Cairns Earthmoving Contractors Pty Ltd v Mareeba Shire Council
[2000] QPEC 19
•18/02/2000
IN THE PLANNING AND ENVIRONMENT COURT
HELD AT CAIRNS
| QUEENSLAND | No. 4 of 1999 |
[2000] QPE 019
| BETWEEN: | CAIRNS EARTHMOVING CONTRACTORS PTY LTD. |
Appellant
| AND: | MAREEBA SHIRE COUNCIL |
Respondent
| AND: | ATHERTON SHIRE COUNCIL |
First Co-Respondent
| AND: | GEORGE ADIL, TREVOR ADIL, CANE GROWERS |
TABLELAND DISTRICT, ROSS CARDILLO, ROBERT DOGAO, ATHOL DURRE, IAN THOMAS GANNON, ELEANOR GATTO, LORIS GATTO, JOHN HALES, RHONDA HALES, DARRYL HILL, T J HUMPHRIES, GAIL NICHOLLS, SHIRLEY OSBORNE, GLEN MILTON PARRY, GAYE TAYLOR AND PHIL QUAYLE
Other Co-Respondents
| Solicitors: | Miller Harris (Ms. Bou-Samra) for the appellant |
Counsel:D. Gore, T. Trotter
| Solicitors: | MacDonnells (Ms. T. Knauer) for the respondent |
Counsel:Mr. J. Haydon
| Solicitors | Lilley Grose & Long (Mr. M. Liston) co-respondent |
| Counsel: | |
| Mr. Cardillo (Self Representative) Mr. Parry (Self Representative) for other co-respondents | |
| Hearing Date: | 30 August to 2 September, 1999 |
| Judgement: | 18 February, 2000 |
IN THE PLANNING AND ENVIRONMENT COURT
HELD AT CAIRNS
| QUEENSLAND | No. 4 of 1999 |
FEBRUARY, 2000
| BETWEEN: | CAIRNS EARTHMOVING CONTRACTORS PTY LTD. |
Appellant
| AND: | MAREEBA SHIRE COUNCIL |
Respondent
| AND: | ATHERTON SHIRE COUNCIL |
First Co-Respondent
| AND: | GEORGE ADIL, TREVOR ADIL, CANE GROWERS TABLELAND DISTRICT, ROSS CARDILLO, ROBERT DOGAO, ATHOL DURRE, IAN THOMAS GANNON, ELEANOR GATTO, LORIS GATTO, JOHN HALES, RHONDA HALES, DARRYL HILL, T J HUMPHRIES, GAIL NICHOLLS, SHIRLEY OSBORNE, GLEN MILTON PARRY, GAYE TAYLOR AND PHIL QUAYLE |
Other Co-Respondents
REASONS FOR JUDGMENT
This is an appeal against the refusal by the respondent Mareeba Shire
Council of an application by the appellant for a material change of use on parts of
two parcels of land, more particularly described as Lots 13 and 14 on SP 103361
Parish of Colgar County of Hodgkinson. The use proposed by the appellant is a
waste disposal facility (land fill).
The two parcels of land total approximately 741 hectares in area. They are located in an area commonly known as Arriga. The nearest formed road is Springmount road but the subject land is physically separated from the road by a
major water channel of the Mareeba/Dimbulah irrigation Scheme. The land is
generally in the northern part of the Atherton Tableland. It is approximately 15
kilometres from the township of Mareeba and approximately 33 kilometres from
the town of Dimbulah. The main roads in the area are the Mareeba/Dimbulah
Road which runs west from Mareeba ultimately becoming the Burke Development
Road to the Gulf of Carpentaria. The Kenneldy Highway runs south from Mareeba
to Atherton. The subject land is situated to the south west of Mareeba, very
approximately equidistant from the Mareeba/Dimbulah Road and the Kennedy
Highway. Access to the site may be obtained from the Mareeba/Dimbulah Road
via Chettle Road and Springmount Road. Access from the Kennedy Highway may
be gained via Chewko Road and Springmount Road. The site is generally flat or
moderately sloping on the western parts. It rises fairly steeply into foothills
towards the east, the highest point being a prominent peak known as Walsh’s
Bluff. The flatter parts of the land have been cleared. On the eastern slopes there
is remnant dry eucalypt forest of what I would describe as quite stunted growth,
perhaps reflecting the lack of fertility in the soil. The principal use to which the
land has been put is for the grazing of cattle otherwise it is presently being put to
very little use. Major land uses in the vicinity are the Lotus Glen Correctional
Centre and Prison Farm and the Tableland Sugar Mill. Otherwise agricultural uses
predominate with farms in the Mareeba/Dimbulah Irrigation area in the vicinity,
the closest perhaps being a few kilometres from the subject site.
