Armdrott Pty Ltd v Caboolture Shire Council
[2000] QPEC 69
•9 November 2000
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: Armdrott Pty Ltd v. Caboolture Shire Council & Anor [2000] QPE 069 PARTIES: ARMDROTT PTY LTD
ACN 001 987 461 Appellant
And
CABOOLTURE SHIRE COUNCIL Respondent
And
BURPENGARY FLOODPLAIN PROTECTION
ASSOC. INC. & ORS. Co-Respondent
By ElectionFILE NO/S: No 2279 of 2000 DIVISION: Planning and Environment PROCEEDING: ORIGINATING COURT: DELIVERED ON: 9 November 2000 DELIVERED AT: Brisbane HEARING DATE: JUDGE: Judge Quirk ORDER: Appeal Dismissed CATCHWORDS: COUNSEL: Mr J.Houston for the appellant
Mr S.Ure for the respondent
Mr W.Cochrane for the co-respondentSOLICITORS: Beston & Company for the appellant
King & Company for the respondent
Barker Gosling for the co-respondent
This appeal is against the respondent's refusal of an application for a development permit for a material change of use of land at Burpengary. The land which occupies an area of nearly 150 hectares is on the southern bank of Burpengary Creek and is separated by low lying inter-tidal land from the shores of Deception Bay.
To the west the land gains access to Moore Road with its junction with Old Bay Road by means of a narrow strip of land that is approximately 20 metres in width and a little over 500 metres in length. Relatively high quality rural residential development is found to the west of the subject land in the O'Leary Avenue - Margaret Street - Moore Road area and to the south-east in the Havana Street - Jamaica Drive area.
The site is generally flat and has been used in the past for extractive industry. It has lost much of its natural vegetation and its surface is marked by a number of irregularly shaped pits and lagoons. Aside from a few relatively minor structures for administrative purposes, the site is otherwise undeveloped.
The land is included in the rural zone in the Town Planning Scheme and in the Strategic Land Use Plan it has a Rural designation but has also a Extractive Resources designation superimposed on the former.
The relevant application was made to regularise a form of activity which has been conducted on the land for some time. Town planning approval for extractive industry (involving the winning of sand) appears to have been first given more than 20 years ago. In the early 1990's, with the active support of Caboolture Shire Council the appellant commenced trials of a venture involving the blending of sewerage sludge and various organic wastes. These were composted to produce a material of horticultural utility. In late 1995 the appellant and the council made a contract for the disposal of sewerage sludge in this way.
As was required by the provisions of the Environmental Protection Act 1994, an application was made in mid-1996 for an Environmental Authority for an "environmentally relevant activity" namely "compost manufacture level 1". The application was accompanied by a comprehensive report from consultants, Woodward Clyde, which can be seen in volume 3, Exhibit 13 pages 1 - 35. Conditional environmental licences were issued in consequence of this application (pages 37-54 volume 3 Exhibit 13).
In subsequent years there was on-going contact between the appellant and the Department of the Environment. Licences were re-issued and amended and the consultants responded to specific concerns raised regarding the activities. Environmental Management Plans in respect of odour control and stormwater management were prepared. The details of these matters can be seen in volume 3 of Exhibit 12 which comprises almost 300 folios.
In mid-1997 it appears to have been accepted that the composting activities were not covered by existing town planning approvals which were for extractive industry and that a fresh application was called for. In this context the consultants, Woodward Clyde, made an application to the Department of Environment for a waiver of the requirement for an Environmental Impact Statement in respect of such an application.
On 4 September 1997 a favourable response to this application was received. A letter from the Department indicated:-
"I wish to advise that your request has been examined in accordance with section 8.2 (2), (3), (4), and (5) of the Local Government (Planning and Environment) Act. It has been decided that an Environmental Impact Statement in respect of this designated development is not necessary since it is considered a relevant study has been prepared and there are no significant environmental issues that were not covered in the study."
The letter, however, went on to call for the submission of an Environmental Management Plan and set out detailed requirements for the content of that (pages 102-105 volume 1 exhibit 11).
