Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City; Council & Ors - [2023] QPEC 25

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION: Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City
Council & Ors [2023] QPEC 25
PARTIES: LANTRAK PROPERTY HOLDINGS (QLD) PTY LTD
ACN 617 140 904
(appellant)
v
IPSWICH CITY COUNCIL
(respondent)
And
CLEANAWAY PTY LTD (ABN 79 000 164 938)
(first co-respondent by election)
And
CHIEF EXECUTIVE, DEPARTMENT OF STATE
DEVELOPMENT, MANUFACTURING,
INFRASTRUCTURE AND PLANNING
(second co-respondent by election)
And
CORNELIA TURNI
(third co-respondent by election)
And
ROSEMAREE THOMASSON
(fourth co-respondent by election)
And
IAN STEWART
(fifth co-respondent by election)
And
KEITH NUTTON, SUE NUTTON AND DARELLE
BOND
(sixth co-respondents by election)
And
GEORGE HATCHMAN
(seventh co-respondent by election)
And
IAN DAINER
(eighth co-respondent by election)
And
WILLOWBANK AREA RESIDENTS GROUP INC.
(ninth co-respondent by election)
And
JENNIFER STEVENSON
(tenth co-respondent by election)
And
ROGER STEVENSON
(eleventh co-respondent by election)
And
MATTHEW BAXTER AND JANE BAXTER
(twelfth co-respondents by election)
And
MEGAN BARNES
(thirteenth co-respondent by election)
And
NEVILLE SECKHOLD AND GWENDA SECKHOLD
(fourteenth co-respondents by election)
And
TRACY COLES
(fifteenth co-respondent by election)
And
JACQUELINE GROENENBERG AND PETER
GROENENBERG
(sixteenth co-respondents by election)
And
MATTHEW BOOTH
(seventeenth co-respondent by election)
And
CORAL BARNES
(eighteenth co-respondent by election)
And
BRUCE BARNES
(nineteenth co-respondent by election)
And
CAROL ASHWORTH
(twentieth co-respondent by election)
And
DANE ASHWORTH
(twenty-first co-respondent by election)
And
PATRICK ROSS
(twenty-second co-respondent by election)
And
HAZEL ROSS
(twenty-third co-respondent by election)
And
HANS RUDZITIS
(twenty-fourth co-respondent by election)
And
LYN PICKERSGILL
(twenty-fifth co-respondent by election)
And
ELISE PICKERSGILL
(twenty-sixth co-respondent by election)
And
ALAN PORTER
(twenty-seventh co-respondent by election)
And
CHERYL PORTER
(twenty-eighth co-respondent by election)
And
RONALD SHAW
(twenty-ninth co-respondent by election)
And
JENNY SHAW
(thirtieth co-respondent by election)
And
MARGHERITA BESS
(thirty-first co-respondent by election)
And
PATRICIA LYTHGOE
(thirty-second co-respondent by election)
And
BRIAN LYTHGOE
(thirty-third co-respondent by election)
And
NEIL HUTCHINS
(thirty-fourth co-respondent by election)
And
RAY CLARKE AND JOANNA CLARKE
(thirty-fifth co-respondents by election)
And
RODNEY LUCHT AND JILL LUCHT
(thirty-sixth co-respondents by election)
And
CHRIS NINNESS
(thirty-seventh co-respondent by election)
And
TROY BUTLER
(thirty-eighth co-respondent by election)
And
CHRISTIE NINNESS
(thirty-ninth co-respondent by election)
And
KERRY BUTLER
(fortieth co-respondent by election)
And
JOHN LAWRENCE AND EILEEN LAWRENCE
(forty-first co-respondents by election)
And
DAVID WRIGHT AND VICKI WRIGHT
(forty-second co-respondents by election)
And
JEANETTE JEYNES
(forty-third co-respondent by election)
And

RAY WALLS AND LAUREL WALLS (forty-fourth co-respondents by election)
And
MURRAY BRIMS
(forty-fifth co-respondent by election)
And
G L BELL
(forty-sixth co-respondent by election)
And
KYM JOHNSON
(forty-seventh co-respondent by election)
And
OWEN WESENER
(forty-eighth co-respondent by election)
And
SARLI NELSON AND BELINDA NELSON
(forty-ninth co-respondents by election)
And
VICTORIA WHYTE-JOHNSTON
(fiftieth co-respondent by election)
And
JUDITH HOLZNAGEL
(fifty-first co-respondent by election)
And
ANITA ARNOLD
(fifty-second co-respondent by election)
And
TONY CORBYN
(fifty-third co-respondent by election)
And
LIZ RUDZITIS
(fifty-fourth co-respondent by election)
And
LINDA O’TOOLE
(fifty-fifth co-respondent by election)
And
MALCOLM MEIKLEJOHN
(fifty-sixth co-respondent by election)
And
JULIE WORBOYS
(fifty-seventh co-respondent by election)
And
DIANE BROWN
(fifty-eighth co-respondent by election)
And
DARRYL MULLER AND MICHELLE WALKER
(fifty-ninth co-respondents by election)
And
DIANE TURNER
(sixtieth co-respondent by election)
And
SHANE QUALISCHEFSKI
(sixty-first co-respondent by election)
And
LIVIO LUCARINI
(sixty-second co-respondent by election)
And
CHRISTINE MOORE
(sixty-third co-respondent by election)
And
TIFFANY NUFFER
(sixty-fourth co-respondent by election)
And
BARRY HATCHER
(sixty-fifth co-respondent by election)
And
EMMA WILLIAMS
(sixty-sixth co-respondent by election)
And
MELANIE MALLORY
(sixty-seventh co-respondent by election)
And
DAMIEN HARRISON
(sixty-eighth co-respondent by election)
And
WILTON VERMEER
(sixty-ninth co-respondent by election)
And
STEVEN HERTRICK
(seventieth co-respondent by election)
And
MARLENE WOLENS AND GARY WOLENS
(seventy-first co-respondents by election)
And
K M WATKINS
(seventy-second co-respondent by election)
And
WAYNE HEILBRONN
(seventy-third co-respondent by election)
And
W J BAILEY AND E J BAILEY
(seventy-fourth co-respondents by election)
And
GARY MOORE
(seventy-fifth co-respondent by election)
And
ELIZABETH MOORE
(seventy-sixth co-respondent by election)
And
MARGERY REIDLINGER
(seventy-seventh co-respondent by election)
And
DAVID TEITZEL AND MICHELE TEITZEL
(seventy-eighth co-respondents by election)
And
ROSEWOOD DISTRICT PROTECTION
ORGANISATION
(seventy-ninth co-respondent by election)
FILE NO/S: 3473 of 2019
DIVISION: Planning and Environment Court
PROCEEDING: Applicant appeal against a deemed refusal
ORIGINATING Planning and Environment Court of Queensland, Brisbane
COURT:
DELIVERED ON: 20 June 2023
DELIVERED AT: Brisbane
HEARING 11, 12, 13, 14, 17, 18, 19, 20, 21, 25, 26, 27, & 28 May 2021
DATES: 12, 13, 14, 26 & 27 July 2021
4 August 2021
Further written submissions provided on 18 August and 12
October 2021
JUDGE: Williamson KC DCJ

ORDER: 1. The appeal is dismissed.
2. The appellant’s development application is refused.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against deemed refusal of a development application seeking a suite of approvals for an integrated waste facility – whether the development gives rise to an unacceptable risk of environmental impact - whether the development gives rise to unacceptable amenity impacts – whether there is non-compliance with the respondent’s planning scheme – whether there is non-compliance with a Temporary Local Planning Instrument - whether the proposed development, if approved, would act as a disincentive for resource recovery and recycling – whether there is a town planning and community need for the development – whether there are relevant matters supportive of approval - whether the development application should be approved or refused in the exercise of the discretion under s 60(3) of the Planning Act 2016.
LEGISLATION: Integrated Planning Act 1997, s 2.1.3
Planning Act 2016, ss 4, 5, 8, 23, 45, 59 and 60
Planning & Environment Court Act 2016, ss 43 and 45
CASES: 48 Stuart Pty Ltd (atf 48 Stuart Unit Trust) v Brisbane City
Council [2017] QPELR 133
Abeleda v Brisbane City Council (2020) 6 QR 441
Austin BMI Pty Ltd v Ipswich City Council & Ors [2023]
QPEC 27
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR
987
Brisbane Wharves & Wool Dumping Pty Ltd & Ors v Brisbane
City Council & Anor [1994] QPLR 1
Broad v Brisbane City Council [1986] 2 Qd R 317
Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors
[2023] QPEC 26
HPC Urban Design & Planning Pty Ltd & Anor v Ipswich City
Council & Ors [2020] QPELR 534
IB Town Planning Pty Ltd v Sunshine Coast Regional Council
[2022] QPELR 791
Isgro v Gold Coast City Council [2003] QPELR 414
Nerinda Pty Ltd v Redland City Council & Anor [2019] 1 Qd
R 523
Trinity Park Investments Pty Ltd v Cairns Regional Council &
Ors; Dexus Funds Management v Fabcot Pty Ltd & Ors [2022]
QPELR 309
Wilhelm v Logan City Council & Ors [2021] QPELR 1321
Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022]
QCA 168
COUNSEL: Mr B Job KC and Mr K Wylie for the appellant
Mr C Hughes KC, Mr J Lyons and Mr B Rix for the
respondent
Mr D O’Brien KC and Mr J Ware for the second co-
respondent by election
Mr G Duffy for the third co-respondent by election
Ms R Thomasson (self-represented) for the 4th, 6th, 24th – 35th,
42nd, 44th, 46th, 48th – 55th, 57th, 58th, 60th – 63rd, 65th – 70th,
72nd – 76th and 78th co-respondents by election
Ms C Ashworth (self-represented) for the 20th – 23rd co-
respondents by election
Mr I Dainer (self-represented) for the 5th, 7th – 12th, 16th, and
36th – 40th co-respondents by election
Mrs U Monsiegneur for the 79th co-respondent by election
SOLICITORS: Mullins Lawyers for the appellant
McInnes Wilson for the respondent
Hopgood Ganim for the second co-respondent by election

Table of Contents

Introduction ........................................................................................................................ 12
The land and surrounding locality ...................................................................................... 13
The proposed development ................................................................................................ 17
The statutory assessment and decision-making framework ............................................... 29
The properly made submissions and lay witness statements ............................................. 31
Planning context ................................................................................................................. 35
The disputed issues ............................................................................................................. 50
Environmental impacts and risk ......................................................................................... 52
Rehabilitation ..................................................................................................................... 75
Amenity impacts ................................................................................................................. 76
Assessment against the planning scheme and TLPIs ......................................................... 77

Further reasons for refusal .................................................................................................. 80

Resource recovery and sustainability ..................................................................... 80
Town planning need ............................................................................................... 84
Statement of Proposals ........................................................................................... 87

Matters raised in support of approval ................................................................................. 87
Exercise of the discretion ................................................................................................... 90
Disposition of the appeal .................................................................................................... 92
ANNEXURE A – LIST OF ISSUES ................................................................................. 93
Introduction

On 2 May 2018, a development application was made to Ipswich City Council (Council) seeking a suite of approvals to authorise the use of a former coal mine, straddling the suburbs of Jeebropilly and Amberley, as an integrated waste management facility. The facility comprises a resource recovery area, a landfill for non-putrescible waste and associated ancillary uses. The development application was impact assessable. The public notification process attracted considerable public interest in the form of 250 properly made submissions.[1]
[1] Ex.8.010, p.13, entry for 13 December 2018 and Ex.2.076 and 2.077.
Council did not decide the development application within the decision period prescribed by the Development Assessment Rules.
This is an applicant appeal against Council’s deemed refusal.
The appeal is one of the three against decisions refusing an application seeking approval for a use that receives and disposes non-putrescible waste in landfill. The three applications are for land located in Council’s local government area.[2] Save for common issues with respect to need and the waste industry, I heard each of the appeals consecutively. The common issues as between the appeals were the subject of a joint hearing. Agreement was reached as to the evidence that was cross-admissible for each appeal.[3] This body of evidence, in conjunction with common submissions, has been considered in this appeal.
[2] The other appeals are Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27 and Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26.
[3] Ex.14.019.
Council, and a number of submitters who elected to co-respond to this appeal (co- respondents), oppose an approval. They each notified separate reasons for refusal. By the end of the hearing, the reasons advanced for refusal by each of these parties were in lock step.
The second co-respondent by election (Chief executive) was active in the appeal, supporting a referral agency response given for the development application. The referral jurisdiction arises in relation to impacts on the State controlled road network and because approval was sought for non-devolved Environmentally Relevant Activities.[4] The Chief executive’s response is supportive of an approval. The response assumes conditions are imposed on any approval granted. Parts of the referral agency response requiring external road upgrades were initially in dispute. These matters were resolved between the parties before the hearing was complete.
[4] Ex.15.002, para 10.
The appeal is a hearing anew.[5]
[5] s 43, Planning and Environment Court Act 2016.
It is for the appellant (Lantrak) to establish the appeal should be upheld.[6]
[6] s 45(1)(a), Planning and Environment Court Act 2016.