Only part of the relevant parcels of land are to be subject to the proposed use.
The total area will be approximately 140 hectares, I take the description of the
proposed use from ex. 2A which is Volume 1 of the Impact Assessment Statement prepared for the appellant in respect of the proposed facility. I am satisfied that it
accurately reflects the proposal:-
“The proposed development is a waste management facility which will accept waste from outside the site, process the waste on site, separate useable components of the waste stream for transport from the site and dispose of the non-useable portion within a soundly engineered and operated land fill on site. Options for both road and rail transfer of refuse to the site are possible and are being considered, although economic consideration may restrict the development of rail transport in the short term. Transferred refuse will be weighed at an on-site weighbridge facility and some waste separation will occur on site, although it is likely that some separation will occur prior to transportation to the site. Materials recovered through recycling will be packaged on site and transported from the site to the relevant market. On- site processing of waste may occur with consideration being given to a bio- conversion process which would provide a valuable compost output suitable for use throughout adjacent agricultural areas. The non-useable component of the refuse will be transported into the land fill following separation and disposed of in accordance with a carefully controlled land fill operational plan.
In the case of road transport to the site transport vehicles will carry the refuse into the land fill to the disposal area and then leave the site and return to the waste source. Alternatively, multi-purpose trucks may be used to back load raw materials to the coast. In the case of rail transport to the site, the rail wagons will dump the refuse at a transfer site and it will be carted from this location to the land fill site by dedicated short haul truck which would be permanently based at the site. The empty wagons would then be returned to the train loading area or areas. The initial construction of the land fill will be a well controlled engineering project involving construction of roadworks, earthworks, stormwater drainage works, site services, buildings, other structures and the actual land fill refuse disposal facility. The construction of the land fill will be ongoing and become a part of ongoing site operations once the initial work is completed and the land fill starts accepting refuse. The ongoing construction process will involve the winning of construction materials on site, the importation of other construction materials and the construction of appropriately engineered land fill facilities adjacent to the previously constructed operational parts of the land fill. The operation of the land fill will be carefully controlled in accordance with an approved site management plan. Part of the operations will involve the collection, treatment and recycling of leachate on site and collection and re-use of land fill gas.”
Other facilities on the site which will form part of the operation include:-
· An entrance road to the site to be constructed to a two-way bitumen
seal standard·
A weighbridge and administration centre, which will provide on- site facilities for staff and be the point of control for trucks entering and leaving the site
· A materials recovery facility at which separation of recyclable materials will occur
· A gas scrubbing processing plant, to collect and process land fill gas
and reticulate it off to the adjacent industrial area· An area for receival of green waste and for mulching · A power station operating from recovered land fill gas · An anaerobic digestion plant producing bio-gas electricity and a soil
conditioner· A plant and machinery storage and maintenance workshop for on- site equipment
· A rail line into the site · A refuse transfer station, should rail transport proceed to manage the
refuse transfer from rail wagon to truck· A haul road beyond the weighbridge to provide truck access to the active land fill area.
· Stormwater diversion works to lead water around the land fill area in a variety of permanent, semi-permanent and temporary forms
· A leachate storage pond to manage the disposal of excess leachate · An earth dam on Murphy’s Creek to provide a water supply for use
in the land fill construction and operations· Bio pits around the site to provide the materials needed for construction of the various components of the land fill
·
A screening and crushing plant within the land fill area for separation of rock from overburdened materials and for crushing of the rock to produce drainage materials for the land fill
· Interpretive centre.
The planned location of these various facilities is illustrated at diagram 3.1 of
ex.2A.
