Reservilt Pty Ltd v Maroochy Shire Council (No. 2)
[2003] QPEC 41
•20 August 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Reservilt Pty Ltd v Maroochy Shire Council (No. 2) [2003] QPEC 041
PARTIES:
RESERVILT PTY LTD (Appellant)
-v-
MAROOCHY SHIRE COUNCIL (Respondent)
FILE NO/S:
17/2001
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
District Court of Queensland, Maroochydore
DELIVERED ON:
20 August 2003
DELIVERED AT:
Maroochydore
HEARING DATE:
9 July 2003
JUDGE:
Judge J.M. Robertson
ORDER:
Application allowed
CATCHWORDS:
LOCAL GOVERNMENT – Relevance and reasonableness of conditions. Whether conditions are relevant to and not an unreasonable imposition on development permit. Permit to erect boarding kennels. Whether approval of construction on adjoining property since application “lawful”; environmentally sensitive development; consideration of relevant Codes and degree of specificity and detail required.
ENVIRONMENT AND PLANNING – role of Court and assessment manager and concurrence manager.
PLANNING AND ENVIRONMENT COURT – EVIDENCE – role of experts.
Reservilt v Maroochy Shire Council & Anor[2002]QPEC 010
Reservilt v Maroochy Shire Council & Anor [2002] QCA 367Cases Cited:
Attorney-General v Breckler (1999) 197 CLR 83
Hymix Industries Pty Ltd & Anor v Albertson Investments Pty Ltd [2002] QPELR 116
Proctor v Brisbane City Council [1994] QPELR 309
Wise v Maroochy Shire Council [1999] 2 Qd. R. 566Statutes Cited:
Integrated Planning Act 1997, ss 3.5.30. 4.1.23 (d) (e), s 4.1.52 (1)
Environmental Protection Act 1994, s44
Local Government (Planning and Environment) Act 1990, s 6.1 (1) (c) (repealed)COUNSEL:
S.J. Keim (for the Appellant)
A.N.S Skoien (for the Respondent)
SOLICITORS:
Lestar Manning (for the Appellant)
Maroochy Shire Council (for the Respondent)
The history of the appellant’s application for a development permit for boarding kennels at 64 Murdering Creek Road, Perigian, is set out in my reasons for judgment delivered 12 March 2002 (Reservilt Pty Ltd v Maroochy Shire Council & Anor [2002] QPEC 010). After a successful appeal to the Court of Appeal (Reservilt Pty Ltd v Maroochy Shire Council & Anor [2002] QCA 367) the appeal was returned to this Court to proceed according to law. On the 13 February 2003, after receiving submissions from both parties, I allowed the appeal subject to conditions. Directions were given in relation to the filing of agreed and disputed conditions, and the exchange of expert reports and proofs. On the 13 March 2003, the respondent’s solicitor delivered to the appellant’s solicitors a set of draft assessment manager conditions together with the Council’s concurrence agency conditions. These draft conditions (exhibit 1 in these proceedings – “the original conditions”) then formed the basis for discussion between the experts in a number of conclaves during March and April 2003. Arising out of these meetings, the experts (Mr McNeilage on behalf of the appellant and Mr Chessels on behalf of the respondent) reached substantial agreement as to an appropriate set of conditions. These conditions (“the experts’ conditions”) are Attachment A to Mr McNeilage’s report dated 14 June 2003 which is exhibit 3 in these proceedings. On the 12 June 2003, the respondent filed a further expanded set of assessment manager and concurrence agency conditions dated 4 June 2003 (exhibit 4, “the revised conditions”). At the start of the hearing on the 9 July 2003, the appellant sought to confine the Court’s consideration of conditions to those set out in the experts’ conditions.
Mr Keim advanced no authority to support his argument and I refused his application. He also sought to exclude from the evidence a number of statements filed in the proceedings from council officers involved in the assessment. Mr Duffey is an environment protection officer in the respondent’s environment management and conservation branch. Attached to his statement are the concurrence agency conditions with the respondent’s justification. He also helpfully attached a comparison between the latest concurrence agency conditions and those advanced earlier. Mr Walters is employed as a project officer with the respondent and he is the author of the draft assessment manager conditions filed on behalf of the respondent. Again, I refused the appellant’s application and both statements were admitted and Mr Keim did not cross-examine either Council officer. His submission is that I will give little weight to any opinions that may be expressed in the statements and attachments by the officers.
In his written submissions, Mr Keim appears to maintain his submission that the Court should confine its assessment to the experts’ conditions. The thrust of the argument is made clear by the submission:
“The Court would be loath …to approve conditions which have been out forward so late in what had been an eminently proper process for reasons which are so patently unsatisfactory.”
Mr Keim did not seek an adjournment on 9 July 2003. Had he done so, he may have been able to ask for costs: s 4.1.23 (d) and (e) IPA. However, I think the submission misconstrues the nature of the proceeding. Mr Keim does not advance any authority to support his argument that, in effect, the Court should be more critical or cautious in considering the revised conditions because they were delivered after the experts conditions. The hearing before me is a hearing anew: s 4.1.52 (1) of the IPA, and the proposed conditions must be considered on their merits. At no time has the respondent delegated its statutory obligations to its experts; and to be fair to Mr Chessels he has always made that clear in his various reports and in his evidence. In my view, the Court should consider all the evidence in assessing the conditions advanced by the parties; including the evidence in the earlier hearing that remains relevant.
