Hall v Nanango Shire Council

[2005] QPEC 42

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Hall & Ors v Nanango Shire Council & Ors [2005] QPEC 042

PARTIES:

KATHRYN A HALL (AKA CRAWFORD)
GLORIA FRANCES ANDERSON
BEVERLEY JOY ANDERSON
RAE BROUGHAM
BERNARD WILLIAM O’CONNELL
ROSLYN ANNE O’CONNELL
JAMES BARCLAY AND
LYNETTE BARCLAY
(Appellants)

v

NANANGO SHIRE COUNCIL
(Respondent)

And

RONALD THOMAS CULLEN AND
VICKI KATHLEEN CULLEN
(Co-Respondents)

And

STATE OF QUEENSLAND
(Co-Respondent by Election)

FILE NO/S:

No. 2  of 2004

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court Kingaroy

DELIVERED ON:

19 May, 2005

DELIVERED AT:

Toowoomba

HEARING DATE:

18 – 20 April, 2005

JUDGE:

McLauchlan QC DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

Material Change of Use – Feedlot – Concurrence and Referral Agencies

Cases cited:
Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153
Vynotas Pty Ltd v Brisbane City Council (2001) 112 LGERA 206

COUNSEL:

Mr Ure for the Respondent; Mr Everson for the Co-Respondents; Mr Hinson SC with Ms Brien for the Co-Respondent by Election

SOLICITORS:

King & Company for the Respondent; Condon Charles for the Co-Respondents; Crown Law for the Co-Respondent by Election

1. This is an appeal from a decision of the Respondent approving a development application for a material change of use consisting of a substantial expansion of a feed lot known as the “Nooroomba Feed Lot” on Maidenwell-Bunya Mountains Road, Nanango, by the Co-Respondents Richard Thomas and Vicki Kathleen Cullen.  The development for which approval was sought was the expansion of the existing beef cattle feed lot from 999 standard cattle units (SCU) to 9,000 standard cattle units.  The application called for impact assessment of the proposed development pursuant to the provisions of the Integrated Planning Act 1997.  The respondent was the assessment manager for the application.  The Department of Main Roads was a concurrence agency, because the land is adjacent to a State controlled road.  The Department of Primary Industries was also a concurrence agency because the application involved an environmentally relevant activity.  Mrs Hall and the other appellants were submitters in relation to the application.

1. On 7 July, 2003 the Department of Main Roads provided a concurrence agency response that required warning signs about trucks entering the tourism route from the subject site.  There were no other conditions imposed by the Department as a part of the concurrence agency response.  On 10 May, 2004 the Department of Primary Industries provided a referral agency response approving the application subject to various conditions which dealt with matters such as stock intensity, cattle capacity, an environmental management plan, water, disposal of waste, community amenity and effluent requirements.  On 11 December, 2003 a separate development application was made to the Environmental Protection Agency as assessment manager for a soil conditioner manufacturing facility on one of the lots forming part of the subject site.  The application related to ERA No 53 Soil Conditioner Manufacturing and ERA No 2(c) Cattle Feed Lotting.  That application was approved subject to conditions on 7 December, 2004.  A licence was issued pursuant to the provisions of the Environmental Protection Act 1994, taking effect from 7 December, 2004.

1. On 22 September, 2004 the Respondent approved the development application for a Material Change of Use subject to various conditions, including conditions imposed by the Department of Main Roads and the Department of Primary Industries. 

1. The decision approving the development application was made on 14 September, 2004 and notified to applicants by Decision Notice dated 22 September, 2004.  The approval did not extend to the effluent irrigation areas proposed by the Applicants and further required that the Applicants complete the application lodged with the Environmental Protection Agency for its approval of the soil conditioner manufacturing facility.  As noted above, that application was completed and a licence issued.  With respect to the non-approval of the effluent irrigation areas, an appeal was instituted by the Co-Respondents Mr and Mrs Cullen, the Notice of Appeal being filed in the Brisbane Registry and given No. BD 3809.  The appeal was against Condition 2 of the Decision Notice which stated that the effluent irrigation areas were not approved.  That appeal was disposed of initially by an order made by consent on 19 April, 2005 which deleted the Condition in question from the Decision Notice and substituted a different Condition (F10) of the Department of Primary Industries concurrency agency conditions.  That order was set aside by consent and a further consent order made, on 13 May 2005, the terms of which are set out later in these reasons.

