Edgarange Pty Ltd v Brisbane City Council
[2001] QPEC 62
•21 September 2001
THE PLANNING AND ENVIRONMENT COURT
[2001] QPEC 062 PARTIES: EDGARANGE PTY LTD Appellant
And
BRISBANE CITY COUNCIL Respondent
And
PORT OF BRISBANE CORPORATION
First Co-Respondent by Election
And
QUEENSLAND RAIL
Second Co-Respondent by Election
And
STATE OF QUEENSLAND
Third Co-Respondent by Election
And
CALTEX REFINERIES (QLD) LTD
Fourth Co-Respondent by ElectionFILE NO: 1957 of 2001 PROCEEDING: Appeal DELIVERED ON: 21 September 2001 DELIVERED AT: Brisbane HEARING DATE: 3, 4, 5, 6, 7 and 10, 11, 12, 13, 15 September 2001 JUDGE: Judge Brabazon Q.C. ORDER: Appeal dismissed CATCHWORDS: Appeal – Town Plan – City Plan – draft plan – Coty principle – Holts Hill Quarries Pty Ltd v Gold Coast City Council 2000 QCA 265 and Lewiac Pty Ltd v Gold Coast City Council 1996 QdR 266 followed – noise and odour complaints – impacts on industry – Clan Holdings Pty Ltd v Brisbane City Council 1999 QPELR 13 COUNSEL: Mr M Hinson S.C. for the Appellant
Mr T Trotter for the Respondent
Mr P Lyons Q.C. for the First and Second Co-Respondents
Mr H Fraser Q.C. for the Third Co-Respondent
Mr C Hughes for the Fourth Co-Respondent
This is an appeal against the refusal by the Brisbane City Council to approve certain development on land at Wynnum North.
The Land
At the corner of Tingal Road and Wynnum North Road there are two blocks of land which together have an area of a little over 5 hectares. The frontage to Tingal Road is the highest part of the land. It then slopes gently away to the east, where its boundary is parallel to the shores of Moreton Bay. The land is roughly rectangular in shape.
Near Tingal Road there are two substantial brick buildings. There are several sheds and smaller buildings further away from the road. Overall, the land has a pleasant appearance, containing both mature trees and grassy slopes.
The land and buildings have been used since 1957 by the Capuchin Franciscan Friars. They conducted a theological college in the main building, until quite recently. On average, the buildings would have housed about twenty friars and students.
The Proposal
This appeal is about the application to counsel, which seeks a development permit for a material change of use to establish a residential estate, and a development permit for the reconfiguration of the two allotments into 56 allotments, and a hectare of parkland. Fifteen allotments are 450m2; 24 are between 451 to 500m2; 6 are between 500 and 600m2, and 11 are greater than 600m2. The largest is 780m2. So, most of the lots are small lots with only the 11 being of conventional residential A size.
If it is assumed that each house will contain three people, then the new estate would see 168 people of all ages living there.
The Appeal
The application was made to the Council on 5 June 2000. It was refused on 27 March 2001. The application was made under the 1987 Town Plan. That scheme was replaced by the present City Plan in October 2000.
The application was made according to the provisions of the Integrated Planning Act. According to IPA the Town Plan continued in force as a transitional scheme, until its replacement by the City Plan. While the Town Plan was in force, applications under it had to be dealt with according to certain provisions of the otherwise repealed Planning and Environment Act. In particular, note section 4.4(5)(A) of the P & E Act – even if an application is in conflict with provisions of a Strategic Plan, it might still be approved if it has sufficient planning merit, despite that conflict.
An appeal to this court is a “hearing afresh”. That is, the court is obliged to consider all the evidence produced by the parties. That means that more extensive information is available to the court, than to the Council.
Ordinarily, such an appeal would mean that the law and the facts at the time of deciding the appeal are those to be taken into account. However, s.4.1.52(2) of IPA provides that the appeal must be decided on the law and policies in force at the time of the making of the application. That section also provides that the court may give such weight to any new laws and policies as the court considers to be appropriate. In this case, it is necessary to decide the appeal on the basis of the Town Plan, while giving any appropriate weight to the provisions of the City Plan.
IPA also provides that the appellant, Edgarange, has the burden of persuading the court that its proposal should be accepted.
The role of the court is to act on the evidence before it and come to a conclusion about the merits of the application. In considering those merits, the court is obliged to apply the town planning schemes of the Council, and any other statutory provisions. That is, the court does not have its own ideas about town planning. Its role is to give effect to the decision which is compelled by the town planning provisions, and the evidence.
The Issues
The issues in this court can be summarised this way:-
(a) The standard of amenity that would be enjoyed by the new
residents, particularly with regard to noise, odour, and air quality.
(b) The expectations of those new residents.
(c) Any risks from the industrial areas to the north – in particular, from the HF Unit at the Caltex oil refinery.
(d) The planning need for the 56 allotments.
(e) The likely impact of complaints from new residents on nearby industrial uses.
The Locality
This land is at the northern tip of the established urban area of Wynnum. The land to the south is developed mainly with detached dwellings, although an attached housing development called “Bay Trees” adjoins its southern side. There are four lots to the north of the site, also on the eastern side of Wynnum North Road. They are larger residential properties. The most northerly contains a large house recently built by Mr Holland.
