Acland Pastoral Co Pty Ltd v. Rosalie Shire Council & Ors
[2009] QPEC 77
•26 August 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Acland Pastoral Co. Pty Ltd v Rosalie Shire Council & Ors [2009] QPEC 77
PARTIES:
ACLAND PASTORAL CO. PTY LTD
Appellant
v
ROSALIE SHIRE COUNCIL
Respondent
and
THE CHIEF EXECUTIVE UNDER THE ENVIRONMENTAL PROTECTION ACT 1994
Co-Respondent
and
THE CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTUCTURE ACT 1994
First Co-Respondent by Election
and
THE CHIEF EXECUTIVE UNDER THE VEGETATION MANAGEMENT ACT 1999
Second Co-Respondent by Election
and
TANYA PLANT
Third Co-Respondent by Election
and
MERILYN PLANT
Fourth Co-Respondent by Election
and
SID PLANT
Fifth Co-Respondent by Election
and
DAVID & CHERYL VONHOFF
Sixth Co-Respondent by Election
FILE NO:
3145 of 2006 – Brisbane
DIVISION:
Planning and Environment Court
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
26 August 2009
DELIVERED AT:
Maroochydore
HEARING DATE:
14 August 2009
JUDGE:
K.S. Dodds DCJ
ORDER:
1. The appellant file and serve any affidavit material regarding changes to the proposed development which was before the court on the appeal by 23 September 2009;
2. Each party notify to all other parties in writing any objection (including particulars), alterations or corrections to any of the conditions proposed by the respondent, co-respondent and second co-respondent by 16 October 2009.
3. The respondent, co-respondent and second co-respondent notify in writing every other party of any changes to the conditions proposed by the respondent, co-respondent and second co-respondent by 30 October 2009.
4. If any proposed conditions remain in issue by 13 November 2009, the parties attend before the ADR Registrar on 18 November 2009 and take part in a without prejudice meeting to narrow or resolve:
(a) any remaining dispute about conditions; and
(b) any issue arising from the affidavit referred to in Order number 1.
5. The appeal be adjourned for review on 23 November 2009.
CATCHWORDS:
PLANNING – PLANNING LAW – where appeal allowed and adjourned for conditions to be agreed – directions for without prejudice meeting before ADR Registrar and for further hearing before the court if required
District Court Act 1967 Part 7 Division 3
Integrated Planning Act 1997 s 4.1.48
Planning and Environment Court Rules 2008
Uniform Civil Procedure Rules 1999 Chapter 9 Part 4
COUNSEL:
M Connor (sol) for the appellant
P Chadwick (sol) for the respondent
E Hussey (sol) for the co-respondent, first co-respondent and second co-respondent
The third co-respondent appeared on her own behalf
The fourth co-respondent appeared on her own behalf
The fifth co-respondent appeared on his own behalf
C. Vonhoff appeared on her own behalf and on behalf of D. Vonhoff
SOLICITORS:
Connor O’Meara Solicitors for the appellant
King & Company Solicitors for the respondent
Crown Law for the co-respondent, first co-respondent and second co-respondent
The third co-respondent appeared on her own behalf
The fourth co-respondent appeared on her own behalf
The fifth co-respondent appeared on his own behalf
C. Vonhoff appeared on her own behalf and on behalf of D. Vonhoff
[1] There are two applications before the court: an application by the appellant seeking orders that the parties notify the respondent Council, the Chief Executive under the Environmental Protection Act 1994 and the Chief Executive under the Vegetation Management Act 1999 in writing of any objections (including particulars) or corrections to proposed conditions of approval by 28 August 2009 and for the appeal be mentioned for review on 4 September 2009; an application by a co-respondent, Tanya Plant, seeking orders that the appellant’s odour expert conduct further odour modelling using inputs and assumptions no less conservative than used at the appeal and including all possible odour sources, with a review date in September.
[2] The applications have their origins from an appeal against refusal of a development permit for a material change of use for lot feeding of cattle, 11,000 Single Cattle Units (SCU) (a beast of 600 kilogram weight). What was proposed was a Class 1 standard feedlot to be established in two stages. The refusal was directed by the Department of Primary Industries and Fisheries, a concurrence agency because the application did not comply with the Environmental Protection Act 1994 and the Reference Manual for the Establishment and Operation of Beef Cattle Lots in Queensland, being a policy applied by it and compliance with the Act and Reference Manual could not be achieved by imposing conditions. The application had not provided sufficient evidence to support its assertion that there was a sufficient separation distance between the feedlot and the rural residential settlement at Muldu.
[3] The Reference Manual sets out methods of assessing the environmental acceptability of cattle feedlots because of their potential to cause interference with the comfortable enjoyment of life and property off site from, for instance, odour, dust and noise. Because odour is identified as a principal community amenity concern, the Manual provided methods for determining separation distances from sensitive receptors. One such method was to assess odour concentration at receptors by modelling odour at the source and at potential receptors. An odour annoyance threshold, a guideline, was provided by the Environmental Protection Act 1994 namely 2.5 Odour Units (OU) (1 hour average 99.5 percentile). It provided “if the modelled odour concentration at the most exposed existing or likely future offsite sensitive receptors are less than the guideline values, then adverse chronic odour impacts are not likely in most cases”.