1. The subject land is situated at 709 Maidenwell-Bunya Mountains Road which is approximately 34 km southwest of the town of Nanango and 6½ km east of the township of Maidenwell.  The proposed feedlot is to be located on part of a large rural landholding comprising two titles, Lots 10 and 11 on FY 686, having a combined area of 336.612 ha.  The subject land is bounded by Dugdell Lane to the east, and the Maidenwell-Bunya Mountains Road, a State controlled road, to the north.  The land is situated on the lower north-western slopes and floor of a valley drained by Clapperton Creek.  The creek in this locality generally flows to the north-east, and has for some time now comprised a series of disconnected pool and water holes.  At the southern end of the subject land, Clapperton Creek is fully contained within Lot 11 and the southern part of Lot 10, before flowing east to cross Dugdell Lane, and thence flows northwards on the eastern side of that road to cross the Maidenwell-Bunya Mountains Road near the north-eastern corner of the land.  Generally slopes within the land are moderate and fall to the south-east.

1. The site of the proposed cattle feedlot is situated on the lower slopes of the valley side, adjacent to an existing cattle feedlot. The subject land has 3 bores and a pump to take water from Clapperton Creek. As the site is not a declared ground water area, the Water Act 2000 authorises any person to take sub-artesian water for any purpose. There is an existing water licence that authorises supply of water from Clapperton Creek to lot 10. This water supply source can be used for stock watering purposes only (not associated with the feedlot) under the terms of the existing licence.

1. The proposal will involve the construction of 62 new cattle holding pens to the immediate south of the existing 12 pens, which make up the existing feedlot.  Associated work will include the construction of diversion drains, catch drains, feed troughs, roadways, a sedimentation basin, new holding pond and expansion of the solid waste (manure) treatment area.

1. The Planning Scheme for the Shire of Nanango was gazetted on 16 September, 1989 and is a transitional planning scheme under the Integrated Planning Act 1997. The subject site is within the Rural A zone, the stated intent of which “is to conserve areas of agricultural significance wherein residential, industrial and commercial uses will be restricted”. Division III of the Planning Scheme, the Table of Zones, includes the “lot feeding of stock” under Column IV – Purposes for which any premises may be used only with the consent of the Council. The result is that under the Integrated Planning Act the proposal requires impact assessment.

1. The subject site is shown as having a Preferred Dominant Land Use of “Rural Areas” under the Shire Strategic Plan.  The intent of the Rural Areas designation is:

   “These areas…………………….designate the balance of the Shire not required for other preferred dominant land uses.  These areas include land which will be withheld from development because of environmental, slope or drainage problem constraints or land already in rural use, minor and major, as identified in Part B.”

2. There are four objectives for the Rural Areas Preferred Dominant Land Use which can be summarised as addressing:  the preservation of rural character, providing for the needs of rural residents, discouragement of unsuitable subdivision and to identify lands not specifically committed to other more intensive development.  Part B is the supporting information document.

1. The Strategic Plan, as well as stating objectives with respect to the Rural Areas Preferred Dominant Land Use designation, also nominates objectives not related to particular preferred dominant land uses.  These include tourism.  The relevant objective seeks to provide for and promote enhancement and expansion of tourism development.

1. “Lot feeding of stock” is defined in the Planning Scheme as:

   “Any premises used or intended for use for the purposes of concentrated feeding of stock in stalls, stockyards or compounds or the like, as distinct from range feeding, but excluding animal husbandry, piggeries, commercial stables and commercial kennels as herein defined.”

2. There is one provision of the Planning Scheme which calls for special mention in relation to the present matter.  Division XII of Part V of the Scheme (Special requirements in relation to particular development) stipulates separation distances for feedlots from features such as land zoned Residential and Rural B; public roads; site boundaries; water courses, wells or bores; and dwelling houses not associated with the use.  In particular, it is provided that any lot feeding of stock containing more than 1,000 cattle shall not be located closer than 5 km to all residential zones and the Rural B zone.  The development complies with the specified separation distances with the exception of that in relation to Rural B zoned land.  There is Rural B development on the corner of Brooklands-Pimpimbudgee Road and the Maidenwell-Bunya Mountains Road which is approximately 2.5km from the subject land.  To that extent, there is an inconsistency between the Transitional Planning Scheme and the proposed development.