As may be observed the facility is intended to be very substantial. It is
intended to be a regional waste disposal facility to meet the potential needs for
waste disposal arising in Cairns City and the Shires of Douglas, Mareeba,
Atherton, Herberton, Eacham, Johnstone and Cardwell. Preliminary investigations
and estimates indicate, according to the appellant, that the facility will have a
design capacity in the order of 9 million cubic metres of waste sufficient to
accommodate at least 90 years waste generation at the regional level.
There is no doubt that the production of waste and more particularly its
disposal poses a difficult planning problem for urban and semi-urban communities.
As the population of a region grows the volume of waste generated increases. But
because the population density increases it becomes more and more difficult to find
locations and means of disposing of waste whilst also satisfying the demands of the
community for protection of its amenity and also for the protection of the
environment. Considerable investigation and planning has been carried out in
relation to the waste disposal needs of this region into the future. Of particular
importance is the Far North Queensland 2010 Regional Planning Project. It is a
co-operative planning process involving many local governments under the co-
ordination of Federal, State and local governments together with key community
interest groups in the region. Relevantly the Integrated Regional Strategies Report
(ex. 5C) raises the following issues in relation to management of residual wastes
and land fills –
· An audit of existing land fill sites carried out in 1996 identified a number of significant operational problems with existing land fill sites particularly on the coast. In order to meet the standards by the Environmental Protection Act many of these sites will be required to be upgraded or closed. · Upgrading of some sites will be difficult due to size, age, location, extent of problems with a limited capacity of the local government rate base to finance major works. · Post closure management and monitoring of land fill sites need to be given high importance. Land fill sites can potentially have an environmental health
implications up to 30 years or more after closure.
· A new sub-regional land fill site has recently been identified for the Johnstone and Cardwell Shires. However the issue of identified a future land
fill site for the Cairns and northern coastal areas remains unresolved.
· Future land fill sites will have more stringent design parameters than past facilities and should be subject to specific regional design requirements such
as, climate, environmental impact and located with regards to physical
community and transport issues.
· Suitable sites for land fill on the coastal plain and tablelands are scarce due to the environmental sensitivity of the area, extensive urban and agricultural development and topographic and climatic constraints. · The northern Tablelands area is likely to offer better physical, climatic and environmental conditions for a new regional or sub-regional land fill site but
this would involve significantly greater transportation and social issues.
The subject site is in the general area identified by the FNQ 2010 Regional
Planning Project the most suitable for a regional land fill waste disposal facility.
Obviously, any particular site proposed for a regional land fill waste disposal
facility would need to be thoroughly evaluated before such a facility could be
established.
The appellant’s proposal has been subjected to exhaustive and critical
investigation and evaluation. The evidence of this exhaustive and critical
investigation and evaluation has been put before the Court and in my view is
worthy of summary. The appellant’s own investigations and detailed plans for the
proposal were co-ordinated by the C & B Consulting Group. They caused
extensive on-site physical investigations to be carried out and also engaged a
number of consultants from specific fields of relevant expertise to provide reports
in relation to the proposal. The result was a three volume impact assessment
statement produced in November 1998. The IAS addressed the following issues:-
· Site history · Scenic assessment · Climate and weather · Topography · Soils and geology · Agricultural suitability · Hydro-geology · Leachate control · Hydraulics and hydrology · Flora survey · Fauna survey · Air quality and noise assessments · Transport · Social issues · Consultation programme · Cultural heritage · Risk assessment · Draft environment management plan In addition, pursuant to the provisions of the Integrated Planning Act 1997 the
application was sent to a number of referral agencies as follows:-
1. Department of Environment
2. Department of Natural Resources
3. Department of Transport and Main Roads
4. Powerlink Queensland
5. Atherton Shire Council
6. Department of Families, Youth and Community Care
7. Department of Tourism, Small Business and Industry
8. Environmental Health Services
9. Queensland Rail
It should be noted that in the end result none of the referral agencies opposed the
proposal outright. The Department of Main Roads, Department of Families, Youth
and Community Care, Environmental Protection Agency, Atherton Shire Council,
and the Department of Natural Resources responded but can be fairly said to have
taken the view that their concerns could be met by appropriate design and the
imposition of appropriate conditions of approval. The only referral agency which
has sought to be joined in the hearing of this appeal is the Atherton Shire Council.
