Peters & Anor v Caboolture Shire Council

[2009] QPEC 4

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Peters & Anor v Caboolture Shire Council [2009] QPEC 4

PARTIES:

GARY PETERS AND PATRICIA PETERS

Appellants

V

CABOOLTURE SHIRE COUNCIL

Respondent

FILE NO/S:

1758/2006

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

27 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

17, 18 and 19 November 2008; written submissions received up to and including 19 December 2008

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

PLANNING LAW – PLANNING AND ENVIRONMENT – CONDITIONS OF APPROVAL – DISPUTE ABOUT CERTAIN CONDITIONS – ODOUR MANAGEMENT - whether condition concerning measures to mitigate odour on a chicken farm is unreasonable or irrelevant – whether use of e-nose technology in conjunction with an odour management plan is a more effective condition to manage odour than a condition requiring stacks be installed

Integrated Planning Act 1997, ss 3.5.30, 4.1.31, 4.1.50(4),

COUNSEL:

W Cochrane for appellants
S Ure for respondent

SOLICITORS:

Everingham Lawyers for appellants
King and Company for respondent

[1]      In 2004 Council approved the expansion of the Peters’ poultry farm at Elimbah from four to eight sheds, subject to certain conditions.  Some of those conditions concern measures intended to mitigate the smell from the birds housed in the sheds.  Mr and Mrs Peters say one of the conditions is unreasonable, and put forward what they argue is a better scheme for odour management. 

[2]      The case centred on the Peters’ desire to set aside a condition requiring them to install structures called ‘stacks’ in the new sheds.  The stacks are intended to extract and dissipate air from the sheds.  Instead the Peters wish to use other methods, guided by relatively new technology called ‘e-nose’[1].  It is an argument, as their counsel Mr Cochrane said, about ‘methodology’[2].

[1]T1-3.39-50.

[2]T1-6.42.

[3]      The matter is important because the sheds are located near a rural residential area containing 57 homes within a 500m radius of the farm’s boundaries[3], and research shows the odours which emanate from ‘broiler sheds’ (containing poultry raised for meat, not eggs) are generally ranked as the most offensive amongst intensive agricultural industries including piggeries, feedlots and dairies[4].

[3]Exhibit 3.11: joint report of town planning experts, paragraph (c) (xiii).

[4]Jiang and Sands 2000, Environmental Agency (2002), cited at Exhibit 8, paragraph 2.4.

[4]      Each of the eight sheds houses about 40,000 birds – i.e., around 320,000 in total.  A physical inspection confirmed the operation is a large one which, with the spread of residential development, is now in relatively close proximity to homes. 

[5]      It is plain from the evidence of some local residents and the ‘odour diaries’ tendered in evidence[5] that the smell from the Peters’ farm is sometimes intrusive and unpleasant and, on any view, can fairly be described as an ‘impact’ on the amenity of this rural residential area.

[5]Exhibit 16.

[6]      The history of the matter begins in April 2004, when Mr and Mrs Peters applied to Council to extend their existing poultry farm, then comprised of four sheds. Originally they sought an additional seven sheds to accommodate another 260,000 birds.  Later, their application was varied to reduce the number of additional sheds from seven to ‘four to six’.  In December 2004 Council resolved to allow four new sheds, subject to a number of conditions.

[7]      Condition B1 provided that ‘a noxious or offensive odour must not be permitted beyond the boundary of the premises’.  Condition A9 required that the four new sheds ‘… must have stacks with a minimum height of four metres and a minimum discharge velocity of 12 metres per second’.

[8]      The Peters did not appeal against the terms of Council’s approval nor, in particular, either of these conditions but a year later, in December 2005, they applied to change both of them, asserting they were unreasonable.

[9]      In May 2006 Council advised that it refused to change or delete condition A9, but B1would be amended to read: ‘There must be no release of noxious or offensive odours or any noxious or offensive air borne contaminants beyond the boundary of the site that causes environmental harm with any odour sensitive place’.

1. The only issue now concerns Council’s refusal to change condition A9.  The case contracted to a dispute between the contentions of the odour expert engaged by the Peters (Mr Winders) that, using e-nose technology, the poultry farm could operate acceptably without the stacks, as against Council’s position (supported by another odour expert, Mr Welchman) that all of the investigations, modelling and research which have already been undertaken into odour management on and around this property establishes that, without the addition of stacks on the four new sheds, it cannot operate without unacceptable impacts, caused by odour, on the occupants of surrounding premises.

