Phillips & Ors v. Southern Downs Regional Council

[2009] QPEC 73

[2009] QPEC 73

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 99 of 2009

PHILLIPS & ORS	Appellant
and
SOUTHERN DOWNS REGIONAL COUNCIL & ORS	Respondent

BRISBANE

..DATE 10/07/2009

ORDER

CATCHWORDS:  Directions for conduct of adverse submitter appeal against Council approval of a cattle feedlot - whether a further joint report of odour experts dealing with "matter yet to be resolved" should be required - appellants contended it was unnecessary

HIS HONOUR:  This is an appeal by seven appellants, one of whom, Mr Greacen, has authority to represent the others.  The contentious issues are whether the co-respondent developer which has applied successfully for a cattle feedlot ought to produce an amended development application and whether, against the reluctance of the appellants, experts in the relevant fields of odour and waste water ought to prepare any further joint report. 

So far as the first issue is concerned, Mr Nelms, for the co‑respondent, assures the Court that the sole alteration to its proposal, which the developer has in contemplation, is amendment to its waste water management arrangements in light of matters raised in a joint experts report.  Accepting what Mr Nelms says, I think it would be inappropriate for the Court to commit the co-respondent to have to come to grips with whatever difficulties followed from an amendment or change to the development proposal under consideration in the appeal.

The order I've initialled provides for the co-respondent's waste water expert to deliver an amended report which may shed light on new approaches by the 3rd of August 2009. 

As to further activity by experts jointly, the situation is that the appellants' odour expert, Mr Binns, finds himself isolated against the combined views of odour experts engaged by the other three parties - being the developer, the Council and the Department of Primary Industries. 

The Court is given to understand that a Feedlot Manual which enjoys official status said to be akin to that of Australian Standards provides relevant guidelines for consideration of the relative impacts of rural residential developments and activities such as feedlots. 

The underlying idea is that in rural production areas a certain amount of interference with amenity of residents should be regarded as acceptable.  It may become problematic depending on whether the residential development is "intensive" or "extensive".  The difference is said to relate to whether the areas of individual blocks are less than one hectare or within the range of one hectare to 10 hectares. 

It appears to be accepted that the Feedlot Manual will not necessarily provide a satisfactory solution and that investigations and/or modelling in respect of the specific location may be required.  Indeed, the odour experts' joint report placed before the Court identifies under the heading, "Matter yet to be resolved" four areas of inquiry including meteorological modelling in respect of the precise location which will obviously be relevant to the odour plumes that can be expected. 

Mr Greacen disputed the genuineness of suggestions from Ms Rayment that the Council's expert was unable to understand Mr Binns' view.  According to Mr Greacen, Mr Binns' view is clear.  But that apart I've concluded it's reasonable to require a further report of the odour experts, if only to get resolved the matters which the current report says have not been. 

I've been very much concerned not to burden the appellants with additional costs in mounting their appeal which additional activity by Mr Binns will presumably involve.  The Court always ought to be careful not to treat litigants as if money's no object.  On the other hand, Mr Greacen hasn't made any suggestion that the other parties are inappropriately, for tactical reasons, seeking to disadvantage or discourage the appellants. 

In those circumstances I've made the judgment that his submissions ought not to be acceded to and those are the reasons why the draft order initialled does require further joint reports by the 13th of August.  It also provides for exchange of reports directed to points of disagreement within a further eight days.

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