1. The question of conflict with the Respondents’ Planning Scheme was raised in submissions by the Appellant. However the submission was founded upon the application of s 4.4.(5A) of the Local Government (Planning and Environment) Act 1990, which is concerned only with conflict with “any relevant strategic plan or development control plan”. No conflict with either of those two planning instruments was identified or suggested.

1. The Respondents’ draft Planning Scheme is in the final stages of preparation having completed public notification, and is expected to be adopted by Council by the end of July 2005.  Some weight can therefore be given to its provisions. Section 4.11 of the draft plan contains the “Animal Keeping and Intensive Animal Husbandry Code”.  Intensive animal husbandry is defined to include a feedlot.  A footnote to Part IV – Division II – 4.11 indicates that intensive animal husbandry is assessable in all localities in the Shire.  “Exact setbacks will be determined as part of assessment of an application through reference to environmental codes of practice, environmental management guidelines, reference manuals, separation guidelines and other documents held by State government and endorsed under the Environmental Protection Act.”  Schedule A to Planning Scheme Policy No 1 sets out possible setback distances to sensitive receptors, from intensive animal husbandry compounds,  but these are stated to be merely a guide.

1. The issues in the appeal can be identified as follows:-

(a)        separation distances

(b)        traffic

(c)        waste management

(d)        odour

(e)        ground water

(f)        water sources.

1. The issues of separation distances and odour can be dealt with together.  The substantial consideration for determining separation distances is the effect of odour from a feedlot operation upon neighbouring receptor sites.  Evidence was given for the Respondents on this matter by Simon Welchman, and Robin Ormerod, both of whom prepared detailed reports on these issues.  Both witnesses assess the issues by applying the criteria in the “Reference Manual for the Establishment and Operation of Beef Cattle Feedlots”, a manual produced by the DPI.  It is pointed out that the guidelines contained in the manual are specific to feedlots and are based on a combination of extensive research into feedlot odours and more general environmental management, as well as experience in the operation of more carefully designed and managed feedlots over the past 15 years.  Mr Welchman’s conclusions are that the proposal is consistent with the separation distances required by the DPI  and specified in the feedlot reference manual.  Further, that it is feasible to manage odour emissions from the expanded Nooroomba feedlot to avoid adverse odour impacts at nearest residences.  And finally that compliance with the operational requirements of the feedlot reference manual and the DPI’s development permit conditions would ensure that odour emissions and impacts are minimised to the maximum extent.

1. Mr Ormerod concludes:-

   “The DPI and F feedlot manual has provided sound guidance on siting, design and management of feedlots.  The manual is based on intensive research into environmental management of feedlots.  Those feedlots that comply with its requirements are very unlikely to cause an unreasonable odour impact.

   The separation distance guidelines from the manual have been applied with the result that adequate separation distances are indicated for all of the nearest residences.  Residences and settlements further from the feedlot are clearly well separated.  As a result, odour, dust and noise impacts are expected to be well within acceptable levels at these locations. 

   Local weather data supports the concept of a cold air drainage flow pattern down the local creek valleys, including Clapperton Creek which runs though the current property.  This pattern limits highest odour impacts to the drainage flow path, thus avoiding nearby residences.  Local residents are most likely to encounter feedlot odours as they pass by the property on the Maidenwell-Mt Bunya Road, particularly in the period between late afternoon and early morning.  However, this odour exposure situation is not regarded as being problematic in the Queensland odour assessment framework.

   Accordingly, if the feedlot is designed and managed according to the feedlot manual requirements, it can be expected that reasonable amenity in the local area will be preserved, taking into account its rural character.”

2. There was some evidence on behalf of the Appellants of unpleasant odours being experienced, from time to time, on properties some distance from the site of the proposed expanded feedlot.  However, these observations were very general in nature and were not supported by any expert evidence at all. 

1. Mr Welchman says apart from the guidance provided by the feedlot reference manual, he has undertaken his own calculations of the separation distance from the expanded feedlot based on his review of the characteristics of the site and surrounds.  He concludes from that assessment that the available separation distances are adequate to ensure that the proposed expanded feedlot can be operated and odour emissions can be managed to avoid adverse odour impacts.  In his separate calculations he has also considered two sensitive locations that were not specifically identified in previous assessments.  In his opinion the separation distances available between these locations (the Anderson residences and the “Rural B” zoning on the corner of Maidenwell-Bunya Mountains Road and Brooklands Pimpimbudgee Road) are sufficient to ensure that adverse odour impacts can be avoided.