1. The case involved detailed and highly technical evidence from those experts; Dr Sohn, who has been involved in the development of e-nose technology; and Mr Dunlop, who also has expertise in odour management and modelling.

1. The appeal was brought under s 4.1.31 of the Integrated Planning Act 1997 (‘IPA’). Under s 4.1.50(4) the Peters bear the onus of proof which, pursuant to IPA s 3.5.30 means that, in the context of this case, they must establish Condition A9 is unreasonable or irrelevant.

1. It was suggested in submissions for the Peters’ that the use of the e-nose in conjunction with other odour suppression techniques as part of what is called, overall, an ‘air quality management plan’ would comprise a better solution than just the installation of stacks. The additional steps, procedures and safeguards said to accompany the use of the e-nose (and form part of the air quality management plan) are set out in paragraph 44 of Mr Cochrane’s submissions and include adjusting shed ventilation rates, managing air temperatures and humidity, adjusting the evaporative cooling rate, and using spray nozzles as an element of ventilation; and, a comprehensive program of litter management.

1. Some of these measures had, however, already been identified by Council’s expert Mr Welchman[6] as things that are expected to be implemented[7] in any event (i.e. in addition, and as a necessary adjunct to, the stacks), as essential aspects of proper compliance with other conditions, including B1.  Certainly, as I understood the conditions they already place an onus upon the Mr and Mrs Peters to take whatever steps are necessary to achieve odour management in accordance with what was called, by the experts, ‘best practice[8]’.

   [6]Exhibit 7 page 3.

   [7]Exhibit 25, and Exhibit 8 paragraph 28.

   [8]See, eg, Mr Welchman’s report Exhibit 7, p 3 para 14.

1. Support for the conclusion that the dispute here is to be considered in that context – i.e., a suite of odour management techniques, directed towards achieving best practice – can also be found in the fact that, when condition B1 was changed, Council included a complementary amendment to condition A12, which requires that a complete litter change must occur with every new batch of birds ‘unless a detailed plan for managing the litter moisture levels is incorporated into the site based management plan … the litter moisture management plan must meet the requirements of Best Practice Environment Management specified in the Best Practice Technical Guide for the meat and chicken industry in Queensland … (and) … must include provisions for daily monitoring of litter moisture in all sheds, immediate removal of wet and caked litter, maintenance of the uncaked litter depth of at least 45mm and record keeping’.

1. The stacks are not to be considered, then, as the sole method of odour management propounded by Council nor, in pure terms, an alternative (but not an adjunct) to other measures directed to achieving ‘best practice’.  Once that is appreciated, the nature of the onus upon the Peters is to establish that stacks are not relevant and reasonable in the context of other necessary and proper techniques and systems for odour management.  For reasons which follow, I was not persuaded their evidence overcame that onus.

1. Before too much is said about the expert evidence it is appropriate to mention two technical terms which were often used.  The first is ‘odour units’ (shortened to ‘ou’) – essentially, a measurement of smell[9].  The second is called the ‘K factor’.  Modelling, it was apparent, is an integral part of the exercise of predicting the number of odour units a particular enterprise will emit.  During the modelling exercise a formula is used to predict emissions, and the K factor is part of it.  A factor of 1 represents a well designed and managed shed, with a higher number indicating a decline in the quality of design or management, and a fraction of 1 an improvement.

   [9]The process involves human panellists as ‘sniffers’.  It is defined in Exhibit 3.4, at page 41 of 94 as the ‘Quantity of a gaseous substance or mixture of substances which, when evaporated in 1 m3, is distinguished from odourless air by half the panel members…’  In other words, it is derived from an exercise using human noses, and an average of their responses to odours.

1. The process of investigation and modelling of the odours which might be emitted from the Peters’ chicken farm began before they first applied for the extra sheds in 2004. Their original application to the Council was accompanied by an odour and noise assessment report[10] which indicated that the increased number of sheds created a potential for odour to be problematic, but several odour mitigation measures could be incorporated to reduce its potential impacts including, in particular, the installation of stacks at the fan outlets which would redirect exhaust air vertically ‘… allowing for increased dispersion and therefore lower ground level odour concentration’. It was said that the effectiveness of this option ‘…is site specific, depending on local meteorology and topography and requires additional study to assess its benefits’.  From the outset stacks were, then, identified by odour experts as likely to be a necessary component of the expanded farm – and that proposition was accepted (or, at least, not disputed) by the operators.

