Bunya Investments Pty Ltd v Nanango Shire Council

[2000] QPEC 16

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Bunya Investments v Council of the Shire of Nanango [2000] QPE 016
PARTIES:	BUNYA INVESTMENTS PTY LTD (Appellant) v COUNCIL OF THE SHIRE OF NANANGO (Respondent)
FILE NO/S:	No 3394 of 1996
DIVISION:	Planning and Environment Court
PROCEEDING:
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	3rd March 2000
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	Quirk DCJ
ORDER: CATCHWORDS: COUNSEL: SOLICITORS:

1. This interesting but unusual case arose out of an application made in 1996 for Town

   Planning consent to certain extensions to an existing tourist facility known as

   Dandabah in the Bunya Mountains. These premises comprise a shop, restaurant

   and accommodation facilities which have, for some time, provided services to

   visitors for the area. Dandabah presently employs a staff of about 20 and operates

   daily.

2. The Bunya Mountains area is a well known scenic attraction to the south-west of

   Kingaroy. The evidence indicates that development in it has increased very

   substantially in the past 10 years or so as have the number of visitors to the area.

   The respondent, in its formal planning documents, has recognized the importance of

   the area as a tourist attraction.

3. Little needs to be said about the major part of the relevant application for Town

   Planning consent. All of the matters involved in it have been resolved between the

   parties except for one. That matter relates to the feeding of wild birds (mainly King

   Parrots and Crimson Rosellas) at the premises. As was explained in evidence this is

   something that has been going on for a long time and well before the

   commencement of planning controls.

4. Visitors to the Bunya Mountains have enjoyed hand feeding these birds with seed

   which is available at Dandabah or which is often brought from elsewhere. It would

   not be overstating it to say that bird feeding is one of the important elements of the

   area’s attractions and is identified as such in promotional material.

5. In an attractive and colourful brochure promoting the Shire, the respondent Council,

   in dealing with the Bunya Mountains has included an attractive photograph of a

   child feeding a King Parrot and the following statement:

   “The area is a haven for many species of birds, plant life and a wide variety of animals. Feeding the beautiful red and green parrots is a highlight for many visitors as they eat contentedly out of human hands”.

6. When the application was initially lodged there was no reference to bird-feeding in

   it. It seems that, following a specific request from the Council following lodgment, the words “Tourist Attraction (Bird Feeding)” were added to the description of the

   proposed use.

7. Why there was any need for Town Planning consent at all was difficult to see. On

   the evidence given in the case it was clear that the facilitation of wild bird feeding

   has been an integral part of Dandabah since before the commencement of planning

   controls. Existing use rights would be enjoyed in respect of this aspect of the

   facilities activities. The only substantial change in the way in which feeding is

   likely to occur involves the provision of a sealed area (as a designated feeding area)

   which is able to be kept clean.

8. Somewhat paradoxically, having invited the inclusion of this aspect of the proposal

   in the application, the Council purported to refuse it on the following grounds:

“i	The proposed use “bird feeding” will have (and has the potential to) adverse impact on the general amenity of the area in the immediate vicinity of the use.
ii	The proposed use “bird feeding” is undesirable and potentially dangerous being carried out in close proximity to areas used for the collection of water.

1. On the evidence given the conduct of the appellant has, at all times, been beyond

   criticism. It has made every effort to co-operate with the officers of the Queensland

   National Parks and Wildlife Service which operates the adjoining National Park.

   Following suggestions made from that quarter that food being given to the fauna

   was unsuitable for them, advice as to a proper composition of the seed mix was

   sought and adopted. When concerns were expressed about feeding taking place on

   National Park land, every endeavour was made to encourage visitors to feed only

   within designated areas.

2. In an effort to resolve protracted negotiations about this controversy, the appellant

   had prepared (by an appropriately qualified person) a draft Bird Feeding

   Environmental Management Plan. The Plan referred to a defined area for bird

   feeding and a definite cleaning regime. Some refinements to the Plan were

   suggested by the Council’s Town Planner, Mr Coleman and the applicant has no

   objection to the inclusion of these additional provisions in the Environmental

   Management Plan.

3. The Town Planner prepared a report to the Council recommending that consent for

   tourist attraction (Bird Feeding) be given subject to its being conducted in

   accordance with the refined Environmental Management Plan. However the

   Council (by a majority) declined to act on this recommendation and maintained its

   opposition. On 27 July 1999 it wrote indicating:

   “Council has decided that it doesn’t support the inclusion in the Consent Order of an approval for bird feeding. It is noted that bird feeding is likely to cause detrimental effects on wildlife and human beings such as:

· Increased susceptibility of affected wildlife to diseases;

· Increased dependency on artificial food sources;

· Altered behaviour with the main consequence being increased

threats to humans;

· Increased risk of diseases and other infections being passed on to
humans”.