It is not disputed that the assessment manager conditions are to be considered against the applicable codes, the most important of these are Code 2.1.5 (Code for Development in Water Resource Catchment areas) and Code 3.2 (Code for Development and Use of Intensive Animal Industries and Aquaculture). The codes are replete with reference to performance criteria relating to surface and groundwater, (both codes), enhancement of natural environmental values (code 2.1.5); and nuisance beyond property boundaries and effect of wastewater on the waterway (code 3.2). As far as the concurrence agency conditions are concerned, the Council is required under devolved authority under the Environmental Protection Act 1994 (the “EPA”) to assess the application against various provisions in the EPA and its subordinate legislation. Council is required to consider s 44 of the EPA in imposing appropriate conditions on a environmentally relevant activity (such as the present proposal); and in part, requires Council to assess the proposal against any applicable Environmental Protection Policy (EPP) and the “standard criteria”. The “standard criteria” is defined to mean:
(a) the principles of ecologically sustainable development as set out in the National Strategy for Ecologically Sustainable Development; and
(b) any applicable environmental protection policy; and
(c) any applicable Commonwealth, State or local government plans, standards, agreements or requirements; and
(d) any applicable environmental impact study, assessment or report; and
(e) the character, resilience and values of the receiving environment; and
(f) all submissions made by the applicant and interest parties; and
(g) the best practice environmental management for the activity under the authority, program, order or permit; and
(h) the financial implications of the requirements of the authority, program, order or permit as they would relate to the type of activity or industry carried on under the authority, program or oderl and
(i) the public interest; and
(j) any applicable site management plan; and
(k) any other matter prescribed under a regulation.
The relevant EPP’s are Water, Air, Waste and Noise.
It would be entirely inappropriate for Council, in these circumstances, to delegate (as it were) its onerous responsibilities both as assessment manager and concurrence agency, to a third party expert. I agree with Mr Skoien that Mr McNeilage has never come to grips with this issue, and that the appellant’s approach throughout has been to approach the conditioning process in a general way, leaving the detail to later.
The respondent filed a witness statement by Mr Chessels which is exhibit 7 in the proceedings. In that statement he refers to the revised conditions and provides his opinion in so far as such matters come within his expertise. As the hearing proceeded during the day, a number of conditions became uncontroversial as far as the experts are concerned and, in relation to some, there was also agreement between the parties. Ultimately, the position of the appellant is that the experts’ conditions are appropriate; the respondent’s submission is that the revised conditions with a number of conditions excluded are appropriate.
The power to impose conditions is set out in section 3.5.30 of the Integrated Planning Act:-
s 3.5.30 (1) A condition must,
(a) be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
(c) be reasonably required in respect of the development or use of premises as a consequence of the development.
In Proctor v Brisbane City Council [1994] QPELR 309 the Court of Appeal held that the condition power under the repealed Act, s 6.1 (1) (c) contained two alternate tests for validity of a condition:
“It may well be that a condition which is in no proper sense of the word “required” by a subdivision is nevertheless relevant…as falling within the proper limits of a local authority’s functions under the Act, as imposed to maintain proper standards in local development or in some other legitimate sense. For example, a condition relating to the layout of the subdivisional roads may not be able to be supported as “required” – reasonably or otherwise – by the subdivision in question, but may be defensible as reasonably imposed in the interests of the rational development of the area in which the subdivision is located.” (at 313).
See also Wise v Maroochy Shire Council [1999] 2 Qd. R. 566.
The IPA test makes only a minor change to the test in section 6.1. (1) (c), and that is the test now imparts a requirement that even “relevant” conditions must not be an unreasonable imposition on the development or use of the premises as a consequence of the development. In Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd [2002] QPELR 116, the Court of Appeal made it clear that whether or not a condition ought to be imposed is a question of fact, and not of law, unless on the evidence available “only one conclusion is open”, namely that a particular condition should, or should not be, imposed.
Before dealing with the revised conditions seriatum, I should refer to some conflict between the experts arising out of Mr McNeilage’s latest report, in particular the introduction. Mr Chessels disputes a number of the observations made in that introduction, e.g. that he was “constrained” by the Council. It is not necessary for me to resolve this either way. In passing, I observe that it would have been far more helpful if Mr McNeilage had confined himself strictly to responding to the Court as to the outcomes of the conclave, rather than offering his own views which are in the nature of self-serving argument. It is again an example of his failure to understand the role of an expert – it is not to argue his client’s case, it is to present objective expert opinion based on certain stated facts. There is no doubt at all in my mind, having heard both men give evidence again, that they are as it were “wedded” to their particular client’s case to an extent which is still as unhelpful to me as it was on the earlier occasion. Having said that, both men are to be complimented for their efforts in reaching considerable mutuality, particularly in relation to the most contentious issue on the last occasion, namely, noise.