   [10]Exhibit 1 page 47.

1. The Peters’ initial expert report was reviewed for Council by Mr Welchman, who agreed that the expanded farm would be likely to cause odour problems and indeed there was a ‘… substantial risk that odour annoyance would occur as a result of the proposal’. He recommended that Council not allow expansion until potential impacts could be more realistically assessed, and it could be demonstrated that ‘odour annoyance’ would not be caused.

1. The Peters had a further report prepared[11], which Mr Welchman again reviewed.  It incorporated better meteorological data; took into account the newly published Queensland Odour Guideline[12] which established a guideline value of 2.5 ou, 1 hour average, 99.5 percentile for ground level sources at sensitive receptors; and, used more sophisticated modelling methodology, supported by Environmental Protection Agencies throughout Australia, and overseas.  It concluded that with suitable design and management an expanded farm of up to 10 sheds (ie, an increase of six) ‘each ventilating via four metres high stacks … with a maximum exit velocity of 12 m/s (based on fan rating) can be operating on the Peters’ farm without causing excessive odour impacts’.  Mr Welchman essentially agreed, but his concurrence was contingent upon a maximum expansion of not more than four additional sheds, incorporating stacks with the height and discharge velocity mentioned in this passage.  Council imposed condition A9.  The Peters’ did not, initially, demur.

   [11]Exhibit 5.

   [12]Exhibit 17.

1. A series of meetings took place between the odour experts during this appeal.  They agreed that further dispersion modelling should be carried out, and that occurred in November 2006, February 2007 and August 2008.  All modelling results indicated a K factor considerably exceeding one and, in some odour sampling, up to six. The best figure was between 1.6, and 2[13]. The proper conclusion from this modelling is, Mr Welchman said, that four additional sheds could not operate without stacks without simultaneously creating a real risk that unacceptable odour impacts would occur in the surrounding area.

   [13]Exhibit 7, section 6, page 11.

1. Nothing in Mr Winder’s evidence persuaded me to a different view.  Even adopting, as he attempted on one occasion, a K factor of 0.8 without the stacks, potential impacts suggested by the modelling were too high[14].  The results for various agreed receptors (places where odour would manifest) ranged between a minimum of 2.4 and 12.24ou, significantly in excess of the EPA guideline of 2.5 (or the 3.5ou level based on alternative intensity methodology).  There is, then, independent scientific evidence (manifest from the modelling) of an apparent risk that even if all other ‘best practices’ are adopted in accordance with Mr Winder’s suggested methods, without the stacks the results are likely to remain unacceptable.

   [14]See Exhibit 8, Table 1.

1. At the heart of Mr Winders’ proposed alternative odour management scheme is the e-nose which, as I understood it, is simply a device which (functioning properly) provides an indication of odour levels.  It is like an artificial nose.  As Mr Winders conceded, the Peters were ‘pioneering’ the use of it[15].  It has been used in abattoirs, but there are no studies or practical examples of its use to guide the management or improvement of odour emissions from poultry sheds.  Dr Sohn, an impressive witness involved in its development, conceded that there was no evidence to suggest it could detect, for example, wet litter patches in parts of poultry sheds remote from the device itself. 

   [15]T2-45.3.

1. The lengthy evidence about it left the strong impression that further testing is required before its efficacy in poultry sheds can be established.  Certainly the evidence fell short of being persuasive that, even used in conjunction with other ‘best practice’ odour management techniques, the e-nose could obviate the need for stacks.

1. Against that there is compelling evidence that stacks are a proven method of odour management. They have been used for many years to control odours and air pollution generally, in a variety of circumstances.  Mr Welchman said, and I was persuaded, that they will be an important part of best practice odour management to reduce the risk of adverse impact on the ‘receptors’ in the area (in lay terms, local residents).   

1. My preference for Mr Welchman’s conclusions rests in part, then, on the fact I was not persuaded (in the face of all the evidence) that the use of the e-nose technology and other techniques without stacks is a reasonable response to the accepted risk apparent from the evidence.

