Morgan v Toowoomba Regional Council; Allen v Toowoomba Regional Council - [2013] QPEC 58

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Morgan v Toowoomba Regional Council & Ors; Allen v Toowoomba Regional Council & Ors [2013] QPEC 58

PARTIES:

No 92/2010

Peter David Morgan
(Appellant)
v
Toowoomba Regional Council
(Respondent)

and

Chief Executive Department of Environment and Resource Management
(Co-Respondent by Election)

and

Administering Authority under The Environmental Protection Act 1994
(Second Co-Respondent by Election)

and

Damian William McInnerney
(Third Co-Respondent by Election)

and

Leah Colleen McInnerney
(Fourth Co-Respondent by Election)

and

Barry Reimers
(Fifth Co-Respondent by Election)

and

Owena Ruth Reimers
(Sixth Co-Respondent by Election)

No 27/2011

David John Allen
(Appellant)
v
Toowoomba Regional Council
(Respondent)

and

Peter David Morgan
(Co-Respondent)

and

Administering Authority under The Environmental Protection Act 1994
(First Co-Respondent by Election)

and

Damian William McInnerney and
Leah Colleen McInnerney
(Third Co-Respondents by Election)

and

Owena Ruth Reimers
(Fourth Co-Respondent by Election)

and

Chief Executive Department of Environment and Resource Management
(Fifth Co-Respondent by Election)

FILE NOS:

No 92 of 2010 (Morgan) and No 27 of 2011 (Allen)

DIVISION:

Environment & Planning

PROCEEDINGS:

Appeals

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

01 October, 2013

DELIVERED AT:

Townsville

HEARING DATES:

16, 17, 20, 21, 22, 23, 24 August 2012, 15 October 2012, 06 November 2012, 10, 11, 12, 13 December 2012

JUDGE:

Durward SC DCJ

ORDERS:

Allen appeal

1.Appeal dismissed

Morgan appeal

1.Appeal allowed, subject to conditions

2. Costs pursuant to the Order made on 06 November, 2012.

CATCHWORDS:

ENVIRONMENT & PLANNING – RURAL ACTIVITY – RURAL ZONE – PERMISSIBLE & EXISTING USE – expansion of cattle feedlot from 8,000 SCU to 14,000 SCU – renewal or reconstruction of entire aged facility to Class 1 standard – Council approval subject to Conditions package

ENVIRONMENT & PLANNING – ENVIRONMENTAL HARM – AIR QUALITY – proposed expansion of cattle feedlot – issues of odour, dust, noise, landscaping, traffic and roads, compliance with licence conditions and management and operation

ENVIRONMENT – RURAL ACTIVITY – ADVERSE IMPACTS – whether odour generation caused by specific activity – whether adverse impacts will be ameliorated by reconstruction and upgrade of cattle feedlot to Class 1 standard.

ENVIRONMENT & PLANNING – ENVIRONMENTAL HARM – AIR QUALITY – FEEDLOT REFERENCE MANUAL – SEPARATION DISTANCES – whether Feedlot Reference Manual primary reference source for separation distances – whether odour modelling a better way – efficacy of Feedlot Reference Manual regime

ENVIRONMENT & PLANNING – DEVELOPMENT APPLICATION – RURAL ACTIVITY – CONDITIONS ON APPROVAL – cattle feedlot – whether conditions satisfy neighbourhood concerns – air quality – complaints – whether upgrade of aged feedlot to Class 1 will minimise adverse impacts of odour

ENVIRONMENT – AIR QUALITY – COMPLAINTS – RECORDING AND MONITORING – whether complaints in neighbourhood – whether particular receptors experience real or perceived adverse impacts – whether odour generation a consequence of aged pre-classification facility – whether expansion and rebuild to Class 1 standard will result in minimisation of adverse air quality impacts and unreasonable interference to quality of life of neighbours

LEGISLATION:

Local Government (Planning and Environment) Act 1990 section 4.13 (5) & (5A); Integrated Planning Act 1997 sections 3.1.7, 3.3.15; 3.5.5, 3.5.11, 3.5.14, 3.5.30 and Ch6 Pt8; Sustainable Planning Act 2009 sections 494, 495, 819, 820; Environmental Protection Act 1994 sections 4, 14, 18, 19, 22, 73A and 319; Environmental Protection Regulation 1998 section 4 and Schedule 1.

OTHER REFERENCES:
CASES:

Environmental Protection (Noise) Policy 2008; Environmental Protection (Air) Policy 2008; Reference Manual for the establishment and operation of beef cattle feedlots in Queensland, DPI&F, 2005 (“Feedlot Reference Manual”); Guideline, Odour Impact Assessment from Developments, EPA (now DERM), 2004 (“Odour Guidelines”).

Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; A Enborisoff and Associates Pty Ltd v Caboolture Shire Council & Ors [1994] QPELR 254;

COUNSEL:

R Litster QC and J D Houston for the Appellant (Morgan)

J A Davies for the Respondent

J S Brien for the Chief Executive and for the Administering Authority

A P J Collins for DW & LC McInnerney

SOLICITORS:

Hede Byrne & Hall for the Appellant P D Morgan

King & Company for the Respondent

Crown Law for the Chief Executive and the Administering Authority

DW & LC McInnerney did not retain solicitors

B & OR Reimers appeared self-represented

DJ Allen appeared self-represented

The Appeals

The two appeals were heard together pursuant to an Order of the Court made on 10 June 2012. They arise from a Development Application for the expansion of a cattle feedlot (“Kurrawong”) on the Darling Downs, at Irvingdale near Jondaryan, east of Dalby and west of Toowoomba, approved subject to conditions by the respondent, Toowoomba Regional Council.

The appeals are:

· Peter David Morgan v Toowoomba Regional Council & Ors, number 92 of 2010 (“the Morgan appeal”)

· David John Allen v Toowoomba Regional Council & Ors, number 27 of 2011 (“the Allen appeal”)

The Morgan appeal is a conditions appeal, lodged some five months before the Allen appeal. The appeal is against some conditions imposed on the Development Application by the Toowoomba Regional Council.

The Allen appeal is a submitter appeal and a merits appeal. The appeal seeks an order that the Development Application be refused.

The Department of Environment and Resource Management, through its Chief Executive and as Administering Authority under the Environmental Protection Act 1994, is a Co-Respondent in both appeals.

A number of submitters elected to join one or both of the appeals. DW and LC McInnerney and B and OR Reimers raised issues relating to conditions. RA Logan, in the Allen appeal, withdrew before the hearing.

The relevant legislation

The Development Application was lodged before the commencement of the Integrated Planning Act 1997 (the “IPA”) regime. Hence the Local Government (Planning and Environment) Act 1990 is relevant. However, the appeals are to be heard and determined as if the current legislation, the Sustainable Planning Act 2009 (the “SPA”) had not commenced.

The relevant sections of the legislation – IPA, SPA, Local Government (Planning and Environment) Act 1990 and Environmental Protection Act 1994 are adequately referred to contextually in the judgment.

The relevant planning scheme

The relevant planning scheme is the 1997 Planning Scheme for the Rosalie Shire Council (“the 1997 planning scheme”), which commenced on 01 August 1997.

I will make some incidental reference to the other planning schemes: The 2005 Wambo Shire Planning Scheme (which affects only a small parcel in the northern part of Lot 75), the Rosalie Shire Council Planning Scheme 2008 and the Toowoomba Regional Council Planning Scheme 2012.

I have adopted the 1997 planning scheme as the appropriate planning scheme on the basis of the following analysis:

The Development Application was lodged with Rosalie Shire Council in January 2007. Part of Lot 75 was within the local government area of the former Wambo Shire Council. Hence pursuant to section 3.1.7 IPA an application to the Minister to determine the assessment manager was necessary. That determination was made on 12 March 2008, confirming Rosalie Shire Council as the assessment manager. The determination was made after the series of local authority amalgamations in August 2007 in which Rosalie Shire Council merged with a number of other local authorities to form the Toowoomba Regional Council. Wambo Shire Council merged with a number of other local authorities to form Western Downs Regional Council. The relevant legislation fixed, in effect, 15 March 2008 as the “changeover day”.

The 1997 Planning Scheme for the Shire of Rosalie (“the 1997 planning scheme”) was identified as the relevant planning scheme. It is a transitional planning scheme for the purpose of Chapter 6 IPA.

Whilst there is a potential non-compliance issue arising from that history (with respect to the determination as to the identity of the Assessment Manager) and the notification on 28 March 2008 by the Toowoomba Regional Council that the application would be dealt with under the 1997 planning scheme, it is open to the Court to treat the application as having been made to the Assessment Manager when it was lodged with the former Rosalie Shire Council and to assess it under the 1997 planning scheme.

I consider that course to be the sensible option. To do otherwise would involve unnecessary complications: the Wambo Shire Planning Scheme affects only a small part of Lot 75, that part being used for crop growing and is remote from the cattle feedlot. The Rosalie Shire Council Planning Scheme 2008 took effect on 29 February 2008. From July 2012 (after the appeals were commenced and shortly before the hearing commenced) the Toowoomba Regional Council Planning Scheme 2012 came into effect.

The 1997 planning scheme

Kurrawong is in the rural zone of the 1997 planning scheme. The intent of the rural zone is described at paragraph 3.2, as follows:

“The intent of this zone is to protect the rural areas of the shire against intrusion from urban and rural residential development. It is also intended to cover those parts of the shire which do not have agricultural value but form part of the overall land bank and/or are of environmental significance including remnant forests, catchment areas and the like.”

Lot feeding is listed in the Table of activities for the Rural Zone as a “purpose for which premises may be used or developed only with the consent of Council (permissible Development)”.

An activity or lawful use that existed immediately prior to the commencement of the planning scheme continues to be a lawful use of the premises for so long as the premises are so used. This is applicable to the use of Kurrawong as a cattle feedlot: paragraph 4.1.

‘Intensive Animal Husbandry’ includes cattle feedlots of over 50 head: paragraph 5.5. They are to be located at lesser distances than the separation requirements set out in Table 1 of paragraph 5.5. Lot feeding requires compliance with the DPI requirements: that is, in accordance with the separation distances provided in the Feedlot Reference Manual (see infra). The minimum area of a feedlot is 20 ha. The Morgan property is about 300 ha.

The procedure for application for planning consent is contained in paragraph 7.1. The Council is required to take into consideration, so far as is relevant, in determining an application, the following matters set out in paragraph 7.1.7:

“4. Whether the proposal would be likely to detrimentally affect the existing of likely future amenity of the locality including any detriment likely to be caused by the proposed development by way of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust , grit, oil, waste water, waste products, traffic generation, radio or electrical interference, or otherwise”;

“15. any and every objection made to the proposed development including submissions made by Statutory Authorities”; and

“18. Whether the previous use of the site renders it suitable for the proposed use.”

Council can consent to expansion of lot feeding with required setbacks, but must take into account the licensing requirements of DPI & F (DAFF). That too is a reasonable expectation of neighbouring land owners: A Eborisoff and Associates Pty Ltd v Caboolture Shire Council & Ors [1994] QPELR 254, at 257C. Feed lotting is a use to which neighbouring land owners must be taken to contemplate the land will be put to.

By way of context, the Rosalie Shire Council Planning Scheme 2008, inter alia, provides that intensive animal industries are to be informed by the Feedlot Reference Manual (see infra) and the 1989 DPI Guidelines for Establishment and Operation of Feedlots with respect to buffer zones and separation distances. That scheme also provided that expansion of a feedlot is within the reasonable expectation of neighbouring land owners.

The Toowoomba Regional Council 2012 Planning Scheme provides for intensive animal industries in the rural zone and that expansion of an existing feedlot was within the reasonable expectation of neighbouring land owners.

Given the minimal impact of the Wambo Shire Council Planning Scheme, I do not need to make further reference to it.

The appeal process

The appeals are heard by way of rehearing anew. In both appeals the court must decide the appeal based on laws and policies applying when the application was made, but may give weight to any new laws or policies the court considers appropriate: section 495 (1) and (2) (a) Sustainable Planning Act 2009 (“SPA”).