Eleanora Park lies to the south-east of the site. It is partly cleared, and has a mangrove boardwalk. Across Wynnum Road North, to the west, there is an area of future industry land, on the north side of Pritchard Street. On the southern side of Pritchard Street, south-west of the subject land, is the North Point Development, centred on Constellation Way. Substantial houses have been built there, with views to the north to Fisherman Island. That estate surrounds Nazareth House, which is built on a large piece of elevated land to the south-east of the subject land. It is a long-established religious institution, housed in several large brick buildings.
Further to the north and west there are substantial industrial areas. Indeed, they are Queensland’s major industrial areas. To the west, Lytton Industrial Estate is presently being developed. To the north of the land, across Port Road, is a sewerage treatment plant. Further north, at a place called Whyte Island, “industries requiring separation” will be developed. To the north, across a narrow stretch of water there is the port complex known as Fisherman Islands.
Other Industrial Areas
Because of their significance in this appeal, some of the industrial uses need to be mentioned in greater detail. The Caltex oil refinery lies to the north-west of the subject land. It is Crown land. Caltex has exercised an option to remain on the land until 2015.
The industrial lands to the north and west of the subject land is called the Brisbane Gateway Ports Area, or the Australia Trade Coast. It is an area chosen by all levels of government to be the key industrial area for south east Queensland. 1995 saw the Commonwealth, State and local governments (including the Brisbane City Council), enter into a memorandum of agreement contained in the Regional Framework for Growth Management in South East Queensland. That strategy says in part:
“Major industrial areas will be located ... at the Gateway Ports Area. These industrial areas will require protection, additional infrastructure and promotion in order to achieve their full potential ... areas considered important for the future location of industry and services for the region, or the State, should be identified and protected in order to ensure their most appropriate future use ... develop and maintain the major existing and industrial areas for the region at the Brisbane River North and South, including the Gateway ports ... ensure the protection of these major industrial areas through planning schemes and, where appropriate, the designation of high capacity transport corridors to serve them.” (at page 19, 60 and 61)
The Queensland Government has issued the Brisbane Gateway Ports Area Strategy. An intent is to “optimise development of the Brisbane Gateway Ports Area as a generator of economic growth and as a world class transport hub, while balancing the economic, environmental and social impact of the development” (Exhibit 20, page 1). That document recognizes the need to separate residential communities from industrial development (page 9). There are significant strategic sites within the industrial areas north of the subject land. The most significant is the Caltex Refinery, referred to above. There is also a major chemicals precinct, not yet developed. There are plans for a transport depot for chemical storage at Whyte Island, about 2km to the north of this land. That has been identified as industry which requires separation from residential development. In that respect, see the Land Use Strategy of the Port of Brisbane Corporation, (Exhibit 21). The Assessment Manger is not the Council but rather the CEO of that corporation. Other land to the north and west of the site is also “strategic port land”.
That strategy recognizes that residential development should be separated from major industry (see s. 1.0, page 2, right column, and s. 4.2.1, first sentence). At the same time, it is also recognized that development should manage impacts on the amenity of residential areas to acceptable standards – s.4.2.1, page 7, Performance Criteria).
Consistent with the above plans, the Queensland Government is committed to the development of the Port area. In practical terms it is building the Port of Brisbane’s Motorway Project, which passes to the north of the subject land. It has approved the expansion of the Fisherman’s Islands Complex. It has provided a rail link servicing the port – the railway line passes about 280 metres to the north west of the subject land.
The above provisions do not immediately apply to the subject land. Speaking generally, they include areas removed from the land, such as Fisherman Islands, so that there will be no particular impact on the land. However, they show a determination by government to support and protect a collection of major industrial developments close to this land. They complement the particular aims of the planning documents which do apply to this land.
The 1987 Town Plan
The Strategic Plan Map 1 shows that this land is in the Urban Area. The same Plan shows, in purple, the major industrial area referred to above. It includes Brisbane Airport, about 5 kilometres to the north west of the land.
The Strategic Plan has a number of aims relevant to this appeal. There is the aim of minimizing air pollution to ensure the protection of the health and well being of the community. See paragraph 3.2.1.1. Sub-paragraph (c) has the aim of not locating children or aged ill people in areas of potentially poor air quality.
The adverse effects of noise and illumination should be minimized, by separating uses which are sensitive to noise and/or light from activities which generate noise and/or light to a level unacceptable to these sensitive uses – paragraph 3.2.1.3(b). Where hazardous goods are involved, there should be buffering or separation of land uses from the activities of hazard or risk associated with fire, explosion or chemical release – paragraph 3.2.1.6(a).
Urban areas should be safe, secure and comfortable, by ensuring that development enhances public health requirements by minimizing health risks and promoting healthy communities – 3.2.4.4(d).
In particular, people should be able to choose their residential location with realistic expectations of the future amenity of the area through:
“Maintaining acceptable standards of amenity in the vicinity of the boundaries of residential zones with other zones, ... and the exercise of discretionary powers in relation to applications in adjacent zones.
...
(d)ensuring that the development of land for residential purposes is consistent with the maintenance of an acceptable standard of residential amenity.
...
(f)ensuring that industrial and commercial areas are secure against the development on adjacent land or the intrusion into industrial or commercial areas on other forms of development with which they may seem to be incompatible”. (See paragraph 3.2.4.5, (b), (d) and (f)).
