B M Carr Holdings atf the Carr Farming Trust v Southern Downs Regional Council

[2012] QPEC 73

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	B M Carr Holdings atf The Carr Farming Trust v Southern Downs
Regional Council & Anor [2012] QPEC 73
PARTIES:	B M CARR HOLDINGS PTY LTD ACN 095 465 735 as trustee for the CARR FARMING TRUST
(appellant)
v
SOUTHERN DOWNS REGIONAL COUNCIL
(respondent)
and
DEPARTMENT OF TRANSPORT AND MAIN ROADS
(co-respondent)
FILE NO:	BD 700 of 2012
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING
COURT:	Brisbane
DELIVERED ON:	14/11/12
DELIVERED AT:	Brisbane
HEARING DATE:	05/10/12 – 12/10/12
JUDGE:	Searles DCJ

ORDER:  1. Application approved in relation to 28 sheds over

Pads 1, 4 and 5;

2.       Condition 4 requiring amalgamation/restrictive

covenant is an unreasonable condition;

3.       Appeal adjourned for parties to resolve conditions.

CATCHWORDS:

Appeal - Refusal to approve – Material change of use – Poultry farm – Two proposals – Impact assessment - Principles governing interpretation of Planning Scheme - Sensitive Receptor – Conflict with planning scheme – Weight to be given to new Scheme

Integrated Planning Act 1997

Sustainable Planning Act 2009

Warwick Shire Planning Scheme 1999

Southern Downs Region Planning Scheme 2012

COUNSEL:	Applicant: D.R Gore QC & J.J Haydon First Respondent: M.A Williams & M.Batty
SOLICITORS:	Applicant: Mullins Lawyers
First Respondent: Connor O‟Meara
Appeal

1. The Appellant appeals a decision of the Respondent (Council) of 30 January 2012

   relating to a development application to establish a poultry farming operation

   containing 48 sheds on 5 Pads (Pad 1- 8 sheds, Pads 2, 3, 4 and 5- 10 sheds each)

   some 20 kilometres south east of Warwick on Cullendore Road, Murrays Bridge.

   The subject land has an area of 881.7 hectares and has frontages to Cullendore

   Road, Wickham Road and Gravel Pit Road Elbow Valley. The appeal was initiated

   on 23 February 2012 appealing the Council‟s refusal in relation to Pads 2 and 3 and

   some of the conditions of approval of Pads 1, 4 and 5.

   Appellant’s application

2. In its application, lodged with Council on 4 March 2011, the Appellant sought[1]

   development approval for a material change of use for an intensive animal use

   (poultry farm – up to 2,880,000 birds), and Environmentally Relevant Activity

   (ERA) No. 4(2) (Poultry Farming, farming more than 200,000 birds), and

   reconfiguring a lot for an access easement over Lot 2 RP 36824 to benefit Lot 1

   RP 36824 and Lot 1 to 38 RPM 34534. .

   [1]

   Applicant’s Original Proposal

3. The original proposal involved a poultry farm to operate either as a broiler farm or

   as a breeder/rearer farm. If operated as a broiler farm there would be 2,880,000

   birds. If operated as a breeder/rearer farm there would be 720,000 birds. There was

   to be a total of five Pads containing 48 sheds; Pad 1 with 8 sheds and Pads 2, 3, 4 and 5 with 10 sheds each. There were 30 submissions received upon public

   notification.[2]

   [2]

   Nature of proposed operation

4. All access to the proposed poultry farm is to be off Cullendore Road with access to

   the four Pads (2, 3, 4 and 5) contained within an easement.[3] The farm operation

   [3]

   would involve a batch of one day old chickens being delivered to the farm from a

   hatchery and subsequently collected from the farm at various stages of the growing

   cycle for transport to a processing plant. As mentioned, each shed fully stocked

   would have up to 60,000 birds and they are grown for about 56 days with

   progressive thin-outs to take birds out for processing. After the last birds have been

   removed the sheds will be washed down, litter collected and removed and fresh

   litter placed on the shed floor ready for the next batch of birds. A growing cycle

   involves the following steps – placement of fresh litter, the placement of day old

   birds, the progressive removal of the birds as abovementioned, the cleaning of the

   sheds and the removal of the used litter. On average there will be 5.6 cycles per

   year.[4]

   [4]

   Council decision

5. By decision notice dated 30 January 2012[5], the Council advised the Appellant that

   the application was approved in part only in relation to Pads 1, 4 and 5 subject to

   conditions but refused in relation to Pads 2 and 3. The effect of that was to approve

   28 sheds over Pads 1, 4 and 5. The Council‟s grounds of refusal related to issues of

   odour and noise.

   [5]

   Appeal and Applicant’s new Proposal

6. On 11 September 2012 the Appellant‟s solicitors notified the Council‟s solicitors

   that, in its appeal, it would now be contending for only the 28 sheds on approved Pads 1, 4 and 5 plus a further 6 sheds on Pad 3, a total of 34 sheds (proposal). On

   6 July 2012 the Court granted Council leave to change its appeal position to contend

   for a refusal of the entirety of the development application, that is, including the 28

   sheds previously approved.[6]

   [6]

   Agreement re conditions

7. The parties have agreed on many of the disputed conditions and have agreed that,

   subject to the determination in relation to Condition 4, it was appropriate to defer

   the resolution of outstanding issues on the remaining conditions until this appeal

   was determined. Condition 4 is a Council requirement that all relevant lots

   comprising the site be amalgamated or the subject of a covenant to retain ownership

   until the proposed use ceased.

   Relevant planning schemes

8. There are two planning schemes to be considered. The first is that in force at the

   date of the application, the Warwick Shire Planning Scheme 1999 prepared under

   the Integrated Planning Act 1997 (“IPA”) (1999 Scheme)[7]. The second is the

   Southern Downs Region Planning Scheme prepared pursuant to the Sustainable

   Planning Act 2009 (“SPA”) (2012 Scheme), adopted by the Council on 6 August

   2012 to take effect on 14 August 2012.[8]

   [7]

   [8]

9. Under the 1999 Scheme the land is included in two land use areas, Rural and Rural

   Pastoral. Under the 2012 Scheme it is included in the Rural Zone, which is divided

   into precincts, and is within the Sandstone Rises and Traplock Hills precinct.

   Statutory assessment regime

10. The application was made under SPA and, being impact assessable, is to be

    assessed by reference to s 314 of SPA and decided by reference to ss 324 and 326. Under s 326 any decision must not conflict with a relevant instrument which

    includes a Planning Scheme[9].

    [9]

11. Under SPA s 495 the appeal is by way of re-hearing and must be decided based on

    the laws and policies applying when the application was made which is the 1999

    Scheme. It further empowers the Court to give such weight to any new Scheme the

    Court considers appropriate, hence the relevance of the 2012 Scheme. Finally, the

    onus is on the Appellant to establish that its application should be approved.[10]

    [10]

    Subject site

12. The application site comprises six allotments[11]: Lots 1 and 2 RP 36824, Lot 1238

    M 34534, Lot 1 SP 214513, Lot 1 RP 175357 and Lot 1 SP 167953. Lot 1

    SP 167953 and Lot 1 RP 175357 are included solely because it is intended that they

    provide water to the proposed poultry farm.

    [11]

13. A 5,000 SCU (standard cattle unit) cattle feed lot on Lot 2 RP 36824 was approved

    on 28 July 1989 and a development permit for Environmentally Relevant Activity

    No. 2(d) Cattle Feed Lot was issued by the Department of Primary Industries and

    Fisheries on 9 July 2007. The feed lot is not currently operating and has never

    operated at full capacity.[12] To assist in better understanding the land layout I attach

    as Annexures A and B respectively, a Smart Map of the land,[13] and a Drawing

    showing the location of the five Pads the subject of the application,[14] bearing in

    mind Pad 2 is no longer relevant.

    [12]

    [13]

    [14]

    Proposed Layout and Operation

14. Mr Carr explained[15] that he was currently a chicken grower for the poultry

    processor Inghams at his poultry farm at Caboolture. He has an agreement with an unnamed processor for this project and explained the relationship between processor

    and grower. The processor supplies day old birds and feed to the grower who then

    supplies shedding and management to grow the birds for market. Each of the

    proposed pads sits on a separate lot because the processor requires that each pad

    operation be run as an individual farm. It is proposed that each pad be separated by

    a distance of 1km which is an industry bio-security standard.

    [15]

    Disputed issues

15. The following issues fall for determination:-

(a)	Does the proposal conflict with the 1999 Scheme;
(b)	Does it conflict with the 2012 Planning Scheme;
(c)	What weight is to be given to the 2012 Planning Scheme;
(d)	Is Condition 4 (Amalgamation/Covenant) an unreasonable

imposition on the development; and

(e) If the proposal for 34 sheds is not approved, should 28 sheds be

approved?

Principles governing interpretation of Planning Scheme

1. Before dealing with each of the Schemes I set out a summary of principles relating

   to the construction of Planning Schemes from Westfield Management Ltd v Pine

   Rivers Shire Council[16]:

   [16]

“(a)	They should be construed broadly rather than pedantically
or narrowly and with a sensible, practical approach (ZW Pty
Ltd v Peter R Hughes & Partners Pty Ltd [1992] 1 Qd. R.
352 of 360; Yu Feng Pty Ltd v Maroochy Shire Council
[1996], 92 LGERA 41 at 73, 75, 78; Harburg Investments
Pty Ltd v Brisbane City Council [2000] QPELR 313 at 318);
(b)	They should be construed as a whole (Luke v Maroochy
Shire Council & Anor [2003] QPELR 447);
(c)	They should be construed in a way which best achieves their
apparent purpose and objects (Luke v Maroochy Shire
Council & Anor (SUPRA); Nordale Management Pty Ltd v
Maroochy Shire Council [1995] QPLR 368 at 370; Acts
Interpretation Act 1954 s. 14A);
(d)	In the light of the proscription against prohibiting
development contained in IPA (s 6.1.2 (3));
(e)	Statements of Intents or Aims or Objectives are intended to
provide guidance for the task of balancing the relevant facts,
circumstances and competing interests in order to decide
whether a particular use should be rejected as inappropriate
(Degree v Brisbane City Council [1998] QPELR 287);
(f)	A Strategic Plan sets out broad desired objectives and not
every objective needs to be met before a proposal can be
approved (Lewiac Pty Ltd v Gold Coast City Council [1994]
83 LGERA 224 at 230;
(g)	A Strategic Plan should be read broadly and not pedantically
(Yu Feng Pty Ltd v Maroochy Shire Council) SUPRA);
(h)	Although planning documents have the force of law they are
not drawn with the precision of an Act of parliament;
(i)	A conflict alone may not have the effect of ruling out a
particular proposal (Fitzgibbon’s Hotels Pty Ltd v Logon
City Council [1997] QPELR 208 at 212;
(j)	Implementation Objectives must be read sensibly and in
context. They are but a function of the principal objective.
The purpose of the objective is better understood by reading
all the implementation objectives and understanding the
strategy that is inherent. (Jenkinson Pty Ltd v Caloundra
City Council [2002] QPELR 527 at 528).”

