Phipps v The Chief Executive Department of Local Government, Infrastructure and Planning and Phipps v Somerset Regional Council and Anor
[2018] QPEC 5
•23 February 2018
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Phipps v The Chief Executive Department of Local Government, Infrastructure and Planning and Phipps v Somerset Regional Council and Anor [2018] QPEC 5
PARTIES:
DOUGLAS, COLEEN, CHRISTINA AND JULIA PHIPPS
(appellant)v
THE CHIEF EXECUTIVE DEPARTMENT OF AGRICULTURE AND FISHERIES
(respondent)and
DOUGLAS, COLEEN , CHRISTINA AND JULIA PHIPPS
(appellant)v
SOMERSET REGIONAL COUNCIL
(respondent)and
THE CHIEF EXECUTIVE DEPARTMENT OF LOCAL GOVERNMENT, INFRASTRUCTURE AND PLANNING
(co-respondent)FILE NO/S:
1297/17 and 2195/17
DIVISION:
Planning and Environment
PROCEEDING:
Hearing
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
23 February 2018
DELIVERED AT:
Brisbane
HEARING DATE:
15 February 2018
JUDGE:
Rackemann DCJ
ORDERS:
The appeals will be dismissed.
CATCHWORDS:
PLANNING AND ENVIRONMENT - APPLICATION APPEAL AGAINST REFUSAL OF DEVELOPMENT APPLICATION FOR MATERIAL CHANGE OF USE AND FOR ENVIRONMENTAL AUTHORITY TO EXPAND ON EXISTING 250,000 BIRD INTENSIVE ANIMAL INDUSTRY POULTRY FARM TO 700,000 BIRDS IN 14 SHEDS – whether proposal would have undue impact on amenity by reason of odour – whether odour modelling provided a sound basis for assessment – whether sufficient growth to justify approval.
COUNSEL:
The appellant appeared on his own behalf
J Dillon for the respondent in 1297/17
D Kevin (sol) for the respondent in 2195/17
D Whitehouse for the co-respondent in 2195/17
SOLICITORS:
The appellant appeared on his own behalf
The Department of Agriculture and Fisheries for the respondent in 1297/17
King & Co for the respondent in 2195/17
Herbert Smith Freehills for the co-respondent in 2195/17
These appeals arise out of the appellant’s wish to expand their existing 250,000 bird intensive poultry farm, which presently operates in a tunnel ventilated mode, to a 700,000 bird farm with the capability of switching between free range, tunnel ventilated (RSPCA accredited) and tunnel ventilated (standard) operation. To that end they have applied for a development permit for a material change of use and for an environmental authority for a prescribed environmentally relevant activity.
This has resulted in two appeals. One appeal is against the council’s refusal of the development application seeking a development permit for a material change of use (Intensive Animal Industry – poultry farm 700,000 birds in 14 sheds) and an environmentally relevant activity. The Chief Executive of the Department of Infrastructure, Local Government and Planning was the concurrence agency in respect of that development application and is the co-respondent to that appeal, having been the agency which directed refusal of that application. The other appeal is against the decision of the Chief Executive of the Department of Agriculture and Fisheries to refuse the environmental authority. The appeals were heard together.
Although the fate of both applications was directed by the decision of the Chief Executive of the Department of Infrastructure, Local Government and Planning, both the council and the Chief Executive of the Department of Agriculture and Fisheries argue in favour of a refusal of the applications the subject of the respective appeals to which they are parties.
The subject site is at 91 and 223 Bischoffs Road and Rocky Gully Road, Coominya, and has a total area of approximately 419 hectares. The site grades gently to the south-east towards Buaraba Creek. The site contains an existing poultry farm with an approved capacity of 250,000 birds in six sheds housing a maximum of 41,000 birds each, supported by ancillary infrastructure. There are two dwellings located on the site.