There is an intention in the plan to support industrial and business activities, the ongoing improvement of Brisbane’s external transport linkages, including its air and sea ports, and preventing development in the vicinity of such areas, whether existing or committed, which will be sensitive to any generated effects ... (See paragraphs 3.2.5.1, 3.2.5.3(c) and 3.2.5.6(a)).
With regard to the major industrial areas, there is a preference to have them as far away as possible from residential and other sensitive uses. In particular:
“Development occurring near major industrial areas should not jeopardize the capacity of these areas to be utilized for industrial purposes. Development which is intolerant of the likely impacts of existing or future industrial use of these areas should be located away from them or designed and managed to ameliorate any such impacts so as not to prejudice the continued use of these areas for their intended purpose.” (See paragraph 3.3.3,(a), last paragraph).
A Major Industrial Area includes the land to the north and west of the subject land. The plan speaks of the effect on residential areas, such as Wynnum North:-
“Similarly, the interface with residential development in Wynnum West and Wynnum North will be required to be designed and managed to minimize impacts on those residential areas.” (See paragraph 3.3.3.2 (b).”
Planning policies may show the way in which discretions called for by the Strategic Plan will be exercised. Planning Policy 7.19 deals with the development of new residential areas “in proximity to existing and committed non residential uses”. While it appears to deal with residential areas which are immediately adjacent or very close to industry, the policy shows a determination to enforce the separation of incompatible industrial and residential uses:-
“ Where non-residential use is a noxious or offensive industry or a hazardous industry, the development of residential area adjacent should be strenuously avoided. (emphasis added).
Because of its use as a theological college, the subject land is zoned Particular Development (Educational Establishment). Before the introduction of IPA, the present application would have been for the rezoning of the land to residential uses.
The above provisions of the Town Plan show a concern with both residential and industrial areas. The residential areas should have acceptable standards of noise and air quality, as part of the amenity they offer residents. Separation from industry is a way of achieving those aims. There may be buffer zones between the two. The Strategic Plan is the basis for the realistic expectations of residents in newly developed areas. On the other hand, existing and future industry is to be supported particularly in the Gateway Port Area to the north and west of this land. Residential development, being intolerant of any unpleasant impacts of industrial use, should be kept sufficiently away from the industrial areas so as not to prejudice their continued use, for their intended purpose.
The 2000 City Plan
The new Strategic Plan shows this land in a Residential Neighbourhood. The Strategic Plan aims are very similar to those of the Town Plan. In particular, note paragraphs 2.2.2.6(c) and (f); 2.2.2.7(d); 2.4.2.3(a) and 3.5.2.1(h).
In the Area Plan, the subject land is shown as a Community Use – Education Purposes. Such a use is dealt with in Chapter 3 Part 8 of the City Plan, at s. 8.1:
“Land in the community use area may be either privately or publicly owned and accommodates a range of community uses ... When a community use area is no longer being used for its intended purposes, its replacement should be another community use, particularly in an area where there is a demonstrated need for these services.”
The four allotments to the immediate north of the subject land are in the Emerging Communities Area. Paragraph 4.4.2.1 of Chapter 2, says that:
“Development in Emerging Community Areas is to be orderly, well planned, and will provide a diverse range of housing types and supporting uses ... isolated subdivisions are inappropriate and new development will conform with Local Plans and detailed Neighbourhood Structure Plans. Where development in an emerging community area occurs adjacent to an established Industry Area it will not be allowed to jeopardize the viability of industry that is operating at acceptable environmental standards.”
The Industrial Areas – Adjacent Development Code adopts as its performance criteria the protection of the public – “the level of risk to public safety, property and the environment from technological hazards (including fire, explosion and chemical release) must be within acceptable limits”. An acceptable solution, between a subdivision and a Major Hazards Facility (such as the Caltex refinery) is separation of 1,500 metres. Alternatively, there may be less separation where the demonstrated level of risk from adjacent industry is within acceptable limits.
Map A, at Chapter 5 page 112, shows the impact of that 1,500 metres separation on land surrounding the Lytton area. It shows the subject land within 1,500 metres of the refinery.
(Literally, it is not clear that the Code would apply to this application. A Structure Plan was not requested as part of an information request. However, it may be taken, by analogy, as a guide to policy about separation distances.)
The City Plan also contains a Hazards and Risk Assessment Planning Scheme Policy.
City Plan requires hazard and risk analyses, when a new residential development (such as this development) is potentially subject to risks from existing development. It is meant to be a screening criterion to identify when hazard and risk issues require further investigation.
The criteria used by the NSW Department of Planning and Urban Affairs for “individual fatality risk” have been adopted. That is “the risk of death to a person at a particular point”. Where residential use is being proposed, then that risk must not be greater than 1 x 10-6 - in other words, no greater than a one in a million chance of death during a year’s exposure to the risk.
The policy also introduces the idea of “societal risk criteria” – that is, criteria taking into account the number of persons exposed to a risk.
The City Plan provides for the creation of local plans. A local plan, when adopted, takes precedence over the other provisions of City Plan. In this case, the Wynnum Manly Local Plan has been under consideration since before this application was made. The evidence shows that it is now in its final form, having been advertised, and that it will be adopted in about five weeks’ time.
The map which is part of the draft Local Plan shows that the subject land, and the four allotments to the north, are in the Wynnum North Precinct (3.1). The draft Plan says this:
“This precinct is to act as a transition zone between the residential development of Wynnum and the green buffer to the industrial activities to the north.