I will now deal with each of the revised conditions seriatum:
ASSESSMENT MANAGEMENT CONDITIONS
Condition One
1. The Applicant must update the Environmental Management Plan, lodged with the application and include matters:
(a) Air quality control and monitoring;
(b) Noise quality control and monitoring;
(c) Effluent collection, treatment and disposal;
(d) Contaminated stormwater collection treatment and disposal;
(e) Solid waste control and monitoring; and
(f) For these activites:
(i) Routine operating procedures to prevent or minimise environmental harm; and
(ii) Maintenance practices and procedures; and
(iii) Contingency plans and emergency procedures to deal with foreseeable risks and hazards;
(iv) Staff training and awareness of environmental issues; and
(v) Measures to achieve compliance with all applicable standard set in these conditions.
The only concern raised by Mr McNeilage is that air quality control and monitoring had not been previously raised in any draft conditions. He acknowledged in cross-examination the utility of such a condition relating to odour given the nature of the use, and indeed the condition is not disputed now by the appellant.
Condition Two
2. Submit the amended Environmental Management Plan (EMP) for the site for endorsement by the Development Manager within 20 working days of the issue of this development permit. The Plan shall be supported by all necessary documents, plans and supporting calculations. Documentation shall be sufficient to demonstrate that the plan can be implemented and managed on the site within the physical constraints of the site. Note that compliance with this condition is separate from any requirement to provide to provide supporting plans. details and calculations for future applications for works on the site. The Operational Stormwater Management and Maintenance plan (as specified below) must be agreed and endorsed by Council prior to any separate application for works on the site.
In his latest report, Mr McNeilage makes some marginal criticisms as to ambiguity in the drafting of this condition. The amendments to this condition, which appear in the earlier draft conditions, are consequential only, and in my view the condition is reasonably required in this development. Mr Keim notes in his submission that condition 2 with its alterations is not disputed by the appellant.
Condition Three
3. Stormwater Drainage
(a) Prepare an Operational Stormwater Management and Maintenance Plan as a separable section of the Environmental Management Plan to provide an outline of the proposed long term Operational Management and Maintenance requirements of the stormwater management system for the site.
(b) Stormwater from the first 5mm of rainfall within the run area must be collected and transferred to the effluent treatment system and overflows in excess of the design diversion flow rate and volume are to be directed as sheet flow across a grassed area in accordance with the approved Environmental Management Plan before it enters or joins up with any concentrated surface flow from any external or upstream catchment.
(c) Divert the first 30L of runoff from every m2 of any sealed roads or car parking areas across a suitably grassed buffer of at least 4 metres width or into a grassed swale designed in accordance with the conditions contained within the Preliminary Operational Works section below.
(d) As a guide the maintenance report should cover all aspects of on-site facilities associated with the management of stormwater quantity and quality, including the location and maintenance of any:
· Rainwater tanks
· on-site detention tanks
· screens, bunds and diversion structures
· Grassed swales and infiltration areas or bio-filtration devices
· GPT’s, Oil and Grit or grease Separators
· outlet structures discharging into watercourses
· vegetated buffer areas or conservation areas
· Effluent disposal areas
(e) The Operational Stormwater Management and Maintenance Plan must include:
· A plan showing the location of the individual components of the system
· Manufacturer’s data and product information sheets for any proprietary products
· Location of inspection and monitoring points shown clearly on the plan
· A summary of the design water quality target acceptance criteria
· A schedule or timetable for the proposed regular inspection and monitoring of the devices. (Council recommends visual inspection at least 3 times per year between October and May the following year, with a maximum of 3 months between successive inspections. Inspections should be made not less than 24 hours and not more than 72 hours after the cessation of rainfall if the total rainfall on any day exceeds 30mm.)
· Proposed action if inspection reveals the failure or inadequacy of any one or more of the components of the system
· records to be logged and kept for verification of compliance with this condition on a needs basis
· name and contact details of relevant Council officer and the name and contact details of relevant person responsible for the monitoring and keeping of records
There is some dispute about these conditions. Mr McNeilage essentially says that the conditions are too prescriptive, and he favours conditions that place the responsibility for operation and maintenance of stormwater and drainage systems on the operator. The experts conditions deal with these issues in conditions 1-4 (pg 3 of 6 of Attachment A to Mr McNeilage’s report dated 14 June 2003). Mr Chessels in his statement (Exhibit 7) acknowledges that the expert conditions were agreed, but he also points out (reasonably in my view) that many of these conditions clearly contemplated the inclusion of more detailed provisions by the assessment manager and concurrence agency. This is obvious from a fair reading of the various conditions in the experts conditions, which, to use Mr Chessel’s words in paragraph five of Exhibit 7, “were premised upon and provide for, the preparation and/or amendment in due course of various management plans to govern the construction and operation of the proposed development.” I think both the appellant and Mr McNeilage have tended unreasonably to equate the experts’ conditions with agreement by the respondent which was clearly not contemplated by the directions order made by me on 13 February 2003.