The proposal involves the establishment of an additional eight poultry sheds, each being approximately 160 metres long by 17 metres wide. Each shed would house up to 50,000 birds. The application also seeks to increase the number of birds in the existing six sheds from 41,000 to a maximum of 50,000 each, resulting in the proposed new maximum of 700,000 birds on the site. The sheds are proposed to operate as either free range or barn systems in response to customer demand.
The site is located approximately eight kilometres to the east of the existing township of Coominya. The site lies in a generally rural area. Existing poultry farms are located north of the site. To the north-east a property has been utilised for sand and gravel extraction and cattle grazing. The area to the east is characterised by an assortment of smaller rural and rural residential style properties with attached dwellings and outbuildings. To the south and south-east properties are predominantly used for agriculture along Buaraba Creek. Land to the west is predominantly used for cattle grazing with the creek flats used for agriculture.
The principal issue in the appeals relates to the potential of the proposal to generate odour nuisance to sensitive receptors, being the occupants of dwellings within the broader area. The council also raised issues in relation to stormwater management and waste water management. Insofar as the latter issues are concerned, a report by Mr Collins was put before the Court. The council accepts, however, that such matters could be addressed by way of conditions in the event that the Court were otherwise satisfied that the proposal warranted approval. It is the odour issue which lies at the heart of the approval or refusal of the application.
The development application was lodged on the 22nd of December 2016 during the life of the Sustainable Planning Act. The development, the subject of the application, falls within the definition of Intensive Animal industry within the council’s planning scheme. Development for such a purpose within the prevailing Rural zone was impact assessable, and so the application was required to be assessed by the council having regard to sections 314(2) and (3) of the Sustainable Planning Act and required to be decided in accordance with sections 324 and 326 of the Act. The appeal to this Court proceeds by way of a hearing anew, and the appellant bears the onus in relation to that appeal.
The development application was, by reason of section 115 of the Environmental Protection Act, also taken to be an application for the environmental authority. By reason of section 173, that application was required to be refused as a consequence of the Chief Executive of the Department of Infrastructure, Local Government and Planning having directed refusal of the development application. The appeal to this Court is, by virtue of section 536(2) of the Environmental Protection Act 1994 (EPA), by way of rehearing, unaffected by the administering authority’s decision. In deciding the appeal, the Court may confirm or vary the decision appealed against or set aside the decision and make a decision in substitution for the decision that is set aside (see section 539 of the EPA). The appeal proceeds as a hearing anew. The appellant also bears the onus in relation to that appeal.
The case against the appellant is that, in the event the proposal were to proceed, it is likely to cause an odour nuisance to a number of sensitive receivers in the area. It is unsurprising that if that were to be the case, it would offend provisions of the planning scheme and also provisions of relevance to the jurisdiction of the departments who are parties to the respective appeals.
Under the planning scheme, the proposal is not only defined as an Intensive Animal Industry, but also falls within the administrative definition of a High Impact Activity. Each dwelling house in the area falls within the administrative definition of a Sensitive Land Use.
The planning scheme has a number of components. It was contended, for the council, that the likely adverse impact on amenity which would be occasioned by the proposal draws the application into conflict with the Strategic Framework, the Rural Zone Code, the Intensive Animal Industry Code and the High Impact Management Area Overlay Code.
The Strategic Framework has a number of elements and a number of specific outcomes sought for each of those elements as well as land use strategies for achieving those outcomes. Insofar as the air and noise environment element is concerned, the planning scheme seeks the maintenance of a high quality air and noise environment consistent with a natural/rural values of the region, the protection of the amenity enjoyed by sensitive land uses and the natural environment more generally. In that regard the specific outcomes include the following:
3.4.4.1
(a) air, noise and odour emissions from development and their impacts on community health and wellbeing in the natural environment are minimised through appropriate design, siting, construction and operation;
(b) high impact activities that are likely to generate noise or air emissions avoid unacceptable environmental and amenity impacts through appropriate separation from towns or urban areas, small townships, rural residential areas and other settlements of established small rural lifestyle lots...
In the event that the proposal is found to be likely to cause significant odour nuisance, then it runs counter to the objective sought to be achieved in the strategic outcome stated in the element and also in the first of the specific outcomes.