The port and other industrial activities are within close proximity to the precinct. As such it may be subject to environmental hazard and risk.
The precinct supports a vegetated waterway along the eastern boundary that flows directly into the adjacent mangrove forests and inter-tidal wetlands of Moreton Bay.
Due to the proximity of industrial activities and environmental features, development within the precinct should be limited to low density residential, being detached housing on lots of 2,000 square metres or greater. Other land uses particularly multi-unit residential, and centres activities are considered inappropriate.”
The above provisions assumed considerable significance during the hearing of the appeal. Little attention was paid to the present Community Use classification of the land. It seems likely that those provisions will be overtaken, in any event, by the introduction of the local plan.
Finally, the City Plan contains an Air Quality Planning Scheme Policy. (See Appendix 2, at page 9.) It does not provide for the comprehensive management of air quality. It is meant to complement the operation of the Environmental Protection (Air) Policy. Its aim is to minimize air pollution in Brisbane, primarily to protect the health of its residents. It emphasizes the importance of attenuation distances to separate conflicting land uses and to minimize air pollution on sensitive receiving environments. It observes that, even if other control measures are used, emissions such as odour may still occur. Adequate attenuation distances between industry and sensitive receiving environments are effective ways of avoiding or minimzing such adverse impacts.
Paragraph 8 sets out some local air quality design levels. The concentrations for sensitive receiving environments have been set, “as a safety margin for the most critical pollutants, to prevent emissions from exceeding levels that could expose people to unhealthy levels or nuisance impacts from air pollution. They are more stringent than the Environmental Protection (Air) Policy goals because modelling typically fails to adequately account for many complicating factors. Examples of these factors are very low windspeeds/stable conditions ... “Industry should aim to meet the air quality goals in all areas and the design ground level concentrations in sensitive receiving environments”.
Table 3 then sets out the specified concentrations for a variety of pollutants. In this case, sulphur dioxide and benzine are probably the most significant. As Edgarange pointed out, it was hard to find any evidence that either concentration was ever exceeded on this land.
Complaints
Caltex has records of 740 complaints from 1965 to mid-2001. The records are incomplete from 1991 to 1995 – it is likely that they have been lost, or thrown out. It also seems likely that the records do not include some other complaints which were made. For example, Mr Edwards complained, but later noted that his complaint had not been recorded.
Local residents gave evidence. Some had been troubled by noise and odour and some made complaints, while others took little notice of such things and felt no need to complain. Among those who complained, three were neighbours of the subject land (see exhibits 18C, 18D and 18E). Three residents gave evidence (Ms Gregory, Ms Dunn and Mr Edwards) all complaining of difficulties they had felt because of, so they believe, emissions from the refinery.
The analysis of the complaints shows that the majority are related to noise, rather than to odour or air quality.
The nature of the complaints should be noted. Mrs Dunn lives to the south of the site. She mentions the occasional noise from the aerial flare. She is frequently woken at night by the same sort of noise, which appears dependent on the wind direction. She experiences vibration. (Caused by the infrasonic noise from the ground flare). She also experiences deposits of soot and ash. She mentions an unpleasant odour, similar to tar or bitumen, which occurs mainly in the early evening or early mornings, with northerly winds.
Mr Edwards lives in Alan Street, not far from Wynnum Railway Station. He experiences an unpleasant industrial/petrochemical smell when there is a northerly or north-westerly wind, and also during times of complete calm. He experiences a dull background noise. He often finds that “oily soot” has been deposited on his house. In particular, he complains about the effect on his wife, who is prone to suffer from migraines. The odour often triggers a migraine headache. He explains why he attributes that to the Caltex Refinery – he noticed a similar effect when they were travelling along the river on a boat, and went through the plume from the refinery.
Ms Gregory lives just south of the subject land. She experiences odour and vibration, and particle deposits on her house. She notices the noise at night, which resembles the operation of machinery, and often occurs in the early hours of the morning. It disturbs her sleep. That is an ongoing complaint.
Overall, there have been complaints about intermittent noise and odour, some of which have been confirmed as coming from the Caltex refinery, particularly at times of northerly, north-westerly, or very low winds. Infrasonic sound causes windows to rattle. The complaints, which also include anecdotal evidence, show that some people, such as those with respiratory diseases, asthma or migraine, are the most susceptible.
The scientific evidence about noise and odour, like the residents’ evidence, range from the robust (most people would not be troubled by noise or odour) to the more sensitive (there is likely to be a significant level of complaint from any new residents on the subject land). With regard to noise, the opinions of Mr Huson should be accepted. It emerged that he had the greatest experience of noise levels in the area, at different times of the day and year, because of previous work that he had done around the Caltex refinery. Mr Winders made noise measurements on the subject land, which were not themselves challenged, but which appeared not to be capable of presenting a complete picture. Mr Winders was inclined to disregard the level of complaints in the past.
Mr Huson’s evidence supports the probability of future complaints from noise. He says that the noise from the operations of the Caltex refinery will at times cause levels to exceed those recommended by the Australian Standard, at least without stricter building controls. In any event, controls over the construction of the buildings would not assist the amenity of outdoor areas on the land. He predicts that this development would see the level of noise complaints, attributed to the refinery operation, increase considerably. He recommends a buffer of 1,500-2,000m from the refinery. His evidence takes into account the recent reductions in noise levels, particularly because of work on the ground flare. It should also be understood that his evidence, consistently with the complaints, does not suggest unacceptable noise impacts on the proposed development all the time. The impacts will occur during calm conditions, or when the wind is blowing generally across the refinery towards this land – that is, from the north to the north-western sector. There will also be unexpected noises which can be caused by upset conditions or work during shutdown periods.
