Power v Sarina Shire Council

[1999] QPEC 56

IN THE PLANNING AND ENVIRONMENT COURT

REGISTRY:  TOWNSVILLE

NUMBER:     P & E 398/97

[Power v Sarina Shire Council]

Appellant:  ROBERT POWER

and

Respondent:  SARINA SHIRE COUNCIL

HEARING DATES, MACKAY 12-15 OCTOBER,
TOWNSVILLE 19 NOVEMBER, 1999

REASONS FOR  JUDGMENT -  JUDGE C.F. WALL Q.C.

DELIVERED AT TOWNSVILLE THE  8^th  DAY OF  DECEMBER  1999

Introduction

The primary issue in this appeal is whether the subject land (also referred to as Lot 7) is good quality agricultural land, in particular sugar cane land.  If it is it should remain so and the appeal should be dismissed.  The land is zoned Rural A.   The Appellant sought a rezoning to Rural Residential and a related sub-divisional approval.  The Respondent refused the application primarily accepting expert opinion that the land was good quality agricultural land which “consequently should be protected in accordance with Council’s Strategic Plan and State Planning Policy 1/92”, see exhibit 11.  This is an appeal by the Applicant, who is the owner of the land, against that decision.

Planning Scheme

Zoning

The intent of the Rural A zone is “to provide areas which are used or are suitable for

use for rural production for commercial purposes … Unless exceptional circumstances exist, land zoned Rural is reserved for rural production.”

Strategic Plan
The subject land is situated in the Rural - Canegrowing preferred dominant land use area which “essentially comprises those areas of existing and potentially valuable sugar cane lands which should preferably be retained for that purpose to the exclusion of other uses.”  The land is to be protected “from unnecessary and undesirable intrusions by other land use activities.”

The subject land is a battle axe shape with access to Bally Keel Road via the handle.  It adjoins 7 effectively rural residential lots each fronting Bally Keel Road.  On the opposite western side of the road immediately to the north are 5 other rural residential lots.  Otherwise it is effectively surrounded by sugar cane land and some cattle grazing land.

Rural Residential subdivision in the Sarina Shire is permitted “in suitably attractive rural locations within the Shire to meet the demands for rural residential living, whilst ensuring that such locations do not impinge on existing and potential agricultural lands … and are themselves not detrimentally affected by other land use activities…"  So far as is relevant for present purposes the Plan then provides as follows:-

“Implemention

Lands which are used for, or are potentially suitable for use for cane-growing, horticulture or dairying shall be conserved by permitting the subdivision or rezoning under the town planning scheme of rural lands only where it has been shown that –

(a)the land can be used for the intention of the zone in which the

land is proposed to be included;

(b)the purpose of the subdivision is consistent with the intention of

the zone;

(c)the land is not suitable for cane-growing, dairying or horticultural                            purposes or is not needed for the long term viability of the cane-  growing, dairying or horticultural industries.  A rezoning of the land to the Rural/Residential zone shall only be considered where -           

(i)the proposed rural/residential lots emanating therefrom are appropriate to the needs and demands of the Shire area, services, population and community facilities.  Proposals that would lead to subdivisions that are not required to meet building industry requirements in the foreseeable future or which would lead to inappropriately located developments with respect to Council services and community facilities or which may lead to environmental problems are liable to rejection;

(ii)the land is not existing or potentially suitable cane-growing or horticultural land, and in Council’s opinion will not be required for future dairying purposes…”

Other relevant provisions were referred to by Mr Hughes and I have also considered them.

State Planning Policy 1/92
This policy is Exhibit 5A.  The purpose of the policy is to conserve good quality agricultural land which is described as the “best and most versatile farming land”.  Such land is a “valuable resource” and “should not be built on unless there is an overriding need for the development in terms of public benefit and no other site is suitable for the particular purpose”.  The land should be “productive” or capable of being productive, either by itself or amalgamated with other good quality agricultural land.  Good quality agricultural land should be preserved regardless of the effect of market fluctuations on its viability.  The amalgamation of small holdings which are not agriculturally viable should be encouraged if that would enhance farm viability.  Rural residential development should occur in such a way that avoids conflict with farming operations and does not inhibit farming practice.  The policy provides that the Planning Guidelines for the Identification of Good Quality Agricultural Land  (Exhibit 5B) define “good quality agricultural land”.  I shall refer to these as the Planning Guidelines.

For present purposes, the following are the relevant passages from the Planning Guidelines:

1.2These guidelines will assist local authorities and development proponents to identify areas of good quality agricultural land for planning purposes, including the assessment of applications for rezoning, subdivision and consent in all rural areas.

1.3    These guidelines should be read in conjunction with State Planning Policy 1/92.

2.1Good quality agricultural land is land which is capable of sustainable use for agriculture, with a reasonable level of inputs, and without causing degradation of land or other natural resources. In this context, agricultural land is defined as land used for crop or animal production.

2.2Four classes of agricultural land have been defined for Queensland (Refer Table 1 and Attachment 1).  Class A land in all areas is considered to be good quality agricultural land. In some areas, Class B land (where agricultural land is scarce), and better quality class C land (where pastoral industries predominate), are also considered to be good quality agricultural land.

TABLE 1: AGRICULTURAL LAND CLASSES (and see Attachment 1.)

CLASS	DESCRIPTION
Class A	Crop land - Land suitable for current and potential crops with limitations to production which range from none to moderate levels.
Class B	Limited crop land - Land that is marginal for current and potential crops due to severe limitations;  and suitable for pastures.  Engineering and/or agronomic improvements may be required before the land is considered suitable for cropping.
Class C	Pasture land - Land suitable only for improved or native pastures due to limitations which preclude continuous cultivation for crop production;  but some areas may tolerate a short period of ground disturbance for pasture establishment.
Class D	Non-agricultural land - Land not suitable for agricultural uses due to extreme limitations.  This may be undisturbed land with significant habitat, conservation and/or catchment values or land that may be unsuitable because of very steep slopes, shallow soils, rock outcrop or poor drainage.

2.3Agricultural land classes are based on an assessment of the suitability of the land for specified agricultural uses.  Agricultural land suitability is a rating of the ability of land to maintain a sustainable level of productivity.  The factors used to assess agricultural land suitability are the soil, topographic and climatic limitations that determine sustainable productivity.  Explicit evaluation of economic factors, such as the size of production units, are not included as they are not considered relevant to the quality of the resource.  Methods of agricultural land suitability assessment have been published by the Department of Primary Industries (DPI) and others (see Section 10).

2.4Existing land resource mapping throughout the State has been interpreted to the classification contained in Table 1, to provide information on the location of good quality agricultural land.  This is a simplification of existing land resource information, to enable the best agricultural resources within each local authority area to be identified for planning purposes.  Attachment 2 provides this interpretation, based on the best available information.

2.5The definition of what constitutes good quality agricultural land within a local authority area is a DPI responsibility, although local agricultural industries, local authorities and other relevant groups will be consulted.

3.1Strategic plans, supported as necessary by Development Control Plans (DCPs), provide the planning framework within which local authorities should guide future development and land use.  Therefore, it is essential that areas of good quality agricultural land are identified in planning studies, and that strategic plans contain appropriate designations and provisions for the protection of those areas in accordance with State Planning policy 1/92  Broad-scale land resource information (Refer Attachment 2) should be used to define those areas where non-agricultural development will not be approved, unless there is an overriding need for the development in terms of public benefit at the particular location.

3.2Good quality agricultural land designated for protection by strategic plans and supporting DCPs should have long-term prospects for agricultural use.  Areas where farm units and small holdings are not considered to be agriculturally viable should normally be designated for protection to encourage land amalgamation and farm re-structuring.

4.1State Planning Policy 1/92 applies to all areas of good quality agricultural land, irrespective of whether farming activity is present.

4.11 Where the agricultural land quality is unknown or unclear, available broad-scale land resource information should be used in the first instance, as illustrated in Attachment 2.  However, in most cases, detailed on-site information will be required.