The second of the specific outcomes is related to high impact activities of which the subject proposal is one. It seeks appropriate separation between such activities and, amongst other things, rural residential areas and other settlements of established small rural lifestyle lots. The sensitive land uses which are said to be likely to be impacted by odour emissions of the proposal include those in the area of Twin Lakes Road to the north-east of the subject site. That is an area where, as was pointed out by the town planner called by the respondent, the properties can best be described as rural residential or small rural lifestyle in nature, albeit that they are not in the Rural Residential zone.
As the solicitor for the council pointed out, the reference to rural residential areas in section 3.4.4.1(b) ought not be restricted to the area zoned Rural Residential when regard is had to the fact that, under the Town Planning Scheme, there is only one rural residential living opportunity identified, namely, that in the north (see section 3.3.8 of the Planning Scheme). The reference to “rural residential areas” should be seen, in context, as a reference to the areas which exist in fact, rather than the single opportunity for such living which is provided for in the future under the Planning Scheme. In any event, the area in the Twin Lakes Road vicinity would comfortably fall within the description of a settlement of established small rural lifestyle lots, even if one were to regard the reference to rural residential areas as being limited to areas so zoned.
The Strategic Framework also has an element relating to high impact activities. The statement of desired outcome for that element relevantly is as follows:
Towns, small townships, rural residential areas and other substantial settlements of established small rural lifestyle lots…are protected from the impacts of high impact activities.
The specific outcomes include as follows:
3.3.10.1 (a) The location of high impact activities in Somerset Region:
(i) provides a reasonable level of amenity protection for towns, small townships, rural residential areas and other substantial settlements of established small rural lifestyle lots.
This, again, signals a concern for the protection of the amenity of rural residential areas and substantial settlements of established small rural lifestyle lots from high impact activities. It should be noted, however, that the Planning Scheme is not concerned solely with the impact, in an amenity sense, of high impact activities on such uses; section 3.3.10.1(a)(v), for example, provides that the location of high impact activities in the region not worsen the opportunity for rural activities to be undertaken on adjoining premises by way of impacts arising from the operation of high impact activities. Accordingly, the Planning Scheme is also concerned with the impact which high impact activities may have upon rural uses as well as on settlements of the kind previously described.
Section 3.3.10.1(b) provides as follows:
High impact activities are appropriately located and managed to protect the health, wellbeing, amenity, safety and environmental health of the communities and individuals from the impacts of air, noise and odour emissions and from the impacts of hazardous materials.
Obviously to the extent that the proposal would have adverse impacts by reason of odour, it would fail to protect the amenity of communities and individuals from the impacts of odour emissions, contrary to that provision.
Section 3.3.10.2 deals with land use strategies in relation to high impact activities. Subsection (a) of that strategy requires that:
The effects of high impact activities are designed to minimise the impact on adjacent and surrounding sensitive land uses.
The provision goes on to state that:
This may have the effect of restricting larger-scale high impact activities to very large sites.
Subparagraph (b) of the same section goes on to state that:
The development of new dwellings in rural areas is to be controlled to ensure that separation distances and buffers around high impact activities are not compromised.
The council asserts a conflict with the first of those land use strategies by reason of what it contends will be the adverse impacts of the proposal upon surrounding sensitive land uses.
To the extent that the proposal – as a high impact activity – is not located in a way which is appropriate, having regard to the achievement of the specific outcomes and land use strategies described in 3.3.10. it consequentially finds itself departing from the specific outcomes sought for the rural production element in 3.7.4 of the Strategic Framework. The objective for that element is that:
The continued operation and expansion of productive rural activities are facilitated through the protection of agricultural land and other rural land from inappropriate development.
The specific outcome in section 3.7.4.1(d) is that:
Intensive Animal Industry is appropriately located having regard to the achievement of the specific outcomes and land use strategies described in section 3.3.10.