Mr Ormerod, who has considerable experience in air quality issues, gave thoughtful evidence about the likely effect of odour on this proposed subdivision. He emphasised the importance of the meteorological conditions – lighter winds usually occur in the early morning and at night, so that emissions are dispersed less effectively. The occurrence of northerly winds is greatest in the spring and summer, in the afternoon and early evening period. Therefore, odour is most likely to be noticed at particular times – when people are at home, awake, and either outside or inside with the windows open. Late afternoon and evening during the warmer months is the most sensitive time, with potential exposure to odours at its highest.
He said, and his opinion should be accepted, that the odour complaints represented “the tip of the iceberg”, because many people who were affected chose not to complain. While odour complaints were not always readily associated with the refinery, and potentially came from a number of sources, they would be sufficient to cause a significant level of complaint on the subject land. Overall, taking air quality issues into account he would recommend a buffer zone of 2000 metres between any residential development and the industrial areas. That is the Victorian recommendation for the buffer distance for an oil refinery. Otherwise, he was influenced by the 1,500 metres mentioned in the City Plan, above. He thought that this development would significantly increase the overall level of complaints about odour. He recognised the link between odour and complaints such as migraine, noting that the cause was often uncertain and could include psychological response, which has been described as “environmental worry”.
Dr Best also gave evidence about odour. Sources of odour include the sewerage treatment plant, 600 - 1,100 metres to the north; mangroves, at times; and the BP refinery. He mentioned the landfill just to the north, but that can be disregarded, as it is probably filled with inert materials.
These conclusions should be drawn from the evidence:
(a) There is no reason to doubt the testimony of those who gave evidence, either way. Their differing views reflect the range of perceptions that residents might have about noise and odour.
(b) The level of actual complaints is quite significant. It is likely that they represent a substantial amount of local dissatisfaction with noise and odour, as not all dissatisfied residents have complained.
(c) That conclusion takes account of the fact that Mr Long, in the North Point Estate, has personally complained on a great many occasions.
(d) Many of those complaints were wrongly attributed to the refinery. They were a result of other sources of annoyance, particularly odours, which could come from several sources.
(e) The arrival of 168 people in a new subdivision on this land would be likely to produce a similar pattern of complaints.
(f) The expert evidence, of Mr Huson, Mr Ormerod and Mr Best, corroborates the evidence of the residents.
Air Quality
Human beings can detect odours, but not all odours are harmful. Some harmful substances in the air may have no odour. Techniques exist for measuring air quality. For example, emissions are measured at the refinery stacks. The EPA’s controls, included in Caltex’s environmental licence, puts limits on those emissions.
Air quality can be measured at a particular point, or the quality of air over a distance can be measured. That is the technique which has been used since January 1999 on the Nazareth House land. An instrument projects a beam through a clear space of 290 metres. It then provides information on the average concentrations of certain substances in the path of a beam. That site is close enough to the land to be a valuable guide to likely concentrations on the land.
Mr Winders, Mr Ormerod, Dr Miller, and Dr Best all gave evidence about the EPA’s results at the Nazareth House site over the last year. The results are based on guidelines which the EPA has adopted, primarily designed to achieve measurements of air pollution. At Nazareth House, the equipment measured the concentrations of ozone, nitrogen dioxide, sulphur dioxide, benzene, toluene, p-Xylene, and visibility reducing particles. As their evidence makes clear (it is significant feature of the case for Edgarange) the recorded amounts of all substances were within the established guidelines.
However, it emerged from the evidence that such measurements have their limitations. The beam measures average air quality over 290 metres, and also over a period of time. For example, the concentration of sulphur dioxide was measured both on an annual basis, and on an one-hour basis. Because of the rapid effect of sulphur dioxide on human beings, it is important to understand its local concentrations over shorter periods of time, such as ten minutes.
The expert evidence also established some matters which are of significance here. The first, as Dr Miller explained, is that the general air quality at Wynnum could be compared favourably to other monitoring sites throughout the Brisbane region. However, he noted that the benzene concentrations were similar to those to be found in the Brisbane CBD or other urban areas of Brisbane close to main roads, as benzene is emitted from vehicle exhausts. He thought that “the added lifetime carcinogenic risk for future residents at the proposed site due to benzene inhalation is estimated to be one in 100,000 for individuals or about two in 1,000 lifetime chance for future residents”. He described that as a relatively low risk.
More significantly, Dr Best dealt with the effects of carbon dioxide, as a particular by product of refinery operations. Dr Best’s views derive support from Exhibit 24, a bundle of papers on sulphur dioxide. Acute responses can occur within the first few minutes after the commencement of inhalation. A wide range of sensitivity has been demonstrated, both among normal subjects and among those with asthma. People with asthma are the most sensitive group in the community to sulphur dioxide. (Exhibit 24, page 3). Maximum effect is achieved in 10 to 15 minutes, (page 8). While there is no suggestion of mortality in this case, Dr Best’s evidence should be accepted, that nitrogen dioxide concentrations, measured over ten minutes, are likely to cause impacts on sensitive individuals on this land.