The Atherton Shire Council has not sought to argue against approval of the
proposal. Its purpose in becoming a party to the appeal is to enable it to have input
into the setting of conditions of approval should that be necessary, particularly in
relation to transport issues.
There is no doubt that the agency most concerned with the proposed
development is the respondent Mareeba Shire Council. Its response to the
application was, with respect, commendable. In December 1998 the Council
engaged Woodward Clyde Pty Ltd to investigate the following aspects of the
appellant’s proposal:-
(a) Conformity with Far North Queensland Regional Plan (b) land fill design and risk assessment (c) Hydraulics/hydrology
(d) Hydro-geology
(e) Environmental Management Plan In addition, the Council’s own Shire Planner, Mr. Max Boudan, provided the
respondent Council with a very comprehensive report. The end result is that the
recommendation to the Council was that the application be approved subject to
appropriate conditions. Therefore, the Mareeba Shire Council ultimately refused
the application its reasons for doing so had nothing to do with –
(a) the suitability of the site for the major waste disposal facility proposed. (b) environmental, social or amenity concerns, (c) any lack of compatibility with surrounding land uses.
Indeed, throughout this appeal the Mareeba Shire Council has not sought to
attack the desirability of the proposal or any such grounds. Nevertheless, I accept
that the reasons for the refusal of the application and the issues which the Mareeba
Shire Council has put before the Court for consideration in this appeal are of
genuine and serious concern and I will return shortly to consider such issues.
No party to this appeal has suggested that the proposed use is in anyway
inconsistent with the Council’s town planning process. Under the Council’s
current transitional planning scheme some of the subject land is in the Rural A
zone and the balance in the Rural Residential zone. On 2 June, 1998 the Mareeba
Shire Council approved an application for rezoning to include all of the subject
land in the Special Development zone. More specifically the identification of
precincts within that zone is entirely compatible and consistent with the appellant’s
proposal. More particularly, precinct 14 which is the site of the appellant’s land
fill area under its current proposal is designated “Waste Disposal Area (Land
Fill)”. Precinct 13 which is the area in which the bulk of the processing and
treatment of waste will take place under the appellant’s proposal is designated “Waste Processing and Treatment”. Precinct 15 which is the area in which the
appellant proposes to locate its water storage dam for on-site use is designated
“Water Storage Facility”. That zoning approved by the Mareeba Shire Council has
only to go through the stage of formal gazettal to take full effect. In my view,
under those circumstances it should be given very considerable weight. Under the
Mareeba Shire Strategic Plan adopted in 1994 the subject land was designated as
“Rural”. The intention of this designation is described as:-
“This designation covers agricultural land not included in the Mareeba/Dimbulah Irrigation Area as well as land which may be unsuitable for agricultural purposes but does not fall into any other predominant land use.”
It does not seem to be an issue that the subject land is not suitable for agricultural
purposes. It seems that under the 1994 Strategic Plan the Rural designation was
used as a “waste bin” for land which could not be given any other designation. In
March 1999 the Mareeba Shire Council adopted a draft Strategic Plan. The subject
land is included in an area designated as “Future Industry Investigation Area”. In
my view the proposal is consistent with that designation.
I think it is also worth noting at this stage that proceedings in the former
Local Government Court and now the Planning and Environment Court over
proposals for land fill waste disposal facilities are not uncommon. As I touched
upon earlier, the greatest volumes of waste are produced by the greatest
concentrations of population. If a population is concentrated over a very wide area
then it is not always easy to find a site which is suitable for a land fill waste
disposal facility. In addition land fill waste disposal facilities can have a very
adverse effect on amenity in that they are often unsightly and can give rise to
problems associated with smell, dust, vermin, traffic etc. Perhaps an indication of
the suitability of the subject site, at least with respect to its location, is that nobody has sought to argue before the Planning and Environment Court that the appellant’s
proposal should be refused because it will interfere with the amenity of anyone in
the area.