As has been noted, the site falls within the Rural zone under the Planning Scheme. There is a zone code for the Rural zone. One of the purposes of that zone code is that high impact activities are appropriately separated from, amongst other things, rural residential settlements. That is of relevance to the properties in the Twin Lakes Road area. Of relevance to all of the receptors, however – whether in that area or not – is performance outcome PO7 which requires:
The design, location and operation of development not to result in any undue adverse impact on the amenity of the locality, having regard to [amongst other things] … odour.
There is no acceptable outcome provided for that performance outcome. The site falls within an area which makes it the subject of the high impact activities management area overlay code. The purpose of the code is:
To protect the amenity and environmental values of identified high impact activity management areas located across the region from the impacts of rural-based high impact activities.
The performance outcome PO1 is that high impact activities in the region are appropriately located and operated to, amongst other things, maintain the amenity of the high impact activity management area having regard to, amongst other things, odour. The acceptable solution is that:
High impact activities located within the high impact activity management area as shown on OM008a-b are supported by a detailed site analysis that confirms that the site is suitable for the proposed high impact activity in terms of effective buffering from sensitive uses.
To the extent that the evidence justifies a finding that the proposal would be detrimental to the amenity of the area by reason of odour, the proposal will find itself in conflict with the provisions of the overlay code.
Perhaps the greatest guidance, in a detailed sense, is given in the Intensive Animal Industry code, the purpose of which is:
…to locate and design the use in a way which protects surrounding uses and the environment from unacceptable impacts.
That purpose is to be achieved through a number of overall outcomes which include that the use not cause environmental harm or nuisance by way of air quality, and avoids any potential adverse effects on the amenity and character of the locality or nearby sensitive uses. Obviously, to the extent that adverse findings are made about the likelihood of the proposal causing odour nuisance, it would not achieve those overall outcomes.
The relevant performance outcome is PO1 which is that the development incorporates a site layout, scale, and intensity that does not cause environmental nuisance or environmental harm and maintains a number of things including, relevantly, the amenity and environmental health of sensitive land uses. The acceptable outcomes include A01.5 which is specific to poultry farms and which states as follows:
Separation distances between the poultry farm building complex and a sensitive land use (not on the site of the poultry farm) are determined on a site-by-site basis using odour dispersion modelling.
Where involving over 1000 birds, the modelling levels must be assessed against the following criteria:
(a)2.5 OU, 99.5 per cent, one-hour average for a sensitive land use site in a rural zone
(b)1.0 OU, 99.5 per cent, one-hour average for the boundary of a non-rural zone.
The experts called by each of the departmental parties have relied upon odour dispersion modelling and the criteria referred to in that acceptable solution to predict that the 2.5 OU, 99.5 per cent, one-hour average for a sensitive land use would be exceeded for 26 sensitive land uses in proximity to the site, and they have concluded that the proposal would cause an odour nuisance were it to proceed.
It has been noted that the chief executive of the Department of Infrastructure, Local Government and Planning was a concurrence agency for the purposes of the development application. The assessment by the chief executive was relevantly a code assessment against the relevant State Development Assessment Provisions. Those provisions are to be found in Module 4. It was contended, on behalf of the chief executive that, on the basis of the findings of the odour experts, the proposal would find itself in conflict with a number of provisions of that module.
PO1 deals with site suitability and provides:
The choice of the site at which the activity is to be carried out minimises serious environmental harm on areas of high conservation value and special significance, and sensitive land uses at adjacent places.
Whilst PO2, dealing with location of activity on the site, provides: The location for the activity on the site protects all environmental values relevant to adjacent sensitive land uses.
In asserting conflict with PO1, it was submitted, on behalf of the chief executive, that in PO1 the sensitive land use does not have to be adjacent to an area of high conservation value; that is, PO1 requires a choice of a site which minimises serious environmental harm to sensitive land uses at an adjacent place irrespective of whether there is any area of high conservation value or special significance anywhere nearby. It is unnecessary for me to resolve that question of construction, however, or indeed for the chief executive to rely upon PO1 or PO2, because the relevant provisions also include a specific provision in relation to Intensive Animal Industries, PO3 which provides:
The activity is designed and managed to minimise adverse effects on the amenity of the surrounding community.