4.12If the subject land is found to be good quality agricultural land, the local authority should refuse the application unless:

·    There is an overriding need in terms of public benefit for the proposal, and   the proposal cannot be located on alternative sites of poor or nil agricultural quality;  or

·    the subject land is located so that farming, either alone or in association with surrounding parcels, is not practicable:  for example, a small isolated parcel of land surrounded by urban land uses.

4.18If the subject land is found not to be good quality agricultural land, the local authority should consider if there is likely to be conflict between the proposal and adjoining agricultural uses.  If such conflicts are likely, measures to avoid them should also be considered.  Small pockets of poor quality agricultural land may exist within an area of predominantly good quality land.  The development of such pockets interspersed with agricultural activity could lead to serious land use conflict and should be avoided.

5.4   In many areas, the best available information is limited to soils mapping, which has not been interpreted for agricultural suitability or other specific land uses.  To assist in the use of such information, DPI has identified those mapping units considered to be good quality agricultural land (Refer Attachment 2).

5.7Where development of rural land is proposed, the broad-scale maps in strategic plans or other sources should be used by local authorities to indicate to proponents whether good quality agricultural land is likely to be affected.  In cases where such information indicates that the subject land has no agricultural land of good quality, further analysis is usually unnecessary.  However, if the local authority has additional information suggesting that the subject land is good quality agricultural land, then a detailed assessment should be requested.  Some weight may be given to any history of previous cultivation and/or erosion of the subject land.

6.1Where a development proposal affects an area identified as good quality agricultural land on the strategic plan or other data source, regardless of whether the land is currently cultivated, a detailed assessment of the agricultural quality of the land is usually necessary.

6.2A detailed assessment should determine the extent of the various land types, the agricultural quality of the land resources on the subject land, and the likely effect of the proposal on the subject and surrounding lands.

6.5With some planning applications, part or all of the subject land may be clearly non-rural (Class D) due to surface feature limitations such as extreme slope, stoniness or wetness.  In such cases, only these obvious limitations, together with site locations and boundaries indicating the extent of such land, need be recorded.

6.6Land resource survey data should be collected in accordance with Australian survey standards for conducting surveys;  and describing sites (Gunn et al.,1988 and McDonald et al., 1990).  Interpretation of land resource information for agricultural land suitability should follow Queensland guidelines (Land Resources Branch, DPI, 1990).

6.14Interpretation of land resource information for agricultural land suitability should follow Queensland guidelines (Land Resources Branch, DPI, 1990).

6.15Criteria for the local interpretation of land and soil attributes for agricultural suitability may be found in the individual reports accompanying broad-scale maps for local areas.  These reports are available from the DPI or CSIRO, and are listed in Attachment 2.

8.2If the land resource information submitted by the proponent indicates that the subject land is not good quality agricultural land and is in disagreement with available broad-scale land resource information, the local authority may either accept the assessment or obtain an independent assessment.  This assessment may be carried out using expertise available to the local authority (staff or consultant), or by requesting advice from the DPI.  If the land is confirmed as not being good quality agricultural land, then the application is determined on other relevant planning considerations.

ATTACHMENT 1:  AGRICULTURAL LAND CLASSIFICATION

A     CROP LAND

Land suitable for current and potential crops

Limitations to production range from none up to moderate levels.

All crop land is considered to be good quality agricultural land

.

B      LIMITED CROP LAND

Land marginal for current and potential crops;  and suitable for pastures

Land which is marginal or unsuitable for most current and potential crops due to severe limitations.  Further engineering and/or agronomic improvements may be required before land would be considered suitable for cropping.

Land marginal for particular crops of local significance is considered to be good quality agricultural land.

C      PASTURE LAND

Land suitable only for improved or native pastures

Limitations preclude continuous cultivation for crop production but some areas may tolerate a short period of ground disturbance for pasture establishment.

In areas where pastoral industries are the major primary industry, land suitable for improved or high quality native pastures may be considered to be good quality agricultural land.

D      NON-AGRICULTURAL LAND

Land not suitable for agricultural uses

This may be undisturbed land with significant habitat, conservation and/or catchment values.  Severe limitations preclude any interference with land or biological resources for the production of agricultural goods.

Included in the references in sec.10 (see sec.2.3) are the Guidelines for Agricultural Land Evaluation in Queensland, Queensland Department of Primary Industries (1990).  These guidelines are Exhibit 29 and are the guidelines also referred to in sec. 6.6 and 6.14.  I will refer to these as the Suitability Guidelines.

For the Sarina Local Authority Area the Planning Guidelines in Attachment 2 incorporate the Plane Creek Sugar Cane Land Suitability Study (1988), Exhibit 28 which deals with land suitability for sugar cane in the Sarina area.  The Plane Creek study has its own five class classification.  Land classified as classes 1,2 and 3 is class A land for the purposes of the Planning Guidelines and land classed as class 4 is class B land for the purposes of the Planning Guidelines.

The Plane Creek Sugar Cane Land Suitability Study  contains the following passages in relation to cane land suitability:

“3.2 Caneland suitability

The suitability of land for growing sugar-cane is based on assessments, made in the field, of a number of limitations.  This is later supported by chemical and physical data.

The suitability classification has five classes which represent increasing limitations to long term sugar-cane production:

Class 1 - Land suitable with no limitations,
Class 2 - Land suitable with slight limitations,
Class 3 - Land suitable with moderate limitations,
Class 4 - Land marginally suitable with severe limitations,
Class 5 - Unsuitable land.

Land considered marginally suitable is particularly sensitive to the economics of the industry when compared with suitable land.  It requires high capital inputs to become suitable for growing sugar-cane in the long term and is often the first to be taken out of production in depressed economic periods.

Land is placed into one of the five classes after considering relevant limitations to production.  In the Plane Creek Study, the limitations assessed were:

erosion (e)-       an assessment of erosion potential based on land slope, surface soil texture, assessed dispersibility of subsoil, and observed erosion.

flooding (f)-       an assessment based on observed evidence of flooding and the knowledge of local residents, not an important factor for sugar-cane but relevant to alternative crops.

salinity (s)-       this limitation covers footslope salinity, sodicity in the soil profile and saltwater intrusion.  The assessment is based on observed features and  chemical data.

water holding     -       an assessment based on soil texture and depth of

capacity (m)                 coarse textured surface soil, local comment and observed moisture stress in crops relative to cane on other soils, supported by physical analysis in the laboratory.

nutrient -       an assessment based on chemical analysis.

status(n)  

soil -       a relative assessment of time available for satisfactory

workability (k)             cultivation between excessive wetness and excessive dryness, based on observations of soil characteristics and local comment.

stone (r)-       an assessment of existing amounts of stone in or on the surface soil of a size which could affect cultivation or harvesting operations.

topography (t)     -       a combined assessment of land surface features which could make the operation of large machinery difficult or dangerous, or prevent the design of a satisfactory contour plan for soil conservation.

wetness (w)-       an assessment based on observed seepages, indicators of wetness in the soil profile, vegetation species and local comment.

soil depth (d)   -     an assessment combining aspects of water-holding capacity, nutrient status and erosion risk, more significant for alternative crops than for sugar cane.

The maximum limitation normally determined the overall suitability for canegrowing, but combinations of a number of limitations could result in a less suitable overall assessment.  For each site, the observable part of its UMA was assessed.  The assessments for each site record provided the raw data in determining modal suitability limitations for soil type descriptions and UMA records.

3.3 Planning base

Map 3, Land Use and Land Suitability, constitutes the planning base.  This draws together the major criteria relevant to broad scale land use planning.  These main features shown on Map 3 are:

·    Agricultural Land - land suitable for growing sugar-cane, suitability classes 1,2 and 3.

·    Lands marginal and unsuitable for agriculture, divided into uplands and lowlands, suitability classes 4 and 5.

·    Sugar mill location and tramways."

Discreet areas of land comprising one or more land or soil types were mapped.  These discreet areas are termed unique map areas (UMAs) and are the units which are classified for land suitability.  See Exhibit 29, p.12 s.3.2.