Mr Keim in his written submission does not now oppose conditions 3 (a) and (b). At the hearing, the words, “or such larger volume of the first rainfall within the run area as is required to ensure that the quality of stormwater from the run area complies with the criteria in Condition F33,” were imported into condition 3 (b) per concurrence agency condition E2 after “run area” in the first line. Condition 3 (c) is a new condition. In the original conditions these measures were referred to but related to run off from the run area of the kennels. This condition was not discussed by the experts in their various conclaves. Mr McNeilage says it is excessive, and although Mr Chessels did maintain some support for it he accepted as a general proposition that conditions should not be too prescriptive. I accept Mr McNeilage’s evidence that the condition is excessive and unnecessary, and would constitute an unreasonable imposition on the use. I also agree with Mr McNeilage that Conditions 3 (d) and (e) are far too prescriptive; however I think a condition which sets out in general terms the scope and requirements of the stormwater plan is necessary. There is also some confusion in the apparent interchange of “report” in 3 (d) and “plan” in 3 (e). In the original conditions the word “report” was used. The parties should formulate a condition in light of these reasons.
Conditions Four and Five
4. Implement the EMP including the approved Operational Stormwater Management and Maintenance Plan for the site prior to the commencement of the approved use and while ever the site continues to be used for the approved use.
5. Maintain and monitor all components of the stormwater management facilities in accordance with an agreed monitoring strategy incorporated in the approved Operational Stormwater Management and Maintenance Plan or EMP to ensure that potential water quality impacts of runoff from the site are mitigated in compliance with Councils codes and policies and in particular the EPP Water 1997. Keep such records as necessary and submit such records to Councils nominated representative (The Chief Executive Officer where not advised otherwise), as required, to demonstrate compliance with this condition. Comply with this condition while the site continues to be used for the approved purpose in accordance with the approval.
In his evidence, Mr McNeilage said that insofar as he does not criticise various conditions in the revised conditions on pages 3 – 7 of Exhibit 3; he does not have any specific technical objection to these. He qualifies this by maintaining his position that the experts’ conditions as modified by agreement by reference to his November 2001 report (which was exhibit 2A in the original proceedings) are adequate. Mr Chessels in paragraph 8 of Exhibit 7 positively states that in his opinion, insofar as matters are within his area of expertise (acoustic, air, water and soil quality) he does not consider these additional conditions to be either irrelevant or unreasonable. Conditions 4 & 5 are included in these conditions, and on the basis of the evidence I am satisfied that they are reasonable and do not constitute an unreasonable imposition of the development. To shorten these reasons, where I do not refer specifically to a condition it should be taken as having been agreed between the parties, or at least not contested.
Condition Six
Release of Contaminants
6. (a) Contaminants that will or may cause environmental harm must not be directly or indirectly released from the use to any waters or the bed and banks of any waters except:
i) within the limits permitted under this condition: or
ii) to a sewer as permitted by this condition or as otherwise agreed from time to time by Maroochy Shire Council.
(b) Where contaminants are to be released from the use to a sewer as permitted or otherwise agreed from time to time by Maroochy Shire Council the contaminants are to be pre-treated by passing them through a 1000 litre grit tank prior to storage in any holding tank on site.
(c) The contaminant/s released from the site must comply with each of the release limits specified below for each quality characteristic.
QUALITY CHARACTERISTICS RELEASE LIMIT LIMIT TYPE Suspended Solids 50mg/l Maximum Total Nitrogen 0.9mg/l Annual Mean concentration Total Phosphorus 0.1mg/l Annual Mean concentration Other parameters (such as pH, faecal coliforms and Biological Oxygen Demand) In accordance with the National Water Quality Management Strategy As specified in National Water Quality Management Strategy
National Water Quality Management Strategy – Australian and New Zealand Guidelines for Fresh and Marine Water Quality produced by Australian and New Zealand Environment and Conservation Council and Agriculture and Resource Management Council of Australia and New Zealand October 2000
The appellant submits that condition 6 (a) is poorly drafted because the point of release (the use) does not mesh with 6 (c) (the site). I think this is a very pedantic criticism. 6 (a) operates to permit contaminates to be released from the site provided that the release will not breach the limits set out in 6 (c). Mr McNeilage was also critical that the condition was not site specific. As a response the Council proposed additional words at the end of 6 (c):
“or such maximum releases to ensure no worsening of background levels of the quality characteristics identified in the Table above using a “T” test with 95% confidence interval based upon at least 10 samples.”
I am not satisfied that this relevant condition constitutes an unreasonable imposition on the use, with these words included.
Conditions 7 – 11 (in Exhibit 4)
In evidence, Mr McNeilage did not repeat his criticisms of condition 7 which he made in Exhibit 3. In any event, I do not agree that this condition can be read so as to enable the respondent “to impose further conditions” in the future. Mr Chessels is of the opinion that the condition is relevant and reasonable and I am satisfied it would not constitute an unreasonable imposition on the use. Conditions 8 – 11 are in the same category as conditions 4 and 5 referred to above.
Condition 12
Noise
12. (a) The applicant must ensure that the noise emitted from the use does not exceed the levels specified below at any part of any existing or future noise-affected premises that is located more than 36 metres from the facility.
Measurement of Noise Period Noise Level LAmax 15 minute interval 7am – 6pm (Daytime) 65dB(A) LAmax 15 minute interval 6pm - 7pm (Evening) 62dB(A) LAmax 15 minute interval 7pm - 7am
(Night time)
55dB(A) L10. 15 minute interval 7am – 6pm (Daytime) 48dB(A) L10. 15 minute interval 6pm - 10pm (Evening) 46dB(A) L10. 15 minute interval 10pm – 7am (Night time) 41dB(A) Leg. 24 hours (Ambient Level) 45dB(A)
(b) For the purpose of measuring compliance, an acoustic report shall justify the measurement location(s) used to determine compliance with the levels stated above. The Provisions of the most recent version of Australian Standard 1055 shall be used in the determination of the noise levels.