Onus of Proof

Mr Morgan (“Morgan”), as the applicant for a Development Application, bears the onus of establishing that the Allen appeal should be dismissed. He also bears the onus of proving that the Morgan appeal should be upheld. Should the Allen appeal be upheld, that will be the end of the matter and the Morgan appeal would not need to be determined by the Court. Should the Allen appeal be dismissed, then the Court will determine whether the Morgan appeal, to the extent that issues about conditions remain alive, should be either allowed or dismissed.

Chronology

I have set out in Appendix A the IDAS chronology of events from the lodgement of the Development Application to the issue of the Amended Negotiated Decision Notice. This document was prepared by or for Mr Litster QC and it usefully summarises the IDAS steps by reference to exhibit 5.

The issues

In the Morgan appeal

On 10 June 2010 his Honour Judge Robin QC ordered that the issues were those identified in the Notice of Appeal and in correspondence between the parties. The issues were refined in the course of the hearing and a number were resolved.

In the course of the hearing discussions between Morgan and the Toowoomba Regional Council resulted in an agreement between those parties with respect to the conditions the subject of the Morgan appeal. However, some of the conditions remained in issue, so far as is relevant, with respect to the Third, Fourth, Fifth and Sixth Co-Respondents by Election.

On 10 June 2011 Judge Robin QC made further orders (so far as are relevant now), that in the Morgan appeal – and, incidentally for that matter, in the Allen appeal - the appellant could assert that an issue of the competency of the operators of Kurrawong could be raised. His Honour wrote, at page 757 (with respect to the contention that the past management of the feedlot had been deficient to the end that the application to expand the operation should be refused), that:

“If Mr Morgan in the past has been in breach of conditions, there are procedures available by way of enforcement orders and the like to deal with that. Such matters may be seen as extraneous to the issue of whether any further development approval ought to be granted. Any such approval would run with the land and not be personal to any particular operator. The assumption is that conditions attached to a development approval to ensure that the impact of a use are acceptable, will be complied with”

and concluded

“My inclination was to provide for the addition of such an issue but reserving Mr Morgan’s right to establish that it was an irrelevant issue, not being a planning matter at all. That may well be the correct analysis.”

In the Allen appeal

On 10 June 2011 Judge Robin QC made further orders: that the appellant could assert that the development proposal should not proceed; and that the conditions in the current approval to be considered in the appeal were those limited by agreement in mediation. On 08 June 2012 the parties agreed that the issues in dispute in the Allen appeal were limited to:

· Odour – limited to the areas of disagreement contained in the Second Joint Air Quality Experts’ report;

· Traffic – confined to the areas of disagreement contained in the Joint Traffic Experts’ report;

· Road conditions and dust;

· Landscaping (to the extent of limiting odour and dust); and

· Operational Competency (as set out in paragraph 1, dot point 3 of the Third and Fourth Co-Respondent’s Further and better particulars dated 18 August 2011), namely:

“The respondents also consider, having regard to the feed lot’s past performance and its competency and inability to operate in accordance with the rules and conditions attached to its licence and development approval, (being that of a class 2 feed lot), the operator has not established, nor is there any basis of expect (sic), that the applicant would be able to otherwise comply with its licensed conditions on a class 1 feed lot. The feed lot operator does not have a successful history in its management of the existing feed lot generally and breaches have occurred on more than one occasion. The respondents consider past performance and competency of the operator and its management are appropriate matters which should be taken into consideration.”

I have in Appendix B set out a document titled “The issues in the appeal prior to the substantive hearing: a contextual document”. The Title is self-explanatory.

The Locality

The broader region is divided by the Toowoomba-Dalby Highway from roughly east to west. It is otherwise traversed in all directions by through roads and minor connecting roads. The land generally is undulating with patches of vegetation including tree cover but otherwise comprises paddocks of a customary rural type with associated residences and buildings. There are a number of small built-up centres and townships.

The general locality is that of a distinctly rural character, flat to gently rolling with hills and creeks, some with patches of native trees, comprising farms of various sizes and diverse activities, including broad acre cropping, beef cattle grazing and dairying, together with some more intense agricultural uses such as feedlots and piggeries, and typical rural infrastructure and residences. There are several small townships.

Diagram 1 above is a locality map showing the configuration of the existing cattle feed lot and the boundary of the Morgan property.

The development site

Kurrawong has boundaries to Wonga Plains Road and the Quinalow - Edgefield Road and is described as Lot 24 (258.195h) on A342542, Lot 75 (298.066h) on AG613 and Lot 47 (98.066h) on A342614 on Wonga Plains Road, Irvingdale (“the land”).

The existing feedlots pens comprise northern pens on an eastern facing slope to the west of Wonga Plains North Road, on Lots 47 and 75; and pens to the south of the Quinalow-Edgefield Road and its eastern boundary, the Wonga Plains South Road, on Lot 24.

Most of the land is in the former Rosalie Shire Council local government area. A small parcel of the land is in the former Wambo Shire Council local government area. That part of the land is used for cropping. There is no feed lot on that part of the land. Kurrawong is situated on parts of Lots 475 and 75.
Diagram 2 above is a diagrammatic representation of the existing and proposed extensions to the cattle feedlot.

The Issues at the hearing

At the time of the hearing the issue in the appeals primarily concerned air quality (dust and in particular, odour emission). The proponents of the development asserted that the development will upgrade the whole feed lot to a Class 1 Feed Lot whilst providing for the expansion from 8,000 single cattle units (“SCU”) to 14,000 SCU. They say air quality will inevitably improve as a consequence of the development.

The opponents of the development assert that the management record of the operators of Kurrawong gave no assurance that development conditions would be met or management would improve and that air quality, if it changed at all, would change for the worse.

Accordingly, the evidence in the appeals primarily focussed on odour emission and dispersion; construction and management of Kurrawong, to reduce odour and to maintain it at levels acceptable to neighbours in the vicinity; and the applicability of policy and process inherent in the construction and operational manuals and guidelines, or by other means, for cattle Feed Lots in Queensland.

The Development Application

As I have observed, the Development Application was lodged when the 1997 Rosalie Shire Council Planning Scheme was in force and before the Integrated Planning Act 1999 (“IPA”) was commenced. So far as may be relevant to Kurrawong, as at 15 March 2008 Rosalie Shire amalgamated with Toowoomba City to constitute the Toowoomba Regional Council and Wambo Shire amalgamated with Western Downs Regional Council, which subsequently became the Dalby Regional Council.

Whilst one parcel of the land is minimally in the Dalby Regional Council local government area, as I have observed, the Toowoomba Regional Council (“the Council”) became the Assessment Manager in lieu of the former Rosalie Shire Council, following the local government amalgamation, for the Development Application.

The Development Application assessed the risk of adverse odour impacts in accordance with the requirements of the Reference Manual for the establishment and operation of beef cattle feedlots in Queensland, DPI&F, 2005 (“Feedlot Reference Manual”), using both the standard separation distance calculation method and the alternate separation distance calculation method. The separation distance analysis concluded that the appropriate buffers were available for the proposed 14,000 SCU as a Class 1 operation.

The alternate separation distance calculation method is used to account for a feedlot shape that differs significantly from a square layout. The proposed feedlot layout is elongated and therefore it was appropriate for the alternate separation distance calculation method to be used.

The Development Application concluded that “… the proposed feedlot development meets the required separation distances in accordance with DPI & F Separation Guidelines and the Rosalie Shire Council Planning Scheme. The separation distances together with the Class 1 cleaning and management standards should ensure the feedlot does not adversely impact upon neighbouring residences and other sensitive sites.

The proposed development increases the number of pens from 93 to 123 and the upgrade of existing southern pens to Class 1 design and a complete demolition and reconstruction of the northern pens to Class 1 requirements. The development also involves rebuilding the northern sedimentation base and effluent holding pond to Class 1 requirements and upgrading the existing southern sedimentation basin and effluent holding pond to Class 1 requirements.

Environmental Licence

The Concurrence Agency position was finalised on 10 October 2008 by the imposition of general and specific conditions that “must attach to any development approval. The court is the Assessment manager and the conditions must attach to any approval of the Morgan development Application. The conditions are in Exhibit 5 (a). Ms Brien addressed the conditions in her submissions.

The Environmental Licence for the existing feedlot contains six schedules of conditions that apply to the environmental management of the activity:

· Schedule A – ‘General Conditions’ specifies, amongst other things, prescriptive operational requirements that focus on potential odour omission sources in the context of the prevention or minimisation of likelihood of environmental harm being caused and requires the feedlot to abide by the principles contained in the Feedlot Reference Manual.

· Schedule B – ‘Water’, does not need explanation.

· Schedule C – ‘Waste Disposal’, specifies requirements for waste utilisation and management.

· Schedule D – ‘Community Amenity’, requires the feedlot to be operated so as not to cause unreasonable interference with the comfortable enjoyment of life and property off-site, or with off-site commercial activity; and that waste products disposal shall be carried out so as not to cause unnecessary environmental harm.

· Schedule E – ‘Monitoring, Recording and Reporting’, specifies requirements for recording and investigating complaints relating to odour, dust or other contaminant.

· Schedule F – ‘Special Conditions’, refers to operational requirements in the nature of frequency of pen cleaning, cleaning under fences, elimination of wet patches, repair of potholes and cleaning of feed residues and spilt feed.

Environmentally relevant activity

Section 319 of the Environmental Protection Act 1994 provides for a general environmental duty, which binds all persons (section 22): the duty is that “a person must not carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all reasonable and practicable measures to prevent of minimise the harm …” The measures to be taken require an assessment of the nature of the harm or potential harm, the sensitivity of the receiving environment, the current state of the technical knowledge for the activity, the likelihood of successful application of different measures that might be undertaken and the financial implications of them.

The word ‘minimise’ is relevantly defined in the Macquarie Dictionary 2^nd Revised Edition (The National Dictionary) to mean “to reduce to the smallest possible amount or degree.”

An ‘environmentally relevant activity’ is defined to mean an activity so prescribed in a regulation if “a contaminant will or may be released into the environment when the activity is carried out”; and “the release of the contaminant will or may cause environmental harm”: sections 18 and 19 Environmental Protection Act 1994.

‘Environmental harm’ is defined to mean “any adverse effect, or potential adverse effect (whether temporary or permanent and of whatever magnitude, duration or frequency) on an environmental value, and includes environmental nuisance”. ‘Environmental harm’ may be caused by an activity ‘whether the harm is a direct or an indirect result of the activity”; or whether the harm results from the activity alone or from the combined effects of the activity and other activities or factors”: Section 14 Environmental Protection Act 1994.

Cattle feedlotting is an environmentally relevant activity: Section 4 and Schedule 1, Environmental Protection Regulation 1998.

Feedlot Reference Manual

The existing feedlot was built before the current Queensland Feedlot Guidelines were issued in 1989. Dr Watts said the purpose of the guideline was to ensure satisfactory environmental management of feedlots in Queensland: that is, it is intended to be a complete package of site selection including separation distances, design standards and management standards. The feedlot classification introduced in 1989 recognised that not all feedlots needed to be managed at the same standards. Reduced design standards might be required for a feedlot that was small or remotely located than one which was in a more sensitive or populated area.

The focus of the Feedlot Reference Manual is quality assurance and environmental management, to ensure the environmental sustainability of cattle feeds. The relevant focus within that context, in this case, has been the limitation to an acceptable level of “adverse impacts in cattle feedlot operations resulting from odour, dust, noise or aesthetic considerations” (paragraph 4.4.1).

Historically, odour has been the principal community amenity concern, requiring cattle feedlots “to be sited so as not to cause unreasonable interference with the comfortable enjoyment of life in the community and commercial activities”, off site.

Hence the requirement that cattle feedlots be separated from sensitive receptors by a sufficient distance to limit those adverse impacts: the separation distances.