And that would be offended in the event that the proposal, as designed, were found to have an undue and adverse impact upon amenity by reason of excessive odour.
It has already been noted that the development application was taken to include an application for an environmental authority. By reason of section 176 of the Environmental Protection Act, the criteria for that decision, it being a site-specific application, required compliance with the regulatory requirements and regard for the matters in section 176(2)(b), which include the standard criteria. The standard criteria are defined in schedule 4 and include any relevant environmental impact study, assessment or report, the character, resilience and values of the receiving environment, submissions made by the applicant, best practice environmental management for the activities under any relevant instrument or proposed instrument, the public interest, as well as other matters as listed in the definition.
The regulatory requirement is defined in a way which ultimately directs attention to section 51 of the Environmental Protection Regulation. Section 51(2) in turn directs attention to schedule 5, part 3, table 1 of the regulation, which contains an environmental objective that:
The activity will be operated in a way that protects the environmental values of air.
There are two performance outcomes, either of which may be achieved. One is that there is no discharge of air contaminants that make an adverse effect on the environment from the operation of the activity. There is an alternative which involves prevention or minimisation.
Section 51(2)(b) also requires consideration of the matters in subsections (1)(b), (ba) and (c). The third of those reference relevant environmental protection policies, which in turn directs attention to the Environmental Protection (Air) Policy 2008. That policy states that the environmental values to be enhanced or protected under the policy are, relevantly, the qualities of the air and environment that are conducive to human health and wellbeing, and that the management hierarchy for air emissions are, in turn: avoid; recycle; minimise; and manage.
In short, the submission of the Chief Executive of the Department of Agriculture and Fisheries is that, to the extent that the evidence establishes that the proposal would likely cause a significant adverse odour impact, that that should be avoided by refusing the proposal, and that there is not an appropriate public interest in granting the approval.
The development application was supported by an Odour, Dust and Noise Assessment by Pitt & Sherry, dated the 9th of December 2016. Insofar as odour is concerned, that report carried out odour dispersion modelling using the 2.5 OU criteria, which is referred to in the acceptable solution to the Intensive Animal Industry Code. That acceptable solution dovetails with the Odour Impact Assessment Guidelines published by the Department of Environment and Heritage Protection. In particular, those guidelines state that:
Odour dispersion modelling provides a framework to estimate potential odour impacts and, if required, to identify opportunities for odour reduction in the context of proposed new facilities.
The guidelines go on to cite the 2.5 OU, one hour average, 99.5 percentile criteria for ground level sources and weight-affected stacks. It describes the air dispersion modelling as a method:
most widely used by consulting organisations for odour impact assessment for proposed developments.
It also recognises that there will be industry-specific guidelines developed by the Department of Agriculture, Fisheries and Forestry. As it happens, that department has guidelines in relation to the development of meat and chicken farms in Queensland. Those guidelines, which are dated July 2016, state in a number of places that detailed plume dispersion modelling should be undertaken for farms of more than 300,000 birds, and further states that the odour levels should be assessed having regard to the same criteria as stated in the acceptable solution in the planning scheme for land in a rural zone and land in a non-rural zone.
The result of the modelling undertaken by Pitt & Sherry was an excess of the 2.5 OU criteria at a small number of residences. The author, argued that such a result did not necessarily mean that the odour would be unacceptable for those residents. At trial the appellants did not, however, rely on that modelling work. They did not call the author and did not seek to justify the proposal by reference to the modelling so undertaken.
The Pitt & Sherry modelling was, in the course of the application assessment process peer reviewed and found to be wanting, in particular in relation to the inputs to the modelling. The author of the report had used a K factor of 1.5 in undertaking the model, whereas the accepted practice is to use a K factor of 2.2 to reflect even good farm management practices. Further, the author had not taken into account the full number of birds that were sought to be accommodated in the proposal. When the modelling was redone with inputs which Mr King and Mr Welshman (the experts called by the departmental parties) considered to be more appropriate inputs, the result was that the 2.5 OU criterion would be exceeded at 26 sensitive receivers indicating a significant noncompliance with that criterion and a likelihood of causing environmental nuisance were the proposal to proceed.