Mr McNeilage deals with this condition on page 4 of his report. Commendably, he and Mr Chessels largely resolved this issue at their various conclaves. The issue of noise was by far the most contentious at the initial hearing. The experts agree on the criteria set out in the Table as being appropriate for the measurement of noise emission. They diverge in relation to the measuring point for acoustic measurements. This issue is highlighted in the experts conditions in the proposed concurrence agency conditions C-1 at page 5 of 11
At the time of the original hearing the nearest residence was the Younie residence to the south of the site. It was accepted that the nearest point to the kennels from that residence was 127 metres. Since then, the respondent has approved the construction of a new building on the Younie property which is presently under construction. On 3 February 2003, the respondent notified the appellants of the building approval, which involves an extension to the existing residence of a family room, a verandah, and a separate detached dwelling comprising a bedroom, a living area and a deck; which will be approximately 100 metres from the development (Exhibit 2). Mr McNeilage argues that the measurement of noise emissions from the kennels based on the agreed criteria set out in the table above, should be taken from the original 127 metres point. Mr Chessels argues for a measurement point 1 metre from the most exposed façade of any habitable room used for sleeping or recreation; in this case the exposed façade of the proposed new detached dwelling.
I dealt with the hypothetical construction of residences on the northern and eastern properties in my judgment at paragraph 28. I adopt what I said there. At that stage, no one anticipated that the Younie’s would seek to extend their residence to a point closer to the proposed kennels, or to construct another dwelling even closer.
Mr McNeilage certainly regarded the hypothetical construction of a residence on the northern property as a relevant consideration in his earlier Court report (Exhibit 2A in the first hearing). He says,
“It is possible that a residence could be built on the property to the north at some future time. Buffer requirements under State Planning Policy 1/92 “Development and Conservation of Agricultural Land” dictate that this potential new dwelling would ideally have to be built at the road end of the property due to the proximity of agricultural land at the rear. Maroochy Shire Council have suggested that the separation guidelines could be interpreted to allow only an 40 m vegetated buffer from the eastern boundary of the adjacent lot. This would place such a residence in the low-lying overland drainage path that leads to the dam on the proponent’s site. The selection of this location to construct a residence on the adjacent land is unlikely and approval to construct in an overland flow path is unlikely. It is probable that any future dwelling would be constructed closer to the western boundary.
The Maroochy Shire “Codes for Residential Development and Use” notes in Element: Siting and Density of Homes in Rural Areas notes ‘Residential buildings set back at least 20 m from all site boundaries other than road frontage’. This means that the kennels and any future dwelling will be at least 36 m apart.
The separation distances, and hence the predicted noise levels from kennel dogs, are likely to be very similar to those at the existing property to the south. The noise levels expected at such a location have been provided however to address the request for this information by Maroochy Shire Council.”
Mr Keim objected to the evidence of the extension, which I initially overruled. In his written submission, he advances a detailed argument that the approval by the Council of the detached dwelling is unlawful. He argues that the issue is justiciable by reference to authority relating to collateral review; that is “judicial review by an indirect or collateral attack on a decision using the grounds for judicial review at common law”: Enright: Federal Administrative Law, Federation Press, 2001 pp 686-687. In his written submission he refers to Attorney General v Breckler (1999) 197 CLR 83 at 108 where Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ described collateral review thus:
“If the determination of a complaint by the Tribunal be characterised as an activity of an administrative nature, then in the absence of legislative prescription to the contrary, the determination would be open to collateral review by a Court in the course of dealing with an issue properly arising as an element of justiciable controversy of which the Court was seised.”
Mr Keim’s submission is that a collateral review of the approval of Council in Exhibit 2 would only arise in this appeal if the Court comes to the view that in applying the criteria contained in the Intensive Animals Code (see Performance Criteria P2, and Acceptable measure A1.1) that sound parameters should apply as at the “closest lawfully approved sensitive use”, which in this case, involves the new detached dwelling on the Younie property.
The proposition that this Court could determine the validity or otherwise of a building approval on adjoining land in circumstances to which the beneficiary of the approval is not a party, is a challenging one. In my view, the issue is not such as to invoke the concept of collateral review of Council’s decision to approve the new dwelling, as it does not come within the scope of such a power as indicated in Breckler.
This Court’s task is to decide by reference to section 3.5.30 (1) whether the appellant has satisfied me that conditions (such as Condition 12) constitute an unreasonable imposition on the development. It is not part of the appellant’s case that Condition 12 is not relevant to the development. The reality is that the existing Younie dwelling was well within the 200 metre set back contemplated in A1.1; and the Court determined earlier that (contrary to the appellant’s submission) the hypothetical construction of dwellings on the properties to the north and east of the site was a relevant consideration. The Court remains of that view, and rejects the construction argument advanced by Mr Keim at page 29 of his submission. The difference in terminology in the performance criteria under Site Suitability and Site Layout and Management is clearly explicable by the very fact that they relate to different elements. Mr McNeilage was confident in the original hearing and in his report that there would be no adverse noise impacts on any dwelling located on adjoining land at a position no closer than 36 metres from the kennels. Mr Chessels supports the condition in the terms set out above, although his proposal in the experts’ conditions was in different terms. Both experts agree that the levels set out in 12 (a) should be applied to a particular point, and given the confidence Mr McNeilage has as to the lack of adverse noise impacts even to a hypothetical dwelling 36 metres from the kennels, I am not satisfied that this condition constitutes an unreasonable imposition on the use.