Relevant extracts from 1999 Scheme

1. The following provisions of the 1999 Scheme are relevant:-

(a) 1.3.2 Land Use and Development

The division of the Shire into the various land use areas provides the

key structure of the assessment framework;

(b)	2.4	CULTURAL, ECONOMIC, PHYSICAL AND SOCIAL
WELLBEING

(i) …

(ii) …

(iii) …

(iv) …

(v)    The Shire‟s communities will enjoy a high level of amenity,

created by:-

Effective buffering of incompatible land uses, activities

and building forms; and

(c) 4.11 RURAL

4.11.1 …

4.11.2	Policy Intent
…

Regardless of whether land within this area can be

determined to be good quality agricultural land or not, it is

intended that any proposed development will facilitate the

productive use of the land or will provide for its conservation

for the use in the long term. …

The amalgamation of land titles will be encouraged in order

to facilitate more co-ordinated land management and to

preserve agricultural options in the longer term.

(d) 4.11.4 Applicable Assessment Criteria and Codes

4.11.4.1 Impact Assessment Criteria

In assessing applications for development requiring impact

assessment in the Rural Land Use Area, Council will

consider the following matters in addition to any other

relevant provisions of this Planning Scheme:

(a) …

(b) The likely impact on the landscape character and

rural amenity of the locality having regard to:

The prominence of the site and the suitability of

buffers to roads and adjoining properties.

The impact of any emissions of noise, odour,

dust or light and measures to mitigate those

impacts.

(e) 4.13 RURAL PASTORAL

4.13.1 Key Policy Statement

(i)         Pastoral land resources will be managed to ensure

their long term use for such purposes and to protect

their ecological and landscape character value.

(f) 4.13.2 Policy Intent

Land within this area is primarily intended to be used for a range of

rural purposes, including grazing and some irrigated and dry land

agricultural activity suited to its topographic and climatic

characteristics. These activities are important to the maintenance of

the rural base of the Shire‟s economy.

Within this area intensive animal and rural based industries may be

appropriate. There will be suitable separation distances to other

activities and remoteness from the more intensively settled parts of the Shire, and where potential environmental impacts may be

adequately managed …

(g) TABLE OF DEVELOPMENT – RURAL PASTORAL LAND

USE AREA

4.13.4 Applicable Assessment Criteria and Codes

4.13.4.1 Impact Assessment Criteria

In assessing applications for development requiring impact

assessment in the Rural Pastoral Land Use Area, Council will

consider the following matters in addition to any other

relevant provision of this Planning Scheme.

(a) …

(b) The likely impact on the landscape character and

rural amenity of the locality, having regard to:

The prominence of the site and the suitability of

buffers to roads and adjoining properties.

The impact of any emissions of noise, odour, dust or

light and measures to mitigate those impacts;

(h)	6.7	BUILDING DESIGN AND DEVELOPMENT LAYOUT
(i) …
(ii) …
(iii) In considering applications, Council will, to the

extent relevant, take into consideration the following

matters relating to the design of buildings and layout

of the development:

Development should be designed and constructed

to ensure that it is integrated into its surroundings

and enhances the amenity of the area.

(i) 7.13 INTENSIVE ANIMAL USE DEVELOPMENT CODE

7.13.1 Application

This code applies to intensive animal uses and development

associated with these purposes.

7.13.2 Purpose

The purpose of this Code is to regulate intensive animal uses

in a manner which seeks to minimise overall environmental

effects.

7.13.3 Controls

Performance Objective

To ensure that the impacts of intensive animal use on the

amenity of a locality are minimised.

Acceptable Solutions

Separation distances to urban, village or rural

residential areas, other sensitive land uses or

facilities and water courses are to be in

accordance with current State government

guidelines relevant to the particular type of

industry;

Performance Objective

To ensure that likely adverse impacts on

ecological and hydrological processes are

adequately mitigated.

Acceptable Solutions

Compliance with current State government

guidelines relevant to the particular type of

industry.

Guideline Odour Impact Assessment from Developments

1. The State Government Guideline referred to in the Acceptable Solutions above is

   reference to the Guideline – Odour Impact Assessment from Developments,[17]

   [17]

   issued by the Environmental Protection Agency, to chiefly assist applicants for

   environmental authorities and development approvals for environmentally relevant

   activities.[18] That document contains the following statements:-[19]

   [18]

   [19]

“(a) Odour Impact Assessments need to reflect the levels of exposure that result in nuisance in communities affected by the odour impact. The Odour Impact Assessment for a new facility or for modifications to an existing facility needs to be conducted for the purposes of achieving an environmental outcome, which meets a typical environmental authority condition for odour:

„There must be no release of noxious or offensive

odours or any other noxious or offensive airborne contaminants beyond the boundary of the site that causes environmental harm at any odour sensitive place.‟

Odour sensitive places include residences, schools, hospitals, caravan parks, national parks, shops and business premises that may be affected by odour. …”

“(b)	Odour	Annoyance	Threshold	(Concentration)
Guidelines

Proponents of new facilities may undertake an impact assessment with relevant inputs of emissions and local meteorology to an air dispersion model to provide estimates of the likely odour impacts in the surrounding environment. The inputs should be as detailed as possible, reflecting any variation of emissions with time and including at least a full year of representative hourly meteorological data. The modelled odour concentrations at the „most exposed existing

or likely future off-site sensitive receptors‟ should be

compared with the following guideline values:

2.5 OU, 1-hour average, 99.5th percentile for ground-

level sources and down-washed plumes from short

stacks; and

…

These guideline values should not be used as a „pass‟ or „fail‟ test as there are a number of limitations in modelling. Sources of uncertainty include odour sources underestimated or overlooked, short term peak emissions such as turning a compost window not catered for in the guideline, the guideline not being stringent enough for specific substances of greater offensiveness, variability and emission rates, models under predicting actual concentration and use of peak to meet ratios too low for actual disbursements. However if the modelled odour concentrations at the „most exposed existing or likely future off site sensitive receptors‟ are less than the guideline values then adverse chronic odour impacts are not likely in most cases. …”

“(c)	Sensitive Receptor
Sensitive receptor means:-
(a) A dwelling, mobile home or caravan park, residential marina

or other residential premises; or

(b) …

(c) …

(d) …

(e) …

(f) …

(g) …

It includes the curtilage of such any place and any place known or likely to become a sensitive place in the future.” (emphasis added)

Evidence re odour

1. Two air quality (odour) experts gave evidence, Mr Galvin (Appellants) and Ms

   Richardson (Council). They produced three joint reports[20] dated respectively 22

   August 2012, 7 September 2012 and 5 October 2012 together with an individual

   report each.[21] The third report was prepared on 5 October 2012 pursuant to an order

   of the Court of 3 October 2012, two days before the hearing. That order was made

   against the background of the delivery on 21 September 2012 by the Council of

   Amended Notice of Disputed Issues.[22] That document put the Appellants on notice

   that the Council would be relying upon land owned by submitters, Mr and Mrs

   Wilson and Mr Usher,[23] as containing likely future sensitive receptors. If

   established, they would fall within the above definition of sensitive receptor.

   [20]

   [21]

   [22]

   [23]

   First joint air quality report 22 August 2012

1. This report followed the first meeting of the experts on 30 July 2012 and records

   agreement on the following[24]:-

   [24]

(a) That the Queensland Odour Guideline (QEPA 2004)[25] was the

[25]

appropriate benchmark for odour from the farm;

(b) If Lot 105 was not held by the appellant, it would be a critical

receptor with regards to the development in that the development

could only proceed on the basis that the entirety of that lot was not

covered by the C99.5 1 hr = 2.5ou line. The modelling predictions for

the original five farm application, as lodged with the application,

identified that the whole of Lot 105 was predicted to be covered by

odours in excess of C99.5 1 hr = 2.5ou;

(c) K = 2 odour modelling provided with the application is not in

accordance with the 2011 Poultry Odour Modelling Guideline which

recommends adoption of a K = 2.2 emission rate. This represents an

increase in emissions of approximately 10 per cent in the emission

rate adopted for the odour assessment lodged with the application.

Mr Galvin in his evidence[26] explained what was meant by the K factor. He said that

originally when the odour emissions model used for modelling chicken farms was

developed, the K factor was used in a way to effectively rate well and poorly run

farms.The K factor is struck by measuring the amount of odour coming out of the

shed and the odour concentration so that an odour emission rate can then be

calculated. The odour emission rate is then compared to the kilograms of birds in the shed at the time by reference to the number of birds and their estimated weight.

Calculations are then done to arrive at the K factor.[27]

[26]

[27]

Second joint air quality report 7 September 2012

1. In this report[28] the experts recorded their agreement on, relevantly, the following

   [28]

   issues:-

(a) that the Queensland odour guideline defining a criteria of 2.5 odour

units (OU) as the 99.5th percentile of hourly values over a year was

the relevant odour criteria for the proposal when assessed at the

nearest sensitive receptors. Those receptors are identified in the first

joint report Figure 1 being the nearest existing residences;

(b) a 28 shed farm on Pads 1, 4 and 5 with staged bird placement,

namely, approximately one week spacing between commencement of

stocking at individual farms was considered acceptable from an

odour perspective subject to suitable conditions; and

(c) as to Lot 105, there may be scope for construction of a further six

sheds on Pad 3 subject to Lot 105 being purchased by the Appellant

or the resolution of the issue of a potential dwelling on that lot

unaffected by odours.

Mr Galvin’s individual report 17 September 2012[29]

[29]

1. In this report, Mr Galvin considered emission rate data and addressed the concern

   expressed by Ms Richardson in the second joint acoustic report. That concern was

   what she saw as the potential for coincidence of maximum emission events with unfavourable meteorological conditions which she considered could increase the

   predicted odour concentration surrounding receptors by 25 per cent or more. Mr

   Galvin‟s experience was that that figure was typically plus or minus 10 per cent. He

   confirmed in this report he was still content with a K = 2.2 factor to take into

   account his plus or minus 10 per cent variations.

   Ms Richardson’s individual report 21 September 2012

2. In her individual report[30] Ms Richardson expressed the following views:-

   [30]

(a) In relation to the modelling prepared by Mr Galvin relating to a 34

shed farm, “all in” bird placement being Figure 2 in her report[31] did

[31]

not address her earlier expressed concerns as to the underestimation

of the potential for higher than average emissions to occur;[32]

[32]

(b) The modelling does not consider the potential for worst case co-

incidence of poor dispersion conditions and maximum odour

emissions[33];

[33]

(c) That modelling Mr Galvin represents “average” emissions for a

modern, recently constructed and well run meat chicken farm but

does not represent the potential for varying management regimes

over time, different operators, deterioration of the farms over time

and the varying levels of maintenance and operations as can arise.