As has been noted, the appellants did not endeavour to call the author of the report which they had lodged with the application in order to defend the criticisms made of the report or to cast aspersions on the different inputs which had been preferred by the experts called by the departmental parties. Rather, the appellants, who are self-represented, sought to cast doubt upon the veracity of use of the modelling at all and upon the results obtained from it.
Insofar as the applicability of the modelling to their development is concerned, Mr Phipps in particular pointed to aspects of best management practice which he has implemented or proposed to implement as part of his farming practice which, in his view, would result in a better performance than the modelling would suggest. He pointed to a proposal to include roof ventilation fans on the apex of each roof and noted that the existing farm sheds have eight such fans each. Mr King acknowledged that that had not been modelled, but opined that the effect of such fans on reducing odour amenity impact is likely to be negligible or at best minor. I accept Mr King’s evidence in that regard.
Mr Phipps stated that improved feed conversion would also result in less odour. Mr King’s evidence was that he is familiar with poultry farming and the odour emissions produced and in his experience feed conversion is not a matter that is taken into account in modelling odour impacts and he was not aware of any data or studies which would support changes to modelling over impact space upon changes in feed conversion rates over time. I accept that evidence.
Mr Phipps referred to matters such as his RSPCA accreditation and other management practises as effectively leading to a likelihood of reduced odour impacts. These are matters which may have justified, at best, a reduction in the K factor from 2.2. However, Mr King’s evidence was to the effect that a K factor of 2.2 already represents or assumes good farm management. Further, the only evidence in relation to the success of the appellant’s existing efforts in this regard is in the odour monitoring which was done by AMG in August of 2017 at his property and which yielded calculated K factors ranging from 1.8 to 3.5. As the experts observed, the average of those does not justify a departure from a K factor of 2.2 for modelling the proposal.
The appellant also referred to his planting of some vegetative buffers and pointed to some research which suggested that vegetation can have an effect upon odour dispersal. Mr King’s evidence in that regard was, however, to the effect that there are no reliable studies or data establishing the actual measured effectiveness of such barriers, such that they are not to be taken into account in terms of odour modelling assessments for the poultry industry. The one study put to him in cross-examination did not cause him to change his view that one simply could not reliably adjust the modelling in this case on the basis of assumed effectiveness of vegetation and I accept his evidence in that regard.
The appellant’s approach was to rely, to a significant extent, on a number of things to suggest that it was simply unfair or not in the public interest to apply the results of the odour modelling to his development application. In that regard he sought to compare the results of the modelling and the areas affected by the odour unit contour predicted by it for the subject site to the buffer or separation distances which applied to other poultry farms in other situations in other areas.
As the experts pointed out, however, one simply cannot transpose the results of one assessment of one poultry farm from one locality to another. The circumstances and situations of each farm will vary. Further, one cannot simply scale up and down from a poultry farm of a particular size in a particular locality to a poultry farm of a different size in a different locality in order to determine what buffer distance will be acceptable in a different locality with different meteorological conditions or different circumstances.
In this case what is particularly of relevance is that the results of the dispersion modelling are affected by the fact that there is an existing poultry farm immediately to the north of the subject site with the ability to farm in the order of 700,000 birds. That is in the same wind shed as the subject site. So that one is dealing not simply with the potential for odour from 700,000 birds on the subject site, but one is dealing with the cumulative impacts of increasing the number of birds to potentially in the order of 1.4 million birds in the locality, which would be producing odour given particular meteorological conditions.
As it happens, the farm to the north is presently closed, but it has operated and has the ability to operate again and the assessment of this application must conservatively proceed on the assumption that it may do so. As it happens, Mr King has also carried out an assessment on the assumption that the farm to the north remains closed. On that assumption, and applying appropriate inputs otherwise, the 2.5 odour criterion is still exceeded at a number of neighbouring properties, although of course the extent of the exceedance would be much less than is assessed at present.