The issues and objections raised by the other respondents are technical in
nature. They may be summarised as follows:-
(a) The appellant’s proposal will cause damaging erosion (b) There is an unacceptable risk that leaching of contaminants from the site will contaminate water used for irrigation and domestic purposes in the
surrounding area.
(c) Additional heavy traffic will have a detrimental impact on the
neighbourhood.
Most, if not all, of the other respondents own and operate irrigation farms in the
Mareeba/Dimbulah Irrigation area. Others have farms in the vicinity of the Walsh
River. For irrigation and domestic purposes they use water supplied through the
irrigation channels which carry water from Lake Tinaroo near Atherton. Some use
bore water for irrigation and domestic services. Others pump water from the
Walsh River creeks in the area. The subject site is on the western side of the Great
Dividing Range. Any creeks or gullies on the subject land eventually run into the
Walsh River which itself joins the Mitchell River which runs into the Gulf of
Carpentaria. I have no doubt that the Walsh River is a major watercourse of Cape
York Peninsula and the purity of the water in the river is of very great importance.
I have no doubt that the other respondents are very genuine in their concerns and
fears for the quality of the water (both underground and surface) in the area if
contaminants should escape from the appellant’s proposed land fill facility.
It may well be that their fears arose initially because their experience of land
fill waste disposal facilities in Far North Queensland is that they consist of little
more than a hole in the ground into which rubbish is thrown.
It is quite obvious that the appellant’s proposal involves an enormous
advance in land fill technology over anything that I am aware has ever existed in
Far North Queensland. In particular the proposal involves a substantially
engineered and lined base to the land fill so as to effectively seal it. This involves
extensive soil preparation in the bottom of the land fill cavity. On top of the base
there will be placed an impermeable HDPE liner (a plastic type polyethylene
product). This material is laid in sheets which are heat welded together. Over that
is placed a fabric and on top of the fabric is placed a 300 millimetre thick layer of
drainage material. The result of this lining process is that contaminants contained
in the waste placed into the land fill cavity cannot leach through into the soil below
and from there into the water table. The proposed design slopes the lining of the
land fill cavity towards a central sump from which leachate liquid can be pumped
to a similarly sealed dam or reservoir from which contaminants may be separated
from the water.
As I have already pointed out the Mareeba Shire Council has subjected this
engineering design to critical scrutiny. Comprehensive engineering evidence
which has been put before me clearly demonstrates that the risk of any
contaminants escaping from the mass of land fill is remote in the extreme. Further,
on the evidence put before me even if the land fill cavity liner is pierced in some
way the sloping nature of the lining is such that any contaminated moisture will
mostly flow across the liner to the collection pit in any event and only a small
quantity would get through. Therefore, even in the most unlikely event that a small quantity of contaminant escaped from the mass of land fill it would be negligible in
relation to the potential volume of underground water with which it would mix and
in my view would have no material effect on the purity of the underground water
table. There has also been extensive geophysical examination of the relevant area.
Mr. Morphett, who gave evidence concerning this leaching issue, expressed the
opinion that it was highly unlikely that any water leaching into the ground on the
subject site would actually come to the surface again in the Walsh River. In his
view it was likely that the water table would be below the Walsh River. In other
words the water flow in the Walsh River was largely comprised of surface water.
However he also estimated that any leachate from the subject site would take 3,200
years to reach the Walsh River. I am satisfied on the evidence put before me that
the possibility of any contaminant escaping from the body of waste contained
within the land fill cavity through the process of leaching is remote in the extreme.
I am also satisfied that even if there is some leaching it will be of such a
comparatively small amount that it will have no measurable influence on the
quality of either underground or surface water in the area.
Another concern of the other respondents concerned erosion which might
occur as a result of the earthworks carried on in implementing the appellant’s
proposal. In particular I was taken to look at erosion which had occurred in a creek
some kilometres from the site as a result of the overflow of water from an
agricultural dam following a period of very heavy and concentrated rainfall. There
is no doubt that the stripping of trees and other foliage from land and the
substantial changing of the natural surface of land can lead to serious erosion
problems. On the other hand there is equally no doubt on the evidence that proper
engineering design and construction can prevent erosion problems resulting from significant earthworks. In this case the appellant through its consultants, has
undertaken comprehensive engineering design to prevent any significant erosion
resulting from peak rainfall events. This has been checked and has not been
faulted by the Mareeba Shire Council’s consultant. Whilst once again I accept that
the fears of the other respondents that substantial erosion might result from the
earthworks involved in the appellants proposal they have produced no concrete
evidence pointing to the particular proposal in this case which persuades me that
substantial erosion might occur. I am satisfied on the comprehensive engineering
evidence put before me that the proposal can be appropriately engineered and
designed to prevent any significant soil erosion from the subject site.