Further, her concern as to the coalescence of worst case coincidence

of poor atmospheric dispersion conditions with maximum odour emissions was not addressed in relation to the additional six sheds on

Pad 3 making up the 34 sheds[34];

(d) Accordingly, there is no sufficient justification provided by the

Galvin modelling for further expansion of the approved number of

farms to include six sheds on Pad 3, the 34 shed proposal.

[34]

1. In the final paragraph of her report, prior to the conclusions, Ms Richardson said:[35]

   “It is noted that, even assuming that a Figure 2 is representative of

   the worst case impacts, there is a significant increase in the odour affected areas for Lots 105, 1203, 1239 and 1321 on a M34534 and Lot 737 on a M34317 for the 34 shed option. These allotments do not currently have residential properties constructed, hence the risk of unacceptable odour impacts is potential rather than actual. Despite this, I note that the owners of Lot 1203 on M34534 have recently indicated that they are considering developing this lot for residential purposes. A significantly increased area of impacts for a 34 shed proposal is expected to impose a constraint to development on a far greater portion of these allotments, than for the 28 shed scenario, particularly for Lot 737 on M34317, and Lots 123 and 105 on M34534. …

   [35]

   Third joint air quality expert report 5 October 2012

2. The third joint air quality export report[36] identified, in Figures 1 and 2, the proposed

   residential locations identified by the witness statements of Mrs Wilson of 28

   September 2012[37] and Mr Usher of 3 October 2012[38] except lot 1239 which the

   Council was given leave at the trial to rely on. In her statement Mrs Wilson

   identified the location where she says her husband and her intend to build a house.[39]

   Likewise Mr Usher identified[40] locations of potential house sites on his land,

   namely, Lot 105, Lot 1239, Lot 1321 and Lot 1591, there being an existing tenanted

   house on the remaining Lot 737.

   [36]

   [37]

   [38]

   [39]

   [40]

3. I shall return to those statements when considering whether the sites identified by

   Mrs Wilson and Mr Usher constitute sensitive receptors as being places likely to

   become a sensitive place in the future within the definition of sensitive receptor in

   the Impact Assessment Guideline.[41]

   [41]

   Conclusions of experts in third joint air quality report

4. Both Mr Galvin and Ms Richardson agreed,[42] that in the event that the Court

   [42]

   determined that any of the locations identified by Mrs Wilson and Mr Usher were a

   sensitive place, their modelled odour impacts would indicate non-compliance of the

   Appellant‟s proposal with the relevant odour criteria in both the 28 and 34 shed

   scenarios. Ms Richardson acknowledged[43] that this was contrary to the view

   expressed by her in the second joint report, but at the time of that latter report she

   was not aware of the evidence as to potential house sites on the Wilson and Usher

   land. They both acknowledged that, as all the proposed house locations in question

   were within the 1500m planning buffer for the existing feedlot approved, they

   understood that the odour impacts of that feedlot on those relevant locations would

   have to be determined in any application by the Wilsons or Mr Usher for a material

   change of use, namely, the construction of a residence.

   [43]

   Acoustic Experts

5. The Acoustic Experts, Mr Goodfellow (Appellant) and Mr King (Council) provided

   three joint reports dated respectively 23 August 2012, 5 September 2012[44] together

   with an individual report each.[45]

   [44]

   [45]

   First joint acoustic report 23 August 2012

6. In this report the experts agreed on the following:[46]

   [46]

(a)	The appropriate evening LAeq and night time LAmax criteria;
(b)	With the inclusion of acoustic barriers on Pad 1 the 5 shed poultry

farm would achieve the Laeq noise criteria at existing sensitive

receivers. The acoustic barriers on Pad 1[47] are four metres in height;

[47]

(c) The five pad (Pads 1, 2, 3, 4 and 5) proposal would achieve the

LAmax noise criterion nominated by the experts at existing sensitive

receivers. Those sensitive receivers were nine existing houses and

Lot 105 ML 622;[48]

[48]

(d) The assessment of acoustic impact on Lot 105 included mitigation on

Pads 2 and 3.[49] On Pad 3 the sheds are to be divided into two groups

[49]

of five with a five metres acoustic barrier at the southern end of each

group, that is at the Lot 105 end of each group;[50]

[50]

(e) As to Lot 105, compliance with noise criteria would be achieved

over the southern half of that lot only so that if a dwelling was

constructed in that southern area the compliance with noise criteria

would be achieved;

(f) The 3 Pad (1, 4, 5,) 28 Shed proposal should be approved with

respect to acoustic issues with appropriate conditions.

Second joint acoustic report 5 September 2012

1. The experts met again on 4 September 2012 to consider additional mitigation

   options with respect to Lot 105 for a 4 Pad (1,3,4,5) and 5 Pad farm. The 4 Pad

   proposal considered involved 38 sheds with 10 sheds, not 6, on Pad 3 as currently proposed. They repeated their agreement on the matters in the first report and

   agreed that if a dwelling was constructed on Lot 105 ML 622 in the area shaded in

   Figure 4,[51] then that 38 Shed 4 Pad proposal would comply with noise criteria. The

   shaded area in Figure 4 covers substantially the whole of Lot 105 apart from a

   section in the north western corner. Relevantly, the conclusion regarding the 4 Pad

   proposal involved acoustic mitigation on Pad 3 similar to that to be described

   shortly in relation to the third joint acoustic report under the heading “balance lots”.

   [51]

2. They acknowledged that it was for others to determine whether it was acceptable to

   restrict future dwelling placement on Lot 105. If that was deemed acceptable then

   the 34 Shed proposal should be approved with appropriate conditions.[52]

   [52]

   Goodfellow individual acoustic report 17 September 2012

3. Subsequent to the second joint acoustic report which considered the four pad

   proposal with 10 sheds on all of Pads 1, 3, 4 and 5, Mr Goodfellow was notified of

   further configuration for a four pad farm with 34 sheds being the appellant‟s current

   proposal, with 10 sheds on Pads 1, 4 and 5 and 6 sheds on Pad 3. He concluded that

   if that four pad, 34 shed proposal was approved with appropriate conditions then a

   future dwelling could be constructed on Lot 105 ML 622 within an area nominated

   by him in his Figure 7.[53] That figure shows a blue shaded area identifying the

   agreed acoustic criteria compliance for Lot 105 being Figure 4 in the second joint

   report plus an additional orange shaded area in the northwest corner of Lot 105

   being an area which met Mr Goodfellow‟s acoustic criteria only. That difference of

   criteria between Mr Goodfellow and Mr King resulted from a difference of view in the first joint report as to the treatment of ambient noise levels. Mr King took the

   view that Mr Goodfellow‟s assessments did not specifically take account of existing

   ambient noise levels but rather applied Planning Levels on the basis of adopted

   minimum background noise levels.[54]

   [53]

   [54]

   King individual acoustic report 22 September 2012

4. This report[55] also considered a four pad 34 shed proposal. Mr King considered

   [55]

   further noise assessment information provided by Mr Goodfellow on 14 September

   2012,[56] relating to the 34 shed scenario on Pads 1, 3, 4 and 5 but considered that the

   information provided changed the resultant noise impact at existing off-site

   sensitive receptors little from that considered in the second joint report. He

   considered the reduction from 10 to 6 sheds on Pad 3 as having a consequential

   minor decrease only in the noise impact on Lot 105, with the result that part of Lot

   105 still experienced noise levels above the noise limits he would recommend. He

   made the point that even under Mr Goodfellow‟s noise limits part of Lot 105 would

   not comply with those noise limits. He concluded by saying there is no meaningful

   change to his conclusions in relation to the four pad scenario addressed in the

   second joint report to the current four pad 34 shed scenario.[57]

   [56]

   [57]

   Third joint acoustic report 25 September 2012

5. This is the most recent report. It considered the potential impacts of noise on the

   Wilson and Usher land from the Appellant‟s current proposal of the four pad, 34

   shed operation. The experts agreed on the following:-

(a) The 4 Pad (1, 3, 4 and 5) 34 shed proposal would achieve the LAMAX noise

criteria at existing sensitive receivers. With the inclusion of acoustic

barriers on Pad 1 (Figure 3 First Joint Report) this proposal would also

achieve the AEQ noise criteria at the existing sensitive receivers.[58]

[58]

(b) Lot 105 (Usher)

The development of the four pad, 34 shed operation would result in

compliance with noise criteria over a large part of Lot 105 as depicted in

Figure 9 of their report.[59] That shows the blue shaded area previously

[59]

mentioned covering, as they said, a large part of Lot 105 which is the area

both experts agree meets the criteria.As I have said, there is a further lighter

orange shaded area added to the noise criteria compliance area which

section Mr Goodfellow, alone, considers also meets the criteria;

(c) Balance Lots

As to the balance area containing Lot 1203 (Wilson), Lot 1591, Lot 737

and Lot 1321 (all Usher), again the experts concluded that compliance with

the agreed noise criteria can be achieved over a large part of each of those

lots. This further acoustic assessment producing the above results included

acoustic mitigation on Pad 1 and Pad 3.60 As to Pad 1 the acoustic

mitigation was the subject of the first joint acoustic report61 which shows a

four metre high acoustic barrier on the western end of each of the eight

sheds on Pad 1. As to Pad 3 the acoustic mitigation is to be found in figure 8 of this report62 and it shows a four metre high acoustic barrier around the

top three of the six sheds located on the northern portion of Pad 3 with a

similar continuous barrier wrapped around the southern and south-eastern

corner of the pad from a line from the western boundary of the western

most shed on the southern end continuing along the bottom of the whole

pad towards the east and wrapping around the southeast corner.

Town planning evidence

1. Town planners, Mr Toombs (Appellant) and Ms Doherty (Council) gave evidence.

   They provided a joint report of 10 August 201263 and individual reports of

   17 September 201264 (Toombs) and 24 September 201265 (Doherty). Mr Toombs

   also provided a further response dated 24 September 2012 which for convenience is

   in the same exhibit as his 17 September 2012 report.66

   Joint report 10 August 2012

2. In this joint report addressing the 5 Pad original proposal the experts agreed that, in

   order to achieve compliance with the 1999 Scheme, the odour and noise modelling

   needed to demonstrate that sensitive receptors would not be unacceptably impacted

   upon. They said Lot 105 ML 622 was to be treated as a sensitive receptor.67

   Toomb’s report 17 September 2012

60  

Exhibit 5, paras 26 and 27.

61  

Exhibit 5, p 13, figure 3.

62  

Exhibit 5, p 52.

63  

Exhibit 17.

64  

Exhibit 22.

65  

Exhibit 28.