The Feedlot Reference Manual recognises that odour measurement is a changing and imprecise technology, quantification of odour nuisance has not been conclusively determined and feedlot odour emissions vary widely over time and across a feedlot complex.

The determination of separation distance invokes the S factor formula method; the alternate odour dispersion modelling to extend the standard S factor formula method (paragraph 4.4); or another method: the Feedlot Reference Manual recognises the odour dispersion modelling (paragraph 4.5).

The “Class’ of feedlot refers to a system of four feedlot classes that define an appropriate standard of a feedlot site and its design, construction and management, to restrict odour to acceptable levels for nearby receptors (towns and residences). Class 1 represents the highest level of design, construction and management to achieve lowest odour levels, whereas Class 4 represents the lowest level of design, construction and management that would, all other things being equal, achieve relatively higher odour emission levels.

The S factor formula

Since the introduction of the 1989 guidelines the majority of complaints about feedlot odour have been in relation to older (pre-1989) feedlots which did not comply with the guidelines.

The S factor formula: the S1, S2, S3 and S4 values (stocking density, receptor type, night-time drainage and terrain/vegetation respectively) each combined to produce the S factor, multiplied by the square root of the SCU to identify the separation distance (d) in the formula (the distance from the closest point within a feedlot complex to the receptor). The application of the Feedlot Reference Manual produces the resulting conclusion about odour dispersion and odour dispersion from source to potential receptor: that is, the determination of “an appropriate separation distance which ensures that the frequency, intensity, duration and offensiveness of odours from feedlots remain within acceptable limits.

Evidence

The expert witnesses in landscape design (Mr Chenoweth), noise (Mr Brown) and traffic (Mr Beard and Mr Holland) were not required to give oral testimony. I will deal with those issues after considering the history of Kurrawong, which is contextually relevant to the issues, and the evidence of Dr Watts, who consults - in respect of livestock industries - in design and environmental management of cattle feedlots.

I will then deal with the evidence that is critical in this case: air quality; and the evidence of Mr and Mrs McInerney, Mrs Reimers and Mr Allen.

(a)Dr Watts: Feedlot design and environmental management

Dr Watts is a consultant in design and environmental management of facilities, such as cattle feedlots.

Dr Watts provided a brief history of Kurrawong. The cattle feedlot had operated since 1987 when the number of cattle was 2,400 in what is now the northern feedlot site. The northern feedlot was built in an arc around the hillside contour banks without alteration of slope and little earthworks done to create pens. That was the construction practice for feedlots at the time. There have not been any material changes to the northern feedlot since 1989.

Dr Watts said that a lot of work was done in the 1970’s and the 1980’s to try and understand what generated odour. Hence the multiplication of odour emission was related to the wetness of manure. The guidelines were structured around trying to achieve, wherever possible, dry pens and low volumes of manure. Class 1 management strategies in his experience reduced odour very significantly. He said the guidelines are a package which includes siting, design and management and that those matters cannot be viewed in isolation.

The cattle feedlot was expanded to 5,000 head of cattle in 1988. The stocking density was 10m² per head. The DPI licensed the feedlot in 1989 for 5,000 head. The more recent descriptor for the head of cattle in a feedlot is a standard cattle unit (“SCU”), which is a 600 kilogram live weight beast at the time of turn off (exit) from the feedlot. In 1992 the feedlot was expanded to 8,000 SCU by the construction of the southern feedlot site. The stocking density was 12.5m²/SCU. The DPI re-licensed the feedlot in 1997, after the introduction of the Environmental Protection Act 1994, for 8,000 SCU with a stocking density of 13m²/SCU. The feedlot then was classified as a class two management feedlot.

The proposed redevelopment of Kurrawong involves an expansion to 14,000 SCU with a stocking density of 16m²/SCU and a Class 1 level management. Some new pens are to be built in the southern feedlot and there will be a complete redevelopment of the northern feedlot.

Dr Watts in his report discussed cattle feedlot construction and odour generation. He said that the main aspect of non-compliance with the current Queensland Feedlot Guidelines (2000) relates to pen surface preparation. The northern feedlot site was not constructed to a Class 1 or a Class 2 standard in 1989, which requires the pen floor to be smooth, well compacted and uniform in grade. He says the only way to correct the non-compliance is to completely rebuild the pen area, as is proposed for the northern feedlot site. There are other aspects of feedlot design that have developed over the last 10 to 20 years which are now considered to be “standard” for a Class 1 feedlot, such as straight rows of pens and no curved feed bunkers, wider feed bunkers, water trough concrete aprons and fully enclosed water troughs with overflow pipes and sewer systems.

A stocking density of 16m²/SCU is a standard typically required today. Stocking density has a significant effect on the amount of water added to the surface of the pens. Some of the pens in the northern feedlot site are quite small and narrow and therefore are difficult to clean. The curved feed bunks also create issues affecting odour, through spilt feed. The straight feed bunks largely eliminate this problem. Usually, a box scraper can be engaged in larger pens (as is proposed in the redevelopment) so as to remove most of the manure and leave a smooth compact surface which can drain rapidly after rainfall.

The poor drainage conditions and difficulty in cleaning the existing northern pens are factors which lead to wet areas in the pens and subsequent odour generation. Similarly, the non-enclosure of water troughs allows accumulation of manure, which is difficult to remove, and the generation of odour. The existing water troughs also drain into the pen rather than the water being taken away from the trough, resulting in a greater wet surface of the pen and odour problems. The recommended slope for feedlots provides proper drainage after rainfall and rapid drying with a reduction in odour generation.

Dr Watts summarised in his report a number of design changes proposed for the new feedlot expansion that would reduce the generation of odour, namely: reduced stocking density, improved pen design and construction, straight rows of pens and better water trough design. Provided that the feedlot is managed according to Class 1 standards as provided in the guidelines, all of these changes would reduce odour generation as they were intended to promote dry manure within the pens.

The utilisation areas capture effluent from holding ponds and the manure removed from pens, both subsequently used as fertiliser to grow crops. The control drainage area included the pens and the manure stock piles. The 40 metre buffer zone in the proposed plans relate to the dry water courses. The 50 meter buffer zone runs along the road alignments. The 40 metre buffer zone addresses one of the condition re-instatements advocated by Mr and Mrs Reimers.

Dr Watts said odours at feedlots are generated when organic matter breaks down anaerobically in the presence of water. Generally speaking wet feedlot pens emitted odour at a rate of 50 to 100 times more than dry pens, which emit very little odour. If the pen manure gets wet due to rainfall or other application of water, the odour emission rate can increase 100 fold. The amount of organic matter that is available for anaerobic breakdown is mainly minimised through management – that is, minimisation of feed fed to cattle and frequent pen cleaning for manure removal. Feed bunkers and water troughs can be designed, as is proposed in the redevelopment, so that manure can be easily removed from areas adjacent to them and so that manure does not accumulate under them. Feed bunkers can be designed so that the minimum amount of feed is spilled during feed delivery, thus reducing the amount of organic matter available for breakdown. Fences can be designed so that manure can be removed from under the fence line.

The standard cattle unit was a concept introduced in the 1989 guidelines in attempts to standardise the manure production of livestock in the feedlot. There is different manure production between different cattle it is possible to have more cattle than the SCU’s if they are all small cattle.

Dr Watts considered the feedlot guidelines to have precedence over other factors in feedlot design. Odour modelling was not a requirement for feedlots. As to the applications of classifications to feedlots that had been constructed before the guidelines came into existence, he agreed that the application of a particular classification level was a political or regulatory decision made at the time 20 to 25 years ago. He said the Queensland guidelines were probably the clearest and most prescriptive in Australia. Feedlot site selection was a complex issue and a number of questions about water, remnant vegetation and other considerations would have to be resolved and the guidelines would then be applied so as to determine the maximum capacity. Underlying material was much less of a constraint to site selection than 25 years ago because in upgrading feedlots a lot of earthworks are involved. So far as Kurrawong was concerned, the odour problems could well have been due to there not being enough compaction of the ground in the pens. The northern pens were “behind the eight ball all the time trying to get it to work in its legacy of being 25 years old”.

Dr Watts had designed the northern feedlot site 25 years ago. Dr Watts considered that to bring the southern pens to a Class 1 level, existing pens would be regraded and resmoothed and water troughs upgraded. The same design features for the northern pens would apply to the southern pens. Slopes in pens would range from 2.5% to 6%. Box scrapers are more effective in cleaning and do less damage. The pen surface, slope and squaring up of pens was necessary. The key in a modern design was to achieve adequate slope to keep manure moving instead of depositing in drains. That would need to be addressed in relation to the southern pens for a Class 1 level.

Dr Watts was cross-examined by Mr Collins about operational maters and agreed that if a feedlot was operated according to its conditions then there would be negligible impact on the environment. He said improvement to guidelines and community expectation change. A ‘one size fits all’ may not achieve compliance with the guidelines. Mr Collins in cross-examination took Dr Watts through a comparison between the managerial and operational aspects of Class 1 and Class 2 levels, distinguishing one from the other.

Dr Watts said that a period of heavy rain would mean a probability of higher odour emission. Odours from all sorts of minor sources may also contribute: foe example, silage pits, manure stock piles and ponds.

Dr Watts opined that the pens on the northern side were probably only Class 3 although other aspects of the design may have been Class 2, but made those observations in the context of the northern pens having been constructed before the guidelines came into existence. He said that where complaints were made it was necessary to examine the circumstance of the complaints and the factors leading to it.

(b)Mr Beard and Mr Holland – Traffic reports

There were a number of areas of disagreement in the joint report of the experts, dated 15 February 2012. However, traffic issues were resolved in the course of the hearing of the appeal: firstly, by an agreed revision to Council’s Condition 14, which replaces Conditions 14, 31 and 32, the latter being conditions imposed in the Amended Negotiated Decision Notice; and secondly, by amendment to Condition 11 by insertion of a new paragraph 3 (the erection by the appellant Morgan of signs, directing that road trains and B doubles, unless otherwise permitted, are not allowed to go in a particular direction, at the Quinalow-Edgefield Road and Wonga Plains Road intersection; and at the southern approach to the Bowenville-Moola Road intersection.

(c)Mr Chenoweth – Landscaping report

Mr Chenoweth considered that the visible components of Kurrawong would remain compatible with the rural landscape character of the locality and that visual impacts were negligible. He considered that the vegetated buffers specified in the original Conditions 26 and 27 were excessive and unreasonable, the feedlot being set back from the boundaries of the land. He proposed another form of vegetative buffer that would supplement existing trees and screen any potential visual impacts upon observers from outside the land.

His evidence was not challenged. In the course of the trial Morgan and the respondent agreed on a revision of Conditions 26 and 27 that, with Condition 28, satisfied the landscape screening issue.

In summary, the revised Conditions 26 and 27 provide for a landscape screen comprised of quick growing vegetation along parts of the boundary of Wonga Plains North Road, Quinalow – Edgefield Road and Wonga Plains Road with agreement as to minimum planting requirements and landscape specifications. Condition 28 required maintenance of the landscape screen at all times, to maintain its effectiveness.

Dust(d)

The issue about dust is related to dust generated on site (cattle movements) and from roads (truck movements). The issue, to the extent that it remained live, has been resolved with the resolution of the traffic and landscaping issues. The resolution of the dust issue, of course, acknowledges the fact that the site is in a rural locality where customary rural activities may be a source of dust generation in the normal course and as a reasonable expectation of the local community.

(e)Mr Brown: Noise report

The respondent’s Condition 29 was deleted in the Amended Negotiated Decision Notice of 12 October, 2010. The third, fourth, fifth and sixth Co-respondents by Election sought to have it reinstated. The Condition had provided as follows:

“Noise must not cause a nuisance beyond the site boundaries. The development must meet the performance requirements of Part 3 – Environmental Value and Acoustic Quality of the Environmental Protection Noise Policy 2008 and not exceed the objectives of Schedule 1 as measured at the boundary.”