Condition 14
14. Swales and bio-filters incorporated in the Environmental Management Plan shall comply with the following design and operational management criteria:
· Minimum invert level to be 900mm above the average (2 year ARI) groundwater level for the site. In the absence of any long term monitoring or any other data, the average ground water table shall be taken as being a minimum of 500mm below the existing ground surface in accordance with soil test data provided with the McNeilage court report.
· Bund the swale completely such that it is protected from the ten year ARI overland flow event from the external catchment
· long term infiltration rate from the bed of the swale/bio-filter shall be not less than 300mm per day
· Where the above criteria related to permeability and separation from the groundwater cannot be achieved, provide a sand filer underdrain from the swale draining to a geofabric wrapped agricultural seepage line. The minimum separation of the seepage line shall be not less than 600mm measured along the flow path from any free surface (i.e. surface exposed to the atmosphere) to the nearest inside wall of the seepage line. Ensure that any seepage water is directed and spread along the contour downstream of the swale embankment such that the outflow is buffered before it discharges to the nearest watercourse or dam.
· Design and construct the swale such that it completely contains the volume of the three-month ARI design runoff event with a maximum ponding depth of 400mm and a minimum freeboard of 300mm.
· Design and construct the swale such that it will only just overtop at the completion of runoff from the design 2 year ARI run off event.
There seems to be an error in drafting in the revised conditions as all parties proceeded on the assumption that this condition related to swales and bio-filters incorporated in the Stormwater Management and Maintenance Plan not the EMP as stated. As far as I can tell, absent this change, the revised condition does not introduce “a number of new proposed conditions” as Mr McNeilage suggests at page 4 of Exhibit 3. However, Mr Chessels agrees with Mr McNeilage that this condition is too prescriptive, and I am satisfied that in its present form would constitute an unreasonable imposition on the development. The condition can be reframed in more general terms, in terms of Condition 11 of the experts’ conditions.
Condition 15-17.
These conditions fall into the same category as 4 and 5 above, and are reasonable in my opinion.
Condition 19
Landscaping Requirements
(a) The applicant shall undertake landscaping of the site in accordance with Council’s Planning Scheme and Local Planning Policy – Landscaping. The eastern boundary of the site shall be mounded and screened by landscaping to minimise any effect of agricultural pursuits from the adjoining property.
(b) The applicant shall obtain a Development Permit for Operational Works for the required landscaping. The development application for Operational Works shall include three (3) copies of a landscaping plan (together with 1 reduced copy at A3 size). The copies of a landscaping plan shall be prepared by a qualified person at a scale of 1:100 (details at 1:10 or 1:20), and contain the following information:
i) Location and name of existing trees. The existing trees to be retained/preserved are to be depicted on plan, as well as those proposed for removal. The location of these trees should be overlayed or easily compared with the proposed development design.
ii) Contextual information of the site (ie adjoining land use, streets). A photographic survey of the site is to be submitted to assist in a thorough assessment. The photographs are to detail the following areas:
· The site as viewed from the road. The adjoining land uses should be included
· Any trees or significant stands of vegetation
· Any existing structures
iii) Planting plan showing the position and canopy spread of all trees, shrubs and ground covers. Particular attention needs to be given to disturbed land especially any earthen mound created as part of the development.
iv) A plant schedule with the following information: botanic names, common names, total plant numbers, and pot sizes at the time of planting. (All feature trees should have a minimum pot size of 45 litres with at least 10% of the remaining plants being suitably mature specimens.)
v) Location of services such as drainage, water, sewerage and overhead power.
vi) Important spot levels and/or contours
vii) Extent and type of all landscape works
viii) The name, contact details and qualifications of the landscape designer who drafted the plan.
(c) The landscaped areas shall be subject to an ongoing maintenance and replanting (if necessary) program.
Neither expert professes to have expertise in landscaping. Both agree that (b) (ii) is too prescriptive, particularly having regard to the position of the development towards the rear of the site. Otherwise, there is no dispute about this condition.
Condition 20
Preliminary Approval: Building Works
Provide all necessary roof water storage and effluent collection storage tanks necessary for the implementation of the environmental management plan, as amended. Submit details of any plumbing and pump work necessary to implement the environmental management plan and clearly demonstrate where the effluent and contaminated stormwater will be treated and/or disposed of and how the system will be operated and maintained in accordance with the development conditions.
Mr McNeilage criticised this condition on the basis that it lacked clarity. On behalf of the respondent, Mr Skoien indicated to me that the respondent had no difficulty in accepting the experts’ condition 17, which deals with this topic. Certainly the experts draft is more general and is probably clearer, and would not be unreasonable.