Dr Best’s evidence is to the same effect as that of Mr Ormerod. Both emphasized the potential effect of the combined plumes from the Caltex and BP refineries, with winds blowing from the northwest. Dispersion modelling shows the risk of air exceeding the acceptable levels for sulphur dioxide on the subject land under those conditions. Also, as Dr Best explained, experience shows that concentrations of sulphur dioxide well below the established criteria can affect the health of some people. For those reasons, he thought, buffers were needed between industry, such as the Caltex refinery, and residential development. Alternatively, development should be less intense.
It is not surprising that this land, which is about 1,250 metres from the centre of the refinery operations, would have a reduced air quality. Even with the environmental licence in place, the refinery is a major emitter of many pollutants. It should be accepted that residents would have a reduced air quality, compared to the reasonable expectations of those going to live in a new suburban subdivision. The Turnbull-Cameron Report of 1999 (Industrial/Residential Interface Buffer Arrangements), referred to on page 4 of Mr Winders’ report, (Exhibit 4), is likely to be accurate:
“Sulphur dioxide concentration levels in the Tingal Road area could be of concern especially when northerly winds prevail. This is around 10 to 15% of the time. These over limit excursions could result in respiratory problems for those most vulnerable, such as the elderly or those with asthma, chronic bronchitis or emphysema. There is anecdotal evidence to suggest that this is indeed the case. This will be of ongoing periodic concern to those residents in the area south and south east of the Caltex site”.
Hazard and Risk
The expert evidence on this topic occupied a significant part of the hearing. That was not surprising. A risk assessment involves a considered prediction of how something might cause a risk of death to those potentially affected by it. The “something” in this case is hydrogen fluoride. Therefore, the assessments involved much debate about the ways in which hydrogen fluoride might affect the land, under a variety of conditions. It is not an easy exercise, to assess that risk.
Oil refineries worldwide first started to install HF alkylation units from the 1940s. The 1965 Caltex refinery contains such a unit. It holds about 32 tonnes of HF. The gas is highly toxic. It is a colourless fuming acid at ambient temperatures. The vapour is heavier than air. It is detectable by odour at concentrations significantly lower than are necessary to cause physical harm to a human being. It has some peculiar chemical qualities. It is a heavy gas, so it will usually follow the ground if it escapes. If it mixes with dry air, the gas cools down. However, in humid air, or in contact with water, it generates a lot of heat. A hot fog may result, and depending upon the combination of circumstances, the gas cloud may be either heavier or lighter than air. Because the gas reacts with water, safety measures including those of the Caltex refinery depend on the provision of water sprays around the HF unit.
Dr Hardy, a highly qualified expert in this area, mentioned some facts which may be of more interest to a lay person than to an analyst who deals in the prediction of future risk. Worldwide, in the 45 years from 1955-2000, only three people have been killed off the immediate sites of oil refineries, because of some incident on site. No similar HF unit, at an oil refinery, has caused any death.
Dr Hardy’s report contains a catalogue of incidents involving injuries caused by the used of HF gas in a variety of installations, not just refinery installations. Worldwide, about 10 people have been killed. Many more have been injured. There have been some evacuations involving thousands of people. It seems that people have occasionally been injured, off site. Because the gas is held under pressure, its escape is usually associated with an explosion or a rupture in a pressure vessel.
It is striking to note that this Caltex refinery has been the source of two of those escapes of HF gas. In 1976 the refinery lost 30 tonnes. There were no injuries reported during or after the incident, and there were no complaints received from the public which could be readily connected with the loss of the HF. Then in 1977, the repairs at Caltex failed, because of a faulty weld, and a similar loss of gas occurred. Two operators were slightly injured. One was off work for three days.
Those alarming incidents caused the refinery to obtain a report about the risks of the HF gas, and any mitigation measures that could be installed. In the result, what is called a System 4 was installed. It basically involves a separate tank into which the majority of the HF under pressure can be rapidly dumped in the event of a leak to the atmosphere. It is accepted that its installation has mitigated future risks.
Evidence about the present risk from the HF unit, particularly to the proposed residents of this subdivision, was given by Dr Hardy, Dr Cameron, and Mr Just. In short, Dr Hardy said, during the course of his lengthy evidence, that the effects of another loss of 32 tonnes of HF would be spent by the time that it reached about a third of the 1260 metre distance to the subject land. The dispersion of any gas is largely dependent upon the prevailing winds which usually do not blow towards the land. On the other hand, Dr Cameron and Mr Best thought that it presented a greater risk, which they described as borderline. Therefore, they were not in favour of the present development, because of that level of risk.
Brief reference was made above to the provisions of the City Plan dealing with the assessment of risk. It was common ground between the scientists that the acceptable risk, for one person over one year, was 1 x 10–6 risk of death. A reader can then understand the significance of the “risk contours” produced by all of them, in an attempt to graphically illustrate the levels of risk as the distance from the epicentre, about the middle of the refinery site, increased. The distance from the epicentre to the boundary of the subject land is 1,260 metres.
