and conceded that such a condition is lawful, and properly able to be imposed.[113]
[302] That minimum reduction in its scale and bulk may make it less obviously incongruous with the locality, and result in a lesser impact on the existing character of the area. That, together with the more limited timeframe under which it would operate, would still result in some impact on the character and amenity of the locality, but it may be within the bounds of a reasonable impact and may, together with the imposition of appropriate conditions, warrant approval in the balancing exercise required to be undertaken.
[303] The changes would also address, to some degree, the concerns expressed in the properly made submissions.
[304] I acknowledge that a development of this scale would not cater to the upper range of the estimated need for non-resident accommodation beds. However, I consider that, were the facility any bigger than that suggested, it would likely create an unacceptable impact overall. If further accommodation is required than any part approval of the proposed development delivered, the operator of the CopperString project has its remedies through the MID process, or by making its own material change of use application.
[305] Any approved development would need to address, at least, the issues with the proposed conditions identified in these reasons.

At a glance

Court

Decision date

Source

Judgment (251 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)