It is conceded by the Appellant that if the subject land is found to be good quality agricultural land there is no overriding need in terms of public benefit for the current proposal.  The Appellant’s case is that the land is not good quality agricultural land.

The relevant guidelines for evaluating whether the subject land is good quality agricultural land are thus the Suitability Guidelines, Exhibit 29, together with the Plane Creek Sugar Cane Land Suitability Study, Exhibit 28, dealing specifically with cane land suitability in the Sarina area.

For present purposes the following are relevant passages from the Suitability Guidelines:

3.     METHOD OF LAND SUITABILITY CLASSIFICATION

3.1.   Class definitions

Five land suitability classes have been defined for use in Queensland, with land suitability decreasing progressively from Class 1 to Class 5.  Land is classified on the basis of a specified land use which allows optimum production with minimal degradation to the land resource in the long-term.

Class 1Suitable land with negligible limitations.  This is highly productive land requiring only simple management practices to maintain economic production.

Class 2Suitable land with minor limitations which either reduce production or require more than simple management practices (where more than simple management practices are required, this may involve changes in land preparation, irrigation management, the addition of soil ameliorants and the use of additional measures to prevent land degradation) of class 1 land to maintain economic production.

Class 3Suitable land with moderate limitations which either further lower production or require more than those management practices of class 2 land to maintain economic production.

Class 4Marginal land which is presently considered unsuitable due to severe limitations.  The long term significance of these limitations on the proposed land use is unknown.  The use of this land is dependent upon undertaking additional studies to determine whether the effects of the limitation(s) can be reduced to achieve sustained economic production.

Class 5Unsuitable land with extreme limitations that preclude its use.

Land is considered less suitable as the severity of limitations for a land use increase, reflecting either (a) reduced potential for production, and/or (b) increased inputs to achieve an acceptable level of production and/or (c) increased inputs required to prevent land degradation.  The first three classes are considered suitable for the specified land use as the benefits from using the land for that land use in the long term should outweigh the inputs required to initiate and maintain production.  Decreasing land suitability within a region often reflects the need for increased inputs rather than decreased potential production.

Class 4 is considered presently unsuitable or is used for marginal land where it is doubtful that the inputs required to achieve and maintain production outweigh the benefits in the long term.  Additional studies are needed to determine whether the effect of the limitation(s) can be reduced to achieve sustained production.

Class 5 is considered unsuitable having limitations that in aggregate are so severe that the benefits would not justify the inputs required to initiate and maintain production in the long term.  It would require a major change in economics, technology or management expertise before the land could be considered suitable for that land use.  Some class 5 lands however, such as escarpments, will always remain unsuitable for agriculture.

3.2      Process

The process of land suitability classification involves defining the requirements of a specified land use and evaluating the degree to which discrete areas of land fulfil these requirements.  There are five logical steps in this process which are fundamental to land suitability classification.  These are described below.

(i)Determine the requirements of the land use.  These are called the land use requirements for each specified land use and may be expressed as limitations.  Limitations are simply land use requirements stated in a negative sense.  Thus, stone-free soils are a land use requirement for root crops whereas stony conditions are a limitation.  Limitations are measured or estimated from land attributes which include such variables as soil, landform, vegetation and climate.

(ii)Decide which of the limitations are relevant to the particular land use in the study area.

(iii)Choose which land attributes (or primary data) are to be used in the particular Study to measure or estimate each of the relevant limitations.  These land attributes are known as diagnostic attributes for that limitation.  For example, for the limitation ‘wetness’, the diagnostic attribute could be the depth to mottles or grey colours.

(iv)For each limitation, decide critical values of diagnostic attributes to rank the effects of the limitation in terms of increasing degree of severity for the land use.  The classes so established are called limitation subclasses henceforth referred to as subclasses and range from the least severe to the most severe effect on a 1 to 5 scale.  This can be considered interpreted secondary data.

Critical values are assigned subjectively in most cases either by using modelling techniques, assessing local experience or by adapting established standards.  Critical values normally change over time as technology and economic conditions vary.  This may mean that the land suitability classification for a given area could change in the future following a reinterpretation of the land resource information in the light of changed conditions.

(v)The overall land suitability class on a 1 to 5 scale (tertiary data) is determined either by the most severe limitation subclass or by combining the subclass ratings.  The method of combining the limitation subclasses may require the subjective weighting of limitations.  Weighting will depend on the significance of each limitation to the land use being considered.

3.3        Study procedure

The steps involved in the procedure (Figure 3.2) are described in the following sections.

3.3.1.  Pre-field phase  

The methodology selected may vary depending on whether the study is for the assessment of a number of land uses or a specific use.  Socio-economic factors also need to be considered as these will influence the scope of the land suitability study. Such factors include land tenure, location, land value, state of technology, the marketability of products and the amount of local experience with the land use(s) under consideration.  Additional data may be required for specialised studies.

Each land use must be specified in terms of the normal land and agronomic management practices and infrastructure appropriate to the study area.  Normal management practices influence the selection of land use requirements and each land use requirement relates to a single limitation.  Information to be collected during the land resource inventory must include all attributes relating to the limitations applying to the proposed land use(s).  Each limitation is the sole determinant of a land use requirement.

The available literature on these limitations is then reviewed, followed by discussions with extension officers, agronomists, economists and farmers to select the diagnostic attributes for each limitation.  Critical values of some diagnostic attributes may be already established.  Tentative subclasses can be assigned at this stage for those limitations.

3.3.2  Field Phase

Discrete areas of land comprising one or more land or soil types are mapped.  These discrete areas are termed unique map areas (UMAs) (Basinski 1978) and are the units which are classified for land suitability.

During the field survey, the surveyor will be constantly validating not only the diagnostic attributes chosen, but also the critical values chosen to establish limitation subclasses.  Where the critical values have been established from known land use performance data, the surveyor intuitively validates them during the field survey.  Data to establish limitation subclasses must be obtained during the field survey where this information is unavailable.  This latter method generally provides less accurate quantification for some limitations.  The reliability of both techniques will depend mainly on the experience of the surveyor in land evaluation studies.  These activities include steps (i) to (iv) in the process of land suitability classification.

Regardless of experience, the surveyor should always compare his intuitive interpretations with what is observed in the field.  The surveyor needs to find out how well land use performance relates to the diagnostic attribute values.  This is more easily carried out on land where only one limitation is significant than where several limitations affect a land use.  In the latter case, the surveyor needs to assess the degree of interaction between limitations.  To do this confidently, the surveyor will need to be aware of the full range of expression of the diagnostic attributes and their effects on land use performance.

In many study areas there are farmers experienced in the land use(s) being considered and who have local knowledge of certain diagnostic land attribute levels.  Such information is valuable in the validation of diagnostic attributes and their critical values.

On completion of the field phase, the surveyor will have defined a number of soil or land types and assigned a number to each UMA.  In addition, the preliminary diagnostic attributes and their critical values for all relevant limitations for each land use will have been established.

3.3.3Land suitability classification phase

Defining the Class 3/4 boundary is the most important decision in ranking the subclasses.  The boundary is normally defined by setting limits based on an assessment of profitability or technological capacity applicable to the land use at the time.  A preliminary land suitability classification is then assigned for each UMA based on the most severe subclass.  The preliminary classification is tested in the field with local farmers, research and extension officers.  Following any necessary revisions due to either factors not considered initially, or to interactions between limitations, a final land suitability classification is established for each UMA.

A number of things can be said about the Suitability Guidelines":

• socio-economic factors in general terms are relevant to land suitability classification

• subjectivity is involved in the classification of limitations and assignment of critical values to limitations

• subjective waiting of limitations is involved in the combination of limitation

of sub-classes

• information relating to all attributes of the limitations must be collected.

• discussions must be held with extension officers, agronomists, economists and farmers so that the relevant diagnostic attributes for each limitation can be selected.

• the reliability of the surveyor’s validation of the diagnostic attributes and the critical values chosen to establish limitation sub-classes will depend on the experience of the surveyor in land evaluation studies.

• in the validation of diagnostic attributes and their critical values information should be obtained from farmers experienced in sugar cane growing who have local knowledge of such matters.