A development application for town planning consent was lodged in March 1998. The application was accompanied by a detailed report from Woodward Clyde relating to town planning issues, an Acid Sulphate Soil Management Plan, and an Acquatic and Inter-tidal Environmental Study by FRC Coastal Resources and Environmental. This material is to be found at pages 110-243 of the last mentioned volume. In the ensuing period further information was requested by the council and was provided. The planning officer's assessment of the application concluded :-
"The proposed use has been occurring on site for a number of years with few concerns by council and the Department of Environment and Heritage. The site is considered to be acceptable given the nature of the area and surrounding land uses, eg., extractive industry, sewerage treatment plant and a variety of other such type uses. The application will be subject to the requirements of the Department of the Environment and Heritage on a range of environmental issues. Council has approved composting supplies in rural areas, previously, being on Bribie Island Road and such areas are considered appropriate for these activities."
Conditional approval was recommended but the recommendation was rejected by council and the application was refused.
An appeal against this decision was lodged but did not proceed to determination on the merits when it was established that the proposed use (being an “industry”) was not one to which Town Planning consent could be given in the Rural zone.
When the Integrated Planning Act came into force that difficulty was removed in that no uses are prohibited within a Town Planning Scheme area. A further application was made in July 1999 and material that had accompanied the earlier application was resubmitted. In November 1999 the Department of Local Government and Planning gave relevant information in regard to referral co-ordination and advised that the following agencies were consulted in drafting the information request:-
§ Caboolture Shire Council (Assessment Manager)
§ Environmental Protection Agency (Concurrence Agency)
§ Department of Main Roads
§ Department of Natural Resources
§ Department of Primary Industries
§ Department of Mines and Energy
Further information in the form of an "Environmental Assessment Report" from the appellant's new consultant Max Winders and Associates, was produced and the comprehensive document can be seen at pages 367-517 volume 2 exhibit 11. In addition a town planning assessment from Mr Michael Challinor (pages 518-534) was furnished. The large volume of material put before the court indicates the communications between the referral agencies and the appellant that followed.
In the end result no objection to conditional approval of the application was raised by the referral agencies. Importantly, in the context of this appeal the response of the Environmental Protection Agency (pages 558-619 volume 2 exhibit 11) did not require a refusal of the application but set out a series of conditions of development approval which must be imposed. In so doing, the Environmental Protection Agency made the following comment:-
"Although the Environmental Protection Agency had supported the approval of the land use for the purpose of carrying out composting and (limited) extraction activities subject to stringent conditions, it is considered that the location of these activities on land in close proximity of areas of environmental significance (land abutting a RAMSAR site) is not ideal and will require very careful management and regulatory supervision."
Understandably, (in the light of the earlier attitude of the council's planning officers to the application) the council sought opinion from an independent town planning consultant. A detailed and careful response (pages 646-702 volume 2 exhibit 11) was prepared by Mr Priddle of Messrs. Buckley Vann, Town Planning Consultants, who concluded in favour of a conditional approval of the application. In fairness to Mr Priddle however, he emphasised:-
"As highlighted throughout the body of the report, a paramount consideration to the assessment of the application has been the likely degree of impact of the proposal on the environmental values of the surrounding estuarine areas. In this regard all referral agencies having some form of jurisdiction or interest in environmental matters have indicated their support for the proposal subject to the imposition of stringent conditions relating to the operation and conduct of the use."
Forty-two submissions and petitions with 318 signatures against the proposal were received. At its meeting on 13 June 2000 the council declined to accept the recommendation of the independent consultant and refused the application. The stated grounds of refusal were:-
"1.The applicant has not demonstrated that the use is ecologically sustainable.
2.The use is contrary to and does not advance the purpose of the Integrated Planning Act 1997.
3.The use conflicts with the precautionary principle as there are threats of serious or irreversible damage occurring to the environment and the applicant has not sufficiently proven how to overcome these threats.