The land and surrounding locality

The land the subject of the development application is a large site, comprising 20 contiguous lots[7] with a total area of 351 hectares.[8] It is former coal mine (the land). Underground mining is thought to have been undertaken during the period between 1929 and 1970.[9] Open cut mining commenced in 1982.[10] Mining operations have now ceased,[11] and at the time of the hearing, the land was being rehabilitated by the mine operator, New Hope.[12]
[7]            Ex.1.001, p.13 and Ex.8.010, p.6, para 12.
[8]            Ex.8.010, p.6, para 14.
[9]            Ex.8.010, p.6, para 16.
[10]           Ex.8.010, p.6, para 15.
[11]           Ex.8.010, p.6, para 15.
[12]           To the extent depicted in the green hatched area on Ex.1.001, p.18.
Access to the land is obtained via Ipswich Rosewood Road, which is a ‘Regional Transport Corridor’.[13]
[13] Ex.8.010, p.30, para 84c).
Visual aids confirm the land is heavily disturbed.[14] This is the direct consequence of mining activity. This activity has disturbed in the order of 80% of the land area.[15] It has left a legacy of underground mine workings[16] and an open cut void. The open cut void has a surface area of approximately 68 hectares and is devoid of vegetation.[17] The base of the void is not uniform. It is in excess of 100 metres deep.[18] Water has collected in the bottom of the void. The water is a combination of ponded rainfall and drainage through the low-wall spoils. Groundwater has also made a contribution, albeit a small one.[19]
[14]           Ex.9.001, p.6, Plates 1 and 2.
[15]           Ex.1.001, p.15.
[16]           Ex.1.001, p.15.
[17]           Ex.8.010, p.6, para 14.
[18]           Ex.1.001, p.25, Section B1, comparing Chainages 40 and 1140 with Chainages 660 and 680.
[19]           Ex.8.006, p.10,
Mining activity has significantly interfered with, and altered, hydrological (surface water) and groundwater conditions. The groundwater was depressurised (lowered) by pumping. This created a cone of depression.[20] It is expected the groundwater level will increase in time through a combination of rebound and rainfall recharge.[21] The ultimate groundwater recharge level is expected to be about RL55m AHD.[22] This compares to the base of the existing void, which varies in level, but at its deepest is around RL-51.82m AHD.[23]
[20]           Ex.8.007.1, p.8, s 2.3 and Ex.8.006, p.10.
[21]           Ex.8.006, p.10.
[22]           Ex.13.021, p.1, para 4.
[23]           Ex.1.001, p.25, Section B1, Chainage 660, Existing surface (m).
On any objective view, the land is degraded and in need of rehabilitation. Condition C14 of an extant Environmental Authority[24] (the Mining EA) applies to the land[25] and requires the progressive rehabilitation of disturbed areas, which include slopes, borrow pits, stockpile storage areas and sedimentation basins.[26] Condition C15 of the Mining EA requires these areas to be rehabilitated such that, inter alia, ‘all disturbed land is reshaped to a stable landform and is not subject to slumping’. Rehabilitation is a continuous obligation under the Mining EA. Condition C17 requires rehabilitation to continue until compliance is demonstrated with condition C16. In simple terms, it must be demonstrated the final landform is self-sustaining without intervention.
[24]           Ex.13.005, EPML00826713, which took effect on and from 22 July 2016.
[25]           The EA applies to the area depicted on page 42 of exhibit 13.005. It is an area 1,340ha, covered by 12 mining leases (Ex.14.009, p.4, Table 1.1). An aerial photograph suggests three mining leases apply to the land the subject of this appeal, namely ML 4677, ML 50093 and ML 4689 (Ex.14.009, p.5, Figure 1.2).
[26]           Ex.13.005, p.18, Condition C15.
Exhibit 14.012 is a plan extracted from a joint expert report[27] prepared in relation to geotechnical, landfill design and land rehabilitation. The plan was prepared by Mr Amaral, Council’s expert, and identifies areas of instability on the land. Instability has manifested, inter alia, as: (1) failure in an area above an entry road; (2) landslip caused by spontaneous combustion of carbonaceous material; (3) movement in a rock sequence; and (4) movement and failure in recently placed unconsolidated mine spoil.
[27] Ex.8.007.1-8.007.6.
Conditions C18 to C20 of the Mining EA prescribe rehabilitated landform criteria. Starting with C18, this condition states:[28]
“All areas significantly disturbed by mining activities must be rehabilitated to the final land use description as defined in Table 2.0 – Final land use and rehabilitation approval schedule.”
[28] Ex.13.005, p.18.
An examination of Table 2.0[29] suggests the reference to a ‘disturbance type’ of ‘Mining Pit/Voids’ and ‘re-contoured spoil area’ has application to the land. With respect to the former, this captures a disturbance area of 97 hectares across the 12 mining leases to which it applies. The pre-mine land description for the area is ‘Grazing’. The post-mine land description for the area is ‘Water storage’. With respect to the latter, this captures a disturbance area of 950 hectares across 12 mining leases. The pre-mine land description for the area is ‘Grazing’. The post mine land description for the area is ‘Grazing’. An analogue site is identified for this disturbance area.
[29] Ex.13.005, p.19.

Condition C19 applies to that part of the land where ‘Grazing’ is intended as the post- mine land description. The rehabilitation outcomes to be achieved are as follows:[30]
“(a) self-sustaining vegetation with projective cover, species composition and species distribution similar to the analogue site identified in Table 2.0 – Final land use and rehabilitation approval schedule; and
(b) a given measure of productivity (e.g. sustainable dry matter production, stock live weight gain) is similar to the analogue site identified in Table 2.0 – Final land use and rehabilitation approval.”
[30] Ex.13.005, p.19.
Condition C20 anticipates that some, but not all voids, subject to the Mining EA will be filled. The condition refers to residual voids and states:[31]
[31] Ex.13.005, p.19.
“Residual voids must comply with the following rehabilitation
outcomes –

(a) residual voids must not cause any serious environmental harm to land, surface waters or any recognised groundwater aquifer, other than environmental harm caused by the existence of the residual void per se, and subject to any other condition of this authority;
(b) residual void design must comply with Table 2.2 – Residual Void Design.”

Table 2.2 prescribes, in degrees, the maximum competent rock slope for void walls. It also prescribes a maximum void surface area.
The land is not identified in Table 2.2.
This gives rise to some uncertainty as to the final intended landform for the void the subject of focus in this appeal. The uncertainty arises when condition C20 is compared with condition C18. Condition 20 is silent about the land in circumstances where C18 indicates voids and pits will be rehabilitated to provide ‘Water storage’ (i.e. not backfilled). The Mining EA does not define the phrase ‘Water storage’. It also does not provide clarity as to what is intended as ‘Water storage’ in circumstances where, as here, there is a void and is not intended to remain a ‘residual void’ for the purpose of condition C20.
Condition C11 of the Mining EA calls for the implementation of a closure plan. The plan is to provide for ‘progressive rehabilitation activities’[32] and is to, inter alia:
[32] Ex.13.005, p.17.

[33]           Ex.13.005, p.17, Condition C11(c).
[34]           Ex.13.005, p.17, Condition C11(d).
[35]           Ex.13.005, p.17, Condition C11(e).

(a) include ‘design objectives for rehabilitation of disturbed areas taking into consideration surrounding undisturbed areas and future land use(s) for the site’;[33]
(b) include ‘details of rehabilitation methods to be applied to disturbed areas over the plan period’;[34] and
(c) to demonstrate that landform design criteria, including end of mining design, is ‘consistent with the proposed future land use(s)’.[35]

Condition C11 does not prescribe when rehabilitation of the land is to be completed.
Exhibit 14.009 is a Mine Closure Plan, dated 14 February 2014 (Mine Closure Plan). The document pre-dates the Mining EA. The status of the document is unknown.[36] The author of the document was also not called. In any event, the plan applies to an area that is the subject of 12 mining leases. It divides that area into disturbance domains.[37] The land is included within Domain 4 and Domain 5. The former is described as ‘Backfilled spoil, haul road, noise bund’. The latter is described as ‘Backfilled spoil, in-pit co-disposal’.
[36] Ex.8.010, p.9, para 23(b)(v).
[37] Ex.14.009, p.9.
Section 4 of the Mine Closure Plan identifies ‘rehabilitation design objectives’. Section 4.1 states:[38]
“The currently approved post-mine land use for the Project is grazing with some areas of water storage. The site is, however, in close proximity to existing urban areas and significant trunk infrastructure (both existing and planned) and lies within an area that has been identified by both local and State governments as having significant Industrial development potential.
Given the location of the mine within the high growth Western Corridor in south east Queensland, Jeebropilly Collieries has given active consideration to alternative higher value post mining land uses, specifically Industrial development. The following section outlines existing external lines of evidence that support the contention that ‘Industrial’ is a viable potential post-mining land use for the Jeebropilly site.”
[38] Ex.14.009, p.13.
Section 4.3 of the same document identifies rehabilitation objectives developed for the Mine Closure Plan. They are as follows:[39]
[39] Ex.14.009, p.15.

“1.

Rehabilitate the site to a standard sufficient to enable the surrender of the Environmental Authority and relinquishment of the Mining Leases
2. Establish a post-mining landform that is

a. safe for the community;
b. suitable for a variety of post-mining landuses;
c. compatible with the surrounding landscape; and
d. geotechnically stable.

3.       Stabilise drainage lines and disturbed areas in order to minimise erosion and sedimentation.
4.       Ensure no ongoing pollution or contamination on, or from, the site.
5.       Establish a landscape that requires minimal long term ongoing management.
These Objectives will apply regardless of whether the post mining land use is grazing, Industrial or some other alternative use.” (emphasis added)

Table 6.1 of the Mine Closure Plan identifies the ‘actions underway and planned for’ each domain.[40] With respect to Domain 4 and 5, the table provides:
[40] Ex.14.009. p.17.

Domain Rehabilitation action Status
…

4 Backfill during development of pit Area still in use
Completely backfill residual void
Recontour spoil
Revegetate with pasture grasses

5 Backfill during development of pit Complete
Cap co-disposal areas Ongoing
Revegetate with pasture grasses Ongoing

Table 6.1 suggests New Hope intends to backfill the open cut void on the land and revegetate the finished surface with pasture grasses.
As I have already observed, the status of the Mine Closure Plan is unknown. It pre- dates the Mining EA. In such circumstances, I do not accept the appeal should proceed on the footing this document identifies the rehabilitation obligations with which New Hope must comply. It is the Mining EA that prescribes the rehabilitation obligations. In terms of the void the subject of focus in this appeal, the Mining EA is unclear as to whether it is to be backfilled in whole, or part. The rehabilitation obligation imposed on the Mining EA is sought to be secured by Condition A2. It requires the giving of financial assurance for, inter alia, rehabilitation of the land to which the Mining EA applies.[41]
[41] Ex.13.005, p.5.
Looking beyond the boundaries of the land, the surrounding land uses are as follows: (1) past and current mining activities to the west and north; (2) RAAF Amberley Air Base to the north-east; and (3) the Willowbank township to the south-east. An aerial photograph overlaid with cadastre indicates the eastern boundary of the land is located about 2.4km from the runways at RAAF Amberley Air Base.[42] The same aerial photograph indicates the southern edge of the mining void is located 710 metres from a low-density residential area and 690 metres from a rural-residential area. The two residential areas are interconnected and located within the Willowbank township.[43]
[42] Ex.1.001, p.14.
[43] Ex.8.010, p.10, para 26.