• profitability or technological capacity is to be assessed.

• the preliminary land suitability classification assigned by the surveyor should be tested in the field with local farmers, research and extension officers, following which revisions may be required.

• economic considerations in general terms are relevant to the assessment process as is local input from sufficiently qualified and experienced local farmers.

According to the Plane Creek Sugar Cane Land Suitability Study, the western third of Lot 7 was assessed as class 5 for sugar-cane and the remainder as class 3.  See Exhibit 10C p.1
Witnesses
Detailed assessment of the agricultural quality of the subject land was carried out by the various experts but with varying results.

Peter Muller, in his report Exhibit 10C, considered the following to be the relevant suitability limitations for the subject land, i.e., limitations to sugar-cane production:

• moisture/water availability

• water erosion

• rockiness

• wetness

• flooding

With the exception of rockiness these were considered to be only slight to moderate limitations for sugar-cane production.  Rockiness was assessed as moderate due to the amount of stone in the topsoil and on the soil surface.  Taking these into account, the land suitability was assessed as class 3 “suitable with moderate limitations".

This assessment was based on a soil survey and analysis, “published information” and “local information on sugar cane suitability from BSES extension and research officers” (Exhibit 10C p.1).

Mr Muller’s conclusion in Exhibit 10C is quoted as follows:
                  “Discussion and Conclusions

The properties of the soils and landforms of Lot 7 demonstrate that they are suitable for sugar cane, but with slight to moderate limitations.  However current management techniques such as contour layouts, trash blanketing, stone picking and surface and subsurface drainage, where required, can be used to manage and minimise these limitations.  Using best practice management, sustainable high yields of up to 100 t/ha of sugar cane (CSR Plane Creek Mill, pers. comm.) can be achieved on these land types."

The opinion of the BSES was quoted by Muller as follows in Exhibit 10B:

“They considered this property to be suitable for growing sugar cane with potential yields from the undulating rises to be 70-80 t/ha for a 30 cm deep Dermosol and 80-100 t/ha for a Dermosol 50 to 80 cm deep provided green cane harvesting techniques are used and soil conservation structures installed.  Potential cane yields from the lower slopes and valley flats are in the order of 100-120 t/ha provided that the watertable does not remain above a depth of 50 cm for more than one to two months during the wet season.”

Muller considered the Plane Creek Sugar Cane Land Suitability Study assessment of the subject land to be inaccurate.  He considered the soil to be deeper than was thought in the study which mapped the area by extrapolating from a site 1.2 kilometres away and did not include actual soil observations from Lot 7 (Exhibit 10B).

Muller considered (Exhibit 10D) that Mr Shields who gave evidence for the Appellant had “overstated the limitations and understated the availability of farming practices to economically overcome these limitations".  The farming practices referred to by Muller include stone picking, shallow surface drains, subsurface drainage with agricultural drainage pipes, land levelling to even out surface depressions, suitable row direction and hill size and appropriate maintenance of the drainage lines.  He considered the production figures from neighbouring farms demonstrated that the soils and land forms on Lot 7 “can be quite productive and are suitable for sugar cane”.

Mr Muller spent a day inspecting the soils and land forms on the subject land.  He did so with Mr McClurg.  He also spent some time on the adjoining Gauci and Sammut farms.  He spoke to Mr Gauci and Mr Sammut about their land.  He had limited experience in land suitability classification.  The present exercise was his second suitability assessment.  He had only been in Mackay one month at the time and this was his first time working in a cane farming area and he “wasn’t yet familiar with sugar cane”.  There was thus much reason for him to seek local comment on his
initial assessment.  As to this, he spoke to Mr Sluggett and to Frank Mason, a soil conservation officer employed by the Department of Natural Resources who also owns a cane farm in the Ilbilbie area.  He did not think Mr Mason had ever inspected the subject land and his farm is in fact about 60 kilometres from it.  Mr Mason had though advised Mr Gauci about drainage works on his land.  These two officers, he said, were of “great assistance” in advising him whether there were practical management techniques that could economically overcome or help to manage the limitations which he thought existed on the subject land. 

All of Mr Muller’s opinions were not his own and in saying this I am not being critical because appropriate local comment and input is required.  He said he “identified a number of limitations but according to Mr Sluggett and Mr Mason, the limitations weren’t so severe that they couldn’t be economically managed in order to grow sugar cane.  Mr Sluggett and Mr Mason contributed advice which Mr Muller used in his assessment.  He agreed that input from people who actually farm the land would be  a factor assisting him as a scientist.  The limitations were soil moisture holding ability, rockiness and wetness but in relation to the latter he didn’t know for how long the land stayed wet.  He recognised stoniness as a problem.

At the end of the day, even Mr Muller’s classification of the land seemed a little marginal.  He said “It is not the best class 3 land and it’s getting close to class 4 … when you look at the limitations, they are getting close to marginal … It’s getting towards the stage of being a bit marginal as cane land". (pp 350 and 356).

Interestingly, he reported on Mr Sammut’s application to subdivide part of lot 14.  See Exhibit 38.  He classified the land as class 5, not suitable to grow sugar cane, because the topography was too steep for machinery operations even though he thought the soil was suitable. 

I thought Mr Muller’s opinions lacked appropriate local comment and this caused him to undervalue the various limitations.  I thought that he did not sufficiently allow for the economic costs and factors involved in overcoming those limitations.  I also thought that he had a tendency to slightly change or alter some of his views and opinions depending on the way questions were framed.  Mr Baulch S.C. described him as "inflexible" and I do not think that an inapt description.

Robert Walker, Exhibit 17, identified the limitations affecting the production of sugar-cane on the site as including

• water erosion resulting from cultivation of steep slopes

• water availability deficiencies in areas with shallow soils

• wetness restricting root development in low lying areas

• rockiness in surface soils on one ridge

• undulating to broken topography restricting movement of large machinery

• sodicity in one site limiting nutrient uptake and degrading soil structure

• occasional flooding affecting crop production.

Mr Walker’s assessment took into account the departmental regional assessments, field investigations and aerial photographic interpretations.  See also his evidence at p.218.  His assessment assumed that commonly used industry management practices would be adopted.  His assessment was made for dry land sugar-cane production using green cane harvesting.

Mr Walker divided the land into three types.  These are shown on map 4, Exhibit 17.  Land type 1 was classified as being suitable (class 3) for sugar-cane production with moderate limitations.  Mr Walker considered that green cane production techniques overcome the limitations of water erosion caused by sloping landform, reduced water availability and broken topography.  The other limitations of wetness, rockiness, sodicity and occasional flooding were not restrictive to sugar-cane production in this area.  Land type 3 was also classified as suitable (class 3) for sugar-cane production, provided underground drainage systems were implemented.  Land type 2 was classified as unsuitable (class 5) for sugar-cane production because the extent of the rock throughout the upper profile layers was considered too significant and would restrict crop growth and crop management levels that would preclude agricultural production.  Interestingly, Mr Walker’s land type 2 was assessed as suitable by the Plane Creek study and by Mr Muller.  Mr Walker observed abundant rocks in this area. 

The process of assessment of the land suitability of the site involved reviewing available published data and a field survey and chemical analysis.  Further details are provided in Appendix A of Exhibit 17.

In his addendum report, part  of Exhibit 17, Mr Walker analysed production data from the subject land and adjoining properties for the years 1938-1973.  His calculations may not be entirely reliable as he mistakenly assumed that the area cut for cane in at least 1970 , 1971 and 1972 of 44.52, 49.92 and 52.73 acres was in fact hectares.  See sheet 1, Exhibit 17 and figure A3 in his addendum report.

His addendum report indicates that since preparing his initial report, he had discussions with local rock picking contractors and BSES officers in relation to rock removal.  These appear to have been discussions of a general nature and were not site specific. 

One of the BSES extension officers who provided information to Mr Walker was Robert Sluggett.  His letter dated 18^th October 1999 is attachment 2 to Mr Walker’s addendum report.  This deals mainly with drainage matters and his conclusion is that the landscape and drainage issues on the subject land are typical of those found on many sugar-cane properties in the Sarina district.  He thought that the implementation of local best practice drainage design and maintenance would provide suitable effective drainage on the property such that economical sugar cane production could be achieved.  These opinions were expressed in fairly general terms.  See also his map Exhibit 36. 