1. The Appellants rely on the provision already referred to in the Transitional Planning Scheme requiring a minimum stated separation distance from a feedlot and neighbouring receptor sites.  However in an application made under the Integrated Planning Act and requiring impact assessment, the provisions of the Transitional Planning Scheme no longer have the force of law and are of persuasive force only:  Vynotas Pty Ltd v Brisbane City Council (2001) 112 LGERA 206, and Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153. It may well be thought that any other conclusion would be absurd in view of the fact that the application is made under the Integrated Planning Act and requires impact assessment under that Act, and that a planning scheme under the Integrated Planning Act does not have the force of law but simply has effect as the planning scheme for the local government area concerned.  In view of this, and in view of the significant difference in the provisions in relation to feedlots in the draft IPA Compliant Scheme of the Respondent, it is my view that the provisions in the draft plan are to be preferred, and that the provision in the transitional planning scheme should be given very little weight.

1. With respect to traffic, Messrs Epell and Beard of Epell, Olsen & Partners and Beard Traffic Engineering Pty Ltd respectively, are at one in saying that the increased traffic which will occur on Maidenwell-Bunya Mountains Road as a result of the expansion to the feedlot is not such as to cause a problem or to require additional road works.  In his report Mr Epell says:-

   “The proposed development will increase traffic volumes on the surrounding road network by some 16 movements per day.  Including allowance for the approved soil conditioning plant, an additional 18 movements per day, approximately, will result.  Such an increase in traffic due to the development is not unacceptable. The increase in traffic as the result of the proposed development is not of such significance as to cause unacceptable detriment to amenity or traffic capacity levels.”

2. He goes on to say that signing and access works have been conditioned on the development as part of other approvals, that these works are achievable and will mean that the proposed development does not create unsafe traffic conditions.  He proceeds to conclude that the development will have no significant adverse effect on the surrounding road network, and that there are no issues in traffic terms which would prevent the development from proceeding. 

1. Mr Beard states that the Maidenwell-Bunya Mountains Road, between the subject site and Maidenwell, is currently constructed to a standard appropriate for the nature and volume of traffic carried.  The subject development will significantly increase traffic volumes on the route, but it will satisfactorily accommodate the anticipated traffic increases.  No road works are reasonably required as a consequence of the proposed development, beyond the signage required by Department of Main Roads.  Mr Beard also refers to the issue of tourist traffic which has been raised by the Appellants.  In relation to this he says that the Maidenwell-Bunya Mountains Road currently carries a small number of tourist vehicles.  The road has some undesirable features for that usage west of the site, where the development will generate no additional traffic.  However, there are no particular difficulties for tourist usage of this rural access road between the subject site and Maidenwell.  “Tourists on such routes expect to encounter vehicles generated by rural activities in rural areas such as this.”

1. The reports of these two well qualified witnesses are, as would be expected, comprehensive and persuasive.  No expert evidence on these matters was adduced by the Appellants and their general submissions can be accorded little weight in the face of this evidence.

1. With respect to waste management, the issue raised in the ground of appeal appears to be that there was insufficient assessment of the treatment of waste.  However Schedule C and Conditions F9 and F10 (as amended) of the DPI’s Conditions make provision for waste management which has not been challenged by the Appellants.  It is accepted by the Co-Respondents that Condition F10 should be amended.  No evidence of significance has been adduced to counter the scientifically based evidence presented by Messrs Skerman and Bristow in their respective reports.  The issue of the treatment of waste from the operation of the feedlot must, in the circumstances, be decided against the Appellants.

1. A further issue with respect to waste management concerned the risk of overtopping of a 27 megalitre effluent pond to be established in accordance with Condition A1 of the General Conditions required by the DPI.  It emerged in the evidence of Mr Skerman that there was a risk of a spill frequency from such a pond occurring with the frequency of 1 in 10 years into Clapperton Creek which is a tributary of Barkers Creek, which supplies a number of different water users further downstream.  Mr Skerman’s opinion was that a 1 in 10 year risk was an acceptable risk for the project but that it might be reduced from 1 in 10 years to perhaps 1 in 20 years by enlarging the pond from 27 mega litres to 30 mega litres.  It is consequently proposed that Condition A1 be amended by substituting a reference to a 30 mega litre effluent pond for the existing reference to a 27 mega litre effluent pond.