66  

Exhibit 22 p 16.

67  

Exhibit 17 para 6.1.

1. This further report of Mr Toombs addressed the Appellant‟s current 34 shed

   proposal over Pads 1, 3, 4, and 5. Mr Toombs‟ view was[68] that, on the basis the 34

   sheds achieved the relevant environmental criteria with regards to odour and noise

   emissions, compliance with the 1999 Scheme would be achieved. On that basis he

   said the 34 shed development should be approved subject to conditions.

   [68]

   Toomb’s report 24 September 2012

2. Mr Toombs‟ further report[69] was produced against the background of the identified

   house sites on the Wilson and Usher land. He said Lot 1203 M 34534 (Wilson); Lot

   1591 M 34569, Lot 737 M 343317 and Lot 1321 M 34534 (Usher blocks), should

   be treated as “likely future sensitive receptors in the same manner as Lot 105

   ML 622”. As to compliance with the 1999 Scheme, Mr Toombs said that was

   dependent upon ensuring a reasonable opportunity for construction of a dwelling

   house was maintained for each of these allotments to ensure achievement of

   relevant environmental standards relating to noise and odour.

   [69]

   Doherty report 24 September 2012

3. In her report Ms Doherty concluded, that having regard to the opinion expressed by

   Ms Richardson as to the impact on sensitive receptors, the development of a 34 shed

   proposal could not comply with the 1999 Scheme. As to the 28 shed proposal she

   expressed the view that it could comply with the planning scheme given that there are building envelopes available on all the sensitive receptor allotments of Wilson

   and Usher.[70]

   Are the Wilson and Usher identified house sites “likely future sensitive

   [70]

   receptors”?

4. It is appropriate now to deal with the issue of whether the house sites identified by

   the Wilsons and Mr Usher can be properly categorised as “likely future sensitive

   receptors” so as to qualify as sensitive receptors within the definition of that term in

   the Odour Impact Assessment Guideline.[71] It will be recalled that the definition of

   [71]

   “sensitive receptor” is in these terms:-

   “Sensitive receptor

   Sensitive receptor means:-

(a) a dwelling, mobile home or caravan park, residential marina or other

residential premises; or

(b)	… or
(c)	… or
(d)	… or
(e)	… or
(f)	… or

(g) …

It includes the cartilage of such any place and any place known or likely to

become a sensitive place in the future.” (emphasis added)

The Wilson house site

1. Mrs Wilson in her statement[72] said that she and her husband run approximately 92

   head of cattle on Lot 1203 M 34534 and spend about 30 hours a week working the

   cattle. They intend building a house on the land at some point in the future at the

   location marked on the attached plan to her statement.[73] Mrs Wilson was

   unequivocal in her statement of intention to build the house on the preferred site.[74]

   This was despite cross-examination as to the possibility of other and better sites on

   the land and suggestions that there was a division between her and her husband as to

   the best site.

   [72]

   [73]

   [74]

   Usher’s house sites

2. Mr Usher is a 35 year old grazier and gave evidence that he had inherited his

   holdings upon the passing of his uncle and then added to those holdings from time

   to time.[75] There was a pre-existing house on Lot 737 M 34317 which he currently

   lets out. He said he had no current intention of selling his land in whole or part, but

   that those intentions may change for a range of reasons including rural economic

   conditions, his state of health, or some unanticipated factor notwithstanding his

   present aspirations. He considered there was a real risk that part of the Usher land

   would be sold in his lifetime.[76]

   [75]

   [76]

3. Mr Usher further said[77] that given the provisions of both planning schemes and the

   proximity of his land to Warwick, he had been considering for some time erecting

   dwellings on some of the allotments presently without a house, to provide a potential additional rental income stream. Those allotments are the ones he had

   identified as housing sites.[78]

   Arguments on the likely Sensitive Receptor issue

   [77]

   [78]

   Appellant

1. The Appellant argues that, in interpreting the meaning of the term, “likely future

   sensitive receptor”, the word “likely” is to be read as “probable” which is consistent

   with the definition of that term in the Oxford English Dictionary.[79] In its view, the

   [79]

   relevant Guideline[80] is not to be interpreted as relating to receptor locations which

   [80]

   are mere possibilities. The Appellant says that it would be impossible for the Court

   to conclude that any of the possible house sites in question is a likely future

   sensitive receptor. In relation to the Wilson site, it says that construction of a house

   would require development approval which would present considerable obstacles,

   namely:-

(a) The lot has no direct access to a constructed road and under the 2012

Scheme a lot must have frontage to a constructed road which links

with a constructed road network.81

(b) It is within 1.5km of the approved feedlot on the Appellant‟s land

which is inside the separation distance of 1500m between a dwelling

and a cattle feedlot of 1000 standard cattle units or more in acceptable outcome AO5.2 of the Residential Uses Code of the 2012

Scheme.[82]

[82]

1. As to the Usher house sites, it is said the same development approval obstacles

   abovementioned present in relation to three of the Usher lots (1591, 737 and 1321)

   being within the 1500m separation distance between a dwelling and a cattle

   feedlot[83]. As to the constructed road requirement the Appellant points to the fact

   that the first 500m of Aspinall Road from the south is not a constructed road,[84] and

   the distance from Aspinall Road and Gravel Pit Road to the house sites on Lot 1239

   is 2.4km, and Lot 105 2.8km.[85]

   [83]

   [84]

   [85]

2. Against the above background the Appellant says that it would be both impossible

   and inappropriate for the Court to pre-judge the outcome of any application for any

   of the subject houses given the lack of any evidence to address the obstacles

   identified, and the fact that the decision is for the Council at the appropriate time,

   and not the Court, except in the clearest of exceptional circumstances.[86] As was

   held in Walker v Noosa Shire Council,[87] it will only be in circumstances where there

   is a clear futility in such an allegation, or it is tainted with an incurable illegality,

   that it would be justifiable for a Court to pre-judge an application.

   [86]

   [87]

3. Finally, in relation to both the Wilsons and Mr Usher, the Appellant points to the

   fact that neither referred to any house plan or concepts, and Mrs Wilson was quite unaware of the costs involved in creating constructed road access to her property,

   although she acknowledged it would be a significant amount.

   Council’s response on likely future sensitive receptor issue

4. The Council submitted that the correct meaning of “likely” is a “real, not remote

   chance” and relies upon KT Corporation Pty Ltd v Logan City Council[88] where

   [88]

   Skoien SJDC said:-

“[13]	The word „likely‟ had been variously interpreted. A useful start is the definitions in the Dictionary. The Shorter Oxford English Dictionary gives, relevantly, „probable‟, as does the
excellent Encarta Dictionary. The High Court, in R v Boughey (1986) A. Crim. R 156 discuss the meaning of the word. Gibbs CJ and Brennan J were most influenced by the fact that the word was used in a statute to define murder (an act „likely to cause death‟) and the seriousness of that
offence led them to view that probability was meant. Mason, Wilson and Deane JJ came to the same conclusion but in discussing the word said that its ordinary meaning was a „substantial chance, a real, not remote chance, regardless of
whether it is more or less than fifty percent.‟ That was also
what Gibbs CJ, Mason, Wilson and Dawson held in Waugh v Kippen (1986) 64 ALR 195, where the phrase was „likely to cause risk of injury‟. I propose to apply that.”

1. The Council pointed to the evidence of Mrs Wilson; that she and her husband

   intended to develop the land in the location identified,[89] and were not deterred by

   the prospect of road construction and other costs.[90] As to Mr Usher, the Council

   says that whilst his present intention is to continue to graze cattle he has indicated a

   long term intention to develop the land with houses for rent to diversify his income

   stream. I think it is put too high to say he had developed an intention. His evidence

   was, he was considering that option.[91] The Council further argues that the fact that any construction of houses by Mr Usher, if it happens, may be long term; that does

   not alter its proper categorisation as a real not a remote chance.

   [89]

   [90]

   [91]

   Conclusion re likely future sensitive receptor issue

2. I accept that the meaning attributed to the term “likely” by Skoien SJDC in KT

   Corporation Pty Ltd v Logan City Council and State of Queensland relied on by the

   Council is the appropriate test. That involves determining whether there is a

   “substantial chance, a real, not remote, chance, regardless of whether it is more or

   less than 50 per cent” of Mrs Wilson or Mr Usher constructing a residence on the

   sites they have identified. I shall consider them separately.

   The Wilson residence

3. Despite the doubtless strong intention on the part of the Wilsons to build a dwelling

   on the site identified by them on Lot 1203, the reality is that Council approval

   would be required. The Appellant has identified obstacles to be overcome namely

   the cost of a constructed road to its frontage and the fact that the lot is within the

   1.5km separation distance of the approved cattle feed lot. The Appellant rightly

   points out that it is not for this Court to make any findings on any such application

   except in exceptional circumstances which do not apply here. It seems to me that

   for the Wilsons to satisfy the Court that their designated future residential site is a

   likely future sensitive receptor, they must do more than simply express that desire

   and intent. No evidence was adduced addressing the prospects of a future approval

   under the 2012 Scheme specifically the obstacles raised by the Appellant and any

   other which may confront them. Such evidence would assist the Court in

   determining whether in any future application for approval for the residence the prospects of success such as to make that chance of success substantial or real rather

   than remote. Any opinion of the Court based on such evidence would be simply

   that – an opinion, which the Council, in any later assessment of such an application,

   would be not be bound by. I do not speak here of the preparation in detail of a fully

   fledged application but rather evidence from experts in the field as to their opinion

   of the likelihood of success.

   Mr Usher

4. The same considerations apply to Mr Usher who has not even, at this stage,

   formulated an intention to build the subject residences but is simply considering that

   as an option down the track depending on some or all of those factors he identified

   coming to fruition. In that sense he is in a weaker position than the Wilsons.

5. I am not satisfied that any of the lots of Mr and Mrs Wilson and Mr Usher are future

   likely sensitive receptors.

   Arguments re conflict with 1999 Scheme

   Appellant

6. The Appellant asserts that the only issue arising under the 1999 Scheme is, whether

   from an odour perspective, the six sheds on Pad 3 are acceptable. If they are, it

   says, there is no conflict with the Scheme.

7. In support of its position the Appellant pointed to the agreement of the odour

   experts that a 28 shed farm was considered acceptable from an odour perspective subject to suitable conditions[92] with the potential for 6 further sheds on Pad 3 if the

   odour issue was resolved.

   [92]

8. As to noise[93] the Appellant makes the point that the experts agreed that both the

   LAMX (night-time) noise criteria and the LAEQ (evening) noise criteria would be

   achieved in the 4 Pad (134 and 5) 34 shed proposal[94] though in relation to the

   evening criteria that would be achieved with the inclusion of the acoustic barriers on

   Pad 1. As to Lots 5, 1203, 1591, 737 and 1321[95] were to a large part noise

   compliant by reference to the agreed criteria not leaving aside the issue of whether it

   is acceptable that any of those lots would not be noise compliant.