I thought the opinions and the conclusion of Mr Sluggett overlooked the practical extent of the particular limitations referred to by Mr Allwood and Mr Powell.  His approach was fairly generalised whereas that of Mr Allwood and Mr Powell was quite site specific. 

Mr Sluggett visited the subject land once in August 1997 after he had been in Sarina for 12 months.  He accompanied Mr McClurg and Mr Muller.  In the week before the hearing he visited Mr Gauci’s property and looked at the subject land from there.  He had considered Mr Shields’ report and didn’t question his survey work but differed with his views as to viability and limitations such as stoniness and wetness.  He preferred the opinions of Mr Muller.  I prefer the evidence of Mr Shields to Mr Sluggett and Mr Muller.  Mr Sluggett didn’t think there was a significant impediment to drainage on the land but I do not consider he has properly considered the problem, the areas involved, the limitations and the required remedial work.  He conceded that drainage under the tramline could be very difficult and expensive.   In fact, at least another culvert would probably be required. 

The final soil expert to give evidence on behalf of the Respondent was Mick Capelin of the Department of Natural Resources, Brisbane.  His report is Exhibit 18B.  He did not carry out his own assessment of the land but merely reviewed the reports of Messrs McClurg, Muller,  Shields and Walker.  He inspected the site in the company of the Appellant and Mr McClurg (he was present on the land for 3-4 hours)and held discussions with Messrs Muller, Shields and Walker and Frank Mason.

His report is prefaced by the qualification that no new data was gathered during the course of his review and his conclusions are based on the available data from the reports of Messrs McClurg, Muller, Shields and Walker with reference to standard land suitability criteria for the Mackay district, which for present purposes includes Sarina.  He did though, consider additional data on water table heights collected by the Appellant during 1998, see Exhibit 13C.  This confirmed to him that there were intermittent water tables on the sloping land and a wetness limitation on the valley flat area. 

By reference to the land suitability map for the subject site from the Plane Creek Study, figure 4.1 Exhibit 17, Mr Capelin divided the site into four land type areas.  Types 1a and 1b encompass areas 329 and 331 from figure 4.1 and types 1c and 2 encompass area 320.  He assessed types 1a and 1b as suitable (class 3) for sugar-cane, that is, with moderate limitations to sugar-cane production. The limitations for area 1a were water availability, water erosion and rockiness and for 1b, water availability, water erosion, rockiness and wetness.  Land type 1c consisted of the steep rocky slopes in the north east of the site containing an area of one hectare.  This was assessed as unsuitable (class 5) for sugar-cane, its limitations being water availability, water erosion and rockiness.  Type 2 is the valley flat area and this was assessed as marginal (class 4) for sugar-cane having a severe wetness limitation and moderate flooding and topography limitations.  The valley flat area was 6.1 hectares.  It is not clear because there is no common map but Mr Capelin’s class 5 area probably equates roughly with Mr Walker’s class 5 area.  I accept that Mr Capelin has a great deal of experience in the sugar cane field.  He was also involved in the development of State Planning Policy 1/1992.  See Exhibits 18C and 29.  He is also the author of Fig. 3.2 referred to in sec.3.3 of the Suitability Guidelines.

Mr Walker’s soil profile descriptions (which Mr Capelin relied on) were of plant root material in the lower part of the profile and this led Mr Capelin to believe that part of the soil profile was useable for crop growth.  He thought soil penetration by hand auger was a limitation on the data presented by Messrs McClurg and Shields.  I prefer though the evidence of those two witnesses on this aspect of the evidence.  Mr Capelin’s opinions were based on Mr Walker’s, not his own, observations.  Likewise his opinion as to the degree of stoniness on the land was based on the observations of others.  His opinion that in land types 1(a) and 1(b) the abundance or size of rock would not put those areas into an unsuitable classification is in my view inconsistent with the evidence of Messrs Allwood, Shields and McClurg which I accept. 

Mr Capelin was also of the view that with good management the yields from the subject land, if it was still in production, would be comparable to the Sammut farm of around at least 75 tonnes/hectare i.e. average to below average yields.  This assumes also similar soil limitations and he did not inspect the Sammut or Gauci farms.  I prefer the evidence of Messrs Allwood and Powell that this would not be the case.   Mr Capelin did not know what the break even yield was in the subject land area but I accept that such a figure, to be a useful guide, would need to be taken over a long period of time so that variations in prices received could be taken into account.  Subject to this, if a break even yield could be determined for a particular area that would be a consideration in determining whether land was in fact suitable for a particular crop.  He said though that yield is not specifically taken into account in the planning guidelines. 

Jim McClurg also assessed the land.  His main report is Exhibit 12B.  He divided the land into land type 1 and land type 2.  By reference again to the Plane Creek Study map, figure 4.1 Exhibit 17, land type 1 includes areas 329 and 331 and part of 320 equating to Mr Walker’s class 5 area but larger.  Land type 2 consists of the balance of the 320 area.  He assessed land type 1 as class 5, unsuitable for sugar-cane, because the soil and land features preclude viable sugar-cane production.  The main problems he thought were excessive slope leading to erosion control problems, shallow soil depth to rock leading to low soil water holding capacity, and excessive surface rock, cobble, stone and boulders that preclude effective cultivation and harvesting of sugar cane.  He assessed land type 2 as marginal for sugar-cane, class 4, the main limitations being excessive subsoil water-logging and surface flooding in most years and adequate erosion control, particularly along the already formed drainage line.  He thought that even with on-farm drainage, such as has been attempted in places on the subject land, most agricultural crops would still suffer excessive water-logging problems.  To overcome the excessive wetness problem, very expensive large interceptor drains dug to bedrock would be required at the break in slope to try to channel the subsurface water flow into the nearby drainage line.  The cost of initially installing such drains and their continued maintenance would, he considered, be prohibitive to an average farmer.  Surface draining, he said, is not practical.  In evidence he said he thought that the site presented significant difficulties for rock removal, (see at p. 157) and that Mr Allwood’s evidence more than confirmed this.  I agree.   The two land type areas are shown on the map included in Exhibit 12B. 

Peter Shields also assessed the land and he did so by reference to Mr McClurg’s land type areas.  These are shown on the map in Mr Shield’s report, Exhibit 13B. 
Mr Shields assessed most of land type 1 (west) as class 5, unsuitable for growing sugar-cane, and the balance of that area being a narrow band approximately 50 metres wide of lower slopes along the eastern boundary he assessed as class 4, marginal for growing sugar-cane.  The crests, upper and mid slopes of the class 5 area have extremely shallow soils as well as abundant stone and cobble on the surface and throughout the soil.  The slopes have an extreme stoniness limitation, a
 moderate erosion limitation and an extreme water availability limitation to growing sugar-cane. The narrow band area has moderately deep soils similar to those that dominate the remaining areas of land type 1. 

For land type 1 (south and east) he initially assessed these areas as class 4 marginal for growing sugar-cane consisting of moderately deep soils with stone and cobble common on the surface and through the soil profiles providing a moderate to severe stoniness limitation.  The areas also have a moderate erosion limitation.  The Appellant had, in the past, attempted to improve lateral drainage on the crests and the slopes in these areas by constructing an interceptor drain as recommended by the Queensland Water Resources Commission but this drain was apparently unsuccessful in alleviating the water-logging problems.   Prolonged wetness in the areas would lead them to be unsuitable for growing sugar cane. 

Mr Shields agreed with Mr McClurg’s assessment for all of land type 2 as class 5 unsuitable for growing sugar-cane.  He referred to a report of the Queensland Water Resources Commission to the Appellant stating that shallow bed levels in the gully running through the valley flats make it impossible to install deep relief drains. 