Mr Brown had assessed the degree of compliance with the requirements of the Environmental Protection (Noise) Policy 2008, made pursuant to the Environmental Protection Act 1994, with the purpose of achieving the objective of the Act in relation to the acoustic environment, namely the prevention of interference with or likely interference with an environmental value caused by noise and measured against the acoustic quality objectives of the Policy at a sensitive receptor, in this case a residence beyond the boundary of the feedlot site.

Mr Brown identified noise sources (machinery, plant and vehicles on-site). He measured noise levels and concluded that the external noise level, just audible from time to time, would easily comply with the prescribed acoustic quality objective. Mr Brown concluded that Condition 29 and any reference to the weighbridge operation were, in effect, unnecessary.

His evidence was unchallenged. Despite the proposed reinstatement sought by the Co-respondents to whom I have referred, the condition in my view is not reasonably required and would be an unreasonable imposition on the proposed development.

The evidence of the Air Quality Experts

(f)Mr Welchman, Mr Galvin and Ms Richardson: joint reports

The three air quality experts met twice – on 16 September 2011 and 05 December 2011. The first meeting (the first joint report) considered, so far as is relevant, the Directions Order of the Court, made on 12 August 2011, in the context of the grounds in the Allen appeal, particularly in paragraph 1, namely that:

“The proposed development be refused due to the likely unreasonable amenity impacts particularly relating to odour. The odour which exists now will be exacerbated by an increase in cattle numbers and further impacts on visitors which I have in the day to the day running of my tourist establishment, namely winery, bed and breakfast and caravan park.”

Paragraph 7 of the Directions Order stated a number of requirements for consideration in the Joint Report, namely:

“(a) Information or data to be used to address the disputed issues;

(b) The appropriate methodology to be applied to address the disputed issues;

(c) Relevant Standards (including, but not limited to provisions of any relevant local planning instrument and/or of any State or Federal legislation) be referred to address the disputed issues;

(d) How, when and by whom any relevant testing, field surveys or investigations agreed to be necessary to properly address the disputed issues will be carried out;

(e) A brief summary of the differences, if any, between the experts in respect of the matters referred to in sub-paragraphs (a), (b) and (c) above.”

I will deal with the issues addressed in the joint meeting only with respect to the paragraphs that experts considered were now relevant, that is to paragraphs (a) to (c) above:

“(a) Information or data –

Mr Welchman and Mr Galvin listed the following:

· Development Application and supporting documentation

· Any Approval Notices or Orders issued by DEEDI to the feedlot.

· Historic meteorological data for the locality.

· Local topographic and terrain information.

· Material relating to odour and dust emission rates and impact from feedlot operations.

· Proposed conditions of approval for the development, conditions of approval proposed by parties to the appeal and conditions of approval imposed on other similar feedlot operations.

They did not agree with Ms Richardson’s additional list of information, particularly regarding complaints history, although Mr Galvin agreed that other sources of dust and odour in the area should be investigated.

(b) Methodology -

· Mr Welchman and Mr Galvin agreed that the Feedlot Reference Manual was appropriate. However, Ms Richardson wanted detailed atmospheric dispersion modelling to be done, in particular using the CALPUFF Model System.

(c) Relevant Standards -

· DPI Feedlot Reference Manual.

· Guideline - Odour Impact Assessment from Developments, EPA 2004.

· Queensland Environmental Protection (Air) Policy 2008.

In the second joint report there were four areas of disagreement identified:

1. Assessment Methodology –

Mr Welchman and Mr Galvin considered the Feedlot Reference Manual to be the appropriate methodology. Ms Richardson considered that an odour dispersion modelling study was required.

2. Assessment Outcome –

Mr Welchman and Mr Galvin considered that the proposed expansion will lead to a significantly reduced risk of odour impacts compared to the current feedlot. Ms Richardson disagreed with respect to an 8,000 SCU/Class 2 feedlot as against a 14,000 SCU/Class 1 feedlot, but said there would be a reduction if an 8,000 SCU/Class 2 feedlot became an 8,000 SCU/Class 1 feedlot, provided there was compliance by the operator with appropriate conditions of approval.

3. Complaints history and odour diaries –

Mr Welchman considered these to be irrelevant because they related to the existing feedlot. He considered that the proposed expansion changes comprised the relevant criteria. Mr Galvin considered that the history and the diaries might be relevant in other circumstances, but not here. The complaint history includes the time that a manure stockpile existed on site. The stockpile was no longer there. However, Ms Richardson considered the odour complaints history to be directly relevant.

4. Conditions of Approval Proposed by Mr and Mrs McInnerney in the Morgan Appeal -

· Landscaping – Mr Welchman considered the conditions to be onerous.

· Air quality (dust) – Mr Welchman and Mr Galvin considered the conditions to be unreasonable and referred to there being other sources of dust.

· Air quality (odour) – Mr Welchman and Mr Galvin considered the conditions to be unreasonable and unrealistic. Ms Richardson considered that the development should be a staged development, with a reassessment after each stage was completed.

· Community Reference Group – Mr Welchman considered this to be an unreasonable condition. Mr Galvin said that such groups could work, but that he had never seen one at a feedlot.

· Competency – Mr Welchman considered the condition unnecessary. Mr Galvin referred to the proposed development requiring a Class 1 operation. Ms Richardson was critical of the current operator.

· Environmental Management Plan – Mr Welchman and Mr Galvin considered that an EMP that spells out the requirements of a Class 1 feedlot would be beneficial. Ms Richardson considered that an EMP together with design, operation and management measures should be adopted.

Hence the appropriate ‘methodology’ was a critical issue for the air quality experts; and the complaints history and competency of the operator were permitted as an issue by the order of Judge Robin QC. These matters were the primary focus of the evidence in the appeal. Each of the three experts gave oral evidence in support of their individual reports.

(g)Mr Welchman

Mr Welchman said that the proposal will involve a substantial upgrade to the design and management practices of the feedlot leading to an overall reduction in the potential odour impact of the feedlot. The proposal complied with the requirements of the Feedlot Reference Manual in relation to odour, indicating that the feedlot has been designed and can be operated so as not to cause odour nuisance. Consequently he said the expansion can be approved with relevant conditions.

Insofar as the issues in dispute between the experts are concerned, Mr Welchman said that Ms Richardson’s contention that a complaint and odour diary should be considered is not relevant because the existing complaint and odour diaries would not reflect the circumstance of the upgraded feedlot. He also said that the large area of manure stockpile situated on the site up until 2010 had been removed, hence eliminating a source of odour impact from the past. Further, Mr Welchman said that Ms Richardson had not independently validated each complaint and diary entry. Nor had she demonstrated sufficiently that other potential sources of odour such as other feedlots, a piggery and a dairy were not the cause of complaints or diary entries.

He also referred to Ms Richardson’s dispersion modelling study. He identified a deficiency in the modelling in that it relied upon a small study of feedlots to determine odour emission rates. He said that the outcome of the assessment was critically dependent on the odour emission rate that was chosen.

Mr Welchman referred to the ongoing debate in Australia about the appropriate odour emissions data for use in an assessment of a feedlot development. He said there were no scientific consensus on the odour emission data that should be used and no reliable way to relate the odour emission rates to the proposed design and management practices to be adopted at the upgraded feedlot.

He also said that the results of the dispersion modelling study would suggest extensive areas of odour impact, which was inconsistent with the number of complaints that had been made. His view was that the dispersion modelling conducted by Ms Richardson overestimated the potential impact of Kurrawong.

Mr Welchman referred to Ms Richardson’s conclusion that terrain and meteorology enhanced odour risk at the McInerney’s property (“Ringing Plains”). He did not consider that the dispersion modelling completed by Ms Richardson supported that conclusion: the dispersion modelling suggested that impacts were highest to the east of the feedlot rather than in the direction of Ringing Plains, whereas the contours did not favour any particular compass direction. In his view that meant that the area was relatively uncomplicated in terms of terrain and meteorology.

Mr Welchman said that Ms Richardson had not differentiated between meteorological conditions that were more conducive to dispersion - hence of very low risk of causing odour nuisance (such as strong winds and convective conditions) - and meteorological conditions that are less conducive to odour dispersion (such as light winds and very stable atmospheric conditions). He considered that it was the frequency of the light wind conditions that were more likely to indicate areas at risk of odour nuisance. He considered that such conditions occurred considerably less frequently than suggested by the analysis done by Ms Richardson. He said that an analysis of back-trajectories did not appear to have been done, but was necessary in order for conclusions about the range of wind directions that could transport odours from Kurrawong and the other odour generating activities, towards Ringing Plains.

(h)Mr Galvin

Mr Galvin said that the Feedlot Reference Manual method, involving the use of an ‘S Factor’ type approach, had been successfully used at a number of feedlot sites in most States in Australia. He considered that the ‘S Factor’ approach was generally considered to be conservative and for that reason the influence of wind speed and direction was not normally considered as a primary factor.

In so far as complaints about odour were concerned he noted that most of the complaints came from Ringing Plains but there was not a high level of impact in the surrounding area as a whole.

Whilst it was possible that the odour plume could have moved in the period between a complaint being lodged and departmental staff attending the site, on the complaint data there would have been high odour levels present in the area but this was not necessarily confirmed by the officers on site and in the area, over time. He said that the complaint history – and the discrepancy between observed odour levels between the primary complainants and the departmental officers – indicated that the complainants may have become sensitised over time. Hence they would associate any odour with adverse impacts on their wellbeing.

With respect to Ms Richardson’s modelling, he was of the view that there was not sufficient data to adequately support a contention that the modelling was indicative of actual impacts. Applying the Feedlot Reference Manual ‘S Factor’ approach it was likely that the existing feedlot would comply at the residence at Ringing Plains, the available separation distance being 2,400 metres and the required separation distance being 2,275 metres.

Mr Galvin also considered that the proposed expansion of the feedlot would likely lead to less odour at the residences of those who had complained of odour effects.

(i)Ms Richardson

Ms Richardson prepared her report based on her own investigations and experience but from a different perspective than the approach adopted by Mr Welchman and Mr Galvin.

The latter experts applied the methods set out in the Feedlot Reference Manual whilst Ms Richardson conducted odour modelling to inform her opinion. She had referred several research documents: a research paper by Hudson & Ors, ‘Comparison of odour emission rates measured from various sources using two sampling devices’, 10 March 2008; a research paper ‘Feedlot Odour Modelling R&D Workshop (Meat and Livestock Australia) final report, November 2011; and to data in Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112 (“the Acland case”).

Acland involved a directed refusal by the concurrence agency of a proposal, because it did not meet with the requirements of the Feedlot Reference Manual. Hence the parties in that case tried odour modelling to see if that would result in some degree of compliance.

The odour modelling method involves the use of software developed for a broad odour generation purpose, but not restricted to cattle feedlots. There is a series of relevant software, which I will refer to by their acronyms rather than full description. I will also refer to the characterisation of the software:

TAPM III odour modelling: this produced an over prediction of wind speeds.

TAPM IV: this is a revised procedure of odour modelling and allowed for an adjustment for low wind speeds. It was used to predict meteorological conditions for the area around Kurrawong, centred on that feedlot.

CALNET is a software program that is then used to provide a representation of meteorological conditions for CALPUFF.

CALPUFF is the model that ultimately predicts what happens to odour emissions.

These software packages are proprietary software used for a range of different industries. The outputs of the models, not surprisingly, rely on two premises: the validity of the inputs; and correct operation of the modelling process.

Ms Richardson opined that on the basis of her odour modelling, the separation distances between Kurrawong and a number of receptors were significantly exceeded.

The emission data used in her modelling was that used for the Acland appeal. On that basis she opined that even as a Class 1 feedlot, odour would exceed EPA criteria for 9 of 11 receptors; and by more specific use of Acland data, odour would exceed EPA criteria for 5 of 11 receptors. She pointed to a difference in low wind speeds for two town localities in the relevant area, although such differences may not be the case at Kurrawong itself. In her compilation of a ‘wind rose’ there were very few wind directions that suggested that there could be odours carried from potential sources other than from Kurrawong.