The proposed development

The proposed development is an integrated waste facility comprising, in broad terms, three components, namely a landfill, resource recovery area and associated ancillary uses. The latter provides an opportunity for a final pass through waste destined for landfill to ensure material that can viably be recovered, or recycled, will be.
There is a large body of evidence describing the development and the measures to be implemented and executed to manage environmental and amenity impacts. Part of the material includes a draft Environmental Authority (the draft EA) for an integrated waste facility. The EA was also applied for, and obtained, by Lantrak under the Environmental Protection Act 1994. The EA was issued by the administering authority on 25 July 2019 and granted subject to conditions.
The draft EA approves an integrated waste facility on the land. The authority seeks to prevent the release of contaminants from the land in a manner that causes, or is likely to cause, environmental harm. A release must not occur other than as permitted by conditions of the draft EA.[44] The decision to grant the draft EA is not the subject of an appeal to this Court. It will not take effect unless a development approval is granted by this Court.[45]
[44] Ex.6.017, p.2719, Condition G5.
[45] Ex.6.017, p. 2714.
The draft EA, and conditions attaching to it, are relied upon by Lantrak as part of a suite of adaptive management measures for the development. I will, as a consequence, discuss some conditions of the draft EA while describing the development for which approval is sought.
The landfill component involves the progressive filling of the existing open cut mining void (north to south) in seven stages.[46] The stages will be capped and rehabilitated as they are completed. Conditions W1 to W7 of the draft EA limit the type of waste to be received. It is to be non-putrescible and includes construction and demolition (C&D) waste, commercial and industrial (C&I) waste, clean fill, low level contaminated soil and asbestos.[47] The capacity of the void is about 44.6 million m3. Assuming up to 1,000,000 tonnes of waste is received per annum and directed to landfill, the life of the facility is estimated to be in the order of 50 years.[48] Upon completion, the landfill is to be capped and monitored for a period of 100 years.[49] The final landform will reach a maximum height of RL81m AHD[50] in its southwestern corner, falling to the north, east and south. An area of 75 hectares will also be revegetated.[51] It is intended the land, once rehabilitated, will integrate with, and contribute to, the green space network in this locality.
[46]           Ex.8.010, p.11, para 30.
[47]           Ex.8.010, pp.11-12, para 31 and Ex.9.005, para 54.
[48]           Affidavit of S R Reynolds (Court Doc. 283), Sheet 3, para 7.1.
[49]           Ex.6.017, p.2732, Condition L4.
[50]           Ex.1.001, p.37.
[51]           Ex.1001, p.39.
The resource recovery area is to be centrally located on the land, and to the south-west of the void. It will provide for the recycling and re-use of materials and involve crushing, milling, grinding and screening activities. Crushing and screening activities will occur within an enclosed shed, surrounded by a 20 metre wide landscaped bund that is 3 metres high.[52] The facility will have capacity to process up to 250,000 tonnes of waste per annum. Examples of recycling activities include re-processing concrete waste into various grades of aggregate, processing of timber, soil separation and metal processing.[53] Whilst Council was critical of the size of this component of the development relative to the size of the landfill, I accept Mr Perryman’s evidence (Council’s waste expert) that it would be a high-quality resource recovery facility aligning with recent waste management policy.[54] Contemporary waste management policy encourages the reuse and recycling of waste.
[52]           Affidavit of S R Reynolds, exhibits, p.19.
[53]           Ex.9.005, para 66.
[54]           Ex.8.008, p.37, para 210 and p.45, para 264.
An area adjoining the resource recovery facility provides for ancillary uses such as offices, amenities, and a weighbridge.[55] This area is accessed from a haul route traversing the land. It connects to the access entering via Ipswich Rosewood Road.
[55] Affidavit of S R Reynolds, exhibits, p.19.
The physical layout and staging of the development is depicted in a set of amended plans.[56]
[56] Ex.1.001 and exhibited to the Affidavit of S R Reynolds. The plans were the subject of a minor change application during the hearing. Having regard to the affidavits of S R Reynolds, DJ Bristow and R Huntley, I was satisfied the changes made to the development application were a ‘minor change’ as defined in the Planning & Environment Court Act 2016.
Mr Murphy, who is employed by Lantrak Waste and Recycling (Qld) Pty Ltd, is the manager of an existing integrated waste facility at Swanbank. He was authorised to provide a statement in this appeal on behalf of Lantrak.[57] In that statement, he helpfully identified the features that make the land a good site for a waste recycling and landfill facility. The features include:[58] (1) proximity to sources of waste and State-controlled roads; (2) the separation distances achievable between the land and sensitive land uses, such as residential uses; (3) the lack of visibility for passing traffic and other land uses; (4) the presence of a void available for rehabilitation; (5) the existence of large quantities of mining overburden and spoil that can be used in the landfill operation; and (6) the size of the site, which provides flexibility to include the waste recycling and storage area and buffers to mitigate adverse impacts.
[57] Ex.9.005, paras 1-3.
[58] Ex.9.005, para 47.
I accept Mr Murphy’s evidence.
A proposal of the kind here has the potential to give rise to serious adverse impacts on amenity and the receiving environment. The potential risk is not lightly dismissed in this case given:

[59] Ex.13.021, paras 4 and 5.

(a) the landfill activity involves placing waste within a void, which is unable to gravity drain;
(b) the landfill activity involves placing waste below the regional groundwater level – assuming a future rebound level of RL55m AHD, 42 million m3 of waste (90% of the waste)[59] would be placed below this level; and
(c) the proposed development is located in the order of 700 metres from residential development, namely the Willowbank township.

To properly manage the impacts of the development, Lantrak proposes to adopt, implement, and execute a range of engineering controls and measures. With respect to amenity, it was uncontroversial hard amenity impacts (by reason of noise, light, odour, dust) and visual amenity impacts can be addressed through conditions. I am satisfied this can be accepted. In terms of visual amenity impacts in particular, I was satisfied this could be achieved having regard to, inter alia, the proposed plans of development. They depict significant areas of vegetated screening, including a screen wrapping around the resource recovery area. The vegetation will screen the proposed use so it is not visible from residential development in the Willowbank township. The establishment of a vegetated screening will also, in my view, make a positive contribution to the visual amenity of the site and surrounds.
The engineering controls and measures proposed to manage adverse environmental impacts are complex. They have to be implemented, adopted and executed in a manner that: (1) responds to known risks; and (2) precludes adverse results, even in the event of unintended system failure. The proposed development includes the following features to achieve this end.
The landfill has been designed to include a composite lining system on the base and sides of the void. This will physically separate waste from groundwater. It will inhibit the exchange of groundwater and leachate.
Typical sections through the base liner profile reveal it comprises, from the bottom up, a 600 mm thick compacted clay liner, a 2.0 mm thick HDPE geomembrane, a cushion geotextile, a 300 mm thick leachate collection aggregate layer and a separation geotextile.[60] Ms Taft is an engineer specialising in waste management and landfill design. She helpfully explained how the liner would be constructed, sitting on an engineered subbase.[61] The subbase is required to provide a graded platform (between RL-32m AHD to RL-48m AHD)[62] on which to construct the liner system. It would be constructed from material excavated within the void and conditioned prior to placement. Material susceptible to spontaneous combustion will be removed.[63] The fill material will be inspected, tested and certified by a qualified registered professional engineer.[64] Testing of mine spoil is required by condition G1 of the draft EA.
[60]           Ex.1.001, p.27.
[61]           T9-52, L8 and onwards.
[62]           Ex.8.006, p.9.
[63]           T9-58, L1-12.
[64]           As discussed by Dr Schiers in Ex.9.014 and Ms Taft at Ex.13.007, Attachment 1.
Typical sections through the sidewall liner profile indicate it comprises, from the base layer up, a 4 metre thick compacted clay liner, a HDPE geomembrane and cushion geotextile.[65] Ms Taft explained that the side liner would not be constructed all at once. It is to be constructed progressively in nominal 5 metre lifts (vertical height).[66] At the top of each lift is a horizontal bench. This bench provides a platform to construct the next lift. It is also the location where liner joins (by fusion weld connection) occur.[67]
[65]           Ex.1.001, p.27 read with revised side liner detail at p.28.
[66]           Ex.1.001, p.28; compare with Ex.9.015, pp.33 and onwards.
[67]           T9-57, L5-13.
Sections through the void indicate the construction of the sidewalls and sideliners will have its challenges. Like the subbase, the sidewalls need to be contoured to provide a suitable platform to receive the compacted clay liner. Sidewall liner details prepared by Ms Taft indicate construction will take place on very steep batters (in some cases 1:1). The placement of the HDPE liner will not commence until the subbase is inspected and certified by a qualified registered professional engineer.[68]
[68] As discussed by Dr Schiers in Ex.9.014 and Ms Taft at Ex.13.007, Attachment 1.
Condition G1 of the draft EA requires the installation of a ‘double liner’ in every landfill unit. This is considered ‘best practice’.
The phrase ‘double liner’ is defined in the draft EA as follows:
“Double-liner means a landfill lined with compacted clay at least 600mm thick achieving a maximum permeability of 1 x 10-9 metres per second overlain with 1.5 mm HDPE synthetic liner or alternate double liner system being equivalent in performance as agreed in writing with the administering authority.”
The proposed development includes a double liner of the kind envisaged by Condition G1. It involves the combination of a HDPE liner with a compacted clay layer. A liner system of this kind is highly effective at inhibiting the exchange of groundwater and leachate; it has a very low permeability. Dr Schiers, who is a recognised expert in the properties, durability and installation of polymer geomembranes and related synthetics, was cross-examined about this point and helpfully explained:[69]
“The liner, in any event…it’s not a…perfect seal, it does allow for transfer of…leachate water but at the rate, I think, the specification is 1.6 litres per day per hectare of area?---Well, that’s not transfer through the geomembrane barrier because the geomembrane barrier is impervious. It has a very, very low permeability figure…we talk about 10 to the minus 14, which is an extremely small number, meters per second…So it’s regarded as an impervious barrier. The clay is 9 to the minus 9 metres a second, but again, that takes hundreds of years for water to migrate through that. So the composite liner is effectively impervious. So what you’re referring to, that’s called an allowable leakage rate and in large lined areas, there’s always some small holes. You’ll never catch everything and so there’ll be an allowable leakage rate, which is…a figure to regulate the operators because it’s not a perfect seal. But it’s not migrating through the liner itself, it’s going through a hole.
And obviously, if it’s going out through the hole, ground water can come in through the hole depending on the hydrostatic pressure on either side?---Well, …in my experience, I haven’t seen that. I mean...we do hydrostatic testing. It will take the path of least resistance and you’re right, it’s a balance of hydrostatics but the clay would have to swell appreciably, the 600 millimetres to compact the clay minimum, in order for water to penetrate through that clay and …in the form of a liquid water, we’re not talking vapour now, it would have to basically penetrate extensively through a swollen clay layer which would be very difficult to do.”
[69] T10-54, L30 to T10-55, L6.

I accept this aspect of Dr Schiers’ evidence.
Dr Schiers recommended the following conditions be imposed to ensure the integrity of the liner system:[70]
[70] Ex.9.014, p.22, para 9.1.

“9.1.1. that the subgrade is adequately prepared to give a smooth
and unyielding base;

9.1.2.

that the subgrade is certified by a RPEQ as required by the EPA/DERM guidelines prior to placement of the geomembrane;

9.1.3.

that the strains in the geomembrane are limited to less than 6% global strain using good design and geogrid reinforcement if required;

9.1.4.

that the Landfill Stability Assessment (LSA) study is performed by competent geotechnical engineers to confirm the interface stability;

9.1.5.

that the Liner System Integrity Assessment (LSIA) study is performed by competent geotechnical engineers to confirm the liner will not be subject to damaging stresses;
9.1.6. that rockfall netting/barriers are installed to prevent
potential damage to the liner from falling rocks.”