4.The use will have a detrimental impact on the environment of the area in particular the associated wetlands and Burpengary Creek which are of high environmental value which have been recognised in the multi-layers of legislation that include the Fisheries Act 1994, the Moreton Bay Marine Park Act, the international obligations link to the RAMSAR listing of the site.
5.The use will have a detrimental impact on the environment in terms of it generating and producing unacceptable and noise impacts on adjoining and surrounding residents and properties.
6.The use will generate unacceptable levels of traffic and vehicle movement that are not in keeping with the rural nature of the area.
7.The proposed soil conditioning use would be best described as an industry and therefore it is inappropriate in a rural area.
8.The use and the method of operation will have an adverse impact on the ground water and aquafer of the site and the surrounding area.
9.The site is within a floodplain and the use and works proposed are considered to be inappropriate and contrary to maintaining the floodplain free of intrusions or impediments to the movement of water across the site in times of flood.
10.The site is inappropriate for the purposes of soil conditioner and manufacturing due to its rural location and its location in the Burpengary Catchment.
11.The proposed use in conflict with the rural intent and objectors of the Strategic Land Use Plan."
In the appeal the issues upon which attention centred were:-
1. Potential for environmental damage from the proposal.
2.Potential for amenity detriment principally from odour and dust.
3. Potential for traffic problems as a result of heavy vehicle movement associated with the proposal.
4. Town Planning issues focusing essential on possible conflict with the Strategic Land Use Plan.
The majority of the difficulties which the proposal faces arise from one of the elements which it involves, namely the introduction on to the site of waste materials that contain potential contaminants and malodorous substances. These wastes are blended on site with other green wastes and laid out in uncovered windrows to compost. Regular turning and spraying of the windrows is required as is the addition of other substances an nutrients (eg., urea and superphosphate) to produce a horticulturally useful and marketable product.
In the context of potential for environmental harm, the major factor is the site's proximity to Burpengary Creek and the point at which it enters Moreton Bay. The waterways and associated wetlands are part of a declared fish habitat area as well as being part of an area identified by treaty (RAMSAR) as an important refuge for migratory wading water birds and other sea life. The importance of preventing contaminants from invading these sensitive areas by way of surface water or ground water flow was explained at length in the evidence called by the council, particularly in that of Dr. Pillsworth. In his evidence Mr Winders expressed reservations about the rather grim picture painted by Dr. Pillsworth in respect of the environmental robustness of this area of the shores of Moreton Bay. However, the matter was not really an issue in the appeal. The high value of the environment of these sensitive areas is recognised by the formal planning documents which call for their protection from any detrimental impact and this was accepted by all parties involved.
Mr Winders, an engineer and environmental consultant of considerable experience, has taken over the work of the previous consultants, Woodward Clyde. In a report which accompanied the application (pages 367-517 volume 2 exhibit 11) which was amplified by a report prepared for the purpose of this appeal (exhibit 2) he explained how he has developed the work of his predecessors and responded to specific areas of concern raised in his dealings with the various referral agencies, particularly the Environmental Protection Authority when the relative environmental licences were being negotiated. He has now prepared a revised layout for the working area and this is shown in figures 3 and 4 of exhibit 2.
Flooding
An issue raised in the appeal related to the sites being in a floodplain and raised the concerns about the effect of works that were part of Mr Winders proposed layout impeding the free flow of water across the flood plain at times when heavy rainfall might give rise to flooding.
In 1998 a stormwater management plan was prepared for the purposes of the environmental licence and this plan was also submitted as part of the application for town planning consent. Requests for further information were made and dealt with by Woodward Clyde. The application with which we are concerned was accompanied by a flooding investigation carried out by Australian Water Engineering Pty Ltd and the matter was further discussed in the work of Mr Winders.
An offer has been made to carry out additional flood modelling if it is thought necessary to demonstrate that the bunding necessary to ensure water quality protection would not impede the free flow of flood waters to the extent that any damage to other land in the area might occur. None of the evidence called by the respondents raised questions in respect of the matter of flooding that might have called for the proposal rejection.