   [93]

   [94]

   [95]

9. As to the Town Planning evidence the appellant points to the town planner‟s joint

   report[96] where they state that the noise and odour modelling at that point

   uncompleted, needed to demonstrate that sensitive receptors would not be

   unacceptably impacted.[97] They further agreed that the reasonable amenity test for

   poultry farming does not require noise and odour to stop at the boundary of the land

   the subject of the Development Application but rather should be measured at the

   nearest sensitive receptors.[98]

   [96]

   [97]

   [98]

10. The Appellant also relies upon the evidence of Ms Doherty the Council planner and

    to her report of 24 September 2012,99 prepared after she had seen the first Joint

    Acoustic Report of 23 August 2012 and the second Joint Air Quality Report of 7 September 2012.100 In that report Ms Doherty asserted that the potential noise

    impacts from a 34 shed farm as proposed would not compromise the 1999 Planning

    Scheme.101 As to odour, she said that all sensitive receptors would not experience

    odour nuisance from a 28 shed (3 Pad) farm and that there were building envelopes

    available on all sensitive receptor allotments. She considered a 28 shed, 3 Pad farm

    could comply with the 1999 Scheme and could be approved without compromising

    that Scheme.102

11. Further Ms Doherty gave evidence at the hearing consistent with the above opinions

    expressed and said she unhesitatingly supported an approval of the 28 shed proposal

    under the 1999 Scheme103

    Council Submissions re conflict with 1999 Scheme

12. The Council stepped away from the evidence of its own town planner, Ms Doherty

    as to her opinion that a 28 shed proposal would not conflict with the 1999 Scheme.

    The Council says it does not share that view given the evidence put before the

    Court. It says that it does not matter which proposal is considered, be it 28 or 34

    shed, a decision to approve the development application in part would conflict with

    the 1999 Scheme.

13. Any such approval, it is said, would conflict with the Intensive Animal Use

    Development Code particularly s 7.13.3104 which is set out above.105 That section

99  

Exhibit 28

100  

Exhibit 28, paras 5.12 and 5.16

101  

Ibid, para 5.15

102  

Ibid, paras 5.24 and 6.2

103  

Transcript 5.7, 5.45-55

104  

Exhibit 6, p 46

105  

Page 12 of this judgment

contains the Performance Objective which requires any such use to ensure that the

impacts of intensive animal uses on the amenity of a locality are minimised. In the

Council‟s view the evidence supports the conclusion that the proposal will not

achieve that and that it has not been designed with this town planning purpose in

mind. Rather, the Council says, it has been designed to achieve appropriate industry

levels of internal separation for bio-security reasons rather than for good town

planning reasons.

1. As to the siting of the proposal the Council points to four indicia evidencing that it

   has not been designed to minimise impacts on the amenity of the locality namely:-

(a) The poor quality of separation distances between the pads

particularly Pads 3, 4 and 5 from land to the west which is the

Wilson land and the majority of the Usher land;[106]

[106]

(b) Maintenance of the internal 1,000 metre bio-security separation

distances between pads at the expense of separation distances from

that land to the West of the site;

(c) The need to provide 1,000 metres of acoustic barrier 4 metres in

height to address impacts; and

(d) The fact there is sufficient land on the site to achieve appropriate

setbacks to the boundaries to provide an opportunity to achieve the

level of development proposed.

1. The Council argues that the proposed layout also conflicts with s 4.11.4 1(b) and s

   4.13.4.1(b) of the Scheme[107] which require the assessment manager to consider the

   location of the proposal on its site and the impacts of that location on character and

   amenity. These two sections are set out in paragraph 17 above.

   [107]

2. The Council then says that the proposal will not minimise the impact on amenity

   when regard is had to the likelihood of future sensitive receptors and relies upon the

   future house sites identified by the Wilsons and Mr Usher on their respective lots. I

   have already determined that none of those lots are likely future sensitive receptors.

3. As to the nature and extent of the conflict with the 1999 Scheme the Council says it

   is a major conflict. It says that the encouragement offered in the Planning Scheme

   Area for the conduct of intensive animal industries is not unqualified and that one

   qualification is that appropriate separation distances are provided to sensitive land

   uses. In its view the proposal effectively ignores separation distances to the West of

   the subject site and that appropriate separation distances can only be there achieved

   if future development of sensitive uses, such as a dwelling house, is excluded on the

   Wilson and Usher land to the West. In summary the Council says that the poor

   layout is the product of commercial imperatives rather than town planning

   considerations and that the proposal, in any form, should be refused is excluded.

   That is particularly so given that the development could proceed, in the Council‟s

   view, in a way where suitable separation distances can be readily achieved.

   Appellant’s response to Council Submissions re conflict with 1999 Scheme

4. In response to the Council‟s submissions the appellant rejects the suggestion that

   any conflict arises with s 7.13.3 of the 1999 Scheme. It says that, subject to the

   likely future sensitive receptor issue which I have determined, the odour experts

   agreed that there was compliance. That agreement was in relation to the 28 shed

   proposal. As to the provision contemplating the minimisation of impacts the

   appellant makes the point that courts have accepted that such phrases must be read

   in context and that it must be taken into account that any development will generally

   result in some impairment to amenity.[108]

   [108]

   Conclusion re conflict with 1999 Scheme

5. I am not persuaded by the Council‟s argument that the appellant has failed to

   minimise the impact of the proposed 28 shed development. All of the odour

   acoustic and town planning experts have concluded that a 28 shed proposal does not

   conflict with a 1999 scheme. As to the minimisation of impacts, I am satisfied that

   the Appellant has adequately addressed the impacts minimisation requirement.

   Minimisation of impacts on amenity is a common theme in planning schemes.

   That must be read with all other provisions of the Scheme. It is but one indicia of

   assessment and, requires minimisation of impacts to be addressed. It does not

   require their eradication nor the minimum possible relevsnt distance in each case.

   Some impacts from noise and odour will always be attendant upon development of

   this type until the human race masters control of the elements, which, I suspect is

   some way off. With the best modelling in the world based on empirical data,

   hitherto unseen meteorological phenomena are always possible. All experts agree

   that the level of amenity sought by the 1999 Scheme in relation to a 28 shed proposal will be achieved. I see no conflict between that proposal and the Scheme.

   As to the 34 shed proposal now proposed by the Appellant, I consider it is in

   conflict with the Scheme given the odour impact on Lot 105.

   2012 Scheme

6. As earlier stated, this Scheme was adopted by the Council on 6 August 2012 and

   took effect on 14 August 2012. Ms Davies, the Council‟s Manger of Strategic

   Planning who had the responsibility to prepare this Scheme gave evidence that the

   planning process commenced in 2008.[109] The public consultation period was from

   28 July 2011 to 16 September 2011.[110] Attachment C to this judgment is a

   chronology of events extracted from the appellant‟s written submissions.[111] Under

   this Scheme as I have said the site is within the rural zone and the Sandstone Rises

   and Trap Rock Hills precinct of that zone.

   [109]

   [110]

   [111]

   Relevant extracts from 2012 Scheme

7. The following are relevant extracts from the 2012 Scheme:-

   1.            Part 1 about the Planning Scheme

   1.1 …

   1.2 …

   1.3 …

   1.4 …

1.5	Rules for determining the assessment criteria
(1)	Where there is inconsistency between provisions within the Planning Scheme, the following rules apply:-
(a) The Strategic framework prevails over all other elements to the extent of the inconsistency.
(2)	Part 3 Strategic framework
3.1	Preliminary
(1)	The Strategic framework sets the policy direction for the Planning Scheme.

(2) …

(3)

For the purpose of articulating the policy direction for the Planning Scheme, the Strategic framework is structured in the following way:-

(a)	The strategic intent;
(b)	There are seven themes that work together to articulate the complete policy direction which includes:-

(i)         Settlement pattern;

(ii)        Natural environment;

(iii)       Community identity and diversity;

(iv)       Natural resources and landscape;

(v)        Access and mobility;

(vi)       Infrastructure and services;

(vii)      Economic development

(c) …

(d) …

(e) …

(f) …

(4) 3.3.10 Element land use impacts

Incompatible uses are separated to maintain the wellbeing and health of residents and support the ongoing activity of uses that are important to the Southern Downs‟ economy and the employment of

residents and visitors. The impacts of uses are contained within

the site, identified buffer area or zoned area.

(emphasis added)

3.3.10.1	Specific Outcomes
3.3.10.1	Land use strategies
(1) …
(2) …
(3) …
(4) …
(5)	Odour generated by new intensive animal industry operations that potentially impacts in a negative manner on a sensitive receptor is contained on the same site as the intensive animal industry. This may have the effect of restricting new intensive animal industry development to very large sites.

(emphasis added)

(5) 3.4.4 Element Environmental Impacts

Adverse impacts on the environment can potentially effect quality of life and wellbeing of the community as well as the natural environment. Pollution of land, air and water is avoided.

3.4.4.1 Specific Outcome

(1) New development is located, designed, operated and managed so that it does not result in pollution of air, land or water and adverse environmental impacts are avoided or effective mitigation measures are implemented.

(6) 3.6.4 Elements Base – Intensive Animal Industry

Intensive animal industry operations are likely to be a continuing feature in the Southern Downs. Such uses require an adequate water supply, good road access and large lots on which to deal with land management requirements and incorporate buffering. The uses are challenging to locate having regard to the high level of rural land fragmentation in the region.

3.6.4.1 Specific Outcomes

(1)	Intensive animal industries are an important facet of the rural economy and are likely to be a continuing feature in the northern part of the region with potential to consolidate into a fewer number of larger operators and potential to diversify into poultry. Large intensive animal industries are established on suitable sites located in the Sandstone rises and traprock hills precinct where fewer lots are fragmented and used for residential purposes and
the impacts of the use can be contained on a large
lot. (emphasis added)

3.6.4.2 Land Use Strategies

(1) Intensive land use industries require an adequate water supply and good road access and larger lots on which to deal with land management requirements and incorporate buffering. Major challenges in locating intensive animal industries satisfactorily also relate to potential impacts on ecological values and water quality as well as conflict with other (notably residential) uses primarily as a result of odour, noise and truck traffic. These issues are particularly difficult to deal with given the level of rural lot fragmentation. New large intensive animal industries are supported in the Sandstone rises and traprock hills precinct in the western part of the Southern Downs and only where detailed site analysis confirms that the selected lot is suitable for the use in terms of good truck access, ecological impacts, effective buffering from uses that are sensitive to the external impacts of the use and water availability. The sandstone rises and traprock hills precinct has the least fragmented settlement pattern and more large lots which may allow for greater control of external impacts.