[4] There are a number of parties to the appeal; the respondent Rosalie Shire Council and co-respondents being the Chief Executive under the Environmental Protection Act 1994, the Chief Executive under the Transport Infrastructure Act 1994, the Chief Executive under the Vegetation Management Act 1999 and persons who live and work in the vicinity; Tanya Plant, Merilyn Plant and Sid Plant, members of one family and David and Cheryl Vonhoff, members of another family.
[5] By the time of the hearing of the appeal the Plant family had taken steps towards constructing a dwelling on their land which joins, immediately to the north, the land where the feedlot was proposed. That potential dwelling for practical purposes, abutted the applicant’s land upon which the feedlot was proposed, and was thus a potential sensitive receptor. The dwelling has now been constructed.
[6] At the appeal the matters in issue were odour and separation distances, noise and dust, waste disposal, effluent reuse, groundwater, traffic and town planning. Experts in these areas were retained by the appellant, the respondent and the Chief Executive co-respondents. Putting odour and separation distances to one side, the evidence of these experts demonstrated that the issues did not prevent establishment of an 11,000 SCU feedlot with one caveat namely that a suitable site be found for a 30 hectare effluent irrigation area. The experts in the discipline of odour were in agreement that an 11,000 SCU feedlot could not satisfy the requirements of the reference manual referred to above but that a 5000 SCU feedlot would comply provided a very high standard of management was applied to it. The court accepted the evidence of Mr Omerod, the expert who had been retained by the respondent that strict adherence to the detailed requirements of a Class 1 feedlot as set out in the Reference Manual was required.
[7] On 12 December 2007 the appeal was allowed but only to the extent of a 5000 SCU feedlot. The appeal was then adjourned for the parties to formulate conditions to be attached to the approval.
[8] The matter came back before the court by application filed 25 August 2008 by the applicant’s solicitors. That application sought orders:
§ That by 29 August 2008 the appellant provide to the other parties, proposed plans for the 5000 SCU feedlot including but not limited to:
- the layout of the feedlot pens and location on registered plan;
- the size and location of the effluent holding pond;
- the size and location of the effluent irrigation area(s);
- the location of the sediment pond;
- the location of manure stockpile;
§ On or before 28 September 2008 the respondent and co-respondents notify the appellant and each other party of their proposed conditions of approval;
§ By 24 October 2008 the parties notify any disputed issues in the appeal pertaining to proposed conditions of approval notified in accordance with the order including the grounds for objection to any condition;
§ The issues in dispute in the appeal are the issues (if any) notified by the parties in accordance with the order;
§ The parties exchange lists specifying the name and field of expertise of each expert that will give evidence in relation to the disputed issues by 31 October 2008.
The application also sought directions for without prejudice meetings, limiting experts, mediation before the Registrar of the Planning and Environment Court, exchange of reports and for adjournment of the appeal for review.
[9] On 30 October 2008 the respondent Council made an application to the Court. The application sought orders for:
§ Directions requiring the appellant to provide requested information in respect of the development to enable conditions to be formulated to finalise the appeal;
§ Orders vacating the orders made on the appellant’s application of 28 August 2008;
§ Directions and orders to facilitate the identification of disputed issues;
§ Directions and orders to ensure that all necessary interlocutory steps are carried out;
§ Directions and orders to facilitate a dispute resolution plan;
§ The allocation of dates for review and hearing of the appeal.
[10] What has occurred since December 2007 is that the plans for a 5000 SCU feedlot and associated works provided by the appellant pursuant to the orders made on its application of 25 August 2008, differed in detail from the plans before the court on the appeal. Those plans were plans for an 11,000 SCU feedlot and associated works upon which a 5000 SCU feedlot has been superimposed. It was those plans upon which the odour modelling agreed in by the odour experts for the appellant, the respondent and co-respondents was undertaken.
[11] The differences may be summarised as follows: the plans before the court on the appeal differed from earlier plans accompanying the application. The feedlot pens had been relocated 200 metres to the west and 50 metres to the south thus moving further away from the Plant’s proposed dwelling. To the immediate north of the pen was the sedimentation pond and an 80ML holding pond. The manure stockpile was located to the west of the southern edge of the pens, carcass burial was also located to the west of the pens. To the north east of the pens was a 50 hectare effluent irrigation area. It had been agreed by the experts regarding effluent and waste disposal that for an 11,000 SCU feedlot an 80 ML holding pond and an 80 hectare effluent irrigation area was required. A 30 hectare effluent irrigation area was to be established elsewhere on the appellant’s land in a location over geology which posed no risk to groundwater.