As Dr Cameron explains in his report (Exhibit 17) a number of risk assessments, involving this HF alkylation unit, have been carried out. He was the joint author of the 1999 Turnbull and Cameron Report, mentioned above. In summary, the 1991 DNV Report (before the installation of mitigation measures) put the subject site within the one in a million contour – that is, an unacceptable risk. Then, the Technica Report (designed to identify hazards, rather than being a risk assessment) found that the subject land was at some risk in the event of an HF release, particularly because the heavy gas clouds could slip around elevated positions, such as Nazareth House.
Then, in 1996, Caltex commissioned Quest Consultants of Oklahoma to carry out another risk analysis. The intent was to consider the effect of the mitigation measures in reducing offsite risks. Figure 5 of Exhibit 17 shows their conclusions – the development site is close to the 1 in 10 million contour line – that is, outside the area of unacceptable risk.
Dr Cameron went on to discuss the relative merits of the previous studies, in the light of current scientific thinking. There can be considerable differences in the gas dispersion models which are adopted. Overall, Dr Cameron thought that the subject land was in a “band of uncertainty” which was a borderline, unacceptable position. In reaching that conclusion, he took into account the number of new residents on the proposed site.
Mr Just was concerned to identify other possible risks in the area. He went on to consider the possible impact of the proposed dangerous goods warehouse facility almost 2km to the north and the possibility of dangerous goods accidents along Port Drive. Overall, it was his view that “… with the addition of contributions from all existing and future sources of risk in the area, the cumulative level of risk will exceed the planning guidelines for risk that are issued by the New South Wales Department of Urban Affairs and Planning and generally accepted in Queensland … (Dr Hardy’s report) has not attempted to quantify to any other risks affecting the subject site. It is not clear that the large apparent differences between the estimated risk levels included in the latest work and those quoted in earlier reports have been fully explained. It is therefore also not clear that the estimated risk determined previously should be significantly reduced, or that it has been demonstrated that the cumulative risk of the subject site falls below the planning guidelines”. (Exhibit 10 page 28).
If this court were faced with the need to make a judgment about such difficult scientific matters, then it might choose the opinions of Dr Hardy about the HF risk. His extensive experience and expertise in this area, and the cumulative expertise of his firm, on which he relied (Det Norske Veritas was founded in 1864 as an independent foundation with the objective of “safeguarding life, property and the environment”) would be significant factors.
However, the question is to arrive at the right decision from a planning perspective. That includes risks from all sources. From that overall perspective, it is better to say that uncertainties remain about the level of risk which all developments in the industrial areas will present to the subject land. Once the question is posed that way, it is better to conclude that the acceptability of the risk to this subdivision has not been demonstrated. That is the cautious conclusion. It can be seen as an elementary application of the precautionary principle, which is relied upon by those resisting this appeal. In any event, for the reasons which appear elsewhere, the proper conclusion will make no difference to the outcome of this appeal.
The Impact on Industry
The above references to the Town Plan, the City Plan, other major planning documents, and to the industrial areas nearby show the importance of providing proper protection for industry from the constraints of nearby residential development. Not surprisingly, this court has in the past recognised the importance of giving effect to those planning provisions. For example, see the decision in Clan Holdings Pty Ltd v Brisbane City Council 1999 QPELR 13:
“Residential and industrial development are not generally regarded as compatible in a Town Planning sense … industry is a prohibited use in the zones intended to cater for residential use and typical residential uses are prohibited in zones intended to cater for industrial uses. … this basic planning principle is recognised and repeated in the Town Plan … it is sufficient to note that the promotion and preservation of a high standard of residential amenity is fundamental to the Plan’s aims and objectives for the Residential Zone, equally the promotion and protection of a strong and economically viable industrial base underlines the Plan’s aims and objectives for the industrial zones” (at page 16).
The refinery has been at Lytton since 1965. It operates 24 hours per day for every day of the year. Sometimes, parts of the refinery are shut down for maintenance. There is a whole refinery shutdown each 8 years or so. Hundreds of contractors then arrive at the site to repair or maintain machinery.
The operations have been expanded since 1965. The demand for fuel supplies in Queensland keeps on growing. Caltex now supplies about 60% of Queensland’s fuel needs. Australia has eight such refineries. Queensland has two – the BP Refinery is on the other side of the Brisbane River.
A refinery has to be close to a port, because most of its feed stock is delivered in ships which carry the crude oil. A refinery needs to be near to its major markets. It seems that the Caltex refinery will be at Lytton at least until 2015, and probably for much longer than that. Relocating it would involve a massive expenditure of money. It can be accepted that the refinery is an essential part of Queensland’s industrial base, particularly in the south-east.
Unfortunately, in the ordinary course of co-operations, a refinery inevitably produces noise, odours, light, and large amounts of contaminants. This refinery holds an environmental licence, issued according to the provisions of the Environmental Protection Act. The licence recognises its emissions, and then seeks to control them according to the conditions in the licence. The evidence indicates that there are likely to be some further additions to the refinery in the future. In particular, attention is presently being paid to the need for the installation of electricity generators (to lessen the dependence on supplies from Energex) and on further plant to produce fuels, which result in less pollution (an initiative of the Commonwealth Government).
Broadly speaking, recent years have seen a reduction in the level of noise, odour and harmful emissions from the refinery. To some extent, the level of emissions depends upon the type of crude oil being processed. Any of those unpleasant side-effects may be increased by future expansion, with the introduction of new plant and equipment.