The class 4 designation for land type 1 (south and east)  was on the assumption that the shallow water table present on that land during Mr Shield’s inspection did not persist for more than one month otherwise the land should be downgraded to class 5 unsuitable for growing sugar-cane.  The Appellant carried out the recommended monitoring and the results are referred to in Mr Shield’s report Exhibit 13C.  As a result Mr Shields downgraded the classification of this area to class 5.  See his evidence at p.82.  Given the difficulty of draining this area, Mr Shields concluded in Exhibit 13C that this represented a severe wetness limitation for growing sugar-cane. 

Mr Shields also compared cane yields from Lot 7 when cane was grown on the land with yields from adjacent land and district averages.  His conclusions are expressed in Exhibit 13E and are to the effect that during the 29 year period between 1938 and 1970, cane yields on Lot 7 never equalled or exceeded average district yields and were in fact less than two-thirds of the district averages for 72% of the time.  He considered this represented a substantial reduction in productivity over an extended period of time and probably over a very wide range of climatic conditions as well.  Mr McClurg was of the same view, see his graph Exhibit 27.  On eight or ten visits to the subject land, Mr McClurg observed the sugar cane on the adjoining properties.  In his opinion it was “pretty poor”, most was not higher than about two metres with a fair depth of green top and fairly thin stalks.  Much better cane existed in other places in the Sarina area.  Mr Shields thought the yields on Lot 7 would be insufficient to be viable in the long term.  He said that when farmed for cane the yields from the land were very low.  I accept his interpretation of the figures and his view as to the limited use that can be made comparing them to the yields from the adjoining farms.  See his evidence at pp. 116-117.

Mr Shields considered the 1.5 hectares of class 4 land to be much too small to be farmed in practice and not such as to warrant protection as good quality agricultural land.  He said that marginal cane land often warrants protection as good quality agricultural land where it has reasonable land qualities and can be easily incorporated and farmed as a minor component of other suitable cane land.  However, where the marginal cane land is too isolated, too fragmented or of such low quality that its acquisition is unattractive to other growers, it does not, according to Mr Shields, warrant protection as good quality agricultural land (Exhibit 12B, p.5).  The 1.5 hectares of class 4 land is, according to Mr Shields, of such poor quality and size that neighbouring cane farmers would not be interested in acquiring it for future cane production.  I agree.  It would also be effectively impossible to amalgamate that area with either adjoining property without subdividing Lot 7.   Even if the land could be amalgamated with the adjoining farm/s it would not be good quality agricultural land (p.96).

Mr McClurg’s view was that the small area of class 4 land which he found to exist on the subject land was not worth preserving because of its size and lower suitability than the adjoining lands.  His class 4 land has a large water-logged flat which the surrounding land doesn’t.  Mr Walker conceded that Mr Gauci’s property was more elevated than the subject land.  Further, Mr Sammut’s land is separated from the subject land by at least a hundred metres of wet area that has never been cleared and is used for cattle;  it is too wet for sugar cane.  See the photograph Exhibit 15D and Exhibit 17, map 5.

In relation to the possibility of amalgamation I prefer the appellant’s witnesses.  I thought Mr Walker underestimated the topographic and physical limitations involved and in any event, his views were influenced, I think, by the amount of class 3 land he considered was present on the subject land.  He conceded that rock picking on a small allotment may not be a viable proposition but spreading the costs after amalgamation could alter the equation.  He conceded though that “you’d have to do your sums before you did that” (p.249);  “it depends on crop selection and the cash flow generated by the crop” (p.250).  He could also envisage a situation where the cost of removing stones would be so expensive that it wouldn’t be worth doing.  That I think is the case here for the subject land by itself and if amalgamated with Mr Gauci’s farm.  Mr Walker said he didn’t see a rock problem on the subject land that couldn’t be overcome by normal accepted techniques.  Mr Allwood’s evidence convinces me that to do so would be difficult and prohibitively expensive. 

Mr Walker conceded that apart from the low lying area, a substantial part of the property would require rock picking and the extent would not be apparent until the soil was ripped.  He didn’t discuss he matter with Mr Allwood or Mr Powell or a cane farmer or a harvester.  He relied on his own knowledge and discussions with BSES and the Department of Natural Resources officers.  In my view his opinions and resultant assessment lack relevant “local comment” as required by Exhibit 28 p.28, for example.  He agreed though that rocks to the extent of 40% of the topsoil would constitute a significant limitation.  Mr Sluggett thought 40% of stones in the soil prior to stone picking was fairly normal for this area but it depends on their size.  He said though he would prefer to inspect the site before he could give a more soundly based opinion about the difficulty of removing rock for farming in the presence of rocks.

Drainage according to Mr Walker could also be prohibitive but he again “didn’t do any sums”.  To an extent though, costs such as drainage and rock removal are inbuilt in the classification system.  Mr Walker’s classification though appeared to be dependant to some extent on amalgamation or the possibility of amalgamation - the potential of linking the subject land with adjoining neighbours - which he thought would make costs less significant than they otherwise would be even though he did maintain that he separately assessed the suitability of the subject land. 

Mr Walker was a very confident, and I thought, experienced witness but I felt his assessment process was perhaps not as thorough as it should have been and did not sufficiently take into account the overall economic viability of removing various limitations.  I thought that his assessment did not make sufficient allowance in general terms for the actual costs of overcoming the various limitations he considered existed.  I think that those costs would be prohibitive and would adversely affect the economic viability of the subject land by itself or as part of an adjoining property. 

The total area of Lot 7 considered for possible sugar-cane production amounts to 17.6 hectares.   The views of the various experts can be summarised as follows (and the particular land in each case is not always the same):

Plane Creek Study

Class 3 - about 7.6 hectares
Class 5 - about 9 hectares

Muller

Class 3 - 17.6 hectares

Walker

Class 3 - about 16.6 hectares
Class 5 - about 1 hectare

Capelin

Class 3 - 10.5 hectares
Class 4 - 6.1 hectares
Class 5 - 1 hectare

McClurg

Class 4 - 6.1 hectares
Class 5 - 11.5 hectares

Shields

Class 4 - 1.5 hectares
Class 5 - 16.1 hectares

There was significant variance in the evidence called by both parties as to the adequacy of soil depth on the subject land for growing sugar cane.  As a relevant limitation this aspect is dealt with specifically in the Suitability Guidelines, sec. 4.3.  Much time and many questions were devoted to this issue.  I accept the Appellant’s witnesses but if I am wrong about that I think that the preponderance of the evidence as to the other limitations is against the classification of the land as good quality agricultural land notwithstanding, for example, that Mr McClurg said (pp 179-180) that if he had underestimated the rooting depth he would be forced back to the conclusions he expressed in Exhibit 12C.  On the issue of soil depth I prefer the opinions of Mrs McClurg and Shields to that of Messrs Walker, Muller and Capelin.  Mr Capelin’s opinions were based on Mr Walker’s backhoe excavations and his profile descriptions.  Mr Walker conceded that minds can change, matters of judgment are involved and that from time to time opinions might differ about the structure of soil including whether it is appropriate to consider decomposing rock material in calculating appropriate rooting depth.

Mr Shields said that based on anecdotal evidence and long term observations by a lot of experienced people in the district generally 50 centimetres of soil is the minimum that will grow sugar cane.  This was also the view of Mr McClurg.  Mr Sluggett agreed that soil depth is a very important issue in determining the overall suitability of the land to grow sugar cane.  Mr Muller disagreed about a minimum depth of 50 centimetres. 