Advisory Note
As Mr Skoien submits this is not a condition; merely an advisory note as it says. In my opinion, it is not necessary for a detailed flood study to be undertaken prior to the operational works application, however it is necessary for an opinion to be obtained from a suitably qualified and experienced flood engineer for submission to the respondent at the operational works stage. The issue of a flood study was squarely raised in Condition 1 of the original conditions. Both experts acknowledge a lack of up to date expertise in this area; and indeed a flood engineer, Mr Giles, was involved in the conclave to advise on this very issue. In my opinion, a detailed flood study condition would be an unreasonable imposition on the use. The advisory note is not a condition; however it seems reasonable to me, (as suggested by Mr McNeilage), that an opinion should be obtained as to the desirability and utility of a flood study at the operational works stage. Mr Giles or Dr Trevor Johnson, who frequently gives evidence on this topic in this Court, would be appropriate experts.
CONCURRENCE AGENCY CONDITIONS
Schedule A – General Conditions
Conditions A1 – A26
These conditions appear uncontroversial, and Mr McNeilage makes no specific criticism of them. In my opinion, all are reasonable and do not constitute an unreasonable imposition on the development
Condition A27
The respondent abandoned this condition at the start of the hearing, obviously on the basis that it was far too onerous given the scale of the development here.
Condition A28
This condition is related to Condition 1 in the AMC and for the same reasons I find that this condition is reasonable.
Schedule B – Air
There are no criticisms of these conditions by Mr McNeilage and I accept the evidence of Mr Chessels that all are reasonable and necessary.
Schedule C – Noise
Condition C1
This condition is in very similar terms to condition 12 in the AMC, and the same
conclusions apply.
There are no objections to Conditions C2 – C4.
Schedule D – Water
The only disagreement relates to condition D3:
Pumping devices whose failure would or would be likely to result in a direct or indirect release of contaminants to waters must be fitted with stand-by pumps and pump-failure alarms. Pump failure alarms must be able to operate without mains power if such power failure occurs and alert the operator of the pump failure.
The respondent does not pursue the requirement that standby pumps be fitted, but maintains its requirement that pump alarms be fitted. Mr McNeilage is of the opinion that an alarm system of the sophistication required by condition D3 is the type of system one would ordinarily expect in a Municipal Sewerage Plant. As he explained, the amount of contaminated water involved in the kennels is such that even without the pump operating, the water would flow into the proposed sump area and sit there, giving adequate time for the manager to correct the problem. I think this condition is too prescriptive. I agree with Mr McNeilage that the provision of a stand-by petrol pump which could be fitted quickly is all that is necessary in this development. Condition D3 should be amended accordingly.
Schedule E – Stormwater Management
The only condition challenged by the appellant is Condition E2, which raises the same issues as are raised in relation to Condition 3 (b) of the AMC. Condition E2 should be amended in accordance with my conclusions set out above.
Schedule F – Land
At the commencement of Mr McNeilage’s evidence, Mr Skoien informed the Court that the respondent would be satisfied with condition F3 absent the words, “via covered surface drip irrigation”. With those words removed, Mr McNeilage had no difficulty with this condition.
Condition F5
The design of the effluent disposal system shall only be undertaken by any person who has completed the necessary training to receive accreditation in accordance with AS/NZS1547:2000. The person must also be registered with Maroochy Shire Council’s Plumbing Team for this purpose.
In his latest report, Mr McNeilage criticised this condition as excessive and unreasonable and “not…required in any other kennel in South-East Queensland”. He told me he was not familiar with the Standard referred to in the condition. When the respondent’s justification for the condition set out at page 17 of 43 in the annexure to Mr Duffy’s witness statement was pointed out to him, Mr McNeilage withdrew his concerns. In my view, it is a reasonable condition.
Conditions F8 – F10
These conditions deal with the same issues raised in CAC D3 and I reach the same conclusions.
Conditions F11 and F12
Mr McNeilage is of the opinion that the installation of meters is unnecessary. He believes that operator observation should be adequate to deal with any ponding in the treatment system area. His opinion is that there will be no ponding because of the way in which the system has been designed. Given the importance of the treatment systems area to ensuring no adverse environmental impacts, conditions in these terms seem to me to be reasonable. Certainly, there is no evidence that the meters are unduly expensive. A contemporaneous record of flows will ensure that the objectives recommended and supported by Mr McNeilage are met.
Condition F13
Effluent released to the effluent disposal areas must comply with the release limits specified for the quality characteristics stated in Schedule F – Table 1.
Schedule F – Table 1 (Release Quality Characteristic Limits)
(Release limits are site specific)
QUALITY
CHARACTERISTICS
RELEASE
LIMIT
LIMIT TYPE 5-day Biochemical Oxygen Demand 10 mg/L maximum Dissolved Oxygen 2.0 mg/L minimum Suspended Solids 10 mg/L maximum PH 6.5 to 8.5 range Total Phosphorus 5 mg/L maximum Total Nitrogen 15 mg/L maximum Free Residual Chlorine (if disinfection by chlorination is undertaken 0.3 – 0.7 mg/L range Faecal Coliforms 10 organisms/100mL the median value of 5 consecutive samples taken at regular intervals of not less frequently than weekly must not exceed the release limit Faecal Coliforms 40 colonies per 100 millilitres maximum – based on a minimum of five samples collected at not less than weekly intervals, with four out of five samples containing less than the maximum specified.