With respect to the sources of data used in her odour modelling, she at least impliedly agreed that the Hudson report was looking at validating one method of sampling over another rand that there was no consensus about the appropriate emission rates for odour modelling of the type that she had done, within the relevant profession.

She had referred to a 2004 Odour Guideline and agreed that it applied across all land uses, but made reference to industry specific guidelines (such as the Feedlot Reference Manual). However, she expressed concerns about the Feedlot Reference Manual method and therefore adopted the odour modelling method. She agreed that the Feedlot Reference Manual had lesser separation distances for rural areas (as distinct from urban areas) but disagreed that one would look at the Industry specific guideline first.

Nevertheless she acknowledged in cross-examination that the introduction to the 2004 Odour Guideline stated: “Recognition is made in the guidelines of industry specific guidelines developed by the department of primary Industries and Fisheries as an appropriate method for assessing and managing odour impacts from such industries”

There was criticism of Ms Richardson’s approach by Mr Welchman and Mr Galvin. This led Ms Richardson to check her calculations. As part of that process, she ran some further modelling. This became a matter of contention in the course of the hearing. Nevertheless, the review and further modelling undertaken by Ms Richardson is part of her evidence, although it was subject to considerable scrutiny in the course of her cross-examination, particularly by Mr Litster QC.

At the end of the day, it seemed to me there were three distinct errors or failures in Ms Richardson’s methodology.

Firstly, there was a transposition of co-ordinates which resulted in the meteorological stations that had been put into the CALPUFF model being 18 kilometres offset form their actual position. There was a difference in topography for the two locations included within the coordinates, which it seems has a potential bearing on the prediction of wind direction and movement.

Secondly, an error was made in defining the dimension of a manure stockpile. Incorrect configuration made the size of the stockpile significantly larger than it in fact was. Those configurations are derived by making a two dimensional model and plotting polygons that become two dimensional representations of physical components of the feedlot.

Thirdly, there were errors in the size of cattle pens, which were described as being larger than there actual size.

There was also debate in the course of the evidence about Ms Richardson’s use of CADNA software to assist in obtaining coordinates to overlay on an aerial photograph. Ms Richardson used these rather than adopting the areas described by the coordinates used by Dr Watts (FSA Consulting). This produced differences in baseline input information as to pen sizes.

Ms Richardson agreed that there was no professional consensus about odour modelling. The Meat and Livestock Australia research paper showed that it was a controversial area and there was no peer acceptance of her approach. She agreed that a 2011 “workshop”, hosted by Meat and Livestock Australia, suggested in its final report of the workshop that there was “inadequate data to support the utilisation of the dispersion modelling at this point in time for cattle feedlots”.

Odour emission rates from feedlots are not constant and can, it seems, vary significantly. Ms Richardson agreed that her modelling did not say anything about what would happen when there were varying emission rates, although she said she used dry pen emission rates rather than wet pen emission rates in order not to produce an over estimation. She relied for her modelling entirely on research and did not take any measurements of odour from any dry or wet cattle feedlot.

Mr Welchman and Mr Galvin applied the Feedlot Reference Manual guidelines in forming their opinion. Ms Richardson agreed that the S1, S2, S3 and S4 values used by them each combined to produce the S factor, multiplied by the square root of the SCU to identify the separation distance (d) in the formula, and that the application of the Feedlot Reference Manual produces the resulting conclusion about odour dispersion and odour dispersion from source to potential receptor.

Ms Richardson agreed in cross-examination that if the feedlot was reconstructed in accordance with the plans, the separation distances would be correct. She agreed that “an upgrade of an 8,000 SCU to Class 1 facility would be expected to achieve a significant reduction on odour impacts”. However, her concerns about the expansion of the feedlot to 14,000 SCU were based upon management history by the Morgan’s. Nevertheless, she agreed that odour emissions from a 14,000 SCU Class 1 facility would be spread over a greater area and odour emission impact should be less.

Unfortunately for Ms Richardson, the odour dispersion modelling exercise appeared to become more difficult with the passage of time. She relied on uniform values of odour emission and on an assumption, albeit so as to apply a conservative basis for the modelling, of a dry feedlot, as the input factors in her model. Those factors did not take into account the inevitability of variations in odour generation and dispersion.

Ms Richardson also gave evidence of the PUFF splitting in the modelling exercise. She did not consider it necessary to disclose all of the difficulties that she encountered in the process, in her report to the Court. She was required to run a new model because of apparent deficiencies in the first exercise.

Ms Richardson had not modelled or sampled a Class 1, Class 2 or Class 3 cattle feedlot. However, she opined that if it was difficult to operate the feedlot as a Class 2 facility because of the design of the northern pens, that fact would have significant consequences for odour generation. Odour generation would be different as between a Class 2 and a Class 1 facility. However, she agreed that more frequent removal of manure and proper pen foundation preparation should result in reduction in odour preparation.

It seems that Ms Richardson’s concerns that led her to the modelling method she adopted rather than the application of the Feedlot Reference Manual, was the management history (and the criticisms about management inherent in the evidence of the submitters) and the complaint history (about odour detected at receptor sites), the latter being something she considered should not happen if management was competent and complaint.

With regard to the complaint history, Ms Richardson said that she was “simply looking at” the complaint information, but at the time of forming her initial view she did not have access to the more subsequent Authorised Officer inspections. She agreed that the complaint history was a “listing of observations”, not every one being a complaint occasion or event. She agreed that because there was a concentration of complaint history at one location (Ringing Plains), it did not constitute a “community odour survey”. Ms Richardson agreed that the complaint history did not identify the specific processes that might contribute to odour impact, but were simply observations made and recorded at a specific point and time, primarily at that one receptor.

Ms Richardson did not independently verify that information. Nor did she make any measurement of odour with respect to the residence of Mr Allen. She agreed that one could conclude that the observations recorded in the complaint information may have reflected “over-sensitivity” by persons at that receptor.

I have formed the view from what Ms Richardson said that the complaint history or information that she relied on was not an “odour diary” in terms of the odour guideline.

Complaint validation, where it is carried out, required an understanding of the level of the direction of wind, the odour at a source and the odour at a receptor.

Nevertheless, Ms Richardson seemed to accept that the complaint and reporting conditions in the Negotiated Decision Notice (exhibit 5A), with the addition of a timeframe for corrective action, would make that condition acceptable. She seemed also to accept that if the cattle feedlot was “established” as a Class 1 feedlot that would also make the condition package acceptable. Similarly, a requirement for ongoing training of employees would have the same effect.

With respect to complaints, Ms Richardson stated that observations made by Authorised Officers customarily were given more weight over those made by other persons. However, she said that those observations, in this case, did not accord with the community perceptions. That was one basis for her conclusion that the Feedlot Reference Manual was not adequately dealing with the particular odour emission circumstances of this case.

Ms Richardson, when pressed in cross-examination by Ms Brien, said she could not separate “construction” of a feedlot (that is, the Class 1, Class 2 or Class 3 facility designation), from the “operation” of a feedlot. However, she conceded that it is “possible” that there is likely to be a better outcome from a Class 1 construction, combined with a compliance with the Feedlot Reference Manual, than exists in the current circumstances. I note that the Feedlot Reference Manual does separate “construction” from “operation”, so far as the view expressed by Ms Richardson is concerned.

Ms Richardson accepted that Mr Galvin had a great deal more expertise and knowledge of feedlots as a particular subgroup of odour emanating sources than she did.

(j)Mrs McInerney

Mrs McInnerney gave evidence by Affidavit and oral testimony.

She considered that there will be, if there is an approval for the proposed expansion of Kurrawong, a significant impact on the severity of the odours that she and her family would have to endure in the future.

She described the odours as being variable in time and strength, but nevertheless offensive. She differentiated the odour from that of a piggery, because it was a different smell. She could smell the piggery once or twice a year. After rain the odour that she believes comes from Kurrawong was sometimes quite severe. The removal of the stockpile of manure that had been maintained at Kurrawong did not reduce odour, but did have an effect on the time the odour persisted, perhaps by 50%. She referred to the odour being more intense in light wind conditions. Indeed, she said in re-examination that the odours were generally early in the morning or early evening but gone after the sun had come up.

Mr Houston in cross-examination took Mrs McInnerney through a number of documents relating to complaints. She gave an account of the records that were kept about odour and of contact made with authorised officers about that. She agreed that with one example, illustrated by the documents, which showed that where a complaint was made an inspection report followed together with regulatory action taken directly with Morgan.

She did not agree with the proposition that the complaints record compiled by her family started when they knew of the Development Application and that this was an attempt to stop the approval. She said that the prospect of a larger feedlot was the catalyst for the record-keeping, even though the proposal was for a Class 1 feedlot. She said that in her experience odour emanated even from a Class 1 feedlot. She did not think that she could continue to live at Ringing Plains if the situation, even under a Class 1 condition, persisted.

Mrs McInnerney said that rebuilding the northern pens and retrofitting the southern pens still did not give her “confidence” in odour generation being reduced. She continued to express concern about what would happen even if the construction proceeded, as it was proposed, at a Class 1 facility.

As I have observed, much of the cross-examination dealt with the volume of evidence of odour complaint, but I do not need to descend specifically to the detail of that in this judgment. Suffice to say that I accept that their perception of odour has affected Mrs McInnerney and her family and has distressed them. Mrs McInnerney said that she would most likely contact the Regulator about issues in the future. I think it was clear on her evidence that she had no confidence in dealing directly with Morgan.

Mr McInerney(k)

Mr McInnerney gave evidence by Affidavit and oral testimony.

He said his residence at Ringing Plains was about 2.4 kilometres southwest of Kurrawong. He lived on Ringing Plains all of his life. The prevailing winds were predominantly easterlies to north-easterlies. He said he could differentiate odour between piggeries and cattle feedlots. He believed Kurrawong to be the source of the odour that was experienced at his residence and described ‘significant odour’ impacts having been experienced since the late 1990s. He described the odour as being offensive and a matter of embarrassment when it occurred in the company of visitors to his home. When the house is left open for breezes in summer the odours are more prevalent. He had made a complaint directly to Morgan, kept an odour record and made contact with the Regulator, over a long period of time. He was critical of Morgan’s operational competency, as he was of the Regulator’s response to complaints about odour. Both he and his wife also had concerns about dust generation from truck using the roads and expressed concern about an expanded feedlot having an impact through heavier road use and greater dust generation.

Mrs Reimers (l)

Mrs Reimers’ property is situated about two kilometres east of Kurrawong and the prevailing winds come from the east. In her affidavit she said that on more than one occasion she had experienced feedlot odour at her residence. She had also experienced odour when moving around the surrounding locality. She believed the odour emanated from Kurrawong and the Whaka feedlot. Generally the winds are from the northwest when odour is experienced. She also was concerned about the generation of dust from traffic on the unsealed roads and the amount of traffic using those roads in the locality.

She spoke in evidence about a vegetative screen which was quick growing and in line with the site of neighbours being planted. The odours occurred when the weather was fairly calm and there was little or no wind. She had no confidence that the odour situation would improve.

She and her husband had operated a piggery several years ago and she was able to distinguish the odour from a piggery from that of a cattle feedlot. She said it was a distinctively different smell and cattle feedlots produced a smell which had a strong urine component. She agreed with Mr Davies in cross-examination that the conditions (exhibit 5A) were a comprehensive set of conditions. She told Mr Houston that she had previously had experience with another feedlot that had been poorly managed, however agreed that there was no complaints in any of the materials, from her or her husband, before 2006. She wanted the conditions complied with.

Mr Allen(m)

Mr Allen owns and operates a winery, bed and breakfast and camping facility about 10 kilometres north of Kurrawong. The prevailing winds during the tourist season are from the south to southwest. He complained of unpleasant feedlot odours, particularly after rain. The odours affected his business and his personal enjoyment of his property.

In evidence Mr Allen said that he might in other circumstances have just accepted odour as part of country life. However, he thought that the situation now was very serious. He adopted and relied on Mr McInnerney’s evidence of complaint history.