Lantrak accepts an approval should be granted subject to these conditions.
I am satisfied compliance with Condition G1 of the draft EA, along with the conditions recommended by Dr Schiers, will deliver a liner system consistent with ‘best practice’.[71]
[71] T29-77, L22-23.
Conditions G10 and G11 of the draft EA require the preparation and implementation of a ‘receiving environment monitoring program’. The program must include a groundwater monitoring programme, carried out in accordance with conditions WT7 and WT8 of the draft EA. Condition WT8(a) requires groundwater to be monitored for a period of 2 years before waste is deposited in the landfill. With this base data, ongoing groundwater monitoring can be used to detect and manage leakage, if any, through the liner system.
The evidence suggests there is good reason to be confident the best practice double liner system will protect groundwater from contamination. Mr Bristow, who was called by Lantrak, used the POLLUTE model to assess[72] the potential impact of catastrophic liner failure and consequential leakage of leachate into the groundwater. At section 5 of Technical Memorandum No.8a, he concluded:[73]
“The POLLUTE model results predict that the composite liner, surrounding geology and the proposed base of the landfill will limit the migration of leached contaminants as the liner design intended.
The model indicates that the modelled contaminants are largely contained by the composite liner with minimal migration through the liner, and any leached contaminants further contained by the surrounding geology and landfill base.
Without the liner, the results indicate that although containment is achieved to a slightly lesser extent, it will still take over 250 years for the modelled contaminants to leach through the entire depth (ranging between 14 m and 35 m) of the constructed landfill base into surrounding geology. The migration distance from the landfill in this scenario is not predicted to reach the site boundary.
While the performance of the liner is important, the model indicates that the constraining nature of the surrounding geology and the proposed landfill constructed base is effective at constraining leachate ammonia and copper contaminants from migrating far from source.
In the event of liner failure, transport of leachate contaminants via groundwater from the landfill is unlikely to move 10 m from the pit liner even after over 250 years, given the low hydraulic conductivity and low effective porosity of the proposed landfill base.”
[72] Ex.13.002 and Ex.9.018, Attachment 1, Technical Memorandum No.8a.
[73] Ex.9.018, p. 73.
Mr Bristow updated the model informing the above Technical Memorandum. He did so to reflect soil cation exchange capacity (CEC) results from overburden material on the land.[74] With the updated modelling in mind, Mr Bristow concluded:[75]
“The CEC results support the constraining nature of the surrounding geology and proposed landfill constructed base, and indicate that should the HDPE liner fail catastrophically, the leaching contaminants will not migrate far from the source, i.e. in the order of 10m both vertically and horizontally, minimising the risk of environmental harm.”
[74] Ex.13.002.
[75] Ex.13.002, p.6.
I accept Mr Bristow’s evidence.
A groundwater management system is proposed. It is depicted on the amended plans.[76] It is to be implemented to address, inter alia, the risk associated with hydrostatic uplift. Uplift of this kind may affect the subbase and/or lining system if sufficient pressure builds up. The pressure can lift and disturb the subbase and membrane.[77] The groundwater management system was described by Ms Taft in a supplementary statement as follows:[78]
[76]           Ex.1.001, pp.19 and 28.
[77]           Ex.13.007, p.14.
[78]           Ex.13.007, p.15.
“The design of the groundwater management system is based on installing a high permeability layer across areas where groundwater seepage occurs and discharging to the in-cell stormwater pond through gravity.
The system will relieve pore pressures that may develop behind the lining system and prevent potential damage of hydrostatic uplift of the lining system.
… will maintain the lowered groundwater elevations. This system will comprise:

-

A groundwater drainage blanket comprising an aggregate layer spread across the whole of the base of the cell with a series of collection pipes within the aggregate with a minimum permeability of 1 x 10-3m/s
o A cupsated (sic) geosynthetic flow net with high
transmissivity may also be incorporated

- A sump and pump for extraction of the groundwater
- Geocomposite flow nets and strip drains on the sidewall where groundwater seeps are observed. These can be secured to the subgrade through soil nails.
The sump and the pump arrangement is provided as a secondary groundwater extraction, for extraction of the groundwater if the passive flow to the in cell sediment pond needs to be increased, or long term management of the groundwater if required.
The interception and collection drains and the secondary extraction system will remain in place throughout the waste deposition activities until waste reaches near ground surface for each cell or such that groundwater levels are required to be managed.”

The successful design and operation of a landfill requires leachate and stormwater to be separated. They are not allowed to comingle deliberately, or otherwise.[79] The engineering controls and measures proposed to separate leachate and stormwater are identified in a ‘synopsis’ prepared by Mr Bristow for the joint expert report dealing with surface water.[80] A review of the synopsis reveals the land is to be partitioned into two areas, namely ‘in pit’ and ‘out of pit’. These areas are separated by isolation bunds and land grades. This will facilitate the diversion of external stormwater and prevent it from running into the void. Only incidental rainwater will be able to enter the void. Rainfall will be collected from the in pit and out of pit areas then treated, reused and/or released through stormwater infrastructure to two lawful points of discharge. The discharge points are fixed by reference to specific longitude and latitude in Condition WT3 of the EA.
[79] Ex.9.018, p.7, para 4.2.3.
[80] Ex.8.005, pp.11-14 and Ex.9.018, p.7, para 4.2.4.
Within the landfill pit, stormwater is to be separated from waste using cover, bunds, drains and reverse grades. It will be collected, contained, treated and then reused and/or released. A sediment basin is proposed on the floor of the void up to Stage 5. It is expected this will overflow in significant or severe rainfall events. The overflow will be contained in the void. This will result in the void becoming inundated to several metres. It could take between 3 to 6 days to remove the inundation. The deposition of waste will temporarily cease until the height of the water is reduced to a level less than 300mm above the base.
Whilst the final design of the surface water and groundwater managements is yet to be completed, it was agreed a feasible design was available and could be implemented. The solution involves larger pumps, dams and bio-detention basins than originally proposed.[81] A minor change made to the development application substantially increased the size of pumps, dams and bio-detention basins.[82]
[81] Ex.8.005, p.15, para 5.
[82] Affidavit of D J Bristow (Court Doc. 280), para 7.
Leachate is to be collected and managed separately to stormwater.[83] The leachate management system is depicted on the proposed plans[84] and described in the groundwater and leachate joint expert report as follows:[85]
“Leachate is proposed to be collected from the top of the liner using a 300 mm thick leachate collection aggregate layer (protected from fines by a separation geotextile top blanket), embedded with HDPE perforated leachate collection pipes at 50m centres connected to a leachate collection well/s. Each well will be fitted with a submersible pump.
Leachate is pumped from the well/s out of the pit to an isolated, bunded leachate storage, recycling and treatment area (located to the south west of the pit). Pumping starts and stops to maintain less than 300mm of leachate over the liner.
… mound…via irrigation of open waste areas…However, we recommend that this is changed to direct injection of leachate into the waste mass through wells or galleries to avoid recontamination of areas with PFAS.
The remaining 20% of the leachate is to be disposed of by evaporation.
[83]           Ex.9.018, p.7, para 4.2.5.
[84]           Ex.1.001, p.20.
[85]           Ex.8.006, p.12.
Shallow, purpose-built evaporation ponds are proposed for this…”
In his statement of evidence,[86] Mr Bristow confirmed leachate would only be extracted from the landfill under pump control. He also confirmed that leachate could not build to a height that would over top the void.[87]
[86] Ex.9.018.
[87] Ex.9.018, p.7, para 4.2.7.
Leachate is to be pumped to the leachate storage and treatment area for processing. A treatment plant is proposed in this area.[88] It was described as a ‘50m3/day system, using chemical precipitation, pH correction, filtration, oxidation, and membrane (UF&NF) technology units’.[89] The treatment system would be utilised where there is more leachate generated than the storage and evaporative ponds can hold. This allows leachate to be treated on-site before it is released. Leachate can also be removed from the site by tanker and disposed off-site.[90]
[88]           T11-93, L41-43.
[89]           Ex.9.018, p.22, para 5.6.2.
[90]           Ex.9.018, p.7, para 4.2.7.
Mr Bristow said the control of leachate in the resource recovery area had not been designed and documented. As a consequence, he recommended conditions be imposed on any approval. The conditions recommended are as follows:[91]
[91] Ex.9.018, p.8, para 4.2.19.
“4.2.19. The subject matter for inclusion in conditions would include the
following. Conditions dealing with such matters are not
complex or unusual:

a) bunding and drainage to prevent comingling of leachate from any transfer station or mixed resource stockpiles with stormwater;
b) inert recycled material stockpiles are controlled (located on nonpermeable hardstand, drained and bunded) and seepage/runoff collected and treated via local area bio- detention to remove inert contaminants (eg grit & silts) prior to release to stormwater system (storage dam);
c) collection and treatment of stormwater into the stormwater harvesting system – as shown in Technical Memorandum 5, 6, 9
d) isolation and drainage of leachates generated from any mixed C&D feed or mixed resource stockpiles to a local collection sump well and collected leachate transferred to the leachate storage and treatment area.
e) The area must be provided with a low permeable layer under road base to prevent seepage from stockpile areas into the underlying soil and protect groundwater.”

Condition W9 of the draft EA requires the leachate management system be designed, installed and maintained to achieve the following:[92]
[92] Ex.6.017, p.2739.

“a) collect leachate generated in the landfill unit; and
b) convey the collected leachate out of the landfill unit to an appropriate leachate storage facility; and
c) restrict the height of leachate above the liner system to a maximum level of 300mm.”

A condition such as W9c) is imposed to limit the driving head forcing leachate through the liner and into the groundwater. The condition is also imposed to avoid anerobic conditions in the base of the landfill, which has an impact on the decomposition of waste. Dr Johnson explained why it is important to avoid anerobic conditions:[93]
“…the two types of decomposition are either aerobic or anaerobic, anaerobic typifying in the absence of air. And under those conditions the decomposition takes place primarily by a chemical process called reduction. And you get substantially different by-products of the decomposition. And in general, those by-products under anaerobic conditions…leads to the production of quite unacceptable by-products. So for example, anaerobic decomposition will lead to the formation of ammonia. It will also lead to decomposition of phosphate, that …would create an undesirable outcome. The other issue is that if material has decomposed anaerobically, it is very hungry for air. As in, if you take an anaerobic by-product and then expose it to the atmosphere, it will break down very quickly, but generally, cause quite significant contamination, particularly in an odour sense. So that the idea in the waste void is to try and establish aerobic conditions throughout, other than in the sump area which is collecting the material to the base.”
[93] T28-29, L35 to T28-30, L2.
Whilst the depth of leachate on a day-to-day basis is expected to vary, the proposed leachate management system will extract at a rate that maintains the height to less than 300 mm over the liner. The maximum average daily head was modelled by Mr Bristow. It is likely to be as little as 10 to 15mm in depth.[94]
[94] Ex.9.018, p.7, paras 4.2.8-4.2.11.
Condition L2 of the draft EA requires the design and installation of a capping system. The condition states:[95]
[95] Ex.6.017, p.2731.
“When the deposition of waste to the landfill unit ceases, a final capping system to the landfill unit must be designed by an appropriately qualified person(s) and installed to minimise:

a) infiltration of water into the landfill unit and water ponding on the surface; and
b) the likelihood of any erosion occurring to either the final capping system or the landfilled materials.
A final capping system is not required when the deposition of waste to a landfill unit ceases temporarily for the purpose of using an alternative working face.”