Surface water contamination.
Potential problems in this area would be associated with the leaching of contaminants from the windrows at times of heavy rainfall. Changes to the various working areas which can be seen in figure 3 of exhibit 2 were made by Mr Winders to meet concerns about run-off and leachate collection. These changes were also intended to increase the separation of distance from odour sources to neighbouring properties.
These modifications to the layout are explained in section 3.2 of exhibit 2. Working areas draining to primary leachate ponds would be bunded to provide 100 year flood level protection. Any overflow from the primary leachate ponds would be suitably directed to overflow retention ponds which would be connected to maximise their overall retention capacity.
Further existing water bodies in the area would act as buffer ponds. An area formerly known as the West Pad has been re-graded and might be used as an irrigation area "to sustainably use water from the primary ponds and the overflow retention ponds in excess of that required to maintain moisture levels in the compost and for dust control". Areas outside the primary working area involving the overflow retention ponds, the buffer ponds and irrigation area will be included within bunding to provide 20 year flow immunity.
Some criticism of this aspect of the proposal came from witnesses called by the respondent. These included concerns relating to the adequacy of the proposed bunding and its integrity having regard to the possibly porous nature of the material extracted from existing pits (which it is believed may have been used to construct bunding already in place).
Ground Water Contamination.
However, the major area of concern raised by the witnesses, Professor Volker, Mr Heyden and Mr Sutherland, related to contamination of ground water and the eventual passage of contaminants to areas of environmental sensitivity. For reasons explained at length in their reports and in their evidence, they maintained that there was, at present, no proper and sufficient appreciation of a relatively shallow ground water table on site and if (and how) it connects to sensitive water bodies such as Burpengary Creek. It was said that this is particularly so in respect of the relationship between the water table and the existing water bodies on site, some of which are to be actively employed in the planned layout. If, as some of the witnesses suspect, these ponds constitute "water table windows" they present an extensive surface area available for free exchange of ground and surface waters.
Mr Sutherland, in his written report (exhibit 10) gave an account of his examination of the site which involved some water table monitoring. For reasons which he explained, the results of his investigations were not encouraging and indicated that a significant level of contaminants were already present.
The point was made that the assessments that Mr Winders relied to a substantial extent upon the earlier work of Woodward Clyde and no representative of that firm was in court to meet criticisms made of some of the material detailing their efforts. That Mr Winders would rely on the work of Woodward Clyde could not be said to be irregular in any professional sense, however, it did not make it any easier for him to respond to some of the suggestions made to him in cross-examination.
In fairness to Mr Winders it has to be said that he did not overlook the matter of ground water contamination. Some ground water monitoring had been performed by Woodward Clyde and is referred to in a report of October 1997. It seems that further ground water monitoring was planned but Mr Winders (who at the time was dealing primarily with the Environmental Protection Authority) told me that the Authority did not appear to be greatly concerned at possible problems in respect of ground water contamination (a view which he shared). Matters were further complicated by cessation of operations on site.
It has also to be said that the matter of ground water contamination has not entirely escaped the attention of the Environment Protection Authority. Conditions D9 to D14 to the set of conditions put forward by the Authority impose stringent requirements in respect of the construction, maintenance and use of the leachate ponds and associated drainage lines.
In response to the emphasis placed upon possible ground water contamination, the appellant put forward a document (exhibit 47) which discussed a demonstration of the adequacy of the Environmental Protection Authority conditions regarding water quality protection. It dealt with the selection of appropriate standards in the drafting of the site based Management Plan, Stormwater Management Plan and Acid Sulphate Soil Management, all of which were required by the EPA conditions. It gave further details of monitoring and modelling that would be carried out.
Mr Sutherland (an engineer of wide experience in matters of ground water) was asked to examine exhibit 14 and made no serious criticism of it. The real relevance of these matters are that they underline the fact that an understanding of the ground water regime it could not be said to be complete and the possibility that information unfavourable to the proposal may emerge could not be excluded.