Messrs McClurg and Shields used a hand-held auger to dig their test holes to assess soil depth.  Mr Walker used a backhoe but realistically I do not think that this elevated his evidence above that of Messrs McClurg and Shields.  Mr Shields’ conclusion was that the soils on the subject land varied from shallow to moderately deep but the overwhelming number of sites were shallow rather than moderately deep and too shallow to be suitable for growing cane.  He said that 30 centimetres of soil depth dominated the area.  The exception was the narrow band of 1.5 hectares.  The over-riding factor so far as soil depth is concerned is the amount of water the soil can store for the cane to grow.  Weathered rock - sandy, gravelly clay - may be too dense for plant roots to get into and may not hold water for the cane roots to use.  Mr McClurg was present on site when Mr Walker used the backhoe to excavate ten pits to assess soil depth.  Photographs are contained in Exhibit 24.  Mr McClurg recorded the depth of decomposing rock.  There is some confusion about whether Mr Walker agreed with Mr McClurg but I accept Mr McClurg.  I also accept and prefer his interpretation of the soil profile he observed.  To him, Mr Walker’s pits confirmed that the soil depth was generally less than the depth required for growing sugar cane.  I thought that Mr McClurg was experienced in a practical sense and well qualified to express the opinions which he did.  I do not consider he has underestimated the rooting depth available to cane on the subject land.  I accept him when he says that decomposing rock doesn’t store much water for the crop and that is why it is not used in assessing rooting depth for cane.  Mr Walker conceded that his assessment would be substantially affected if the decomposing rock was not taken into account in calculating rooting depth.  Like Mr Walker, Mr Muller included the weathered rock in his rooting depth estimates. 

I agree with the submissions of Mr Baulch S.C. as to the proper way to approach the suitability guidelines on this aspect and to his criticisms of the approach of Messrs Walker and Muller in this respect.  Once decomposing rock is eliminated there is little difference between the experts.

In relation to economic considerations, those witnesses who were questioned on the subject agreed in more or less terms that economic considerations were a relevant consideration in the assessment of land suitability.  Mr Shields said that to say land is unsuitable one must consider the current economic and technology conditions;  an assessment must be made that it is suitable under current economic conditions.  The long term economic viability that is used in the 5 class system is meant to refer to just broad scale economics and not to limited or detailed farm production figures from year to year because there is such variability.  I agree with this.  His view in the present case was that the amount of inputs required to get a reasonable yield - i.e. a yield that would cover costs - did not warrant the development of the land for growing sugar cane.  He said that it is impossible for any agricultural scientist or farmer to assess the suitability of land for a crop without comparing inputs with yields i.e. output.  This is implicit in the classification system of class 1 to 5.  It is in this general, not specific, context that he used the term “economic viability”. 

Mr McClurg said that economics must be considered in the classification process;  the cost of inputs must not exceed the amount obtained for the cane produced. One would think that was common sense.  Normal farming management practices in the area are considered in the land suitability assessment process in deciding whether relevant limitations can be economically overcome. 

Mr Walker said that farm management is critical in addressing whether a limitation can be overcome.  The evidence I accept satisfies me that the combined limitations of the subject land would make it uneconomic for sustained production of sugar cane. 
Mr Walker also said that the class 3 classification (and no doubt class 4 and the higher classifications) doesn’t tell one how many tonnes a hectare the land would produce.

Mr Capelin said that the planning guidelines require an assessment of land suitability based on a range of physical characteristics of the land and in those assessments of land suitability it is assumed if land can be placed into classes 1,2,3 or 4, then that land would be capable of economic production from the resources available in a particular area.  The class 5 classification assumes that either the limitations can’t be overcome or they can’t economically be overcome to produce a viable outcome.  He conceded though that when the guidelines speak of sustainable agriculture with a reasonable level of inputs that does to some extent in general terms direct one to economic factors.

In considering the categorisation of the various limitations in the present case I think that the Respondent’s witnesses have placed insufficient weight on the cost of dealing with those limitations and that has resulted in a land classification for the subject land higher than it should in fact bear.  I think Messrs Shields and McClurg considered in more detail than did Messrs Walker, Muller and Capelin, the likely costs of coping with the relevant limitations.  The issue was further complicated by the fact that the various experts could not agree on the suitability of particular areas of the subject land, the nature and extent of the relevant limitations, the extent of inputs required to deal with particular limitations and therefore the categorisation of the limitations (none - prohibitive).  In the assessment process each also sought local comment to a greater or lesser extent and from sources more or less relevant to and familiar with the subject land.  I thought Messrs Shields and McClurg adopted an assessment process basically separate from each other whereas Messrs Walker, Sluggett and Muller tended to rely to a greater or lesser extent on each other and the field results and interpretations of each other.  To this extent their approach was interdependent and I do not mean that in a critical but rather a qualitative sense. 

Unlike these experts, I have had the benefit of relevant local comment by experienced persons such as the Appellant, Mr Allwood and Mr Powell.  I consider their views tended to reinforce or confirm the opinions of Messrs Shields and McClurg and to detract from those of Messrs Walker, Sluggett and Muller to an extent such that I have more confidence in the assessment of the former rather than the latter.  

In his attempts at horticulture on the property between 1979 and 1995 Mr. Power was beset by problems relating to surface and sub-surface rocks, wet conditions, water logging, contours, erosion, drainage, soil fertility, soil conditions in general, crop losses, the damming effect of the tram line and water run off from the Gauci farm.   All this was not withstanding advice and assistance from officers of the DPI and the Irrigation and Water Supply Commission.  His laymen’s observations from digging holes for tree planting were of insufficient soil depth.  Mr Hughes sought to rely on the fact that the Appellant's horticultural activities on the land had supported his family but in my view they did not realistically do so and external support was required. They were certainly not capable of doing so in a sustained, commercial way.

Mr. Allwood has been in the earthmoving industry for about 30 years and has owned a cane farm since 1996 on similar land to the Appellants “with gravel and rocks and a little bit of soil”.  I accept his evidence.  He is familiar with the country where the subject land is situated.  He carried out earthmoving and road building work on the land in about 1980.  He encountered rocks on varying sizes over most of the property; about 70% was “real rocky”.  He said:-

“When you looked at it first, it didn’t look bad.  You drive around and there was a rock here, rock there, you back off.  Once you put the grader blade down, you started to roll the material over.  Some places there there were just bars of rocks just gravel and rocks and rocks once you take that little bit of topsoil off.  Other places, you’d go 20 feet and you’d hit some bit, what we call floaters, real big ones.  You dig them out.  In other places your bars are rock again, so you know, you have about 70 per cent of it was really rocky and the other 20 per cent - 25 per cent was a bit of soil, hollow areas, stuff like that".

He considered that the cost to cope with the rock problem “would be astronomical at the present time to grow a few hundred tonnes of cane".  Many of the rocks, perhaps most, were under the surface.  On his own property the cost was not worth it: his yield from 3 acres was 38 tonnes of cane; a reasonable return would be 30-40 tonnes an acre or about 100 tonnes a hectare.  Rocky hilly areas are not suitable for cane farming.  He is considering abandoning the growing of cane on the rocky patches of his farm.  He is not making any money from his farm; it does not provide him with a living and he has to work outside.  He said:-
           “You can grow cane on stony land but you can’t grow good quality cane to

make a living out of it … You’ve got to put the same amount of fertiliser in (as

the better land) but you’ve got to pick all the rocks up to get less tonnage so

there is a cut off point somewhere …”

His evidence satisfies me that the viability problems associated with the subject land would not be cured by amalgamation with adjoining farms.

Mr. Powell is a cane farmer and the executive and research officer for the Queensland Mechanical Cane Harvesters Association.  He inspected the subject land with the Appellant.  He doesn’t consider it to be viable cane land; it would not be a viable economic proposition to grow cane on the land for the following reasons:-

• shallow rocky soil with slopes;

• crop size;  the potential blocks that could be used are small and of variable shape with varying but generally short row lengths.

These are the reasons why it would not now be growing cane.  Productivity would be too low.  He thought it would be fairly difficult to justifiably grow cane on the land.  I accept his evidence.  It is not, he said, a viable area by itself.  Amalgamation with the Gauci farm would not resolve the difficult and expensive harvesting conditions; the useable areas would still be small and of variable shape.  The land is not high quality cane land but marginal at best.  He thought it was “too small an area to even get started to grow cane on".  The district average cane yield - the accepted break even point - in the Mackay area is about 100 tonnes a hectare.  The Plain Creek mill area (which includes the subject land) would be getting about 90-100 tonnes a hectare.  He said:-

“If you’re averaging around 80 tonnes a hectare you would be really struggling, it would be starting to become very marginal and if you are below 80 tonnes a hectare I don’t think you will survive in the long term … you will be struggling into the future".