In response to this requirement, the landfill is to be progressively capped with a low permeability compacted clay liner and covering soils to provide a growing medium for vegetation. A typical section[96] through the cap profile reveals it comprises the following elements (from the top down): (1) 200mm thick topsoil/mulch; (2) 500mm thick subsoil; (3) 500mm thick compacted clay liner; and (4) a 300mm thick soil cover over the waste. The section also indicates a landfill gas collection trench and pipe will be constructed in the layer identified in item (4). The top of the collection trench is to be covered with a separation geotextile.
[96] Ex.1.001, p.27.
To starve the underlying waste of water, the proposed cap has been designed to achieve a minimum grade of 1 in 20 (5%). This is to promote runoff and avoid ponding of water on the surface of the cap.
The vegetation proposed for the completed capping system was described by Mr Moffitt (an ecologist) and Mr Young (an arborist).[97] They considered a series of revegetation ‘patches’ between 3ha and 11ha in size, located on the landfill cap and adjoining spoil pile areas. This will achieve 32.5% forest cover of the land. For the patches of vegetation on the cap sitting above the footprint of the landfill, a mounded landscape profile is proposed. This is to contain the root mass of trees, so they do not extend down to, and damage, the clay capping. The proposed vegetation types include grasses, shrubs, mid-storey trees and apex canopy trees. The development application was amended to remove large trees from the proposed planting schedule. Large trees were replaced with smaller species found on the sandstone ridges of Ipswich, which has a listed growth range of between 2 and 7 metres.
[97] Ex.9.001.
Mr Young explained why the proposed planting regime would not compromise the integrity of the clay capping system:[98]
“…the soil placed over the landfill cap to support the vegetation provides a degree of surety that you’re not going to get any damage to that cap in three ways. One, the species selection of trees and shrubs has been reduced in size so…the root zone is smaller. The soil volume that we’ve provided is more than enough soil volume, in depth, to support apex canopy trees. By way of the fact that we’ve reduced the size of the trees, we’ve put another safety factor in there. And the third factor is the compacted landfill cap has a bulk density that will impede root growth even if there was roots that got down to that point.”
[98] T8-16, L18-25.
Mr Young also explained why the proposed planting system would not impede maintenance of the cap. He said the vegetation is minor in scale; it would be ‘very easy to remove, they’re very easy to repair…re-soil, replant’.[99]
[99] T8-16, L37-38.
I accept Mr Young’s evidence.
The amended development application also includes a revegetation intent plan.[100] The plan provides for significant areas surrounding the landfill footprint to be revegetated with patches of native endemic forest species.[101]
[100] Ex.1.001, p.39.
[101] Affidavit of W J Moffitt (Court Doc. 284), paragraph 7.1.
Condition L4 of the draft EA requires a post-closure landfill care program to be conducted. The condition states:[102]
“Following cessation of deposition of waste at the landfill facility, a post-closure landfill care program must be conducted for a period of 100 years or until the operator demonstrates that the landfill facility and surrounding site are stable and that no release of waste materials, leachate, landfill gas or other contaminants that may cause environmental harm is likely.”
[102] Ex.6.017, p.2732.
Condition L5 of the draft EA prescribes the measures the post-closure programme must include. It must include measures to, inter alia: (1) achieve the final rehabilitation criteria in condition L3; (2) maintain and operate the leachate collection system; (3) maintain and operate the groundwater protection systems; (4) maintain the groundwater monitoring programme; (5) maintain the structural integrity and effectiveness of the cap; and (6) maintain and operate the landfill gas monitoring system.
During the course of the appeal, an agreement was reached between Lantrak and the Chief executive with respect to the imposition of conditions about the upgrade of the State controlled road network. In particular, it was agreed conditions should be imposed requiring two intersections to be upgraded, namely: (1) the Ipswich Rosewood Road/Haigslea-Amberley Road/Rosewood Road intersection (referred to below as the Western couplet); and (2) the Ipswich Rosewood Road /Southern Amberley Road/Cunningham Highway intersection (referred to below as the Eastern couplet).

Traffic experts retained for this appeal agreed the two intersections identified above are operating less than satisfactorily.
Mr Rytenskild is a traffic engineer called by Lantrak. He expressed the following unchallenged opinion about the intersection upgrade works:[103]
“9 CONCLUDING COMMENTS
9.1 The identified upgrade works at the [Eastern Couplet] would not only mitigate the impact of the proposal as is required by TMR’s GTIA, but provide further capacity that will be of benefit to the local area. There is a significant imbalance between the extent of works identified and the resultant benefits, and the impact of the proposal. Such will significantly improve road capacity and therefore benefit other activities in the area.
9.2 The identified works at the [Western Couplet] address existing safety deficiencies and are required regardless of the proposal. Such would be carried out by the Appellant as there is otherwise no funding mechanism in place for such to be completed. This would also be of significant benefit to the local community.”
[103] Ex.9.007, p.7.
I accept Mr Rytenskild’s evidence.

The statutory assessment and decision-making framework

The development application was properly made on 3 May 2018.[104]
[104] Ex.8.010, p.12.

[85] In terms of the statutory assessment framework, the application seeks planning approval for a material change of use and is impact assessable. The balance of the application seeks approval for a number of ERAs under the Environmental Protection Act 1994. It is unnecessary to dwell on the latter. The refusing parties conducted their respective cases on the footing the fate of ERAs turns on the success of the material change of use application.

The statutory assessment and decision-making framework for this appeal is prescribed by the PA. This Act requires, inter alia, the development application be assessed in accordance with s 45(5) and decided in accordance with ss 59(3) and 60.
Section 45(5)(a)(i) of the PA mandates assessment against assessment benchmarks in a categorising instrument. Section 45(7) confirms the reference to an assessment benchmark is one in effect when the development application was properly made. Here, that captures, inter alia, Council’s 2006 Planning Scheme (the planning scheme) and a Temporary Local Planning Instrument promulgated in 2018 (the 2018 TLPI).

[88]    The statutory assessment framework is to be approached consistently with the following Court of Appeal authorities, namely Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987, Abeleda v Brisbane City Council (2020) 6 QR 441, Wilhelm v Logan City Council & Ors [2021] QPELR 1321 and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309. Having regard to these authorities, it can be observed:

(a) the ultimate decision called for when making an impact assessment under ss 45 and 60 of the Act is a ‘broad evaluative judgment’;[105]
(b) in contrast to its statutory predecessor, the discretion conferred by s 60(3) of the PA admits of more flexibility to approve an application in the face of non- compliance with a planning scheme;
(c) the exercise of the discretion under s 60(3) of the PA is subject to three requirements, including that it be based upon the assessment carried out under s 45;[106] and
(d) the PA does not alter the characterisation of a planning scheme – it remains a reflection of the public interest.[107]
[105]         YQ Property, per Henry J at [59].
[106]         Abeleda, per Mullins JA (as her Honour then was) at [53] and [58].
[107]         Abeleda, per Mullins JA at [42] and [54].

Consistent with the approach adopted in the other landfill appeals, Council submitted the planning scheme is a reflection of the public interest but says time and circumstances mean it does not paint a complete and contemporary picture. Council invited the Court to look at the planning scheme with the benefit of contemporary forward planning documents. In particular, the Court was invited to consider policy promulgated by the State Government in relation to waste management. This policy came into existence well after the planning scheme was adopted in 2006.
I considered this point at paragraphs [113] to [117] of Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27 and at paragraph [105] of Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26. At paragraph [117] of Austin I said:
“Whilst a particular case may call for the public interest to be examined by reference to an adopted planning scheme and other relevant matters, the extent to which the latter informs the outcome of that examination involves matters of fact and degree. The outcome will of course be informed by, inter alia, the knowledge that a planning scheme is a statutory instrument with the force of law. Decision making that maintains confidence in such a document is itself a matter of public interest…”
I have adopted the same approach in this appeal. The facts and circumstances here do not establish the planning scheme, or two TLPIs, are out of step with contemporary expressions of planning intent and waste management principles. Contemporary planning envisages the land may be developed with a landfill, subject to meeting prescribed qualifications. The qualifications are directed to environmental and amenity considerations. This, in my view, means Council’s point about the planning scheme does not manifest in a way that advances this appeal one way or another.
The issues in dispute call for consideration of matters that were the subject of the exercise of referral agency jurisdiction by the Chief executive under the PA. Unlike Austin and Cleanaway, Council does not assert non-compliance with focal provisions of State Code 22: Environmentally relevant activities.[108] Nor is State Code 22 addressed in Council’s written submissions.[109]
[108] Ex.5.003 – the only reference to the Code is at p.4, para (iii). The provisions of the Code are not highlighted in yellow, which identifies focal provisions for Council’s case (see footnote 1).
[109] Ex.14.022.
Like Austin, there was uncertainty as to whether State Code 22 is a mandatory consideration or a relevant matter to which regard may be had in the assessment and decision making process. I have adopted the same approach in this appeal as I did at paragraph [121] of Austin and paragraph [107] of Cleanaway. In short, the issue for Court is whether an assessment against State Code 22 establishes a basis for refusal. I have undertaken an assessment against the document to the extent required by the agreed issues in dispute. The issue raised with State Code 22 is one that rises and falls on the same evidence going to the assessment of the development application against the planning scheme and two TLPIs. In this sense it can be said the issues involving State Code 22, in and of themselves, do not advance the determination of the appeal one way or another.

The properly made submissions and lay witness statements

An assessment manager (and this Court on appeal) is required to take into account properly made submissions in an impact assessment. Here, the development application attracted 250 properly made submissions and 28 informal submissions that were not properly made.[110] The submissions were put before the Court in three volumes and marked exhibits 2.076 to 2.078 inclusive.
[110] Ex.8.010, p.13, entry beneath 13/12/2018.
I have reviewed the submissions. They are strongly opposed to an approval and call for refusal having regard to a number of issues, including: (1) the proposed development will pollute the receiving environment (e.g. air, noise, dust, water and groundwater); (2) the proposed development will give rise to impacts on health (e.g. respiratory issues); (3) the proposed development will have adverse traffic impacts; (4) the proposed development will not be sufficiently separated from existing residential uses and adversely impact on the wellbeing and quality of life of residents; (5) the nature of the proposed development will result in an increase in rodents and scavenger species in the locality; (6) the proposed development will adversely impact on the heritage value of a historical cemetery; (7) the proposed development will have adverse ecological impacts (flora and fauna); (8) a lack of community consultation and engagement; (9) the proposed development will impact on the nearby RAAF Amberley Air Base (e.g. bird strike); and (10) geotechnical instability issues liner failure.

[96] Lay witness statements of Mr Dainer, Ms Thomasson, Ms Ashworth and Mrs Monsiegneur were tendered during the appeal.[111] I was grateful for the statements. They raise similar issues to those identified in the submissions in circumstances where the deponents had the benefit of a substantial part of the evidence before this Court to form their respective views.
[111] Ex.12.002-12.007.

The matters raised for consideration in the submissions and lay witness statements are not limited to those set out above. They also include the following themes.
First, it is said in many submissions that landfill is not ‘rehabilitation’.
I am unable to agree with this assertion. Filling a former mining void, such as that here, with non-putrescible waste can lead to the rehabilitation of land. In simple terms, by filling the void, it enables what is unproductive land to be put to one of the future uses anticipated in the planning scheme. This is, however, subject to an important qualification; the end result must be a self-sustaining landform. The filled void needs to reach this position without the need for management (such as the continued operation of leachate and groundwater management systems) in perpetuity.
Second, many submissions point out that the landfill will take decades to complete in circumstances where it provides no direct benefit to surrounding residential communities. One submission colourfully said, ‘the residents of Willowbank have absolutely nothing to benefit from this application being approved and we will be dead and buried when the landfill eventually stops’.[112] A similar point was made in another submission to this effect: ‘The duration of the operation (30 to 50 years plus) is generational in nature and no assessment has been done to look at the negative impacts to the community across such an operational lifespan’.[113]
[112] Ex.2.076, p.1785.
[113] Ex.2.076, pp.1628 and 1631.
It can be accepted the proposed landfill is unlikely to deliver a direct benefit to all of the residents of Willowbank. It cannot, however, be said it will deliver no benefit. In simple terms, existing and future residents of Willowbank can generate non- putrescible waste, which is unsuitable for recovery or recycling. This waste requires disposal, generating a demand for landfill airspace. This demand was accommodated for in the common waste and need evidence. That evidence focuses on a study area. The area is a region, namely South East Queensland. The study area was examined to ascertain demand for private non-putrescible landfill airspace. The calculation for future landfill airspace demand is driven, in part, by existing and future population figures, of which Willowbank forms part.

[102]   Third, many submissions asserted the proposed landfill was contrary to reasonable expectations. An expectation to which particular reference was made relates to the obligation imposed on New Hope to rehabilitate the land upon cessation of mining. Submissions suggested this was expected to occur in the ‘next few years’,[114] with the land returned close to its original form. By way of example, the submissions include the following:
[114]         Ex.2.077, p.1913.
“New Hope Collieries have a lawful obligation under their mining Environmental Management Overview Strategy (EMOS), to fully rehabilitate the whole of the Jeebropilly open-cut coal mining site. The proposed development of this landfill operation is a disgusting attempt to avoid their financial, social and environmental obligations to restore the Jeebropilly mine site after they have exploited the coal resources with minimal social benefit to the Ipswich community.”[115]
[115]         Ex.2.076, p.1594.

And:
“Please be advise (sic) that I am writing to show my objection to this development and change of current purpose. When the original project was started it was of the understanding that the area in question would be returned to or regenerated back to rural use. As this is not going to happen, wat (sic) safe guards (sic) are in place to protect our current life style?”[116]
[116] Ex.2.076, p.1581.

And:
“I understand that once mining ceases the land will be left in a state that is unable to be used, however I do not believe that a landfill is the answer. Why is the mining company not rehabilitating the land?”[117]
[117] Ex.2.076, p.1602.