[12] The plans for a 5000 SCU feedlot provided by the appellant to the other parties on 31 August 2008 were for a 5000 SCU feedlot located at the southern extremity of the footprint of the earlier proposed 11,000 SCU feedlot. The northern part of the 11,000 SCU feedlot area was proposed as a hardstand area. The manure stockpile had been relocated to the northern extremity of the hardstand area. Sedimentation and holding ponds had been relocated southeast to a position abutting the north eastern part of the hardstand area. The holding pond volume had been reduced to 51 ML. The effluent disposal areas remained the same as previously. No new location had been proposed for a 30 hectares effluent disposal area to avoid groundwater contamination. The typical pen details stated that the stocking density would be 15m² per SCU whereas the modelling by the appellant odour expert with which the other odour expert had agreed was arguably based on the assumption that the stocking density of the pens would be 21m² per SCU. The plans did not detail location of areas for carcass disposal, solids utilisation, and mass burial.
[13] Orders were made by the court.
[14] Since that time the matter has returned to the court on a number of occasions. Additional odour modelling has been undertaken by the appellant’s odour expert to address some of the changes. Further plans have been provided by the appellant showing locations for the manure stockpile, for carcass disposal and mass burial; carcass disposal adjacent to the hardstand area on its eastern side, mass burial further to the east, manure stockpile relocated into the south east portion of the hardstand area, adjacent to the area for carcass disposal, the effluent irrigation area to the north east of the feedlot, reduced to 40 hectares, the holding pond volume reduced to 60ML.
[15] Further odour modelling has been undertaken by the appellant’s odour expert based on these recent plans. That modelling on its face, demonstrates that the predicted odour levels at the Plant’s residence adjacent to the northern boundary of the appellant’s land and at Muldu are below the 2.5 OU guideline.
[16] In May 2009 the effluent reuse experts for the appellant, respondent and co-respondent produced a joint report. It concluded that a 60 hectare effluent irrigation area was effluent required for the 5000 SCU feedlot to be located on the area where the 40 hectare irrigation unit had been proposed. Also in May 2009 the air quality experts of the appellant, respondent and co-respondent produced a joint report. The report dealt with the odour dispersion modelling undertaken by the appellant’s odour expert in response to further changes to the feedlot configuration and specifically to the manure stockpile and ponds. The report concluded that the modelling done using the areas and locations of manure stockpile and ponds in the latest plans demonstrate a compliance with the Environmental Protection Agency’s odour goal of 2.5 OU at the 99.5th percentile at the nearest residences (the Plants’ and Muldu).
[17] The matter returned to the Court on 14 August 2009. The applications set out above were before the court. By this time the Department of Primary Industries, the Chief Executive under the Vegetation Management Act 1999 and the respondent had circulated proposed conditions.
[18] After discussion the appellant proposed further orders to deal with obtaining agreement between the parties on conditions, including if necessary, a without prejudice meeting of the parties chaired by the Planning and Environment Court ADR Registrar, for directions for exchange of further affidavits and a hearing date of 26 and 27 November 2009. Time limits were included.
[19] Dr Plant opposed these orders.
[20] A complicating factor is that the fifth co-respondent has been recently diagnosed with cancer. Surgery is arranged for 19 October 2009. Further correspondence circulated by the third-co-respondent by election since 14 August 2009, on its face, indicates that he and his wife have committed to a holiday on Norfolk Island between 23 September 2009 and 4 October 2009 pre-surgery and the sixth co-respondents by election have booked an annual holiday between 8 October 2009 and 16 October 2009.
[21] Part 7 Division 3 of the District Court Act 1967 (DCA) provides for alternative dispute resolution processes. So does Chapter 9 Part 4 of the Uniform Civil Procedure Rules 1999 (UCPR). Section 4.1.48 of the Integrated Planning Act 1997 incorporated the provisions of the DCA and UCPR into the Planning and Environment Court. The Planning and Environment Court Rules 2008 (P&E Rules) provide for without prejudice conferences to be convened and chaired by an ADR Registrar of the Court if so directed. An ADR Registrar is defined in the dictionary to the rules, see the Schedule.
[22] I order as follows:
1. The appellant file and serve any affidavit material regarding changes to the proposed development which was before the court on the appeal by 23 September 2009;
2. Each party notify to all other parties in writing any objection (including particulars), alterations or corrections to any of the conditions proposed by the respondent, co-respondent and second co-respondent by 16 October 2009.
3. The respondent, co-respondent and second co-respondent notify in writing every other party of any changes to the conditions proposed by the respondent, co-respondent and second co-respondent by 30 October 2009.
4. If any proposed conditions remain in issue by 13 November 2009, the parties attend before the ADR Registrar on 18 November 2009 and take part in a without prejudice meeting to narrow or resolve:
(a) any remaining dispute about conditions; and
(b) any issue arising from the affidavit referred to in Order number 1.
5. The appeal be adjourned for review on 23 November 2009.
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