Odour
The matter that has been the major source of friction between the appellant and the residents of the area is that of odour emanating from the site. Because of the nature of the process, and the waste materials brought upon the land, it would seem, on the evidence given, almost impossible to eliminate the emission of offensive odours from the operation.
Much of the waste material that has been brought on site (sewerage sludge, grease trap waste, putrid fruit waste etc) is inherently malodorous and the condition in which it reaches the site influences the degree to which this so. The composting process is essentially bacterial in nature and the conditions in which it occurs are dynamic and require close attention. It was explained in evidence that if the windrows are allowed to become excessively wet anaerobic conditions may develop and highly offensive odours may be given off. If conditions are allowed to become excessively alkaline ammoniacal vapours (involving foul odours) may be generated.
Instances of highly offensive odours affecting local residents have certainly occurred. A number of these persons who gave evidence spoke convincingly of the stress and embarrassment that these unpleasant odours have caused in their own enjoyment of home life and efforts to entertain at their residences. It must also be noted that, at the time of these unfortunate experiences of events the venture was operating under an Environmental Licence which contained a condition which provided expressly:-
"Notwithstanding any other condition of this Environmental Authority no release of contaminants from the licensed place is to cause a noxious or offensive odour beyond the boundaries of the licensed place."
Although no representative of the appellant company gave evidence, I would be surprised if, on these occasions, the appellant was simply flouting this condition brazenly, but it does underline the difficulty that is involved in containing the dispersion of offensive odour in an activity of this kind. Many of the influential matters are in reality beyond the operator's control or are at least very difficult to control. The weather is of course a major factor. Unexpected or prolonged rainfall may, as explained, give rise to anaerobic conditions in the windrows. Sudden changes in wind velocity or direction can have an important impact on odour dispersion and where its impact is felt. The availability and conditions of waste materials on delivery would also have a substantial bearing on the operation's progress. With all the goodwill in the world the possibility of human error or mechanical failure (and the consequences of these in respect of the escape of unpleasant odours) cannot realistically be excluded.
In dealing with the odour question the conditions suggested by the Environmental Authority included the condition set out above which had been part of the Environmental Licence. The objective sought to be achieved by this condition is no doubt a worthy one and if adhered to would resolve any difficulty for local residents in regard to odour. The condition however is not instructive as to how the objective is to be attained.
Suggested condition B 10 does deal with the expeditious handling of certain waste products but potential problems associated with the proposal are not limited to these matters. An odour management program had been prepared by Woodward Clyde and this has been reviewed by Mr Winders. Odour intensity monitoring and atmospheric dispersion modelling has been carried out as a basis for an "odour management strategy". It has been accepted that certain of the particularly troublesome waste products (eg. grease trap waste) must be eliminated from the operation and the appellant has also offered to exclude paunch (abbatoir) waste and putrid mango material.
Efforts to develop and test the odour assessment program have been frustrated by the cessation of the operations and there has evidently been further complications in a revision by the Environmental Protection Authority of its standards for dynamic olfactrometry. Mr Winders has expressed some reservations about the relevant merits of these new standards and the internationally accepted logarithmic scale of odour intensity but it is not necessary to go into this in detail. The debate about appropriate odour measuring techniques only points up the potential for odour dispersion in a process of this kind.
One of the important measures suggested by Mr Winders involves the re-distribution of the various working areas. Location for the composting of sewerage bio-solids will be moved 200 metres or so to the north-east away from residents of the rural residential area to the west. Shade-cloth screens 4 metres in height will be constructed along the western sides of the screening and stock piling area to act as windbreaks and increase the turbulence and atmospheric dispersion of sea-breezes.
Criticism of these arrangements were made in the respondent's case in that rather than removing the potential for odour creation, they were really aimed at controlling its dispersion. An exception to this was the exclusion of the more troublesome wastes but it was point out that this would limit the effectiveness of the waste composting process, which, for all its difficulties, had to be seen as an activity of some considerable benefit to the community. It was said that with all the relevant influences on odour creation and dispersion, there was serious doubts that the major objective of the EPA condition could be reliably achieved.