And:
“At all times the expectation has been that the site would be rehabilitated as the mining progressed and that rehabilitation to a minimum of ‘open pasture’ functionality closely approximating the original land form would be completed at the conclusion of mining operations by no later than 2018. This has clearly not eventuated.”[118]
[118] Ex.2076, pp.1627; a similar view is expressed at p.1630.

And:
“When I purchased my property some 20 years ago, then built my home, it was with the real expectation that there would be an end to the mining activity in the area, and that the environment would be returned to some semblance of its original profile in my lifetime. But if the application(s) by Lantrak are approved any assumption that my lifestyle here in Willowbank will be improved are negated. In fact far from it; my suburb will become the “dump” for Brisbane, SE Queensland, and possibly beyond. Has Ipswich not suffered the stigma of being a hole in the ground long enough?”[119]
[119] Ex.2.076, p.1871; a similar view is expressed at Ex.2.077, p.2011.

I accept it is reasonable for members of the community to expect the land would be rehabilitated after the cessation of mining activities. As to when, and how, this would occur, one must turn to the requirements of the Mining EA. For reasons given in paragraph [21], this document is not particularly clear about the rehabilitation intent for the void. Nor is it clear when rehabilitation is to be completed. The Mining EA does not suggest an expectation about rehabilitation should include landfill, let alone landfill of the scale proposed.
Fourth, the submissions and lay witness statements assert that the presence of landfill will impact adversely on the amenity and quality of life for existing residential communities. One submission spoke of ‘living in the shadow’[120] of a landfill. In a similar vein, another submission said that ‘Willowbank is a rural residential community and the high impact activity of a dump runs counter to the entire concept of rural residential communities’.[121]
[120] Ex.2.077, p.1909.
[121] Ex.2.077, p.2185.
In this same context, the submissions also speak of a concern that an approval would lead to ‘stigmatisation’ of Willowbank and Ipswich more generally. This point can be seen from the last submission in paragraph [102] above. It can also be seen in the following extracts of the submissions:
[122]
[122]         Ex.2076, p.1635.
“DUMPING GROUND FOR BRISBANE not want our suburb to become known as a dump city.”
And:
“Stigma concerns: What is being done to void the stigma that
Willowbank will be a dump site for the community?
- What about Ipswich? There are already whispers of it being
called “Tipswich”.
- Are we going to be a dump site for other states, NSW?”[123]
[123]         Ex.2.076, p.1771.
And:
“The stigmatising of our suburb as a dump capital and the disregard of any commitment to counter social stigma of the Willowbank community.”[124]
[124]         Ex.2.076, p.1615; a similar view is expressed by Mr Dainer at Ex.2.076, p.1624.

[106] There was no dispute that weight can be given to subjective opinions or desires articulated in submissions (and lay witness evidence of the same character) in the exercise of the discretion under s 60(3) of the PA. The issue in this appeal is how much weight ought be given to the submissions in the circumstances. Council and the co- respondents pressed the substance of the submissions as a feature warranting refusal of the development application.
[107]   It is obvious the submissions do not support approval. In substance, they stridently oppose the proposed development. Whilst many of the issues raised in the submissions find no support in the evidence before this Court,[125] a point raised in opposition is the potential for significant and detrimental impacts on the general amenity and wellbeing of the community. Given the nature of the proposed development, this contention is not an unreasonable one. Living in the shadow of a landfill facility, which is inherently incompatible with residential uses, have the real potential to adversely impact on character, sense of place and general amenity/wellbeing. The extent of that impact should not be understated here given: (1) the proposed landfill has a life expectancy in excess of 50 years (2 generations);[126] and (2) the proposed development, if approved, would introduce over 44 million m3 of contaminated fill onto the land, which is incapable of being economically or efficiently removed by future generations in the event of an adverse environmental outcome.
[125]         For example the evidence of Mr Tonkin with respect to the risk of bird strike and the traffic, noise and air quality evidence.
[126]         It also likely to represent the life of three to four future planning schemes.

It does not follow that the impact about which the submissions speak warrants refusal. It is necessary to examine the asserted impact against the evidence I accept, and in the light of the planning scheme. This includes examining the amenity impact having regard to: (1) the concession made by the refusing parties that traffic, visual amenity and hard amenity (noise, dust and odour) are not reasons for refusal and can be dealt with by conditions; (2) a concession by Council that the planning scheme encourages the rehabilitation of mining land and voids; [127] (3) the planning scheme, which recognises a use of the kind proposed as a potentially consistent use of the land in circumstances where the land is proximate to existing and future residential uses; and (4) the planning scheme, which regards the Willowbank township as an area already adversely affected, in amenity terms, by existing non-residential uses, including the RAAF Amberley Air Base and a motor racing precinct.
[127] T2-20, L28-30 and T2-27, L4-7.

Planning context

[109] The planning scheme is an assessment benchmark against which the development application must be assessed. It was prepared, and took effect, when the Integrated Planning Act 1997 (IPA) was in force and ‘provides a framework for managing development in a way that advances the purpose’ of that Act.[128] For the purposes of this appeal, nothing turns on the differences between the purpose of the IPA and PA. A review of each purpose statement reveals there is an intention to achieve ‘ecological sustainability’ under both Acts.
[128] Ex.3.001, p.1-3, s 1.1. Nothing turns on this for the same reason stated at paragraph [123] of Austin and [108] of Cleanaway.

The planning scheme is divided into nine localities.[129] Planning scheme maps reveal the land is included in the Regionally Significant Business Enterprise and Industry Areas locality (RSBEIAL).[130] This locality is divided into six zones.[131] The land is included in the Regional Business and Industry Investigation Zone (Investigation zone).[132] A small wedge in the south eastern corner of the land is included in Regional Business and Industry Buffer Zone.[133]
[129]         Ex.3.001, p.1-11, s 1.11.
[130]         Ex.8.010, p.114 (Dark purple area, central to planning scheme area).
[131]         Ex.3.001, p.1-12, s 1.12(1)(c).
[132]         Ex.3.001, pp.1-161.
[133]         Ex.8.010, p.18, para 42 b).

Lantrak has not demonstrated, on the balance of probabilities, that the first of these two risks is remote or unlikely to occur. Nor has it demonstrated that the two identified risks will be acceptable in the event an approval is granted subject to conditions.
As I said in Austin, there is a sweet spot. Additional supply of private non-putrescible landfill airspace is, in my view, required now. An approval for airspace with a life of up to 20 years is of considerable public benefit. This case, however, involves a landfill that goes well beyond this horizon. An approval would, in my view, sit uncomfortably with the balance desired and discussed in paragraph [336].

[341] The Council invites the Court to conclude the proposed development does not promote, and will act as a disincentive, for resource recovery. For the reasons given above, I accept this has been established in part only. It applies to the landfill airspace extending beyond a 20 year horizon. I do not, however, regard this as a reason, which materially advances the refusal case. The strength of the refusal case is to be found in the point there is an unacceptable risk the landfill component will not be completed, leaving future generations to deal with the burden of a legacy site. The unacceptable risk paints the picture of a site that would: (1) not be rehabilitated; (2) be contaminated with a large volume of waste introduced onto the land for financial gain without delivering asserted environmental improvements; and (3) in all probability, require the operation of engineering systems in perpetuity to manage leachate and groundwater.

Item (3) above is consistent with an opinion held by Mr Sutherland. He was concerned the proposed development would not reach a point where the landfill is self-sustaining. This is required to, inter alia, demonstrate compliance with condition L4 of the draft EA. This is a symptom of the unacceptable level of environmental risk associated with the proposed development. This point is material and warrants refusal of the development application in its own right.

Town planning need

[343] The planning scheme does not require Lantrak to prove there is a need, in a town planning sense, for the proposed development. The existence, or absence of need was, however, advanced as a relevant matter, and for two different purposes. Council advanced the absence of need as a reason for refusal. Lantrak advanced the existence of need as a matter supportive of approval.

It is well established the demonstration of need in a town planning sense involves the identification of a latent unsatisfied demand, which is either not being met at all, or is not being adequately met by the planning documents in their present form. Jurisprudence of the Court has built upon this statement over time. It has been said:[295] (1) need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire; (2) a thing is needed if its provision, taking all things into account, improves the physical well-being of the community; (3) need does not connote a pressing urgency but relates to the well-being of the community; (4) a use would be needed if it would, on balance, improve the services and facilities available in a locality. It must always be remembered that statements of this kind inform an assessment of need. They are not to be treated as a checklist to be considered and favourably answered in every case.[296]
[295] Isgro v Gold Coast City Council [2003] QPELR 414.
[296] Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168, [30].
As a matter of general principle, need involves an assessment of public interest and public benefit. It is to be examined from the perspective of the community and not that of the applicant, commercial competitor, or objectors.

[346] The weight to be given to need in an assessment is not fixed and turns on the circumstances of the case. This was recently confirmed in Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168 at [30]. Bowskill CJ observed:
“As the authorities make clear, the assessment of “need” in this context is a flexible process, informed by the principles discussed in cases like Isgro v Gold Coast City Council [2003] QPELR 414 (referred to by the primary judge at [34]), but not constrained by those principles as though they were a “checklist” that must be ticked off by a decision- maker in every case. As the court said in Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350 at [20], “need is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority was to take into account.””

[347] A significant part of the evidence was directed towards the issue of town planning need and associated waste industry considerations. This was no doubt informed by my findings in HPC Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors [2020] QPELR 534, [149] to [195]. In that appeal, I held there was sufficient landfill airspace capacity for South East Queensland, assessed between 10 to 19 years of supply. This finding, and evidence consistent with it, was relied upon by Council to contend there is no latent unsatisfied demand for additional landfill airspace capacity in South East Queensland.

Having regard to the matters traversed in paragraphs [740] to [750] of Austin, I am not prepared to act on the findings I made in HPC to determine the need issue in this appeal. The facts of this case require the issue to be looked at afresh, particularly given: (1) the significant differences in airspace capacity between this proposal and the one in HPC; and (2) the significant body of evidence in this appeal, which I did not have before me in HPC.

[349] Starting from the premise that need is a relative concept to be given weight as the circumstances require, it is my view the circumstances here suggest the adopted planning controls provide the key to unlock the dispute about need between the parties.

There is no controversy that:

(a)

the planning scheme includes the land, and surrounding area, in a Regionally Significant Business and Industry Area designation, consistent with higher order planning articulated in the SEQRP 2017;

(b)

the planning scheme recognises at least one impediment or constraint to the achievement of a Regional Significant Business and Industry Area in Willowbank – land within the Investigation zone of the RSBEIAL is degraded as a consequence of, inter alia, former mining activities;

(c)

the planning scheme recognises there is a need for, and expressly encourages, the rehabilitation of degraded land in the Investigation zone where the land is included;

(d)

the planning scheme, consistent with the SEQRP, includes the land in a Regionally Significant Business and Industry Area where, inter alia, special industries are anticipated and supported, subject to meeting stated qualifications – the stated qualifications do not include a requirement to prove need for the proposed development; and

(e)

there is a clear policy directive underpinning an extant need for considerably more waste recycling and recovery uses in South East Queensland.

In my view, these matters, taken in combination, establish the planning scheme has made express provision for a particular town planning and community need of relevance to this appeal. The need is two-fold: (1) for land, including the subject land, to be rehabilitated for use in an appropriate manner; and (2) for land, including the subject, to be used for an industrial purpose, such as a ‘special industry’. The planning scheme makes provision for this two-fold need to be met on the land, subject to stated criteria/qualifications. The planning purpose and associated public benefit in doing so is obvious enough. It is to achieve Council’s forward planning intent, which involves the land forming part of an area of regional importance for economic growth. It is a Regionally Significant Business and Industry Area.
The evidence establishes the need recognised, and made provision for, by the planning scheme exists today – there is an obvious need to rehabilitate the land. In such circumstances, the issue of need is not of great moment, in and of itself, for the refusal case. The issues of greater importance to the refusal case are: (1) whether the environmental and amenity impacts of the proposed development can be appropriately managed; and (2) whether the proposed development can deliver the rehabilitation of the land as sought by the planning scheme. For reasons given above, the scale of the proposed development, as distinct from the proposed use, has not performed favourably in these respects.
To support a different conclusion, Council invited the Court to act on three points: (1) that the land will be rehabilitated under the Mining EA for mining activities, which is the appropriate outcome; (2) the rehabilitation required by the Mining EA is superior to the proposed development; and (3) an approval would result in a significant oversupply of landfill airspace capacity, which is inconsistent with the existence of a town planning and community need.