Mr Phipps rightly pointed out that the departmental guidelines state that dispersion modelling should not be used as a simple pass or fail test, as there are a number of limitations in the modelling. The flow chart in the guidelines admits of the prospect that if a relevant guideline value is not met, that a proposal may be refined or that a proposal should not be approved unless particular circumstances apply, such as community consultation and acceptance and purchase of affected residences take place such as to justify an approval. He pointed out that in this case his development application had attracted no adverse submissions and that he had letters of support, which he tendered, from two immediate neighbours. He submitted that the area is rural and not one where an absence of odour could be expected.
Those submissions may have been weightier had the level of exceedance simply been that as shown in the report which accompanied the development application. The modelling as carried out with appropriate inputs is, I accept, as has been done by Mr King and it shows widespread exceedance at some 26 properties of a criterion which applies to rural areas. I do not think it should be assumed that each of those properties has been the subject of full consultation and acceptance of such impacts such as to justify an approval, notwithstanding such widespread potential impact. This is not a case where an adverse result from modelling has lead to further refinements of the proposal in order to reduce the level of exceedance, so that it complies or almost complies with the standard. What has happened rather is that the appellant has simply chosen to attack the results of the assessment and the legitimacy of the approach.
I appreciate that the Phipps have undertaken steps to manage their present farm as best they can and have taken steps, such as the purchase of some adjacent property for incorporation into their farm to, in effect, increase their buffer and I accept that they honestly believe that their proposal, were it to proceed, would not cause an undue impact. However, the court must act upon the evidence and the evidence in this case, particularly the evidence of the experts, Mr Welshman and Mr King, satisfies me that the proposal, were it to proceed, would be likely to cause undue impact by reason of odour. That being the case, the proposal finds itself in significant conflict with the town planning provisions which have been referred to earlier, and does not warrant approval for the environmental authority sought.
I am conscious that a proposal may be approved notwithstanding significant conflict with the planning scheme if there are sufficient grounds. Mr Phipps put forward what he believed to be grounds in the public interest to warrant approval. Those grounds may be broadly summarised as relating to the public interest in utilising his land, which is physically suitable for the development for such a use and its situation relative to the market. He also put forward the interest in providing employment in the local area and, in general, the investment that he is prepared to make in the industry and the local area. It may be accepted, in a general sense, that development provides some economic activity and some degree of employment. As he acknowledged, however, there is little present need, in the public or community sense, for additional chicken sheds given that there has been a closure of a local abattoir, which has resulted in the temporary cessation of the use of a number of chicken farms in the area, including the one to the immediate north. In evidence he said it was a case somewhat of hopefulness in relation to the pursuit of this application in relation to the hope of market conditions returning.
Mr Phipps put forward, as a matter of public interest, a concern that if odour dispersion modelling ruled out his development, that it would somehow cruel the industry more generally because it would result in buffer distances being applied with which no proposal could comply thereby threatening the food supply for South East Queensland. There is no basis for so concluding. That again assumes that the situation of his site is transferrable to each and every other site. As has already been observed, the situation of each site will vary and the fact that the Phipps’ site, in close proximity, as it is, to the farm to the north, when seen in conjunction with that site to the north, produces an odour dispersion contour with quite a widespread effect does not mean that an odour dispersion contour of a similar broad area will be produced in relation to chicken sheds located elsewhere in South East Queensland. There is no basis to conclude that a refusal of this application will lead to any prejudice to the future of the chicken industry in South East Queensland.
Insofar as the economic benefits of the proposal are concerned, I do not consider that they are such as to warrant overlooking the likely effects of the proposal as attested to by the odour experts. Further, it is evident that the council’s planning provides opportunities for economic activity otherwise in the locality in any event, as is evident from the Protein Precinct provided under the council’s planning documents.
For the reasons given, the appellant has failed to discharge the onus and the appeals will be dismissed.
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