(7) Table 5.5.10 Rural zone

Use Level of Assessment

Assessment Criteria

Dwelling	Code assessment	Rural zone code
house	If:
Residential uses
(a) …	code

(b)

The lot

does not	Physical
have a	infrastructure code

frontage to
a
constructed
road; or

(c) …

Part 6 – Zones

6.1 Preliminary

Zones organise the Planning Scheme area in a way that facilitates the location of preferred or acceptable land uses.

(2) …

(3) …

(4) …

(5) …

(6) …

(7) …

(8)	The following are the zone codes for the Planning Scheme:
(a) … (b) … (c) … (d) … (e) … (f) …
(g) … (h) … (i) …
(j) Rural zone code (i) … (ii) … (iii) … (iv) … (v) … (vi) …

(vii)      Sandstone rises and traprock hills precinct

KLM …

(8)	6.2.10 Rural zone code
6.2.10.2 Purpose
The purpose of the rural zone code is to:-
Provide for a wide range of rural uses including

cropping, intensive horticulture, intensive animal

industries, animal husbandry, animal keeping and other

primary production activities;

…
..
(2)	The local government purpose of the zone code is as follows:-
(a) … (b) … (c) … (d) … (e) … (f) … (i) … (j) … (k) Provide for intensive animal industry
including feed lots, piggeries and poultry farms in specified parts of the region where potential impacts can be managed and at a scale that allows for on farm diversification consistent with management of those impacts.
(3)	The purpose of the code will be achieved through the following overall outcomes:-
(a) Zone outcomes

(i)         Land is used for a wide range of

agriculture and environmental

purposes. Within the rural zone agricultural uses will range in intensity from grazing to permanent plantations, cropping and intensive horticulture and intensive animal industry such as piggeries and feed lots. The location of the various uses depends on the available resources of water and soil, the natural environment and vegetation, access, the existing and future settlement pattern and potential for conflict with existing uses in the size and scale of the use.

(b)

(c)

(d)

(e)

(f)

(g)

(h)	Sandstone Rises and Traprock Hills
precinct	outcomes

(i) … (ii) …

(iii)       Intensive value adding rural activities and intensive animal industries are located on sites that are large enough to accommodate appropriate buffering and water/water waste treatment requirements and are accessed via a network of roads and are constructed to accommodate the traffic generated by the use.

6.2.10.3 Assessment criteria

Tale 6.2.10.3 – Rural zone – assessable developments of

Rural zone

Performance outcomes	Acceptable solutions
PO6	AO6
All uses are located,	There is no acceptable outcome
designed, orientated and	identified
constructed to minimise noise, dust, odour or other nuisance from existing lawful uses

including	rural	and
industry uses

(9) 9.3.6 Intensive animal industry code

9.3.6.2 Purpose

(1)	The purpose of the intensive animal industry code is to ensure that intensive animal industry is located, constructed and operated:
(a) …
(b) To minimise impacts on urban residents, rural residential residents and residents of nearby rural properties;
(c) … (d) … (e) …
The purpose of the code will be achieved through the following overall outcomes:
(a) …
(b) Intensive animal industry does not adversely affect the surrounding areas and is not located in close proximity to urban or rural residential areas including towns and villages where air quality, odour and noise generated by the use could have a detrimental impact on the rural residential and urban residents.

9.3.6.3 Assessment criteria

Table 9.3.6.3 – Intensive Animal Industry Code –

Assessable Development

Performance	Acceptable Outcomes
Outcomes
Control of impacts	AO5.1
PO5	New uses are separated from sensitive receptors in accordance
The use does not have	with table 9.3.6.4 or in
unacceptable impacts	accordance with the requirement
on people or	of a development approval –
properties not	whichever is the greater
associated with the use
PO8	AO5.2
The lot has an	The use does not cause
appropriate area and	environmental harm or nuisance
dimensions for the siting of:-
Separation
distances
between the use and sensitive
receptors

Table 9.3.6.4 – Intensive Animal Industry – Separation distances

Sensitive Element	Minimum Distance (Metres)
Poultry Farm	Poultry Farm
Existing houses in	More than 100,000 birds – the
the Rural zone	minimum distance required to ensure that 2.5 odour units as determined in accordance with
the Queensland guideline for Odour Impact Assessment from Development is contained on
the same land as the poultry
farm (emphasis added)

Table 9.3.6.5 Intensive Animal Industry – Boundary

setbacks and minimum site area

Use Use Use

Poultry farm – Minimum lot Minimum

more than a size setback from

1,000 birds	100 hectares	boundaries
500 metres

9.3.7 Residential Uses Code

9.3.7.2 Purpose

(1)

The purpose of the Residential Uses Code is to ensure that dwelling houses, dual occupancy, hostels, multiple dwellings and retirement facilities are located and designed to:-

(a) Meet the needs and expectations of the

community for safe, convenient, pleasant and
suitable accommodation;

(b) Be attractive and consistent with the developed character of the particular neighbourhood.

(2)

The purpose of the code will be achieved through the following overall outcome. All dwelling houses, dual occupancy, hostels, multiple dwellings and retirement facilities:-

(a) Occur only land that is suited to the development and occupation of residential buildings;

(b) Are located on land which is not in the vicinity of land uses that would adversely effect the occupation and use of buildings for residential purposes and conversely where the residential uses could prevent or inhibit the conduct of existing land uses (This is an

important provision)

9.3.7.3 Assessment Criteria

Table 9.3.7.3 – Residential Uses Code – Self Assessable and Assessable Development

Performance Outcomes Acceptable Outcomes

For self-assessable and assessable development

Access

AO2

PO2 – Dwelling houses

… are accessible to	(a)	All dwelling houses … are
vehicles from pedestrians	erected on lots that have
and cyclists and have	frontage to a constructed
access legal and practical	road.
access via constructed road that links to the existing constructed road
network

Dwelling house and Dual Occupancy – Rural Zone

PO5

AO5.2

Were located on an

All dwellings (when located on a

existing lot in proximity

different lot to the use listed

to an existing or approved

below) are separated by at least

extract of industry

the distance listed below, or the

operation or rural activity

separation distance calculated

including animal keeping

from the Department of Primary

and intensive animal

Industries and Fisheries

industries, the dwelling

publications (separation

house or dual occupancy

guidelines for Queensland

incorporates location,

piggeries and Reference Manual

design, orientation and

for the establishment and

construction measures

operation of beef cattle feed lots

that mitigate the effects

in Queensland) if it is greater.

of noise, dust, odour and
other impacts arising
from the industrial or

rural use

(a) Cattle Feed Lot

Number	Separation
(standard	Distance
cattle	(Metres)

units

1,000 or 1,500 metres

more

(c) Poultry farming

200,000 or 1,500 metres

more birds

10.10

SC 1.2 Administrative Definitions

Term Definition

Buffer An area of land, including waterways, required for maintaining separation distances:

Between different land uses;

From a major noise source

…

…

A buffer is not exclusive of

other uses and may incorporate

lower intensity activities which assist in mitigating the overall impact on external uses. As a general principle a buffer is not extended over a third party‟s

property without their consent.

Constructed A road

Road	constructed to
a minimum
standard of
4 m – 6 m width of 100 mm
compacted
gravel
Frontage to a	Vehicle
Constructed	access to a
Road	site that is via a constructed road that joins the
constructed
road network

Council’s arguments as to conflict with the 2012 Scheme

1. The Council contends that both the 34 shed and 28 shed proposals are in very

   serious conflict with the 2012 Scheme because in neither case can the noise and

   odour impacts be contained within the boundaries of the subject site. That is not

   contested by the appellant and could not be, given the evidence of the acoustic and

   air quality experts with which I have dealt.

2. The Council further argues that this represents a conflict with a planning policy

   decision of the Council embodied in the 2012 Scheme and that it is well established

   that this Court adopts a cautious approach in relation to matters of planning policy.

   It relied on Grosser v Council of the City of Gold Coast,[112] a unanimous decision of

   [112]

   the Court of Appeal where White J (as she then was), with whom Thomas and

   Williams JJA agreed, said:[113]

   [113]

“[38] The proper approach of the Planning and Environment Court and of its predecessor, the Local Government Court, to matters of planning policy has long been recognised as one of restraint. Most recently this Court affirmed the desirability of a self-limiting approach, at least when considering town planning matters in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2000] QCA 268 unreported decision of 14 July 2000. The Court quoted with apparent approval at [42] the following passage from the judgment of Quirk DCJ in Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 at 211:

„It should not be necessary to repeat it but his [sic]

Court is not the Planning Authority for the City of Brisbane. It is not this Court‟s function to substitute

planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper has to adopt (sic) (Brazier v Brisbane City Council 26 LGRA 322 at 327). As was observed by Carter J in Sheezel & Anor v. Noosa Shire Council [1980] QPLR 130 (when he then constituted this Court), it would be quite inappropriate for this Court to deal with an individual application for rezoning in a way which might be construed as determinative of some wider question. Adopting the phraseology of those cases which deal with the non-derogation principle, I feel that to allow this appeal would be to „cut across‟ in quite unacceptable manner, a planning

strategy which has been adopted by the Planning Authority and publicly exhibited for community comment.‟

This stated a proposition which the Court said was „common sense … for which no authority was required‟ [46]. See also Ampol Petroleum (Q’land) Pty Ltd v Pine River Shire Council [1989] QPLR 133 per Row DCJ at 134, 136; Bullock v Hervey Bay Town Council [1983] QPLR 98 per Carter DCJ at 100; Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205 per Quirk DCJ at 208; and the discussion in Fogg Land Development in Queensland (1987) pp 390 et seq.”

1. Council pointed to the evidence of Mr Toombs, the appellant‟s town planner,[114] in

   submitting that he acknowledged the conflict and that it was a serious conflict. I do

   not agree with that latter proposition that Mr Toombs agreed any conflict[115] was

   serious. He did acknowledge[116] that where the proposal is inconsistent with the

   forward planning decisions of a Council it could represent a conflict, but whereas the question referred to a serious conflict the answer did not. Indeed, shortly after

   that question the following exchange took place[117]:-

   “It points to a very, very serious conflict, I‟d suggest?

   Answer: Again, I would not say it is a serious conflict. If there is any inconsistency there, well there well then, as a planner we would look at the balance of the Scheme, potential impacts and then come back to the strategic framework and then measure the degree whether it is a serious conflict or not.

   [114]

   [115]

   [116]

   [117]

2. In relation to the above response of Mr Toombs, the Council points to s 1.5 of the

   Scheme providing that, in the event of an inconsistency between the provisions with

   the Planning Scheme, the strategic framework prevails over all other elements to the

   extent of the inconsistency. As the argument runs, given the nature of the conflict

   as one which is serious and squarely in conflict with the strategic framework, the

   seriousness of the conflict is not ameliorated by the prospect of an alternative

   solution. It clashes with an important planning policy. In any event, the Council

   argues, Performance Outcome PO5 (Control of Impacts) does not lend any

   encouragement to impacts extending beyond the boundaries of the site. Likewise if

   the proposal conflicts with PO5 it will have unacceptable impacts on the property

   because of its inability to comply with the overarching planning policy of

   containment of impacts within the relevant site. The conflict is serious the Council

   says because it relates to a fundamental element of the Scheme.

