Chermond Mushroom Farm Pty Ltd v Bundaberg Regional Council; Bundaberg Regional Council v Chermond Mushroom Farm Pty Ltd

[2009] QPEC 134

[2009] QPEC 134

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 61 of 2009

CHERMOND MUSHROOM FARM PTY LTD (ACN 062 810 217)	Appellant
and
BUNDABERG REGIONAL COUNCIL	Respondent

P & E Application No 3310 of 2009

BUNDABERG REGIONAL COUNCIL	Applicant
and
CHERMOND MUSHROOM FARM PTY LTD (ACN 062 810 217)	Respondent

Brisbane

..DATE 26/11/09

ORDER

CATCHWORDS

Integrated Planning Act 1997 s 4.1.33, s 4.3.22, s 4.3.25

Applications by council for removal of stay resulting from institution of an appeal against its enforcement notice (on basis of environmental nuisance) and for interim enforcement orders - resolved by the making of final orders - development offence occurred because production of mushroom substrate on the site by use of imported ingredients was "rural industry" (code assessable) rather than general agriculture (exempt development)

HIS HONOUR:  The Court makes the following orders.  In Appeal 61 of 2009 (Bundaberg) an order in terms of the initialled draft which dismisses the respondent Council's application filed 26 October 2009.  In that appeal there's a further order adjourning it for mention on the 21st of January 2010 in Brisbane.  

In originating application 3310 of 2009, there's an order in terms of the initialled draft which provides as follows:

"1.  An Enforcement Order pursuant to section
4.3.22(1)(a) of the Integrated Planning Act, is

made:

(a)  Restraining immediately the respondent by
      itself, its servants or agents from carrying
      out assessable development, being a material

change of use for composting operations on Lot

12 on RP 867961 ("Lot 12") unless and until

such time as the Respondent obtains an

effective development permit for the material

change of use; and

(b)  Requiring immediately the Respondent by itself,

its servants or agents to remove all organic

materials involved in the composting operation

from Lot 12;

1. The operation of the orders in paragraph 1(a) and
            (b) above is suspended until 17 December 2009;

3.   Each party pay their own costs;

4.   Liberty to apply."

The appeal was against an enforcement notice issued by the Council in respect of what it contends was a "rural industry", within the meaning of the Planning Scheme definition, being conducted on land owned by the respondent. The effect of section 4.1.33(1) of the Integrated Planning Act 1997 was that the lodging of the appeal stayed the Council's enforcement notice which required cessation of concerning activities on the land.

The application by Council, which by consent of the parties has been dismissed, sought to rely on section 4.1.33(2)(g) to end the operation of the statutory stay on the basis of environmental nuisance. There's a wealth of affidavit material from local people deposing to their observations of and their suffering from the impacts of offensive odour from the company's activities which have generated complaints in other respects, such as the generation of contaminated run off and also about generation of noise and dust and associated unwelcome impacts from use of heavy vehicles on local roads or tracks.

For what it's worth, having read the filed material, I'm satisfied that there's been environmental nuisance in the past.  Although Ms Kefford, appearing for Chermond Mushroom Farm hasn't read any of its filed material, I happen to have read the bulk of it over night in preparation for the anticipated hearing today. 

Perhaps it ought to be noted that there's one local person who deposes that he suffered as much as the others earlier in the year since the operation began about Easter time; he deposes to certain changes in the operation which he says had no useful results so far as the first few experiments were concerned.  In that gentleman's opinion, in the last few weeks, things improved.  There's no need for the Court to get into those aspects given the resolution the parties have arrived at. 

I've indicated already that I think the company has been very well advised. The question for the Court today is whether the discretion arises and if so ought to be available to make an enforcement order under section 4.3.22 of the IPA, which the Court has done. The basis of jurisdiction is that a development offence has been committed. In my opinion, it's clear that a "rural industry" has been conducted that was code assessable development. The company has engaged a planner who has prepared a development application which is presently before the Council receiving consideration by it.

The activity involves the wetting of hay upon a purpose-built concrete pad on the land.  When it has decomposed sufficiently, it's mixed with other items brought to the site, principally poultry manure and urea.  Heavy equipment is used to mix the ingredients and move them around for loading. 
The finished product, known as mushroom substrate, is used by the company at another property it has locally where it grows mushrooms therein; there is a similar activity of growing mushrooms on a site in Mackay.  When the product has been used as a medium for growing mushrooms, it's apparently sold as mushroom compost, a product useful to home gardeners and others. 

Any belief that the use of the subject site could occur as of right depended on the activity being "general agriculture" under the Planning Scheme.  That constitutes exempt development.  The definition of the term says it means:  "the use of premises for the growing of crops, pastures, turf, flowers, fruit, vegetables, plants, trees and the like and the growing and keeping of animals." 

There follows a list of things the term includes which may be seen as ancillary activities.  It's at the heart of the definition, relevantly, that something be grown on the premises.  All of the components relevant to the company's activity are imported to the site.  That's plainly not general agriculture.  

The development offence has been established for the purposes of section 4.3.25(1)(a) and the likelihood for purposes of paragraph (b) it is that unless there's some restraint, the offending conduct will continue. Under subsection (2) the Court becomes entitled to make an order in those circumstances.
In recent days, I've had occasion to reflect on the approaches that Councils take in respect of development offences continuing while steps such as the company's current development application are in train to regularise matters, wondering whether Bundaberg Regional Council was not particularly assiduous in pursuing enforcement proceedings, notwithstanding the tendency of some local authorities to await the outcome of development applications to regularise matters or appeals against their refusal. 

See Conquest & Anor v Bundaberg Regional Council, 64 of 2009, 19th of November 2009.  That scenario represented a marked contrast with Dawson v Brisbane City Council 2248 of 2009, 13th of November 2009, where the Council was suffering the continued operation of an "adult establishment" operating without the relevant approval next to a church.  

The outcome agreed on by the parties is a satisfactory one in effectively bringing to a conclusion all proceedings in the Court.  The appeal is essentially on the backburner and unlikely to go anywhere.  The mention date has been fixed so that the Court can monitor things appropriately.  The Council's originating application has been able to be finalised today rather than dealt with as one where interim relief is sought.  If the company's development application is unsuccessful, then they can appeal onto the Court. 

My assessment of the circumstances, from having read the material, is that an appropriate interim arrangement would have broadly coincided with the permanent arrangement the parties have arrived at.  The explanation for the delay in operation of the orders is that the company's process takes a few weeks to be completed.  The Council, although clearly subject to persistent pressure from local people, has extended consideration to the company to permit it to complete the processing activities already underway. 

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