[354] Assuming items (1) and (2) are resolved in favour of Council, I do not accept this requires a different view to be reached in relation to the importance of need for the refusal case. In my view, the existing rehabilitation obligations confirm: (1) there is a need to rehabilitate the land for future uses; and (2) no clear method, or completion time, is prescribed for the rehabilitation of the land and void.

Turning to the oversupply point, I am not persuaded this has been established. There is a need for private non-putrescible landfill airspace in South East Queensland now, and for the next 15 to 20 years. Beyond this, the common waste and need evidence demonstrates there is significant room for uncertainty as to: (1) the extent of supply of landfill airspace in South East Queensland to meet this need; and (2) the impact of that supply on landfills that can receive only non-putrescible waste at this time. The common waste and need evidence did not, as a consequence, demonstrate the oversupply point beyond the 20 year horizon is without merit.

[356] It does not, however, follow from this that there is no need for landfill airspace in South East Queensland. Lantrak has demonstrated:

(a) there is a need for private non-putrescible landfill airspace to serve South East Queensland now and for the next 20 year period;
(b) the adopted planning controls recognise there is a need to rehabilitate the land; and
(c) the adopted planning controls recognise that both needs may be met on the land, subject to compliance with specific development requirements.

These factors, taken in combination, assist the case in favour of approval rather than refusal. They are entitled to weight in the exercise of the discretion and demonstrate a general need, rather than a need for the proposed development.

Statement of Proposals

[358] For the reasons given in paragraph [177], an assessment against the Statement of Proposals (and attached draft Strategic Framework) is unnecessary. Such an assessment would attract little weight and, in my view, would not warrant refusal of the development application in any event.

Matters raised in support of approval

Lantrak relies upon the following matters in support of an approval:[297]
[297] Ex.5.003, pp.5-6.

(a) there is, and will remain for the life of the proposed development, a need for development of the nature proposed in circumstances where not all waste will be processed through the resource recovery activity;
(b) the proposed development will rehabilitate the site by returning it to, as nearly as is practicable, pre-mining conditions, such that it may integrate with the surrounding locality, in circumstances where:
(i) the obligation upon the miner to undertake such rehabilitation is unclear but, in any event, using clean earthen fill to rehabilitate the void would be an inefficient use of a valuable resource; and
(ii) absent approval of the proposed development, there are few other uses the land may be suitable for in its present condition;

(c) following completion of the proposed development, an area of land will become available that is suitable for non-residential uses, such as community facility (recreation) uses, which will better integrate with the development form expected in the locality at that time;
(d) the proposed development will result in improvements to the Cunningham Highway / Ipswich-Rosewood Road intersection and the Ipswich-Rosewood Road / Haigslea-Amberley Road / Rosewood Road intersection, which will be of benefit to the local community and other road users;
(e) the current size and condition of the land means it is suitable for very few uses other than that proposed by Lantrak;
(f) were the site not developed for the proposed development, it would:

(i) remain visually unattractive;
(ii) result in poor hydraulic outcomes for the land and surrounds, and in particular groundwater will be drawn into the existing void, and the void will capture rainwater and overland stormwater flow that would otherwise enter the locality’s catchment;
(iii) result in poor ecological outcomes for the land and surrounds, particularly having regard to the potential for water contamination within the existing void;
(iv) be unsuitable for other uses identified as appropriate for this location under the planning scheme; and
(v) result in adverse impacts to the operation of RAAF Amberley Air Base, because of the propensity of a rehabilitated water storage area to attract avian fauna which cause or contribute to bird strike hazard;
(g) there is a need for the proposed development, and its approval would:

(i) result in increased choice, convenience and competition for uses of its type; and
(ii) support employment and economic growth in the locality, and would contribute to the delivery of major construction projects of State and public interest in South East Queensland;
(h) the site represents a logical location for the proposed development, and it is well located and reasonably proximate to waste sources and to recipients of recovered materials processed on the land, and it adjoins appropriate road infrastructure;
(i) the proposed development will incorporate high-quality resource recovery processes, thus encouraging the reuse and recycling activities;

(j)

the proposed development will not be plainly visible from publicly accessible areas, and it will establish significant vegetated screening buffers which will enhance the visual amenity of the site and surrounds;

(k)

the development will not result in any unreasonable off-site amenity impacts to sensitive receptors or unreasonable adverse environmental impacts; and

(l)

the Department of Environment and Science has given Lantrak Waste Management (Qld) Pty Ltd an Environmental Authority to undertake the proposed development (but the parties recognise this is subject to the Council’s allegation that conditions imposed upon the grant of the EA referred to in paragraph 4(h) above cannot, in all probability, be complied with).

I am satisfied the evidence establishes the matters advanced in subparagraphs (d),[298] (h),[299] (i)[300] and (j) [301]; they can be accepted without qualification and are supportive of approval.
[298] For reasons given in paragraph [73].
[299] For reasons given in paragraph [39].
[300] For reasons given in paragraph [36].
[301] For reasons given in paragraph [42].
With respect to subparagraph (a), I do not accept the contention is consistent with my findings set out above, namely that there is a need for development of the kind proposed for a period up to 20 years. The evidence does not demonstrate this need will persist for the life of the development.
For reasons given in paragraphs [282] to [283] and [287], I do not accept the starting premise for subparagraphs (b), (c) and (f) has been established. There is, as I have already said, an unacceptable risk the proposed development will not rehabilitate the land in a timely way, or at all. I would also add I do not accept subparagraph (f) as it is stated in any event. It commences from the premise that only the proposed development can deliver the identified benefits identified in (i) to (v). This is a significant overstatement and the evidence does not, in my view, provide a sufficient basis to advance it. It has not, for example, been established the same land use of a smaller scale, which is promoted by the planning scheme, is unable to deliver the points advanced in (i) to (v).
I accept subparagraph (e) has been established. A review of Mr Reynolds’ evidence, who is a town planning witness called by Lantrak, explains why the current size and condition of the land means, in practical terms, it is suitable for a limited number of land uses. One use for which it may be suitable is that proposed.

[364] I do not accept subparagraph (g) in the terms stated. It assumes a need has been demonstrated for the proposed development and benefits would flow to the community from the proposed development. For reasons given above, I accept there is a need for a period up to 20 years. It is limited to a need for development of the kind proposed. I also accept an approval for development of the kind proposed, but smaller in scale, would: (1) result in increased choice, convenience and competition for uses of its type; (2) support employment and economic growth in the locality; and (3) would contribute to the delivery of major construction projects of State and public interest in South East Queensland.

For reasons given above, I am not satisfied subparagraph (k) has been established.
With respect to subparagraph (l), it is correct, as a matter of fact[302] that the Department of Environment & Science gave Lantrak an Environmental Authority to undertake the proposed development. The point is double edged for Lantrak. First, it can be said the authority is supportive of approval and can be given weight in the exercise of the discretion. In isolation this is not however a weighty or decisive factor. The converse side of the same coin is that the EA does not support approval. The evidence suggests there is an unacceptable risk the proposed development will, in all probability, be unable to demonstrate compliance with condition L4 of the document. With these matters in mind, it is my view that, on balance, the decision to give the draft EA can be given weight in the exercise of the discretion but does not advance the case for approval or refusal in any meaningful way.
[302] For reasons given in paragraph [32].

Exercise of the discretion

The case for approval has significant merit.
Significant merit is derived principally from the following four matters.
First, the planning context traversed in these reasons for judgment demonstrates the proposed land use is anticipated on the land by the planning scheme. This is a matter to which weight should attach in the exercise of the discretion.
Second, the evidence establishes the proposed land use can be conditioned to ensure it does not have unacceptable visual amenity or hard amenity impacts (noise, dust and odour). This is a matter to which weight should attach in the exercise of the discretion.
Third, the common waste and need evidence establishes there is an existing need for private non-putrescible landfill facilities in South East Queensland. The strength of the need is significant. This is so once it is appreciated: (1) facilities of this kind represent important pieces of community infrastructure for South East Queensland and will be exhausted in the near future; and (2) the exhaustion of private non- putrescible landfill airspace in South East Queensland will, on the balance of probabilities, lead to adverse economic consequences for the community. This, taken in combination with paragraph [370], gives rise to a matter of planning importance in the exercise of the discretion.

The strength of the need here is not reduced, in my view, by the approval that will follow in the Austin appeal. I am satisfied that approval, if acted upon, would not meet all of the demand for private non-putrescible landfill airspace in South East Queensland. There is room for two. The presence of two landfills would ensure there is competition and choice for the community. This is a matter of public interest.
Fourth, there is a demonstrated need for the type of resource and recovery facilities proposed to service South East Queensland. This, taken in combination with paragraph [370], is a matter of import in the exercise of the discretion.
The point that has caused me greatest concern is the scale of the proposed landfill. In short, the 50 plus year capacity is, on the evidence, too great. The scale of the use underpins why I have concluded the proposed development:

(a) is an unacceptable risk in environmental terms;
(b) would not lead to the rehabilitation of the land in a timely way, if at all;
(c) is an unacceptable risk in terms of legacy issues, which has the potential to unfairly burden future generations;
(d) would have a significant and detrimental impact on amenity (in an intangible sense); and
(e) does not comply with the planning scheme.

I am far from persuaded that a combination of: (1) the matters supportive of approval (discussed in paragraphs [359] to [366]); (2) partial compliance with the planning scheme; and (3) the four points traversed in paragraphs [369] to [373] above; provide a sound town planning basis to approve the proposed development in the face of paragraph [374](a). This position does not improve when all of the points in paragraph [374] are considered. It has not, as a consequence, been demonstrated the development application should be approved. This, in my view, is the appropriate result once it is appreciated an approval:

(a) would not result in the efficient and orderly delivery of infrastructure; and
(b) would give rise to an unacceptable risk of inequity between present and future generations.
[376] In the ordinary course, the appeal would now be dismissed, and the development application refused. This, however, is not an ordinary case.

The type of development proposed here represents important infrastructure to service South East Queensland, for which there is a demonstrated need and:

(a) is anticipated on the land by Council’s planning scheme;
(b) but for its scale, has the potential to comply with the planning scheme and TLPIs (including the associated Activity Codes); and
(c) but for its scale, could be conditioned to appropriately manage its environmental and amenity impacts.

The factors in paragraph [377] satisfy me an approval for an integrated waste facility of the kind proposed on the land would represent a balanced decision in the public interest where: (1) the development receives the same waste volume per annum as that proposed, but the landfill component is finished in less than 20 years; and (2) the height of the landform resulting from filling activity, and the extent of environmental rehabilitation, are commensurate with that proposed; and (3) conditions are imposed on the approval consistent with the evidence I accept with respect to the management of environmental and amenity impacts.

[379] Given the private and public expense involved in this development application and appeal, and given the nature of the proposed development for which there is a demonstrated public need and public interest, I gave consideration to whether this is an appropriate case to approve the development in part, or subject to conditions. Ultimately, I was not persuaded either course should be adopted for the following reasons.
[380] Lantrak:

(a) did not seek approval for a landfill with a life in the order of 20 years;
(b) did not invite the Court to approve the development in part;
(c) is not precluded from making a fresh development application that is consistent with paragraph [378].

To this it can be added that the plans of development, and proposed staging, do not lend themselves to approval in part. The plans indicate the void is to be filled north to south. The proposed staging gives effect to this intention. On close inspection, I was unable to identify a stage of the proposed development where the points in items (1) and (2) of paragraph [378] could be achieved. To achieve the outcome envisaged requires significant amendment to the plans of development. This is not a task for the Court exercising an appellate function. It is a task best left to Lantrak and its consultants to pursue, if it so wishes. This should occur free from the exigencies of litigation.

[382] For these reasons, the appeal will be dismissed, and the development application refused.