In cross-examination by Mrs McInnerney (in the absence on that day of Counsel Mr Collins), he described the different smells that came from different type of animal feedlots.

Mr Allen said that he had been to Kurrawong once or twice prior to the court inspection of the property, but they were for commercial purposes and nothing to do with the case. He described the presence of odours in the vicinity of Moola and Quinalow. He referred to having a goat herd on his property and having kept sheep and poultry. He had not been to Kurrawong to attempt to dentify any smell. No guests had checked-out of the accommodation on his property as a consequence of odour. His property was for sale and he had been trying to sell the property for two years. He had never made any formal complaints.

Submissions

Mr Litster QC

Mr Litster QC submitted that it may be accepted that there will be odours emitted from an expanded feedlot even if it operated as a Class 1 facility. However, he submitted that the real issue was whether the separation distances from the identified receptors would be appropriate to ensure that no adverse impact or unacceptable interference from odours was occasioned to those residing at or working in those receptors..

He submitted that the Feedlot Reference Manual was specifically recognised in the ‘Guideline – Odour Impact Assessments from Developments’ as the appropriate method for assessing and managing odour impacts from feedlots.

He submitted that Dr Watts, Mr Welchman and Mr Galvin all had extensive experience relevant to feedlots and that the latter experts analysed the expanded feedlot using the methodology provided in the Feedlot Reference Manual. On the other hand, Ms Richardson had decided that it was necessary to go to an odour dispersion modelling exercise, even though she did not suggest that Mr Welchman or Mr Galvin did not properly use the formula provided in the Feedlot Reference Manual.

He submitted that there was no professional consensus as to the appropriate inputs to be utilised in odour dispersion modelling for feedlots. In the Hudson report odour dispersion modelling was directed to another purpose, namely to establish a correlation between two odour measurement devices. By way of observation, so much is apparent from the title of the report. In so far as the Acland case was concerned, he submitted that the use of the S factor method had resulted in a refusal of the Development Application because appropriate separation distances could not be achieved and that odour dispersion modelling was used to try and overcome that refusal.

Mr Litster QC was critical of Ms Richardson’s reliance on the adoption of uniform values of odour emission and the implication that rates of emission were constant, when in fact they were not and would vary at least with the season, time of day, temperature, wind speed and other meteorological or environmental factors. He submitted that the adoption of those rates had not been independently verified.

Mr Litster QC was also critical of Ms Richardson’s errors in her modelling data and the lack of supervision of the modelling process, citing the over prediction of calms and her use of puff splitting in the modelling exercises that produced ‘fatal error’ messages that required her to restart the process from zero. He expressed concern that some of those matters were elicited in cross-examination and had not been referred to in Ms Richardson’s report. He submitted that the Court should prefer the ‘thoughtful and reasoned’ approach of Mr Welchman and Mr Galvin.

Mr Litster QC referred to the chronological history of the complaints and the lodging of the Development Application and public notification. He referred to the fact that the current feedlot was old and outdated, particularly the northern pens. He said that was the catalyst for the lodgement of the Development Application. He submitted that a Class 1 feedlot would result in significant improvement.

With respect to operational competency, and in the context of the orders made by Judge Robin QC, this Court was not required to make any specific ruling. He also submitted that Mr and Mrs McInnerney, in their Further and Better Particulars provided information that was not responsive to the Request for Particulars.

In so far as Mr McInnerney’s Affidavit evidence was concerned, Mr Litster QC submitted that there had been no lack of response from departmental officers in respect of complaints about odour, the investigations by departmental officers having frequently showed that no odour was detected. Even if the McInnerneys had experienced odour from the feedlot on occasions or there had been non-compliance with conditions in the feedlot licence, “any breaches have not been substantial, are likely to be effectively addressed by upgrading of the feedlot, such as will occur if the approval is granted and do not amount to a lack of competency.”

Mr Litster QC submitted there was no basis for refusal of the Development Application on the ground of lack of competency of the operators. He submitted that amended, negotiated and new conditions imposed on Morgan in the conditions package addressed the concerns of the co-respondents by election.

Ms Brien

Ms Brien referred to the position of her clients as Concurrence Agencies pursuant to the legislation and in that context to exhibit 5. The administrating authority under the Environmental Protection Act 1994 is a Concurrence Agency; so to is DAFF (previously DPI&F). There was a referral to DAFF some time in March 2007 and DAFF provided Concurrence Agency conditions to be included in any approval of the Development Application. The DAFF Concurrency Agency response is dated 10 October 2008. The Amended Negotiated Decision Notice - 12 October 2010 - included conditions imposed by both the Council and DAFF.

She referred to the requirement in section 3.3.15(1) IPA requiring an assessment by a Referral Agency to be within the limit of its jurisdiction, the laws it administered and the policies applied by the Referral Agency. The jurisdiction of the Concurrence Agency is the purposes of the Environmental Protection Act 1994 in section 3 and section 73A of the Environmental Protection Act 1994 provides the framework for assessing Development Applications. Section 3.3.15(1) IPA is not limited by section 73A(3).

She submitted that the documents relevant to the assessment of odour and appropriate separation distances are the Feedlot Reference Manual, the Odour Guideline and the relevant planning scheme. Section 3.3.15(2) IPA gives weight to later laws and policies. There was a sequential assessment process: firstly, what did the Feedlot Reference Manual say and how should the Development Application be assessed against it; secondly, one goes then to the Odour Guideline, which is non-specific; one then goes to the relevant planning scheme.

Ms Brien submitted that odour modelling raises questions of uncertainty and possibly incorrect modelling, because as Mr Galvin said it is a difficult exercise. The Feedlot Reference Manual has a conservative base built-in.

With respect to the complaint history, whilst it expresses concerns the past history is relevant to and reflects the past classification of the feedlot. The Community Reference Group condition seemed to acknowledge those concerns and is proposed by submitter parties as a means to address them.

Exhibit 5A contained a raft of conditions that seem to cover the matters proposed by the submitter parties in exhibit 7C.

Ms Brien referred to the need for a conditions package to be certain; and that it must be relevant and reasonable (section 3.5.30 IPA); and necessary and desirable (section 73B Environmental protection Act 1994).

Ms Brien referred to the Conditions Package. There was a need in Condition A1 to update the plans with respect to the size and shape of the southern pens, commensurate with Dr Watts’ evidence. She submitted that where there is any inconsistency between DAFF’s conditions and the Council’s conditions, DAFF’s conditions prevailed, a matter that needed to be specifically stated, by amendment to the conditions package. She specifically referred to Conditions A2 and A3 (together), about SCU intensity; Condition A4, prevention of environmental harm (section 319 EPA); Condition A5, record keeping; Condition A7 and G12 (together), about the Environmental Management Plan (that is, day to day operational activities); Conditions D1 and D2 (together), about there being no unreasonable interference; and Condition E, about monitoring and recording.

Her reference to those Conditions is in the context of addressing the specific concerns of the submitter parties. Morgan had to address the southern pens and the plans needed to reflect that. The facility must be established in accordance with the conditions and hence they must be done before the use commences. The facility had to be designed, constructed, managed and operated as a Class 1 cattle feedlot, in accordance with the Feedlot Reference manual.

Mr Davies

Mr Davies made specific reference to exhibits 5A and 7A, 7B and 7C, exhibit 5 and conditions A1, A11 and D1 (e) and (f).with respect to the conditions of any approval.

Mr Davies submitted that what is desired by Mr and Mrs McInnerney and Mrs Reimers is already covered in several ways by elsewhere in the operational conditions. He noted the concession by Mr Litster QC in respect of Ex 7B – 12.

As to complaint recording Condition E13 imposes this requirement (subject to being amended if necessary to provide more depth). Mrs Reimer’s proposed conditions about air quality were covered already and comprehensively by EPA conditions.

Mr Davies submissions helpfully canvassed the other conditions: A1 the Feedlot Reference Manual; A11 clause 1; A7 the Environmental Management Plan; D1, requiring management so as to not cause unreasonable interference; A8 and 9, the effluent control structures; A16 and 17, the removal of the manure pack; 7B, weed management.

He submitted that there was nothing else that is relevant in this appeal.

He submitted that exhibit 7C referred to the Acland case conditions about construction and management and hence were dealt with by current EPA conditions concerning dust and odour.

Insofar as the Community Reference Group is concerned, he submitted that the proposal lacked certainty and clarity. The audit proposal is addressed elsewhere, particularly in A7 (the Environmental Management Plan).

As to operational competency, this is an area of some uncertainty but is dealt with elsewhere: in Conditions A1, A11, E9 (staff training) and G12 (Environmental Management Plan).

The thrust of Mr Davies submissions was that the Conditions package, as amended or negotiated and with the new meteorological conditions, satisfied the interests and concerns of the submitter co-respondents. He submitted that on the expert evidence, operational quality is addressed by compliance with conditions. If the Allen appeal was dismissed, its concerns were dealt with by the Environmental Protection Agency conditions.

Mr Collins

Mr Collins specifically referred to section 4.1.52 IPA and sections 14 and 319 of the Environmental Protection Act 1994. With respect to amenity, Mr Collins referred to the Acland case and the words of Dodds DCJ: “Proposed development will often affect existing amenity. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landholders in the vicinity given the sorts of uses permitted under the current town planning controls”.

With respect to the Feedlot Reference Manual, Mr Collins in his written submission made the following observations: “The fact there are current inadequacies in the design of the current feedlot which may be improved (not overcome) by an upgrade is not a basis for an approval at 14000 SCU”; and “.. it is not as if the Feedlot Reference Manual operates on the basis of a precise science where it can be ascertained with certainty whether or not unacceptable levels of odour are being transmitted. Indeed, the very science on which the Feedlot Reference Manual is based is now some twenty two years old”

Mr Collins submitted that even a Class 1 construction requires an operation at that level. In other words, the success of the operation so far as impact on neighbours is concerned depended almost entirely on the conduct of the feedlot operator. He submitted that there was “no system of monitoring which allows any person to assess whether (conditions) are being complied with”. He referred to it as a “genuine risk” that members of the community will be locked into a position where unacceptable odour levels are being transmitted, despite the application of the Feedlot Reference Manual.

Mr Collins referred to the evidence of the number of persons who have complained of offensive odour and submitted that this was evidence that should be given significant weight. He also criticised what he termed the “failure” of Morgan to give evidence and asked me to invoke the rule in Jones v Dunkel (1959) 101 CLR 298. The criticism was that Morgan could have given evidence as to management practices and how and why odours were emanating from the feedlot and as to his capacity to operate and manage a feedlot in a Class 1 facility. He submitted that the Court could have no real confidence that Morgan would genuinely attempt to manage and operate the feedlot as one might expect from a Class 1 facility.

Mr Collins’ submission really was to this effect: that if there was not some absolute means of ensuring compliance with the requirements of the Feedlot Reference Manual and ensuring optimal operation and management of a feedlot, then there should not be an expansion to this feedlot because of past experience.

Mr Collins invited me to engage what he referred to as the Acland case approach and limit the number of SCU in an extended feedlot. He referred to there being a need for “absolute certainty” in respect of obligations. He invited me to adopt the suggestions made by his clients and Mrs Reimers, to this effect: the recording of a complaint with a comprehensive analysis of the circumstances and the surrounding conditions at the time, construction of a meteorological recording device; and a positive obligation to report complaints to the regulating authority within a reasonable time.

Of course, Morgan has agreed to the installation of a meteorological monitoring station and to the recording and maintenance of relevant data. That would seem to me to address those concerns expressed by the parties and advocated by Mr Collins.

Mrs Reimers

With respect to air quality, Mrs Reimers was critical of the Feedlot reference manual on the basis that it failed to take into account “terrain steering and prevailing winds”; and because it was “a guideline written by the feedlot industry”. She supported the odour modelling method of Ms Richardson.

The odour experienced at her residence she believed came from Kurrawong. She did not believe the southern pens could be upgraded to Class 1 and advocated their demolition and reconstruction. She submitted that some (non-pen) areas of Kurrawong were not considered by Dr Watts, Mr Welchman or Mr Galvin.