1. The next issue concerns the effect of the feedlot operation upon groundwater in the area.  Concern has been expressed by the Appellants regarding potential impacts on the “environmental values” of groundwater and a potential reduction in base flow to existing spring sites following the commencement of groundwater extraction at the proposed feedlot.  The concerns raised were again general in nature.  In relation to this, evidence was given by Mr Andrew Hovey of Messrs Gilbert & Sutherland, and he concludes, amongst other things, that the highly concentrated nature of fracturing in the vicinity of the site suggests that a significant groundwater resource is available in the region.  Since the proposed extraction rate for feedlot operation is relatively low, it is likely that other groundwater users would also be able to sustainably and reliably access groundwater from this fracture zone.  The extent of regional fracturing throughout the Boondoomba Igneous Complex and the Main Range Volcanics (as identified by the department of Natural Resources Mines and Energy – “DNRM”) suggests that the groundwater availability in the region is widespread.  Based on the current lineament analysis and the regional interpretation undertaken by DNRM (SEQGIS; 2002), there would be ample opportunity for other local properties to access groundwater resources that are likely to be hydraulically isolated from the groundwater resource subject to extraction under the lot expansion proposal.

1. Messrs Bristow and Skerman also gave evidence in relation to this matter.  In Mr Bristow’s report he indicates that the site has three existing bores with a combined capacity in excess of 1,040m³ per day, which is approximately 175% of the estimated water demand for the expanded feedlot.  He also expresses the opinion that the proposed development is not expected to impact on the water resource (quality and quantity) of the groundwater system, due to the nature and extent of the fracture zones within the sub-catchment, and the management strategy proposed.  Mr Skerman also indicates in his Report that the risk of groundwater contamination was low provided effluent irrigation is well managed.  No attack upon these opinions was made in cross-examination and no contrary evidence was adduced by the Appellants.  Evidence was given, particularly by Mrs Hall and Mr Anderson as to the drop in levels and flow of permanent springs in Clapperton Creek, which they attribute to a decrease in available groundwater feeding these springs.  Nevertheless it appears that both Appellants use creek water for the purposes of their farming operations.  There is also the possibility that the decrease in water which they have observed in the creeks on their properties is connected with the significant period of drought which the area has experienced.  They do not themselves have any technical knowledge which would enable them to estimate the extent of groundwater resources in the region and in the absence of scientific evidence to counter the opinions expressed by the three witnesses I have mentioned, it is inevitable that this issue be determined against the Appellants.

1. The contention that adequate water cannot be achieved for the proposed development without adverse and unacceptable impacts on neighbouring landowners and available water resources consequently fails.  There is also a contention in the Notice of Appeal that the Co-Respondents’ existing water licence does not authorise a supply of water from Clapperton Creek for use in the feedlot.  This is not disputed but the evidence is to the effect that there is no need to resort to water from Clapperton Creek, and the evidence of Mr Cullen is that he has no intention of accessing the creek water.  The three bores on the property are known as the main bore, the northern bore and the southern bore and the present intention is to use the main bore and the northern bore with recourse to the southern bore only if necessary.

1. From the appellants’ point of view, the interests of the region, taking into account its developing tourism, and environmentally attractive features, would be better served if a relatively intensive use, such as a feedlot, were not permitted.  However the policy of the respondent is to permit such activity in the Rural Zone, under the draft IPA planning scheme.  Under IPA, the development application calls for impact assessment, and the weight of evidence is clearly to the effect that while some environmental impacts may be expected, these are reasonable in the rural environment in which the development is proposed, if the proposed operation is conducted in accordance with the conditions which have been imposed.

1. Two of those conditions should be amended.  In condition A1 the effluent pond is to have a capacity of 30ML rather than the 27ML presently specified, and condition F10 is altered conformably with the consent order made in Appeal No.BD 3809 of 2004 on 13 May, 2004.  That condition now reads:-  

   “(F10)     An area of 41 ha (shown on the attached site map 20044 EAS DWG 002.dwg as irrigation effluent areas) shall be used for the irrigation of effluent, subject to the results of ongoing soil monitoring analyses, as specified in Schedule E of this Development Permit.”

Subject to those changes the appeal is dismissed, and the decision of the respondent is

confirmed.