Disposition of the appeal

[383] It is adjudged that:

1. The appeal is dismissed.
2. The appellant’s development application is refused.

ANNEXURE A – LIST OF ISSUES

CITATION:	Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors [2023] QPEC 25
PARTIES:	LANTRAK PROPERTY HOLDINGS (QLD) PTY LTD ACN 617 140 904 (appellant)
v
IPSWICH CITY COUNCIL (respondent)
And
CLEANAWAY PTY LTD (ABN 79 000 164 938) (first co-respondent by election)
And
CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING (second co-respondent by election)
And
CORNELIA TURNI (third co-respondent by election)
And
ROSEMAREE THOMASSON (fourth co-respondent by election)
And
IAN STEWART (fifth co-respondent by election)
And
KEITH NUTTON, SUE NUTTON AND DARELLE BOND (sixth co-respondents by election)
And
GEORGE HATCHMAN (seventh co-respondent by election)
And
IAN DAINER (eighth co-respondent by election)
And
WILLOWBANK AREA RESIDENTS GROUP INC. (ninth co-respondent by election)
And
JENNIFER STEVENSON (tenth co-respondent by election)
And
ROGER STEVENSON (eleventh co-respondent by election)
And
MATTHEW BAXTER AND JANE BAXTER (twelfth co-respondents by election)
And
MEGAN BARNES (thirteenth co-respondent by election)
And
NEVILLE SECKHOLD AND GWENDA SECKHOLD (fourteenth co-respondents by election)
And
TRACY COLES (fifteenth co-respondent by election)
And
JACQUELINE GROENENBERG AND PETER GROENENBERG (sixteenth co-respondents by election)
And
MATTHEW BOOTH (seventeenth co-respondent by election) And
CORAL BARNES (eighteenth co-respondent by election)
And
BRUCE BARNES (nineteenth co-respondent by election)
And
CAROL ASHWORTH (twentieth co-respondent by election)
And
DANE ASHWORTH (twenty-first co-respondent by election)
And
PATRICK ROSS (twenty-second co-respondent by election)
And
HAZEL ROSS (twenty-third co-respondent by election)
And
HANS RUDZITIS (twenty-fourth co-respondent by election)
And
LYN PICKERSGILL (twenty-fifth co-respondent by election)
And
ELISE PICKERSGILL (twenty-sixth co-respondent by election)
And
ALAN PORTER (twenty-seventh co-respondent by election) And
CHERYL PORTER (twenty-eighth co-respondent by election)
And
RONALD SHAW (twenty-ninth co-respondent by election)
And
JENNY SHAW (thirtieth co-respondent by election)
And
MARGHERITA BESS (thirty-first co-respondent by election)
And
PATRICIA LYTHGOE (thirty-second co-respondent by election)
And
BRIAN LYTHGOE (thirty-third co-respondent by election)
And
NEIL HUTCHINS (thirty-fourth co-respondent by election)
And
RAY CLARKE AND JOANNA CLARKE (thirty-fifth co-respondents by election)
And
RODNEY LUCHT AND JILL LUCHT (thirty-sixth co-respondents by election)
And
CHRIS NINNESS (thirty-seventh co-respondent by election)
And
TROY BUTLER (thirty-eighth co-respondent by election)
And
CHRISTIE NINNESS (thirty-ninth co-respondent by election)
And
KERRY BUTLER (fortieth co-respondent by election)
And
JOHN LAWRENCE AND EILEEN LAWRENCE (forty-first co-respondents by election)
And
DAVID WRIGHT AND VICKI WRIGHT (forty-second co-respondents by election)
And
JEANETTE JEYNES (forty-third co-respondent by election)
And
RAY WALLS AND LAUREL WALLS (forty-fourth co-respondents by election)
And
MURRAY BRIMS (forty-fifth co-respondent by election)
And
G L BELL (forty-sixth co-respondent by election)
And
KYM JOHNSON (forty-seventh co-respondent by election)
And
OWEN WESENER (forty-eighth co-respondent by election) And
SARLI NELSON AND BELINDA NELSON (forty-ninth co-respondents by election)
And
VICTORIA WHYTE-JOHNSTON (fiftieth co-respondent by election)
And
JUDITH HOLZNAGEL (fifty-first co-respondent by election)
And
ANITA ARNOLD (fifty-second co-respondent by election)
And
TONY CORBYN (fifty-third co-respondent by election)
And
LIZ RUDZITIS (fifty-fourth co-respondent by election)
And
LINDA O’TOOLE (fifty-fifth co-respondent by election)
And
MALCOLM MEIKLEJOHN (fifty-sixth co-respondent by election)
And
JULIE WORBOYS (fifty-seventh co-respondent by election)
And
DIANE BROWN (fifty-eighth co-respondent by election)
And
DARRYL MULLER AND MICHELLE WALKER (fifty-ninth co-respondents by election)
And
DIANE TURNER (sixtieth co-respondent by election)
And
SHANE QUALISCHEFSKI (sixty-first co-respondent by election)
And
LIVIO LUCARINI (sixty-second co-respondent by election)
And
CHRISTINE MOORE (sixty-third co-respondent by election)
And
TIFFANY NUFFER (sixty-fourth co-respondent by election)
And
BARRY HATCHER (sixty-fifth co-respondent by election)
And
EMMA WILLIAMS (sixty-sixth co-respondent by election)
And
MELANIE MALLORY (sixty-seventh co-respondent by election)
And
DAMIEN HARRISON (sixty-eighth co-respondent by election)
And
WILTON VERMEER (sixty-ninth co-respondent by election) And
STEVEN HERTRICK (seventieth co-respondent by election)
And
MARLENE WOLENS AND GARY WOLENS (seventy-first co-respondents by election)
And
K M WATKINS (seventy-second co-respondent by election)
And
WAYNE HEILBRONN (seventy-third co-respondent by election)
And
W J BAILEY AND E J BAILEY (seventy-fourth co-respondents by election)
And
GARY MOORE (seventy-fifth co-respondent by election)
And
ELIZABETH MOORE (seventy-sixth co-respondent by election)
And
MARGERY REIDLINGER (seventy-seventh co-respondent by election)
And
DAVID TEITZEL AND MICHELE TEITZEL (seventy-eighth co-respondents by election)
And
ROSEWOOD DISTRICT PROTECTION ORGANISATION (seventy-ninth co-respondent by election)
FILE NO/S:	3473 of 2019
DIVISION:	Planning and Environment Court
PROCEEDING:	Applicant appeal against a deemed refusal
ORIGINATING	Planning and Environment Court of Queensland, Brisbane
COURT:
DELIVERED ON:	20 June 2023
DELIVERED AT:	Brisbane
HEARING	11, 12, 13, 14, 17, 18, 19, 20, 21, 25, 26, 27, & 28 May 2021
DATES:	12, 13, 14, 26 & 27 July 2021 4 August 2021 Further written submissions provided on 18 August and 12 October 2021
JUDGE:	Williamson KC DCJ

ORDER:	1.	The appeal is dismissed.
2.	The appellant’s development application is refused.

CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – appeal against deemed refusal of a development application seeking a suite of approvals for an integrated waste facility – whether the development gives rise to an unacceptable risk of environmental impact - whether the development gives rise to unacceptable amenity impacts – whether there is non-compliance with the respondent’s planning scheme – whether there is non-compliance with a Temporary Local Planning Instrument - whether the proposed development, if approved, would act as a disincentive for resource recovery and recycling – whether there is a town planning and community need for the development – whether there are relevant matters supportive of approval - whether the development application should be approved or refused in the exercise of the discretion under s 60(3) of the Planning Act 2016.
LEGISLATION:	Integrated Planning Act 1997, s 2.1.3 Planning Act 2016, ss 4, 5, 8, 23, 45, 59 and 60 Planning & Environment Court Act 2016, ss 43 and 45
CASES:	48 Stuart Pty Ltd (atf 48 Stuart Unit Trust) v Brisbane City Council [2017] QPELR 133 Abeleda v Brisbane City Council (2020) 6 QR 441
Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27 Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 Brisbane Wharves & Wool Dumping Pty Ltd & Ors v Brisbane City Council & Anor [1994] QPLR 1 Broad v Brisbane City Council [1986] 2 Qd R 317 Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26
HPC Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors [2020] QPELR 534 IB Town Planning Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 791 Isgro v Gold Coast City Council [2003] QPELR 414 Nerinda Pty Ltd v Redland City Council & Anor [2019] 1 Qd R 523 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management v Fabcot Pty Ltd & Ors [2022] QPELR 309 Wilhelm v Logan City Council & Ors [2021] QPELR 1321 Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168
COUNSEL:	Mr B Job KC and Mr K Wylie for the appellant Mr C Hughes KC, Mr J Lyons and Mr B Rix for the respondent Mr D O’Brien KC and Mr J Ware for the second co- respondent by election Mr G Duffy for the third co-respondent by election Ms R Thomasson (self-represented) for the 4th, 6th, 24th – 35th, 42nd, 44th, 46th, 48th – 55th, 57th, 58th, 60th – 63rd, 65th – 70th, 72nd – 76th and 78th co-respondents by election Ms C Ashworth (self-represented) for the 20th – 23rd co- respondents by election Mr I Dainer (self-represented) for the 5th, 7th – 12th, 16th, and 36th – 40th co-respondents by election Mrs U Monsiegneur for the 79th co-respondent by election
SOLICITORS:	Mullins Lawyers for the appellant McInnes Wilson for the respondent Hopgood Ganim for the second co-respondent by election

(a)	residual voids must not cause any serious environmental harm to land, surface waters or any recognised groundwater aquifer, other than environmental harm caused by the existence of the residual void per se, and subject to any other condition of this authority;
(b)	residual void design must comply with Table 2.2 – Residual Void Design.”

“1.	Rehabilitate the site to a standard sufficient to enable the surrender of the Environmental Authority and relinquishment of the Mining Leases
2.	Establish a post-mining landform that is

a.	safe for the community;
b.	suitable for a variety of post-mining landuses;
c.	compatible with the surrounding landscape; and
d.	geotechnically stable.

5	Backfill during development of pit	Complete
Cap co-disposal areas	Ongoing
Revegetate with pasture grasses	Ongoing

“9.1.1.	that the subgrade is adequately prepared to give a smooth and unyielding base;
9.1.2.	that the subgrade is certified by a RPEQ as required by the EPA/DERM guidelines prior to placement of the geomembrane;
9.1.3.	that the strains in the geomembrane are limited to less than 6% global strain using good design and geogrid reinforcement if required;
9.1.4.	that the Landfill Stability Assessment (LSA) study is performed by competent geotechnical engineers to confirm the interface stability;
9.1.5.	that the Liner System Integrity Assessment (LSIA) study is performed by competent geotechnical engineers to confirm the liner will not be subject to damaging stresses;
9.1.6.	that rockfall netting/barriers are installed to prevent potential damage to the liner from falling rocks.”

-	A sump and pump for extraction of the groundwater
-	Geocomposite flow nets and strip drains on the sidewall where groundwater seeps are observed. These can be secured to the subgrade through soil nails.

a)	bunding and drainage to prevent comingling of leachate from any transfer station or mixed resource stockpiles with stormwater;
b)	inert recycled material stockpiles are controlled (located on nonpermeable hardstand, drained and bunded) and seepage/runoff collected and treated via local area bio- detention to remove inert contaminants (eg grit & silts) prior to release to stormwater system (storage dam);
c)	collection and treatment of stormwater into the stormwater harvesting system – as shown in Technical Memorandum 5, 6, 9
d)	isolation and drainage of leachates generated from any mixed C&D feed or mixed resource stockpiles to a local collection sump well and collected leachate transferred to the leachate storage and treatment area.
e)	The area must be provided with a low permeable layer under road base to prevent seepage from stockpile areas into the underlying soil and protect groundwater.”

“a)	collect leachate generated in the landfill unit; and
b)	convey the collected leachate out of the landfill unit to an appropriate leachate storage facility; and
c)	restrict the height of leachate above the liner system to a maximum level of 300mm.”

a)	infiltration of water into the landfill unit and water ponding on the surface; and
b)	the likelihood of any erosion occurring to either the final capping system or the landfilled materials.

(j)	the proposed development will not be plainly visible from publicly accessible areas, and it will establish significant vegetated screening buffers which will enhance the visual amenity of the site and surrounds;
(k)	the development will not result in any unreasonable off-site amenity impacts to sensitive receptors or unreasonable adverse environmental impacts; and
(l)	the Department of Environment and Science has given Lantrak Waste Management (Qld) Pty Ltd an Environmental Authority to undertake the proposed development (but the parties recognise this is subject to the Council’s allegation that conditions imposed upon the grant of the EA referred to in paragraph 4(h) above cannot, in all probability, be complied with).