The other respondents raised a concern about the fact of increased traffic.
However the evidence of Mr. Russell, which I accept and which was not
challenged in any way, in my view clearly demonstrates that the increase in traffic
resulting from the establishment of the waste disposal facility will be so low as to
not cause any appreciable additional impact to residents of the area.
I now turn to consider the issues/reasons raised by the Mareeba Shire
Council for refusal of the application. It is clear from the proposal itself and from
evidence given during the course of the hearing that the appellant intends its waste
disposal facility to be a regional facility. That is, it is intended that waste
originating in a number of local government areas in the region will be brought to
the appellant’s facility for disposal. A significant proportion of waste produced in
the region is produced in Cairns city, it being the major population centre of the
region. There is no doubt that the land fill waste disposal techniques of the Cairns
City Council currently in operation have a very limited life. The Cairns City
Council is in the process of attempting to make provision for waste disposal/treatment in the longer term and has put in train a tendering process with a
view to meeting such needs. The appellant and its joint venture partner have
submitted a tender to the Cairns City Council. If the appellant is the successful
tenderer the proposed facility, the subject of this appeal, will be the location at
which waste collected in Cairns city pursuant to the ultimate contract will be
disposed of. It must also be considered a possibility that even if the appellant is
not the successful tenderer, an alternative successful tenderer may utilise the
appellant’s facility as the repository for its waste. In either event the Mareeba
Shire Council accepts that the appellant’s facility would take on the role of a
regional waste disposal facility. However, the Council suggests another possible
scenario, that the appellant will not be the successful tenderer and that the
successful tenderer will dispose of its waste elsewhere or by some other means.
Whilst I accept that this is a possible scenario I am still left in the position that on
the evidence put before me there is no doubt as to the need for a regional waste
disposal facility, the appellant’s proposal is for a waste disposal facility of such a
scale that it is capable of handling the volumes of waste produced over the whole
region, the subject site is very well suited to a regional waste disposal facility and
there is no evidence whatsoever to suggest that another regional waste disposal
facility is proposed in the Mareeba Shire or any other local government area in the
region.
If it should eventuate that at the conclusion of the tender process that the
appellant’s waste disposal facility is not needed then the appellant is hardly likely
to invest the very substantial funds which would be required to establish its project
without the prospect of being able to put it to its intended use in the earning of
revenue. However, the evidence suggests that the tender process, is confined to household waste for which the local authorities have traditionally taken a direct
responsibility. The figures which have been put into evidence as to the annual
production of waste are of course estimates only. In light of the expertise of Mr.
Ainsworth, the national operations manager of the appellant’s joint venture partner,
in the waste disposal industry, I accept that his figures are approximately correct.
For the purposes of this discussion they are not materially different to those put to
Mr. Ainsworth by counsel for the respondent. The material point is that no more
than half of the total volume or quantity of waste produced in the region will be
handled and disposed of pursuant to any arrangement resulting from the tender
process. There will still be a need to effectively dispose of approximately 100,000
tonnes of waste per annum outside the tender process. Mr. Ainsworth’s evidence,
which I accept, is that the appellant’s facility will target that not inconsiderable
quantity of waste which will generally come from commercial, industrial and
building sources. I am not at all satisfied that the need for the appellant’s waste
disposal facility is dependent upon it being successful with its tender for the
domestic waste disposal contract with the Cairns City and perhaps other councils.
It mus be remembered that the land fill component of the proposed facility will be
constructed and filled in a progressive way. If it should be the case that the
quantity of waste which needs to be disposed of on the subject site is reduced in
years to come by reason of a portion of the region’s waste being diverted to other
facilities it will simply mean that there will be less waste disposed of on the subject
site. It is difficult to see how the respondent council could object to that.