Dust
As to dust, the problem is associated with the passage of heavy vehicles along the unsealed track on the strip of land giving access to the working area from the Old Bay Road-Moore Road intersection. There was some discussion about the likely number of such vehicle movements but it is apparent that the number will not be insubstantial. To seal this strip of roadway would be a considerable expense and, according to Mr Beard (the appellant's traffic engineering consultant) not warranted by the use of such a strip of road in a rural area. Seven rural residential allotments border this strip of land to the north and I do not believe that difficulties associated with dust can simply be set to one side on the basis that the dwellings are located towards the northern boundaries of these allotments. Entitlement to enjoy the use of one's land is not limited to the area in and around one's home. Local residents described difficulties that have been experienced because of dust attributed to the movement of these vehicles.
I appreciate that measures may be adopted to control such a problem (e.g. keeping the unsealed surface of the accessway moist) but the success of these measures depends largely on the diligence with which they are applied. That conditions of approval might not be strictlty complied with is rarely a strong reason for rejection of a proposal but the potential dust problem (attributable to the unusual configuration of the subject land and the proximity of this access way to residential use) is but another difficulty which this proposal faces in regard to its setting.
Other traffic issues were raised and I have considered the evidence of both Mr Beard and Mr Brameld who was called by the respondent. Had approval of the proposal been supportable on other grounds, these matters were capable of being dealt with by appropriate conditions.
I found the case a very difficult one and I was left feeling a good deal of sympathy with the appellant. It is clear that, initially at least, it embarked on the venture with the active encouragement of the Council. It has, along the way, done what it could to co-operate with statutory bodies set up to provide guidance and assistance to those seeking to engage in activities of this kind which, on any view of the evidence, are worthwhile from the community's point of view. I must also add that I have every confidence in the ability and experience of Mr Winders as an expert in these matters and am satisfied that, given sufficient resources, he would do all that is reasonably achievable in an engineering sense to see that this operation is conducted in a satisfactory way.
However, when all of the matters which I have discussed are considered, it is clear that the comment of the Environmental Protection Authority that “the location of the proposal in close proximity of areas of environmental significance is not ideal and will require very careful management and regulatory supervision” was no understatement.
Planning Matters
The problems which the proposal faces in the area of town planning arise from the land’s zoning and the provisions of the Strategic Land Use Plan in respect od industrial areas. These problems are compounded by the environmental sensitivity of the area in which the subject land is found and the proximity of local residents who have already experienced difficulties from the composting process. These have had a detrimental effect upon a level of amenity to which the zoning of their land gives a reasonable expectation.
I fully appreciate that the zoning of the subject land is Rural as is its principal designation on the Strategic Land Use Plan. Uses ordinarily associated with the rural designation (and the Extractive Resources Designation which the subject land also carries) would have to be reasonably anticipated. It is against the background of the relevant planning controls and the matters that have been discussed concerning the somewhat unusual features of the proposal that the Council's opposition to it and the reasonableness of the expectations of the local residents must be judged. In relation to town planning matters I have the assistance of the evidence of the following consultants. Mr Challinor for the appellants, Mr Perkins for the respondent and Mr Baker for the co-respondents.
As stated the subject land is included in the Rural zone. In that zone extractive industry is a discretionary use but other forms of industries are prohibited. Although this application was lodged after the commencement of the Integrated Planning Act the town planning scheme relevant here is a "transitional planning scheme" under Chapter 6 of that Act. The application is one must be dealt with under Division 8 of Chapter 6. Because of the nature of the proposal it is one which, had its approval been sought under the Local Government (Planning and Environment) Act a rezoning of the subject land would have been called for. Section 6.1.30(3) requires that this application must be decided under s.4.4(5) and (5A) of the repealed legislation.
It is a relevant fact that the proposal is, in the transitional planning scheme, a prohibited use. Section 6.1.2(3) of the Integrated Planning Act provides:
"A prohibited use in a former planning scheme is taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited".