1. There were, also, other reasons for preferring Mr Welchman’s views.  His conclusions were bolstered by other evidence supporting stacks; his evidence was clear and consistent; and, it rested on apparently solid scientific foundations.  Against that Mr Winders’ evidence was successfully challenged in several respects.  The meteorological data he used did not, it was shown, adequately embrace some potential weather conditions likely to occur quite frequently in this area.  The modelling upon which he relied included, I was persuaded, an underestimation of the average odour emission rate of a ‘best practice farm’. Exhibit 8, figure 3 suggests an essentially constant odour emission rate throughout the growing cycle of poultry, but other evidence recognised that there is a peak in odour emission of around day 35 of the growing cycle.  It makes sense to the layperson that the growth of the birds, increased appetite, and associated waste will lead to an increase in the odours generated during the cycle.

1. Mr Winders was also critical of the use of a ‘K factor’ in the modelling process on the basis it was subjective and did not have a clear and valid role to play in modelling formulae, but the number of reports here involving exercises incorporating the factor is persuasive that models using it are a widely accepted part of the scientific business of odour measurement and management; and Mr Winders was himself prepared to attempt variations in the numeral to be ascribed to the factor as part of the modelling exercises he undertook, apparently willingly, with Mr Welchman. 

1. Mr Winders’ conclusions were also at odds with the ‘best practice’ technical guide for the meat and chicken industry[16], which endorses the use of stacks; and, the evidence of local residents (including the odour diaries) undermined his assertion that the Peters’ operation already manifests ‘best practice’ management[17] and, by inference, stacks would be superfluous and are unnecessary.  Indeed, a  particular advantage here is that the sheds have now been operating for some time and adopting various odour management practices, but complaints from residents persist and they describe the present, albeit intermittent effects of the odour in colourful, and adverse, terms.  The only conclusion reasonably open is that current practices are not succeeding.

   [16]Exhibit 24.

   [17]See Exhibits 9, 10, 11, 12, 13, 14 and 16.

1. On the other hand the various reports, guidelines and the like tendered in the case are persuasive that there is, notwithstanding Mr Winders’ attempted criticisms, an essential consistency in testing and modelling methods for odour, which utilise the techniques and formulae adopted by Mr Welchman.  His evidence had, as it were, obvious roots in accepted scientific measuring and modelling practice in his discipline.  There is, too, an apparent consistency between the results of the dispersion modelling carried out according to the methodology originally agreed by both experts in their joint statements, and the unchallenged evidence of local residents about the impacts of odours from the poultry farm. Hence, the results of dispersion modelling are confirmed by empirical observation. 

1. Mr Welchman’s conclusion that stacks are necessary here is also bolstered by other evidence showing how widely they are used, and recommended.  His evidence was tempered, too, by fairness and dispassion: he conceded that e-nose is an interesting technology, and might be used to measure odour. As he also pointed out, however, that is not something which compels the conclusion that its use will carry a beneficial reduction in odour emissions[18]. 

   [18]T3-42.50.

1. An attack was mounted upon his support for stacks by reference to two other properties. The first, at Caniaba in New South Wales, involved the use of stacks in circumstances where problems with odour remained but the local topography is quite different and, to the layperson, is a likely explanation for their lack of efficacy.  Nor was there any telling inconsistency between Mr Welchman’s position concerning the Peters’ farm and his reports and conclusions in another case (the Casella farm), where he was not persuaded that stacks were an essential element of odour mitigation.  His explanation (that the Casella farm was in a rural area with much less dense nearby settlement, and different techniques were appropriate) was persuasive.

1. The evidence advanced for the Peters is not persuasive, then, that e-nose technology has the capacity to improve on what should already be best practice management, or would have any necessary impact on existing emission rates. Against that, there is persuasive evidence – and certainly, on any view, evidence sufficient to meet the ‘reasonable and relevant’ test – that stacks are an appropriate part of best practice management for this development and have the potential to reduce amenity impacts.

1. None of this is to conclude, of course, that the Peters’ use of e-nose technology is pointless.  The conditions imposed by Council do not stop them supplementing the techniques and management practices, like stacks, which Council requires with other methods which might help them achieve successful odour management.  But the imposition of condition A9 has not been shown to be unreasonable nor irrelevant here and, indeed, the evidence compels the opposite conclusion.  Hence the appeal fails.