   Council’s arguments re weight to be given to the 2012 Scheme

3. In the Council‟s view, the 2012 Scheme should be given determinative weight in the

   application in relation to both the 34 sheds and 28 sheds, resulting in both proposals

   being refused. This is particularly so, it is said, because the proposal could be designed to fit within the land with appropriate setbacks so as to comply with the

   Scheme.

4. The Council advances the following reason as to why determinative weight should

   be given to the 2012 Scheme. Firstly, because the proposal would represent a head

   on clash with an essential element of the Scheme as was the case in Maher v Hervey

   Bay City Council.[118] The policy of site containment, it is said, is a sound one given

   the requirement of adequate buffers or separation distances to sensitive land uses

   when operating in intensive animal industry. If the policy was confined only to

   separation distances or buffers; those distances and buffers must be protected or

   controlled by the use and that control is facilitated by the site containment policy.

   [118]

5. Next, the Council points to the relative age difference between the 1999 and 2012

   Schemes. The former being at least 13 years old. It argues that the planning

   thinking behind that Scheme has been overtaken by more contemporary thinking in

   the 2012 Scheme which manifests a different direction for the future development in

   the Shire. Against this background, the proposal flies in the face of contemporary

   thinking.

6. The third reason advanced is that, whereas fairness to an applicant is not an

   irrelevant consideration with respect to the weight the Court should give to the 2012

   Scheme, nevertheless, it should be borne in mind that the Scheme only defeats the

   proposal in one sense, that is, its poor layout, not suitability of the land use in the

   precinct. All the 2012 Scheme requires is for the proposal to be redesigned to maintain impacts within the boundaries. The Council says both planners, Mr

   Toombs[119] and Ms Doherty,[120] agree this could be achieved.

   [119]

   [120]

   Appellant’s submissions re 2012 Scheme

7. The appellant says that the 2012 Scheme should not be given such weight as to

   result in a decision adverse to an approval in its favour, because the conflict with the

   site containment provisions largely arise as a result of amendments made in 2012 to

   the Scheme which was publicly advertised in 2011. Those amendments introduced

   the site containment provisions not contained in the advertised version of the

   Scheme, and are internally inconsistent with those advertised provisions which

   recognise the prospect of external impacts and identify the existing uses, rather than

   site boundary as being the point of interest for the containment of impacts. Further,

   the proscriptive site containment provisions in the Scheme Table 9.3.6.4[121] apply

   only to poultry farms and not the intensive animal industries of piggery and cattle

   and sheep Feedlot the subject of the Table. This, it is said, reflects an

   unprecedented and excessively conservative approach.

   [121]

8. The appellant compared and contrasted the existing use provisions and the site

   containment provisions to demonstrate, it said, the quite different pictures presented

   by each.

   Existing use provisions

9. Dealing firstly with the existing use provisions; the appellant identified those which

   recognise that large intensive animal industries will involve external impacts. I

   have already set out the relevant provisions of the Scheme but at the risk of

   repetition, set out those extracts relied upon by the appellant:

(a) 3.6.4 Element intensive animal industry

“...New large intensive animal industries are supported in the

Sandstone rises and traprock hills precinct...and only where detailed site analysis confirms that the selected lot is suitable for the use in terms of...effective buffering from uses that are sensitive to the external impacts of the use...The Sandstone rises and traprock hills precinct has the least fragmented settlement pattern and more large lots which may allow for greater control of external impacts.”

(b) 6.2.10 Rural zone code

“...Within the rural zone agricultural uses will range in

intensity from grazing to permanent plantations, cropping and intensive horticulture and intensive animal industries such as piggeries and feedlots. The location of the various uses depends on the...potential for conflict with existing uses...”

(c)	Table 6.2.10.3 – rural zone – assessable development rural zone
PO2 – Sandstone rises and traprock hills Uses are located on lots that are large enough to provide adequate buffers between the use and existing or potential agricultural activity on adjacent lands.”
(d)	9.3.6 Intensive animal industry code
(e)	9.3.6.2 Purpose

“(1) The purpose of the Intensive animal industry code is to ensure

that intensive animal industry is located... (b) to minimise impacts on...residents of nearby rural properties;”
(f)	9.3.6.3 Assessment criteria

Table 9.3.6.3 – Intensive animal industry code – assessable development

Control of impacts

PO(5)

The use does not have unacceptable impacts on people or properties not associated with the use.

(g)	PO(8)
The lot has an appropriate area and dimensions for the siting of: …

Separation distances between the use and the

sensitive receptors;

(h) Table 9.3.6.4 – Intensive animal industry – separation
distances
Sensitive element

Poultry farm

Existing houses in the rural zone	Piggery
Existing houses in the rural zone	Feedlot
Existing houses in the rural zone

Principal Site containment provisions

1. The principal Site containment provisions are:-

(a) 3.3.10 Element – land use impacts

… The impacts of uses are contained within the site.

(b) 3.3.10.1 Land use strategies

“(5) odour generated by new intensive animal industry operations

that potentially impacts in a negative manner on a sensitive receptor

is contained on the same site as the intensive animal industry …”

(c) 3.6.4 Element – intensive animal industry

3.6.4.1 specific outcomes

“… Large intensive animal industries are established on … sites …

where … the impacts of the use can be contained on a large lot.”

(d) Table 9.3.6.4 – Intensive animal industry – separation distances

… Minimum distances (metres)

Poultry farm

…

More than 100,000 birds – the minimum distance required to ensure

that 2.5 odour units as determined in accordance with the

Queensland Guideline for Odour Impact Assessment from

Developments is contained on the same land as the poultry farm.

(e)	Table SC1.2.2 – Administrative definitions
Buffer An area of the land … required for maintaining

separation distances;

Between different land uses

…

As a general principle a buffer is not extended over a third

party‟s property without their consent.

Circumstances surrounding introduction of the Site Containment provisions in

February 2012

1. As I have said the public consultation period for the 2012 Scheme went from 28

   July 2011 and ended on 16 September 2011. The relevant Site Containment

   provisions were not contained in the publicly notified draft but were added to the

   Scheme following a report from the Council‟s Manager of Strategic Planning, Miss

   Davis of 16 December 2011 to the Council‟s Planning and Environment

   Committee.[122] This report was considered by the Council at a Special Meeting on 6

   February 2012 some 12 days after the Council‟s 25 January 2012 approval of a 28

   shed proposal on Pads 1, 4 and 5[123]

   [122]

   [123]

Davis Report 16 December 2011

1. Attachment 2 to Ms Davis‟ report is a Report on Submissions received on the

   Appellant‟s original application.[124] That reported on two submissions, one from Mr

   [124]

   Brett Richter of Inghams Enterprises Pty Ltd and the other from Mr John Greacen.

   Ms Davis summarised the Richter submission as follows:

   “Summary of Submission

The submitter objects to the separation distances

contained in the Intensive Animal Industries code.

The submitter proposes that rather than separation

distances, reference should be made to the

Queensland Odour Guideline to provide effective buffers between poultry farms and sensitive receptors.”

In her comments on the issue Ms Davis said:-

“Council has recently considered an application for a very large

poultry farm which has provided the opportunity to ground truth (separation distances relating to Poultry farms). As a result of consideration of the application and also consideration of the matters raised in this submission it is considered reasonable to change to separation distances as outlined in the recommendation. The Queensland Guideline Odour Impact Assessment from Development is proposed to be used to provide criteria to replace separation distances….”

1. Ms Davis then recommended that the relevant Table in the advertised scheme

   dealing with separation distance for a poultry farm be amended, in effect, in the

   following manner:-

(a) The relevant Sensitive Receptor from which the distance to the

poultry farm was to be measured be changed by deleting “existing

houses in the rural zone” and inserting in lieu thereof “boundaries of

the subject site”;

(b) As to the minimum distance requirement the words – “more than

200,000 birds – 1.5km or in accordance with the requirements of

licence under the Environmental Protection Act whichever is the

greater” to be deleted with the insertion in lieu thereof – the

minimum distance required to ensure that 2.5 odour units as

determined in accordance with the Queensland Guideline for Odour

Impact Assessment from Developments is contained on the same

land as the poultry farm.”

1. A further recommendation of Ms Davis in her report was in these terms:-

   “RECOMMENDATION THAT the report of the Manager of

   Strategic Planning dated 16 December 2011 in relation to the proposed planning scheme be received and that Council:-

(a)	Resolve to approve the recommended changes to the proposed planning scheme arising from the submissions and changes to the QueenslandPlanningProvisions;
(b)	Resolve that the proposed changes do not result in the proposed planning scheme being significantly different to the version released for public consultation;
(c)	Resolve to proceed with the proposed planning scheme with the proposed amendments; and

(d) …”

The Council resolved in those terms[125]

[125]

1. By letter dated 14 February 2012[126] Ms Davis wrote, on behalf of the Council, to

   the Minister for Local Government and Planning advising that the Council had met

   on 6 February 2012 and resolved to approve recommended changes to the Scheme.

   Relevantly that letter provided on page 2:

   “As no policy changes arose as a result of this re-write it is

   considered that there is no reason for this part of the planning scheme to be re-advertised.. A new Strategic Intent has been included in the Strategic framework. This intent does not introduce new policy but distils a policy position contained in the Strategic framework.”(emphasis added)

   [126]

2. On page 3 of that same letter the Council advised:-

   “Council resolved that the planning scheme should not have to be

   renotified as a consequence of the changes resulting from consideration of the submission. Council does not believe that the changes are significant. The reasons in support of this are as follows:-

The changes do not alter a material planning issue

including a policy position. In most cases the changes

strengthen the notified planning position.

…

The number of submissions and the subject matter

indicates there is no matter of widespread public interest

in the planning scheme. The proposed changes will not
be likely to generate widespread public submissions.

The changes to the levels of assessment were minor and

unlikely to generate widespread public submissions.

The proposed planning scheme will look different from

that notified however this is largely as a result of

changes to QPP v 3 and the re-writing of the Strategic framework. The policy position has not changed as a

result of these changes to the structure of the

plan.”(emphasis added)

1. From that last extract from Council‟s letter to the Minister it is clear that the

   Council was asserting that no change of policy was reflected in any of the changes

   including, relevantly, the site containment provisions. That is contrary to the

   submissions made by Council to the Court. Its argument has been that the change

   provides for the containment of odour in site boundaries in relation to poultry farms

   are a significant change of policy so that each of them results in a head on clash

   with the scheme. I think the better view is that the Council adhered to its policy of

   protecting the amenity from offensive odours and, as a variation to that policy as

   reflected in the publicly notified scheme it added the containment provisions in

   relation to poultry farms. Those provisions do not relate to cattle or sheep feed lots

   or piggeries. Consistent with what the Council advised the Minister, it did not

   constitute a new policy but rather twigging of the existing one.