1. The evidence before me does not disclose any material before the Council to

   explain its decision or the basis in which the matters identified in the letter were

   noted. It is difficult however to exclude the possibility that those who voted in

   favour of a rejection were influenced by a professed attitude of the Queensland

   National Parks and Wildlife Service against the feeding of native fauna.

2. As much was conceded by Mr Coleman in his report to this Court where he

   observed:

   “The proposed use conflicts with National Park attempts to limit the

   feeding of native fauna”.

   However the attitude of the Councillors is now of little moment as this is a hearing

   de novo and the matter must be decided on the evidence placed before the Court.

   Almost all of this evidence was concerned with the desirability or otherwise of

   feeding native animals.

3. The National Parks Authority appears to have taken an absolute stand against the

   feeding of native fauna. The justification for this stand (or at least for the extent of

   it) is much less clear. The best that could be said in favour of the notion was that it

   was based on “anecdotal evidence”.

4. Whether that means that the notion has been put forward so often and with such

   apparent authority that it has been elevated almost to the status of a dogma is not

   entirely clear. The problem is that (on the evidence put before me) there remains an

   absence of any acceptable scientific study or finding to support the notion. This is

   surprising in that the credibility of this controversial position could thereby be put

   beyond contest. Evidence called by the appellant strongly suggested that the notion

   not only lacked scientific support but was indeed simply wrong.

5. I hasten to say that I do not see it as being any business of this Court to give

   instruction to the National Parks Authority as to the policies which it should adopt.

   However, when the Court is asked (as it is here) to prevent the appellant from doing something which is an important element of its enterprise on the basis of a notion

   such as this, the Court is entitled to inquire whether the notion has any real validity.

6. The evidence for both sides of the argument was comprehensive and interesting. I

   do not propose to attempt a detailed analysis of the evidence but a careful

   consideration of it led me, without any great difficulty, to the conclusions that:

1 There is little if any scientific evidence to support the theory that bird

feeding of the kind with which we are dealing would be harmful to the

health of the area’s fauna. Mention of a number of diseases such as “beak

and feather” disease and “lumpy jaw” (in marsupials) was but a persuasive

link between these diseases and bird feeding was not established.

2.            There proved to be no established basis for the suggestion that birds fed in

this way acquire any dependency on food so provided. Evidence from

studies (at Currumbin and elsewhere) indicated otherwise.

3.            There is little if any evidence to support a finding that feeding would cause

serious behavioural problems in the recipients of that feed. I accept that

marsupials when hand fed in a park environment have been seen to behave

more assertively. That this was equally and undesirably so with so with

parrots was not indicated. It was suggested that hand feeding can result in

a loss of timidity towards humans. Whether, for King Parrots and Rosellas

in this situation, that is a bad thing was not demonstrated. The evidence

fell well short of showing that humans could be seriously threatened as a

result of bird feeding.

4.            There was no firm evidence that the health of humans participating in

feeding activities was in any way put in jeopardy. Length evidence was

given in respect of human diseases that might be “bird borne”. The

evidence did not go so far as showing that these birds, in the Dandabah

situation, pose any real risk to human health. It is of course important that,

where food is being sold (as it is here) that proper attention is given to

considerations of hygiene. I am satisfied on the evidence that the proposed

Environmental Management Plan does this.

1. The empirical evidence was all the other way. Over the many years in which bird

   feeding has occurred in the Bunya Mountains no relevant instance of harm to bird

   or human could be pointed to. Similar bird feeding has been going on at other

   places for a long time. O’Reilly,s was mentioned as was the Currumbin Bird

   Sanctuary which was discussed at length. No relevant mishaps in these contexts

   were identified.

2. A consideration of all of this evidence provides no basis for any finding that the

   proposal should be rejected because of an apprehension of environmental harm or

   any possible health hazard.

3. It must also be borne in mind that what was, in effect, on trial in this appeal was not

   the feeding of native fauna in the Bunya Mountains. That will no doubt continue

   whatever the outcome of this matter might have been. In reality what is here

   proposed is to allow bird feeding to occur in a controlled and hygienic way. That

   the consequences of this would have would be positive rather than negative is

   overwhelming.

4. As I said at the outset whether this exercise was ever necessary is doubtful.

   However because so much effort has gone into it a sensible end to it would be a

   ruling that approval be given to the proposal to include Tourist Attraction (Bird

   Feeding) generally in accordance with the submitted Plan and undertaken in

   accordance with the submitted Environmental Management Plan except for the

   following elements which are to be incorporated into the Plan’s text;

(A) To require the use of high pressure spray for the washdown so as to assure

an adequate cleandown;

(B)	Include in the washdown requirements the surrounding structure such as
the feeder and fence areas;
(C)	The area for the bird feeding should be fenced or delineated in an
appropriate manner and signposted so as to inform the public that bird
feeding is not to be undertaken outside that area.

1. I am satisfied that the onus of showing that the application should be approved on

   that basis has been discharged and the appeal is accordingly allowed.