Perhaps the Mareeba Shire Council’s desire to permit the proposed facility to
go ahead only if it is used to dispose of the greater portion of the region’s waste is
revealed in the second issue which it raises on this appeal and which was argued by it’s counsel. The Council has advanced the view that approval for the facility
should not be given unless and until the appellant puts forward a definite
programme for the reduction of the disposal of waste via land fill by means of
alternative waste treatment processes. As a very broad principle it is not
unreasonable for the Mareeba Shire Council to hope that, over time, the quantity of
waste being disposed of as untreated land fill will be reduced. It is clear from the
evidence that this may be achieved via the use of alternative processing methods
which do not produce land fill, although I must say that the evidence dealing with
these alternative processing treatments is quite superficial. However with every
respect to the Council, in my view the requirement that the appellant commit itself
to a programme of introducing waste treatment processes without regard to the
economics of doing so is quite unreasonable. This is particularly so when the land
fill technology which the appellant proposes to introduce is much more advanced
and protective of the environment than the crude and primitive land fill techniques
presently being used by local authorities in the region.
It is true that nobody likes land fill as a waste disposal method. Perhaps that
aversion arises by reason of the crude and primitive land fill methods which would
generally be within the personal experience of the community within the region.
On the other hand the production of waste by modern communities is as inevitable
as death and taxes. Something must be done to dispose of the waste. It is clear on
the evidence that disposal of waste by means of land fill is the cheapest method.
At least by its plan to adopt a far more advanced land fill technology than has ever
been used in this region the appellant will overcome the major reason for the
dislike of land fill in the community, namely the escape of the products of waste
from the land fill site, e.g., leaching of contaminants, escape of gases, foul smells, vermin, etc. As I have already indicated the very extensive and critical scientific
assessment of the appellant’s proposal suggests that waste delivered to the
appellant's facility will be contained in and upon the subject site very effectively.
In an attempt to connect the two issues raised by Council its counsel
submitted to me that if approval were only given if the appellant and its joint
venture partner are the successful tenderers for the Cairns City Council domestic
waste disposal contract that this will make the introduction of waste treatment and
processing technologies on the site more viable. In other words, the more waste
the appellant handles the more money it will make out of that waste. And the more
viable it will become for the appellant to undertake these alternative treatment
processing technologies. On the other hand it was submitted that unless the
appellant is required to commit itself to a programme of introduction of processing
and treatment technologies it will never advance beyond the land fill method
because that is the cheapest waste disposal method available. With respect, this
seems to me to lack logic. I accept Mr. Ainsworth’s evidence that there are two
income streams involved in the commercial handling of waste. One of those
income streams is the fees paid by those wishing to dispose of waste in order to get
rid of it. The other income stream comes from recycling and harvesting the by-
products of waste where that can be economically carried out. The point he makes
and which I accept, is that a commercial operator cannot operate viably if it has to
rely solely on the income derived from the sale of recycled waste and by-products.
Put shortly, the point he makes is that more advanced waste treatment and
processing technologies may only be introduced if those wishing to dispose of the
waste are prepared to pay the additional price for them. No evidence has been put forward to show that the local authorities of the region, including the Mareeba
Shire Council are willing pay that price.
The appellant has clearly demonstrated that the subject site is a suitable site
for its proposal and that its proposal is consistent with the Mareeba Shire council’s
land use planning and strategies. Indeed, the Mareeba Shire Council has mounted
no case against the appellant in respect of those issues. I am satisfied on the
evidence (or lack of any evidence produced by the Mareeba Shire Council) that it
would be quite unreasonable to refuse the application on the basis that the
appellant is unwilling (or more accurately unable) to commit itself to a programme
for the reduction of waste disposal by means of land fill and an increase of disposal
by means of waste treatment and processing.
In summary therefore I am satisfied that the appeal should be upheld and the
appellant’s application granted. I will allow the parties time to consider and agree
upon reasonable and relevant conditions for such approval. I will bring the matter
on for further hearing on the application of any of the parties with reasonable
notice given to all other parties.
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