   Appellant’s asserted Scheme Interpretation and application difficulties

   resulting from Site Containment provisions

2. The Appellant made detailed submissions according to what it perceived as

   inconsistencies within the 2012 scheme resulting from the non notified amendments

   to the scheme. It also detailed what it sees as interpretation difficulties in the

   application of those provisions. However, given the view I have arrived at in

   relation to the weight to be attached to the 2012 scheme there is no need for me to

   deal with those submissions in detail. I should say however that I consider they are

   not without merit and may be something the Council might wish to address to avoid

   future difficulties .

3. Having said that, it is not for the Court to involve itself in a commentary on the

   drafting standards of Scheme amendments. The reality is that the 2012 Scheme in

   its present form was adopted by the Council and no attack has been made on its

   legitimacy.

   Weight to be given to the 2012 scheme

4. In all the circumstances I am not persuaded that the site containment provisions

   requiring odour to be contained within the subject site should be given decisive

   weight in the consideration of this application. As I have said, and consistent with

   what was advised by the Council to the Minister, no change of policy is involved

   but rather the Council has refined its existing policy by adding provisions for the

   containment of odour to the sites in relation to applications made under the 2012

   scheme.

   Conclusion

5. The application should be approved as to 28 sheds on Pads 1, 4 and 5. Before

   making the final order I need to consider condition 4 relating to amalgamation.

   Condition 4 amalgamation of Lots

6. Of the conditions attached to the Council approval of 26 January 2011 approving

   28 sheds on Pads 1, 4 and 5 was a condition that the Appellant amalgamated its lots.

   The condition is in these terms[127]:-

   “Reconfiguration of a Lot Figure 4

   Council requires the Lots to be amalgamated due to the proposed operating procedures under conditions imposed. There will be conflicts on environmental impacts if the pads are operated independently, which may happen if the Lots are not amalgamated.

   The existing allotments, including Lot 82 ML 307, are to amalgamated into one allotment and a new Certificate of Title issued to cover the newly created allotment prior to the use of the site commencing.

   ALTERNATIVELY, a statutory covenant is to be provided over Lots 1 and 2 RP 36824, Lot 1238 M 34534, Lot 1 SP 314513, Lot 1 RP 17537, Lot 1, SP 167953 and Lot 82 ML 307 to retain these lots in the same ownership until such time as the use of the land for appropriate farm ceases…”

   [127]

7. Section 345(1) of SPA relevantly provides:

“1.	A condition must:
(a)	Be relevant to, but not an unreasonable imposition on, the
development or use of premises as a consequence of the
development; or
(b)	Be reasonably required in relation to the development or use of
premises as a consequence of the development.”

It can be seen that sub-paragraphs are to be read disjunctively.

Council’s argument in support of amalgamation

1. The Council says that the amalgamation (that term is to be read as including the

   alternative of a covenant) is an orthodox course to ensure that buffering around a

   proposal to manage its impacts are secured for the long term. It says the subject

   land contains both developable area and vacant land which function as a buffer and

   that those buffers should be maintained for the life of the poultry farm. As far as the

   Council is concerned the condition is necessary to ensure that areas that fall within

   the 2.580 unit consular will not be developed with a sensitive land use. In the

   absence of amalgamation that cannot be guaranteed. Accordingly the amalgamation

   is an entirely proportionate town planning response having regard to the fact that it

   is unacceptable for land within that 2.580 unit consular line to be developed with

   sensitive land use, any proposal approved cannot operate in a way consistent with

   its environmental obligation without the provision of a buffer and both the 1999 and

   2012 schemes contemplate the use of amalgamation to achieve appropriate

   environmental outcomes.

   Appellant’s response

2. Mr Lockefeer, an experienced financial analyst in mergers and acquisitions and

   corporate finance within the banking industry, together with experience in the

   poultry industry gave evidence to the effect that amalgamation of the lots would lead to a considerable reduction in the land value, and corresponding negative

   effects on any fund raising by the Appellant using the site lots as security. The

   Council in response says that such matters of private economics are irrelevant.

3. Putting aside the financial impact on borrowing which any amalgamation would

   have, the facts are that Mr Carr, the principle of the Appellant has been involved in

   the poultry industry since the age of 14 and currently runs a successful poultry farm

   operation at Caboolture. There is not a scintilla of evidence to suggest that he

   would not run his operation on this site as responsible citizen. Ms Doherty herself

   said[128]that her concern was that, within the site area, there could be a later use

   unassociated with the poultry farm which would then be impacted upon by the

   poultry farm. She agreed that a condition to the effect that certain identified areas

   of the site not be used for a purpose not associated with the poultry farm address

   that concern.”

   [128]

   Conclusion re amalgamation

4. I am satisfied on the evidence that the Appellant satisfies both legs of SPA s 345(1)

   in that amalgamation would be an unreasonable imposition on the development and

   is not reasonably required in relation to the relevant development.

5. Overall conclusions

1.	The application is approved in relation to 28 sheds over Pads 1, 4 and 5;
2.	Condition 4 requiring amalgamation/restrictive covenant is an unreasonable

condition;

3.          The appeal is adjourned to allow the parties to resolve outstanding

conditions.

Exhibit 17, para 3.10; Exhibit 2.

Exhibit 17, paras 3.12 and 3.15.

Exhibit 5, first acoustic joint report, p 6, paragraph 20.

Exhibit paras 20 and 21.

Exhibit 2, p 49.

Exhibit 9, p 5, paras 2 and 3(d)

Exhibit 11; Exhibit 26

Exhibit 27

SPA s 314(2)(i).

Ibid, s 493(1).

Exhibit 17, paras 3.2 to 3.9.

Ibid, para 3.9.

Exhibit 10.

Exhibit 34, Figure 2.

Exhibit 25 para 10; T4.22.40-50; 4.33.20-25, .45-60.

(Unreported) Planning & Environment Court, Brisbane, 14 November 2003, 1627/03 at pp 8-9. See also Kotku Education & Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267 at [271]-[272].

Exhibit 13.

Ibid, p 3.

Ibid, p 6.

Exhibits 4 and 14.

Exhibit 20 Galvin 17.9.12; Exhibit 29 Richardson 21.9.12.

Exhibit 9 p 35.

Refer Annexure B Smart Map.

Exhibit 4, paras 14, 19, 20, 26

Exhibit 13

T 4.47.15

T 4.47.40

Exhibit 4 paras 64 and 72, 75 and 76.

Exhibit 20.

Exhibit 29.

Ibid, p 10.

Ibid paras 18 and 22.

Ibid, para 22.

Ibid, para 24.

Exhibit 29, para 26

Exhibit 14.

Exhibit 32.

Exhibit 33.

Exhibit 32 paras 6 and 7; Attachment A.

Exhibit 33 para 14; Attachment BDU1.

Exhibit 13.

Exhibit 14 paras 10, 20 and 21.

Exhibit 14 para 10.

Exhibit 5.

Exhibit 21, Goodfellow dated 17 September 2012; Exhibit 30, King dated 22 September 2012.

Ibid, 5, p 16.

Ibid, p 13, figure 3.

Ibid, p 3, figure 2.

Ibid, p 14, figure 4; p 15, figure 5.

Ibid, p 15, figure 5; p 26, figure 1.

Ibid, p 31.

Ibid, p 33, paras 23 and 24.

Exhibit 21, p 5.

Exhibit 5, p 9, para 38-40; p 20 – Attachment to conditions N1 to N4.

Exhibit 30.

Ibid, para 24.

Ibid, paras 24 to 28.

Exhibit 5, paras 24 and 25

Exhibit 5, p 53

Exhibit 22 para 8.

Ibid, p 18.

Exhibit 28 paras 5.23 and 5.24.

Exhibit 13 p 25.

Exhibit 32.

See also Exhibit 34, Figure A where all the housing sites of both Wilson and Usher are identified with a red cross.

T15-.17.50-60; T5.18.1.

Exhibit 33 para 2.

Ibid, paras 3 and 4.

Ibid, para 13.

Ibid, Attachment BDU 1; Exhibit 34A.

Sixth ed p 1602.

Exhibit 13.

Table 5.5.10 (rural zone) re dwelling house (ex.11 pp.53-54) table 9.3.7.3 (residential uses code)

PO2 (ex.11 pp.83-84), definition of “constructed road” (table SC1.2.2: ex.11 p.109), table 9.4.7.3

(physical infrastructure code) PO4 (ex.43 p.9-69)

Exhibit 11 pp 84 and 85.

Exhibit 34.

Doherty T5.77.45-78.50.

Doherty T6.2.10-35.

cf Walker v Noosa SC 1983 2 QdR 86, 89B-D, 90C; Ogilvy v Redland SC 1996 QPELR 205, 208K;

Imbercote Pty Ltd v Maryborough CC 1996 QPELR 376, 378B-C; Welsh v Burke SC 1997 QPELR

72, 75

[1983] 2 Qd R 86.

[2005] QPEC 119 at [13].

T5.15.1-7; T5.15.5; Exhibit 32 p 1.

T5.28.25.

Exhibit 33 para 13.

Exhibit 4, p 29, para 75

Ibid, p 29, para 76

Exhibit 5, p 61, paras 24 and 25

Exhibit 5, p 61, paras 26 and 27. Lot 1239 is not relied upon by Council until trial is not included but it is not the subject of any oral evidence so I intend treating it as the same category as all of the Usher lots.

Exhibit 17 of 10 August 2012

Page 6, para 5.4.5

Ibid, para 5.4.6

See Exhibit 10 Smart Map

Ibid, pp 31 and 37

See Lockyer Valley RC v Westlink Pty Ltd (2011) 185 LGERA 63, 73 [20]

Exhibit 47, para 2.2

Exhibit 17, p 8, para 5.5.1

Paragraph 9.

[2001] QCA 423.

Ibid [38].

T5.57.10-30; T5.58.30-35.

T5.58.33.

T5.57.13.

T5.57.25.

[2008] 166 LGERA 274 at 298-299.

T5.59.11.

T5.68.10-28.

Exhibit 11 p 81.

Exhibit 12, p 5, note the meeting date 6 February 2011 should be 2012. Further, the report is not dated but the Council resolution at p 4 of the Exhibit contains the date 26 December 2011.

Exhibit 2, p 49. Council decision 25 January 2012 notified to Appellant 30 January 2012.

Exhibit 12, p 8.

Ex 12 p.4

Exhibit 48B

Exhibit 22, p 55

T6.4.18-35.