The evidence shows that the existing residential development nearest to the Refinery, particularly the North Point development, has had a considerable impact on Caltex. It has spent large sums of money to ameliorate the impacts on the amenity of residents. On the cracking unit, a source of noise, on the new ground flare system ($6,000,000) and on noise reduction measures for the ground flare, in 2,000 (about $400,000). Responses to complaints have included reducing the refinery’s rate of production and yield from time to time – that reduces the need for flaring, which has been a source of noise.
Refinery staff have also responded to the need to investigate and record every complaint. Community consultation on a regular basis has been required, to deal with dissatisfaction. A significant part of Mr Preslmaiers’ time is spent on such matters. Also, during unfavourable wind conditions, production product volume yield has been reduced from time to time.
The above matters show why there is a real and practical tension between the operation of a refinery and increasing residential development which is within the range of its impacts. Future expansion (mentioned in Mr Fagg’s statement,) may lead to more complaints. There is no reason to doubt his observation, (Exhibit 34 para 17) that:
“encroaching residential development is notorious for restricting refinery operations and can threaten the viability and continued existence of such operations… The Clyde Refinery in Sydney has had severe restrictions placed on its operations to the extent that its viability is now questionable because of public pressure. This refinery is located in the geographical centre of Sydney.”
It was submitted for Edgarange, that existing and the future industrial development should observe the environmental restrictions placed on its operations. That is an aim of the planning documents. In principle, it is true. In practice, a planning authority, and this court, have to consider the real world impacts from industry. To take the Caltex refinery as an example – there have been upset conditions, which have led to exceedences of emissions, there have been power failures, there have been unexpected equipment failures and no doubt there are human errors from time to time. Because of the relatively complex structure of the Environmental Protection Act those events may or may not amount to offences against that Act. For example, a breach may not be wilful, or there may be some other defence available. For all those reasons, the proper planning response is to look at the likely impact of an industry, and its likely response to community pressures. Such was the attitude of this court in Clan Holdings (supra).
Need
In considering community need, it may be accepted that there is such a need, to continue to make provision for residential development in Brisbane. It is clear that the Edgarange site has an easterly aspect with pleasant views over Moreton Bay. There is no suggestion that it has any unique features, which would compel its reconfiguration into 56 allotments.
The evidence from the town planners is to the effect that there are adequate stocks of land for residential development, including those in the Wynnum area. They may not be on the shores of Moreton Bay, but they have other attributes.
Residential development is more flexible than major industry – that is, it is far easier to have new residential development in different parts of the city, than to relocate major industrial areas. When the appropriate balance is struck, there is no evidence of any compelling need for this proposal to proceed.
Town Planning
The Town Planners (Professor Brannock, Mr Challoner, Mr Ryan, and Mr Vann), have all mentioned the impact of the Wynnum/Manly Local Plan. Only Mr Challoner thought that this proposed development was consistent with it, in providing a transitional area between the residential development to the south and the buffer zones to the north. The others gave considerable weight to that draft Local Plan, and concluded that this proposal would be contrary to its aims.
In principle, there is no reason why it should not be given weight, in this case. First, if weight is given to the provisions of the City Plan, that weight may also include a regard for this draft Plan. It is about to be adopted. A planning authority, or this Court, should give weight to a town planning scheme, or local plan, in the course of preparation. Care should be taken not to give a decision or judgment which would render more difficult the ultimate decision as to the form the scheme should take. That is the well known Coty principle, which has been accepted as being part of the law in Queensland – see the Full Court in Lewiac Pty Ltd v Gold Coast City Council 1996 2 QdR 266.
Secondly, the Council, and not this court, is the planning authority for the City of Brisbane. It is not this court’s function to substitute planning strategies, which in a particular appeal might seem to be attractive, for those which the planning authority in a careful and proper way has seen fit to adopt (to note the words of this court in Elan Corporation Pty Ltd v BCC 1990 QPLR 209-211. See also the Court of Appeal in discussing such issues in Holts Hill Quarries Pty Ltd v Gold Coast City Council & Ors (2000) QCA 268, Judgment 14 July 2000.
Here, it is appropriate to give substantial weight to the provisions of the City Plan, including the draft Wynnum/Manly Local Plan. It is apparent that the provisions about precinct 3.1 are meant to be a considered response to the issues dealt with in this appeal. It seems that the Plan is a compromise between the various considerations put before Council. The selection of allotments of not less than 2,000m is a compromise which will allow some development, but only at low densities. Because of the perceived risks, both to future residents, and in turn to industry itself, the impacts of each on the other will be reduced.
If this development were to proceed, it would immediately make pointless the provisions of the draft plan over more than half the land in the precinct. Only the four most northerly allotments would remain, to be influenced by the plan. The court should be slow to cut across Council’s declared intentions for this land.
The opinions of the town planners, apart from Mr Challoner, were all against this proposal. Those opinions should be accepted. It may be noted that Mr Challenor gave almost no weight to the level of complaints, and the draft Local Plan.
Conclusions
For the above reasons, it is quite clear that the decision of the Council, to reject this application, was correct. Two factors alone would have been sufficient to dispose of this appeal – the level of complaints, and the provisions of the draft Local Plan. In addition, the scientific evidence points in the same direction. The proposed, dense development is too close to the industrial areas, particularly the Caltex refinery. The previous approval of the North Point estate should not be allowed to influence this application. The likely impact on industry would be contrary to the planning documents.
The appeal is dismissed.
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