He would be surprised if the subject land could maintain 70 tonnes a hectare over a crop cycle of about 6 years.  As a practical farmer there was no way he would consider the land to be good quality agricultural land.  He thought some of the adjacent blocks were better than the subject land.  The subject land also had rocky soil and complex slopes and he suspected, correctly as it turns out, that the yields in the past would have been below mill average.

The price of sugar according to Mr. Powell is but one of the factors affecting viability in the longer term.  Costs of harvesting, farming operations and labour are high and growing cane on marginal land is more difficult in 1999 and will be more difficult in 2005 that it was in 1970.  Even with an improvement in the price for sugar cane the land will always remain marginal.

Joseph Gauci who owns the cane farm to the south of the subject land gave evidence by telephone.  His statement exhibit 33 includes the following passage:-
           “In my opinion there is no reason why cane could not successfully be grown

on Mr. Power’s land.  It may be necessary to spend some money on the land (up front) by putting in drains but otherwise I see no difficulty".

In my view this statement was made with no real appreciation of the difficulties presented by the subject land and I cannot accept it.  It was significantly qualified during evidence.  He said for example:-
           “I reckon (just by looking at it) about 70 per cent good for cane.  Some of it -

30 per cent on the northern side - would be a bit too stony but you don’t know until you get in there".

He had not made any assessment of the land, never put any implements in it.  He said his view could be different after going onto the land and examining it. 

Mr Hughes advanced Mr Gauci as being in the best position to say whether the land could sustain a crop of sugar cane and relied heavily on his evidence.  I cannot agree.  I found his evidence shallow and superficial and of no real assistance either way.

The council didn't have an independent view on whether the land is good quality agricultural land.  It relied on the information provided to it by the various experts during the assessment of the application and subsequent to that assessment.

Conclusion as to Land Suitability
In my view the subject land is not “good quality agricultural land” within State Planning Policy 1/92.  Likewise it is not “potentially valuable sugar cane land” nor is it “suitable for rural production for commercial purposes” within the Respondent’s Planning Scheme.  The land is not suitable for sugar cane growing or for horticulture or future dairying purposes.

I should mention some of the cases where State Planning Policy 1/92 has been considered.  Unlike Judge Quirk in Wennere Pty Ltd v Maroochy Shire Council & Anor[1992] QPLR 24 (which pre-dated State Planning Policy 1/92 but which applied similar principles) I have concluded that the subject land is not “valuable cane growing land” and there is no future “possibility of its being farmed with adjoining land". Further, rural residential “encroachment” has already occurred in this particular locality.

I accept the statement of Judge Quirk in CW Edmonston & Associates v Emerald Shire Council [1994] QPLR 123 at 127 that “if agricultural land is lost to urban development the situation is not (in any practical sense) reversible” but that is tempered by the finding in that appeal that the land was “good quality agricultural land” within State Planning Policy 1/92. I accept also His Honour’s statement (also at page 127) that “matters relating to farm technique, the varieties and attributes of crops and market forces are of a dynamic nature” but I am unable to conclude that realistically the subject land will ever be able to be used for the economic production of sugar cane either by itself or amalgamated with the adjoining cane farms.

Judge O’Sullivan in Reilly v Kilkivian Shire Council [1994] QPLR 366 considered, like I have here, competing evidence by Mr. Shields and Mr. Walker. The latter gave evidence there, as here, relying on sections 2.3 and 3.2 of the Planning Guidelines to the effect that in considering whether land is good quality agricultural land economic factors ought not to be taken into account and that the correct approach is to look only at the physical constraints of the soils, the physical parameters and not at the cost of inputs - there phosphorus fertilisers - required to overcome land suitability limitations. Mr. Shields took these costs into account as required inputs and questioned whether they would be less than the outputs that would be received. Her Honour preferred the evidence of Mr. Shields. I am faced with identical arguments and, whilst I have arrived at my conclusions independently of Her Honour’s opinion, I am comforted by the fact that my view coincides with hers on this aspect.

Like the position in Morawitz & Ors v Emerald Shire Council & Ors [1994] QPLR 385 at 386 “the Respondent’s Town Planning Scheme does make provision for rural residential land and development of this nature has already occurred in this area and the application must therefore be assessed on that basis". In that appeal Judge Quirk concluded that the land was not good quality agricultural land considering that the use of the land for dry farming was not a viable proposition and that a ready supply of irrigation water was not available.
Production viability - “a viable commercial horticultural farm”, “a viable production area”, “a viable unit of commercial size” - was also considered relevant to whether land was good quality agricultural land in Bellas v Brisbane City Council [1995] QPRL 327 albeit not the subject land by itself but after amalgamation with an adjoining farm.  Such amalgamation would not alter the position in the present appeal. 

Cane production figures indicating a “marginal level of productivity” were considered relevant to the issue of good quality agricultural land in Duffy v Burnett Shire Council [1996] QPELR 401 at 402. Judge Quirk said at page 404:-

“While the guidelines (in 2.3) point out that economic factors such as the size

of production units should not be taken into account, it is hard to accept that the economic viability of an agricultural exercise on particular land is to be ignored entirely.  This was not a matter to which Mr. Wilson appeared to have given close consideration.  The guidelines in 2.1 speak of ‘reasonable levels of inputs’ and the Appellant and his witnesses were alert to this.  The views which they expressed appeared to correspond with the results that have been achieved".

Need
This issue is relevant once the conclusion is reached that the land is not good quality agricultural land.  It is raised by the Planning Scheme and was dealt with in the evidence of Mr Michael McGovern a valuer and real property consultant and Mrs Veronica Schilliing-Hauskrecht, the Respondent's consulting  town planner.

I prefer the evidence of Mr McGovern.  Whilst he is not currently working as a valuer or real estate agent he does, in my view, have more relevant local experience and, I think,  intuitive judgment than Mrs Schilling-Hauskrecht.  I accept his opinions as contained in his report, exhibit 15A and in his evidence.  In the relevant area the number of vacant rural residential sites has decreased from about 20 at the time he wrote his report, August 1998, to 11-13 at present.  I say “relevant area” because in my opinion it is legitimate in considering need to look at the Alligator Creek area, where the subject land is situated, rather than the broader and more global shire approach which I thought appeared to be favoured by Mrs Schilling-Hauskrecht, certainly in her report, Exhibit 9D,  I accept that there is a need in the particular area for this type of development whilst recognising that on the broader approach the evidence may not be as persuasive.   Mrs Schilling-Hauskrecht did agree that the Respondent's draft policy, Exhibit 9D, page 21, did recognise particular locality need.

In evidence she said she expected most issues connected with the subject application to be resolved by appropriate conditions once the issues of good quality agricultural land and need were determined.
She said locality need should be considered in a whole of shire context, but agreed with Mr McGovern's figures.  She said that if the land was not good quality agricultural land the Council would probably accept that it could be developed with appropriate buffering from adjoining uses, or at least she wouldn't have recommended against it.  I think that is a proper approach to take.  Notwithstanding the fact that the adjoining subdivision was created  before the current planning scheme came into force its presence cannot be ignored;  it is a fact and it is of relevance in relation to this application.

Mr Hughes conceded, correctly in my view, that the issue of need was to be approached by reference to the community interest in such development as opposed to marketability from the developers standpoint.

I also accept Mr McGovern in relation to the fact that realistically a development such as is proposed by the Appellant will not conflict with the surrounding farming and tramline activities.

In my view, "exceptional circumstances" for the purposes of the planning scheme exist where land zoned rural is not good quality agricultural land and is not suitable for sustained or commercial agricultural purposes, including horticulture, where there is an adjoining rural residential subdivision (notwithstanding that it was created before the current planning scheme) and another very close by, where there is a need for this type of development and where the other requirements for rezoning and subdivision to allow a rural residential development are satisfied which is the case here.

Result
For these reasons the Appellant has established that his application should be approved.  The appeal will therefore be allowed and the application approved subject to conditions.  I adjourn the further hearing of the appeal to a date to be fixed to allow the parties to agree upon and submit a schedule of conditions.