She submitted that with respect to traffic and roads, a “suitable road network” was necessary.

She was critical of the feedlot management and oversight, citing “a history of licensing breaches and upper management incompetency”. She was also critical of Regulator oversight.

Mrs Reimers cited “environmental harm” and further property devaluation (although there was no evidence of the latter) as the two consequences that would flow from an approval of the expansion of Kurrawong.

Mr Allen

The main point in his submission was a criticism of the operation of Kurrawong. Even under a Class 1 design, he acknowledged Dr Watt’s evidence that management would play a significant role. He referred to the Feedlot Reference Manual as, on his reading of it, indicating that a feedlot operated and managed as a Class 2 feedlot not producing excessive odours. Kurrawong did so. He also expressed concerns about increased truck movements. He was confident that Morgan would operate the feedlot as a Class 1 facility so as to minimise odour generation.

The Affidavit Evidence

Some of the content of affidavits tendered by Mr and Mrs McInnerney, Mrs Reimers and Mr Allen contained material that was strictly inadmissible. What I have observed by way of their evidence, and doing so as fairly as I can, is that evidence which they can speak directly to. In so far as the other material in the affidavit is concerned (for example statements made by third parties or a belief in actions that may or may not have been taken by third parties) it is for me a matter of weight in assessing the evidence of those witnesses as a whole.

I am prepared to accept the evidence of Mr and Mrs McInnerney, Mrs Reimers and Mr Allen as expressing views which they genuinely hold. However, their evidence has to be assessed with and within the context of the evidence as whole and consequently questions of weight are of necessity significant in an evaluation of the individual evidence of a particular witness, whether they be an expert witness or a lay witness.

Discussion

I am satisfied that the traffic and roads, noise, dust and landscaping issues have been reasonably and appropriately resolved in the course of the appeal hearing. Similarly, I am satisfied that the concerns about meteorological monitoring and reporting are satisfied by the additional conditions to which Morgan has agreed.

There is no issue for my determination regarding the landscaping conditions. They are reasonable and appropriate and I am content to make them part of the Conditions attached to the approval of the development Application.

There is no issue for my determination regarding the traffic and road conditions. They are reasonable and appropriate and I am content to make them part of the Conditions attached to the approval of the development Application.

Insofar as the noise issue condition is concerned, despite the proposed reinstatement sought by the Co-respondents, the condition in my view is not reasonably required and would be an unreasonable imposition on the proposed development. Hence I will not reinstate the condition.

The evidence of the air quality experts really fell into two categories: the evidence of Mr Welchman and Mr Galvin as against the evidence of Ms Richardson. I had considerable difficulty in assessing Ms Richardson’s evidence, not the least because of its apparent complexity but also because of the errors that were made in the odour modelling process. Those two matters really do not permit me to have any confidence at all that her opinions based upon that odour modelling ought to be acted upon. I very much preferred the evidence of Mr Welchman and Mr Galvin and I accept that their application of the S Factor formula method is not only appropriate but the best method in the circumstances of this case. That being the case, there are in my view adequate separation distances, based on that formula method to provide compliance with the Feedlot Reference Manual. Of course, the construction of a Class 1 facility is an integral part of achieving a desirable environmental outcome for neighbours of the Morgan Enterprise. I accept the evidence of Dr Watts concerning the design and construction of the expanded cattle feedlot facility.

I thought that Ms Richardson struggled to objectively advance an alternative scenario based on her odour modelling. I do not think that the odour modelling was satisfactory and I do not accept the evidence based on that formula. At the end of the day, Ms Richardson made a number of concessions, to which I have referred in the course of discussing her evidence, which lead me to this conclusion, that a Class 1 facility properly managed and operated will more likely than not provide an acceptable outcome for the neighbours who retained her services and the others who had concerns similar to her clients.

Ms Richardson’s dispersion modelling exercise unravelled as the case proceeded. It was, with respect to her, affected by errors within inputs and a lack of rigour in the modelling process. It seems to me that this was as much an indicator of the “difficulty in process” that Mr Galvin intimated in his evidence. As it was to what I believe was a modelling exercise that was affected by Court proceeding time demands that eclipsed proper process and resulted in a loss of control of the exercise.

I do not accept Mr Collins’ submissions that the Feedlot Reference Manual is in someway deficient because it cannot guarantee an outcome, if that is what his submission was directed to. Whilst odour modelling can be used in respect to cattle feedlots, the Feedlot Reference Manual is the primary and substantive document that sets out the necessary requirements to assess and apply separation distances with a view to achieving its aims of minimisation of adverse affects and unreasonable interference with the amenity of neighbours.

The S factor formula method similarly does not seek nor can it provide “absolute certainty” of outcome. The same can be said for the alternative S factor formula method and for the dispersion modelling method adopted by Ms Richardson. Indeed, the same can be said for air quality depreciation caused by other rural activities conducted in a rural locality.

“Absolute certainty” of science, when dealing with a subject such as air quality, is frankly, unachievable, on any rational, reasonable or commonsense perspective. The Feedlot Reference Manual does not guarantee an odour free outcome. Its intention is to “limit adverse impacts” and “unreasonable interference” with the amenity of neighbours of cattle feedlots.

That submission may be superficially attractive, but, with respect, ignores the fact that the facility has through the time that the complaints have been generated, been largely a pre-1989 facility that was either or a combination of Class 2 or Class 3 and in which a substantial portion of it in the northern pens had been constructed before the existence of the Feedlot Reference Manual. Hence the operator starts behind the proverbial eight ball so far as operation and maintenance is concerned.

It also ignores what I consider to be reasonable expectations, namely that the operation of a feedlot in compliance with Feedlot Reference Manual is expected to achieve the intent of the Manual in minimising adverse impacts and unreasonable interference with the property and enjoyment of life of neighbours, so far as that is possible in the context of nothing being capable of an absolute outcome.

It also ignores the fact that the Regulator is charged with the responsibility of ensuring compliance and one might expect that the Regulator will be only too conscious to ensure the optimal operation of Kurrawong given its recent history including the litigation history.

My impression from the volume of evidence concerning recordings of odour generation or complaints, that where Morgan was notified of issues he attempted to deal with them and at least demonstrated that, whether complaint generated or part of a business plan, he was doing something to try and reduce the odour. Odour is very much a transient phenomenon, its transmission being very much affected by meteorological conditions.

I do not agree with Mr Collins’ criticism of Morgan for not giving evidence. I do not think this is a matter in which the principle in James v Dunkel is invoked. The order made for consideration to be given to the management and operation of the feedlot was not an issue for specific finding and determination but was a factor to be taken into consideration, given the level of complaints from neighbouring land owners in the overall assessment of the Development Application. That is the approach that I have taken in this case.

The reduction in the time that odour persisted, when the manure stockpile was removed, would seem to suggest that manure management can have a positive effect on odour generation.

One of the factors which is difficult to overcome in making complaints to Regulators is that by the time the Authorised Officers arrive at a scene to assess odour nuisance the meteorological conditions have often changed and that, together with their personal perception of odour, can influence any determination that they make about whether there has been or is odour present at a particular receptor or not, and the extent of it.

I agree that the odour experienced by Mr & Mrs McInnerney at Ringing Plains and by Mrs Reimers is most probably coming from Kurrawong. I accept that their (and Mr Allen’s) description of the “odour nuisance” is honestly held. However, in so far as the odour experienced by Mr Allen is concerned, with respect to him, I cannot conceive on the evidence that given the terrain (surface roughness factor S4) and the distance from Kurrawong to his residence and business enterprise (about 10 kilometres) that the source of the odour is necessarily Kurrawong.

I do not accept Mrs Reimers’ submission that the Feedlot Reference Manual is a guideline “written by the Feedlot industry”. It is not. It is undoubtedly informed by the Feedlot industry but it was prepared upon independent scientific analysis by the relevant government department at the time, using the best sources of information and meteorological understanding at the time. The Feedlot Reference Manual does refer to the fact that it is, in a sense an evolving document and one that remains to be informed, if there is further and more recent information that could usefully be analysed and included in the document, by technological and other advances in meteorological or associated science.

As much as one might sympathise with the perception (and I do not use that word in a deprecating way) of odour from Kurrawong is concerned, I am nevertheless satisfied that the primary reason for that perception is the undeniable fact that Kurrawong is an old cattle feedlot which patently does not comply with the requirements that accompany a Class 1 cattle feedlot facility. Kurrawong was constructed before the Feedlot Reference Manual commenced. In almost every respect of its construction it is significantly less than optimal. The factors that affect odour generation seem to me to relate directly to that fact of construction.

In so far as the complaint recording was concerned, as I have said I accept that the complaints reflect what the residence at the receptors, and particularly at Ringing Plains, have been perceived but I consider that they reflect what is currently the type of establishment, whether it be a Class 2 or Class 3 facility or a combination of those, and I am satisfied that perceptions should be as best one can possibly predict should be vastly different once the facility is constructed and operated as a Class 1 cattle feedlot.

The proposed development will completely reconstruct the northern pens to a Class 1 facility. The construction factors that are present in the existing northern feedlot will be removed. The refurbishment and partial reconstruction of the southern feedlot will enhance the capacity of the operators to minimise odour generation from that facility, whether or not it is ultimately entirely a Class 1 facility or something a little less in some parts.

The submissions critical of the work that is proposed on the southern pens reflects the fact that it is not going to be entirely demolished. However, it seems to me that the pens that remain from the existing southern feedlot are configured in a way which is conducive to the minimisation of odour from that part of the facility.

It seems to me that the management and operation of Kurrawong has over a period of time been open to criticism. All that the relevant authorities can do, and all this Court can do, is to ensure that the construction or reconstruction of the cattle feedlot per se will create conditions in which odour generation can with proper management and operation be minimised as required by the Feedlot Reference Manual and the relevant legislation. No one can, even with the most admirable foresight, predict whether or how a cattle feedlot operation may be operated and managed on a day to day basis. One would expect that Morgan, after the experience of this case in having heard his neighbours’ views about his management and operation of the feedlot, will take on board those views and create an environment where his neighbours are not affected or at worst, minimally and infrequently affected, by any odour generation. At the very least, he will have a facility constructed in a way which will optimise management and operational capacity to create an environmentally acceptable facility. One would also expect that the relevant administering authorities will be vigilant to ensure that there is no diminution in best-case management and operation at Kurrawong.

Ms Richardson’s evidence, at the end of the day, did not inspire confidence in comparison with the more conservative but validated and tested, S factor approach: an approach that is the industry primary source of the separation distance analysis. In my view the evidence, both within the reports and oral evidence of Mr Welchman and Mr Galvin was objective, analytical and careful and I accept their evidence. The same can be said for the evidence of Dr Watts.

That being the case, it seems to me that upon a careful appreciation of the evidence, a matter to which I have applied myself in the course of preparation of this judgment, there is no reason to refuse the Development Application. However, it must of necessity be conditioned in accordance with the Council’s and DAFF’s conditions can the amended, renegotiated and new conditions which have been resolved in the course of the appeal hearing.

Conclusion

I have determined the appeals: for the reasons I have stated, the Allen appeal is dismissed. Further, for the reasons I have stated, the Morgan appeal is allowed, subject to Conditions that I am able to determine in this judgment.

The conditions in the Morgan appeal

Section 3.5.30 IPA provides:

“(1) A condition must –

(a) be relevant to, but not an unreasonable imposition on, the development or use of the premises as a consequence of the development; or

(b) be reasonable required in respect of the development or use of premises as a consequence of the development.

(2) Subsection (!) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency.”

The Conditions imposed on the approval of the Development Application are those imposed in the Amended Negotiated Decision Notice, namely the Council’s conditions – subject to the amended Condition 11, new Conditions 14 and 26, 27, and 28 and the amended Conditions with respect to landscaping; and DAFF’s (previously DPI&F) conditions - subject to the two new Conditions agreed by Morgan with respect to meteorological monitoring and data.