The proposal strikes further difficulty in respect of the Strategic Land Use Plan which has specific provisions setting out its objectives for industrial areas. This part of the Strategic Land Use Plan is introduced as follows:
"Industrial Areas
These areas are shown coloured purple on the Strategic Land Use Plan Map and designate existing major industrial developments and areas appropriate for industrial development within the Shire. Future industrial development should utilise existing undeveloped industrially zoned land. Expansion outside of existing industrial areas should, where practical, be confined to land adjoining these areas with such expansion only permitted when justified".
While the town planning scheme definition indicates that the proposal is an "industry" all of the town planning consultants who gave evidence agreed that the proposal had (in a factual sense) characteristics that brought it within the ambit of the definition (Hazardous, Noxious or Offensive Industry). In the town planning scheme the only zone in which town planning consent could be given to such an industry was the "Special Industry" Zone.
The Strategic Land Use Plan in its introductory passages goes on:
"Uses considered for appropriate areas include a wide range of industrial development, except for Special Industries which shall be limited to the Narangba Industrial Estate. Other uses which are considered to be appropriate and compatible with industrial development include takeaway food premises, service stations, storage facilities and warehouses".
Whether or not this proposal could be suitably located in the Narangba Estate was a matter about which there was some discussion. I do not regard the matter as determinative in the appeal. If there was no place for this proposal in the Narangba Estate there may have been good planning reasons for finding some other location where it could be suitably located. An important question in this appeal is whether the subject land is, on the evidence, a suitable location for the intended use.
The stated objective of the Strategic Land Use Plan for the industrial areas is:
"To consolidate industry in existing suitable zoned areas and to permit the expansion of existing areas in appropriate locations".
Ten implementation provisions are set out and these have varying degrees of relevance to this appeal. As I read these provisions the one of major importance is:
"(f)Rezoning and town planning consent applications to facilitate industrial development will not be supported where Council is of the opinion that the proposal would detrimentally affect the existing or future amenity of the locality. Specific areas of concern include the environment and water quality of major water courses and their tributaries, Pumicestone Passage and Deception Bay.
On my view of the evidence too many questions have been raised about the compatibility of the proposal with the existing or future amenity of the areas developed or likely to be developed for rural residential use and the "special areas of concern" identified in the Strategic Land Use Plan.
Mr Challinor (who has for many years assisted the court with his well considered assessments of various forms of development) was prepared to support the proposal on the basis that he saw it as analogous to "rural and extractive industry type activities". He emphasized however that his assessment was based on the supposition that adequate controls could be put in place to protect the area's amenity. He saw the site as a large holding which provided an opportunity for suitable natural buffering. He repeated the opinion that he viewed (for reasons which he explained) the intended activity as very much akin to an extractive industry.
I respect his views but regret that I am unable to share them in this case. In my view there is a very important difference between a proposal of this kind and an extractive industry. An extractive industry involves the winning and in some cases the processing of materials that are found on a particular site. Of necessity such industry must be located where these resources exist.
In this process the elements of the end product (apart from some soil or sand which is included in it) are introduced from elsewhere and the imported materials are those that are directly responsible for the concerns that have been raised about this proposal. There is no really compelling reason for locating this proposal on this environmentally sensitive site.
Section 4.4(5A) of the Local Government (Planning and Environment) Act which must be applied in the decision of this appeal provides:
"The local government must refuse to approve the application if -
(a) the application conflicts with any relevant strategic plan or development control plan; and
(b) there are not sufficient planning grounds to justify approving the application despite the conflict".
Whether “conflict” with the relevant passages of the Strategic Land Use Plan has been demonstrated might be debated but the provision indicates the importance that should be attached to this planning instrument. On my view of the evidence a level of inconsistency with the planning strategies that emerge from the Strategic Land Use Plan has been shown and the evidence does not disclose sufficient planning grounds to justify my overlooking those inconsistencies and approving the application
On the whole of the evidence I am satisfied that the onus of showing that the application for the relevant material change of use has not been discharged and the appeal in that respect must be dismissed.
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