Costs

On 06 December 2013, I made orders in each of the appeals that the Third Co-respondents by Election pay the costs incurred by each of the parties of and incidental to the introduction of new evidence by Ms Richardson. I agreed that the components of those costs be determined at the conclusion of the hearing of the appeals.

On 13 December 2012 I heard from Mr Litster QC and Mr Collins about the components of the hearing that would be the subject of the costs order.

Mr Collins submitted that the components should be limited to the extra court time, that the review proceeding and Application should be excluded and that there should be no order for two counsel in Morgan’s case.

Mr Lister submitted that the appropriate costs to be awarded were:

(a) Costs of and incidental to:

(i) The review of this matter on 3 October 2012 – to the extent that the review raised the question of the need for an application for an Order for the introduction of new material (the review otherwise being at the request of Mr Collins to inform the Court in respect of his availability);

(ii) The review of this matter on 15 October 2012, when there was argument in respect of the requirement for the application of an Order for the introduction of new material;

(iii) The hearing of the Third Co-Respondents’ application for the introduction of new material on 6 November 2012;

(b) Costs of and incidental to considering the new material (the further report o Ms Richardson and her affidavit); and

(c) Costs of that part of the further hearing reasonably attributable to the new material which was introduced – which the appellants estimated (conservatively) should be fixed at half a day.

I do not consider that the hearing on 03 October 2012 and any part of the hearings on 15 October 2012 and 06 November 2012 that did not relate specifically to the further or revised evidence of Ms Richardson, should be a component of the costs order. I consider that the order should include both Queens Counsel and Mr Houston. Subject to those qualifications, the costs orders shall be in the form advocated by Mr Litster QC.

Orders

Allen appeal

!. Appeal dismissed

Morgan appeal

1.Appeal allowed, subject to conditions

2.Costs pursuant the Order made on 06 November 2012

Appendices attached:

Appendix AIDAS Chronology

Appendix BIssues in the appeal prior to the substantive hearing: a contextual document.

APPENDIX B

Issues in the appeal prior to the substantive hearing: a contextual document.

Whilst the hearing proceeded on a refinement of the original grounds of appeal and agreed issues identified by the parties in mediation, the scope of the ‘original issues’, if I can express them in that way, gives some context to the way in which the submitter Co-Respondents By Election dealt with the evidence.

In the Morgan appeal

Appellant

In the Notice of Appeal the appellant sought to set aside a number of conditions of the development approval. The conditions (numbered as they appeared in the Negotiated Decision Notice) were:

Condition 14: Infrastructure - road and intersection construction.
Condition 26: Two 1.5km road boundary landscape vegetative screens.

Condition 27:             Specifications for landscape screening.
Condition 31:             Infrastructure Agreements for Condition 14.
Condition 32:             Infrastructure Agreements for Condition 14 involving annual payments.

The issues identified in the correspondence between the parties, by reference to the Negotiated Decision Notice, were as follows:

Respondent:

The respondent maintained that Conditions 14, 26, 27, 31 and 32 should be retained. They were described as “so important that there ought to be no approval at all without them.”

The Third, Fourth, Fifth and Sixth Co-Respondents by Election were substantially on common ground so far as the conditions of the approval were concerned.

Third and Fourth Co-Respondent by Election:

Firstly, the Third and Fourth Co-Respondents by Election sought the retention of Conditions 11, 12, 13, 14, 26, 27, 28, 31 and 32 (with the same caveat about the importance of the conditions); and contended that there be no approval until “more comprehensive odour modelling has been undertaken and strict conditions relating to odour and dust and monitoring of same have been included”.

Secondly, they sought changes to conditions in the Amended Negotiated Decision Notice (with the numbering in the negotiated Decision Notice in brackets), namely:

Condition 7:               Compliance with existing conditions (8).
Condition 11:             Traffic (19).
Condition 13:             Dust (from vehicle movement) (21).
Condition 14:             Road infrastructure (22).
Condition 20:             Vehicle movements (28).
Condition 23:             Water (37).
Condition 26:             Landscape vegetative screening (39).
Condition 27:             Landscaping specifications (40).

Thirdly, they sought reinstatement of conditions that were in the Negotiated Decision Notice but not carried forward in the Amended Negotiated Decision Notice (by reference to the numbering in the Negotiated Decision Notice), namely:

Condition 12: Establishing a meteorological monitoring station.

Condition 13:             Keeping meteorological records.
Condition 14:             Complaint recording.
Condition 29:             Noise.
Conditions 33 to 36:   Water quality.
Condition 38:             Weed and pest management.
Condition 44:             Amalgamation of lots.

Fourthly, they sought further conditions that should be imposed on the development approval, namely:

Air quality - dust: Compliance and monitoring in accordance with the Environmental Protection (Air) Policy 2008.
Air quality – odour: Assessment, sampling, reporting and complaint investigation (by reference to DERM guidelines.

Community: Establishing a Community Reference Group.
Audit: An annual audit of compliance with conditions.

Operations: Competency of operational management.
Environment: An Environmental Management Plan.

Fifth and Sixth Co-Respondents by Election:

Firstly, the Fifth and Sixth Co-Respondents by Election sought the retention of Conditions 14, 26, 27, 28, 31 and 32 (with the same caveat about the importance of the conditions).

Secondly, they sought changes to or reinstatement of conditions that were in the Negotiated Decision Notice but not carried forward in the Amended negotiated Decision Notice, that were the same as those contended by the Third and Fourth Co-respondents by Election, albeit with a different emphasis in some instances.

Thirdly, they sought the reinstatement of Condition 44 (amalgamation of lots), Condition 24 (a Property Management Plan), Condition 28 (maintenance of the landscape vegetative screen), insertion of a further paragraph in Condition 31 and reinstatement of a tranche of deleted conditions. They also sought an additional condition to establish a Community Reference Group.

In the Allen appeal

In the Notice of Appeal, so far as is relevant, the appellant’s contentions were that:

o The proposed development be refused due to likely unreasonable amenity impacts, particularly relating to odour.

o There were other unacceptable impacts.

o There were road infrastructure impacts.

o There were vehicle movement impacts.

These were to be the issues in the appeal.

The appellant’s response to a request by the Co-Respondent Peter David Morgan for particulars of the amenity impacts, was:

“Unreasonable amenity impacts including odour emanating from pen floors, ponds, laneways or otherwise and effluent spills. I have a tourist business namely a Bed and Breakfast, Cellar Door and Caravan Park. I depend on tourists for my livelihood who mainly travel from city locations eg, Brisbane, Gold Coast etc. these tourists expect an iconic location in the country with fresh country air. They are not pleased when they smell a feedlot”;

and referred to the separation distance in the Wambo Shire Council Planning Scheme of 15 km from the nearest town and to conflict with ‘planning schemes’ and DPI&F’s Reference Manual for the establishment of Beef Cattle Feedlots in Queensland.

CITATION:	Morgan v Toowoomba Regional Council & Ors; Allen v Toowoomba Regional Council & Ors [2013] QPEC 58
PARTIES:	No 92/2010 Peter David Morgan (Appellant) v Toowoomba Regional Council (Respondent) and Chief Executive Department of Environment and Resource Management (Co-Respondent by Election) and *Administering Authority under The Environmental Protection Act* 1994 (Second Co-Respondent by Election) and Damian William McInnerney (Third Co-Respondent by Election) and Leah Colleen McInnerney (Fourth Co-Respondent by Election) and Barry Reimers (Fifth Co-Respondent by Election) and Owena Ruth Reimers (Sixth Co-Respondent by Election) No 27/2011 David John Allen (Appellant) v Toowoomba Regional Council (Respondent) and Peter David Morgan (Co-Respondent) and Administering Authority under The Environmental Protection Act 1994 (First Co-Respondent by Election) and Damian William McInnerney and Leah Colleen McInnerney (Third Co-Respondents by Election) and Owena Ruth Reimers (Fourth Co-Respondent by Election) and Chief Executive Department of Environment and Resource Management (Fifth Co-Respondent by Election)**
FILE NOS:	No 92 of 2010 (Morgan) and No 27 of 2011 (Allen)
DIVISION:	Environment & Planning
PROCEEDINGS:	Appeals
ORIGINATING COURT:	Planning & Environment Court, Brisbane
DELIVERED ON:	01 October, 2013
DELIVERED AT:	Townsville
HEARING DATES:	16, 17, 20, 21, 22, 23, 24 August 2012, 15 October 2012, 06 November 2012, 10, 11, 12, 13 December 2012
JUDGE:	Durward SC DCJ
ORDERS:	*Allen appeal* 1.Appeal dismissed *Morgan appeal* 1.Appeal allowed, subject to conditions 2. Costs pursuant to the Order made on 06 November, 2012.
CATCHWORDS:	ENVIRONMENT & PLANNING – RURAL ACTIVITY – RURAL ZONE – PERMISSIBLE & EXISTING USE – expansion of cattle feedlot from 8,000 SCU to 14,000 SCU – renewal or reconstruction of entire aged facility to Class 1 standard – Council approval subject to Conditions package ENVIRONMENT & PLANNING – ENVIRONMENTAL HARM – AIR QUALITY – proposed expansion of cattle feedlot – issues of odour, dust, noise, landscaping, traffic and roads, compliance with licence conditions and management and operation ENVIRONMENT – RURAL ACTIVITY – ADVERSE IMPACTS – whether odour generation caused by specific activity – whether adverse impacts will be ameliorated by reconstruction and upgrade of cattle feedlot to Class 1 standard. ENVIRONMENT & PLANNING – ENVIRONMENTAL HARM – AIR QUALITY – FEEDLOT REFERENCE MANUAL – SEPARATION DISTANCES – whether Feedlot Reference Manual primary reference source for separation distances – whether odour modelling a better way – efficacy of Feedlot Reference Manual regime ENVIRONMENT & PLANNING – DEVELOPMENT APPLICATION – RURAL ACTIVITY – CONDITIONS ON APPROVAL – cattle feedlot – whether conditions satisfy neighbourhood concerns – air quality – complaints – whether upgrade of aged feedlot to Class 1 will minimise adverse impacts of odour ENVIRONMENT – AIR QUALITY – COMPLAINTS – RECORDING AND MONITORING – whether complaints in neighbourhood – whether particular receptors experience real or perceived adverse impacts – whether odour generation a consequence of aged pre-classification facility – whether expansion and rebuild to Class 1 standard will result in minimisation of adverse air quality impacts and unreasonable interference to quality of life of neighbours
LEGISLATION:	Local Government (Planning and Environment) Act 1990 section 4.13 (5) & (5A); Integrated Planning Act 1997 sections 3.1.7, 3.3.15; 3.5.5, 3.5.11, 3.5.14, 3.5.30 and Ch6 Pt8; Sustainable Planning Act 2009 sections 494, 495, 819, 820; Environmental Protection Act 1994 sections 4, 14, 18, 19, 22, 73A and 319; Environmental Protection Regulation 1998 section 4 and Schedule 1.
OTHER REFERENCES: CASES:	Environmental Protection (Noise) Policy 2008; Environmental Protection (Air) Policy 2008; Reference Manual for the establishment and operation of beef cattle feedlots in Queensland, DPI&F, 2005 (“Feedlot Reference Manual”); Guideline, Odour Impact Assessment from Developments, EPA (now DERM), 2004 (“Odour Guidelines”). Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; A Enborisoff and Associates Pty Ltd v Caboolture Shire Council & Ors [1994] QPELR 254;
COUNSEL:	R Litster QC and J D Houston for the Appellant (Morgan) J A Davies for the Respondent J S Brien for the Chief Executive and for the Administering Authority A P J Collins for DW & LC McInnerney
SOLICITORS:	Hede Byrne & Hall for the Appellant P D Morgan King & Company for the Respondent Crown Law for the Chief Executive and the Administering Authority DW & LC McInnerney did not retain solicitors B & OR Reimers appeared self-represented DJ Allen appeared self-represented