I agree with Mr Skoien that this condition does not impose any testing obligation on the operator. Mr McNeilage has always said that, in his opinion, the systems in place are such that the wash down water flowing into the effluent disposal area would not exceed secondary effluent. In fact, he told Mr Skoien he is “sure” it will come up to those standards. He acknowledged that Schedule F – Table 1 is appropriate to secondary effluent standards. As Mr Skoien observed in his cross-examination of Mr McNeilage on this condition, the Table merely sets a standard by which the effluent can be tested, for example, by a Council compliance officer coming onto the site to ensure that the standards are being met. In my opinion, this condition is reasonable, and does not impose an unreasonable imposition of the development. Ultimately, after a great deal of side-stepping and weaving, Mr McNeilage finally seemed to accept this provided it places no obligation on his client to test which clearly it does not. Mr Skoien, on behalf of Council, makes a fair concession to amend this condition to include the levels of contaminants identified for “secondary effluent simplider” in the middle of Table 12 of Exhibit 2A.
Condition F14
The total quantity of effluent released daily to the effluent disposal area must not exceed 900 litres.
In cross-examination, Mr McNeilage ultimately was critical of the daily parameter set in this condition; although he was quite certain that the amount of effluent would not exceed 900 litres daily, except on exceptional occasions, when the exceedance would be minimal. He was comfortable with a 5 day parameter of 4500 litres and condition F14 should be amended accordingly.
Condition F15 is no longer sought by the respondent.
Condition F16
A bund must be located around the effluent disposal area to mitigate any potential surface runoff entering the effluent disposal area or runoff exiting the effluent disposal area.
The concept of a bund around the effluent disposal area is a new concept introduced in the revised conditions for the first time. On the basis of Mr Duffy’s statement it does not appear that this was recommended by any expert within Council. Apart from the general “catch-all” in paragraph eight of his statement, Mr Chessels does not seek to justify this condition. It would hardly be said to be simply a matter of greater detail than the experts conditions as it is an entirely new concept. I accept Mr McNeilage’s evidence that a bund around the effluent disposal area could actually cause problems in the event of very intense rainfall events by filling up and rendering the whole area ineffective. As he notes, in such events there is a diluting effect from the rain. He recommends that it would be better to leave the area as it is designed to enable water to drain away in such events. This condition is unreasonable in my view.
Condition F17
Suitable substrate material must be utilised within the effluent disposal area to ensure there is a demonstrated design infiltration capacity of no less than (Q3month + Effluent) mm/day. (The 3-month ARI event (Q3month) is equal to half the 1 year ARI event)
This is a new condition. Mr McNeilage thinks it would be difficult to design a system to achieve this standard. It is apparently a suggestion from the respondent’s hydraulics and hydrology engineer, but there is no expert evidence in support of this condition. As I understand Mr McNeilage’s evidence, his difficulty is with the strictness of the standard. Mr Skoien does not seek to support this condition in his written submission, and I am satisfied that it is too prescriptive and therefore unreasonable.
Condition F18 is no longer pressed by the respondent.
Condition F19
Effluent must not be released to the effluent disposal area during and immediately after rainfall.
Mr Duffy says that the EPA provided this condition. Apart from in the general way in Clause 8 of his witness statement, Mr Chessels does not specifically recommend this condition. Mr McNeilage says that the system as designed can be operated in wet weather. I accept his evidence. This condition is not reasonable.
Condition F20
When wet weather or soil conditions prevent the release of contaminants to land, excess effluent must be tinkered away and disposed of to a facility that can lawfully accept such waste, released to a sewer in accordance with an agreement with the local government, or stored in a wet weather storage facility.
Similarly, this condition was apparently recommended lately by the EPA. On the basis of Mr McNeilage’s evidence, and particularly having regard to the scale of this development, this condition is not reasonable and would constitute an unreasonable imposition on the use.
Conditions F21 – F28 are not contentious on the evidence of the experts, and are new conditions apparently recommended recently by the EPA.
Conditions F29 – F31
For the same reasons as are expressed under F19 and F20, and based on the evidence of Mr McNeilage, I do not think these conditions are reasonable.
Condition F32 is uncontentious, and is reasonable in my view.
Conditions F33 and F34
F33 The contaminant/s released to the grass swale utilised for the disposal of the stormwater form the run areas must comply, at the sampling point specified in Schedule H, with each of the release limits specified in schedule F Table 2 for each quality characteristic.
QUALITY CHARACTERISTICS RELEASE LIMIT LIMIT TYPE 5-day Biochemical Oxygen Demand (mg/l) 10 Maximum Suspended Solids (mg/l) 10 Maximum Total Nitrogen (mg/l) 10 Maximum Total Phosphorus (mg/l) 5 Maximum Thermotolerant Coliform (org/100ml) 10 Maximum
F34 Any release form the grass swale utilised for the disposal of the stormwater from the run areas must comply, at the sampling point specified in Schedule H, with the quality characteristics identified through:
(a) background monitoring of the dams that are to receive the discharge; or
(b) where background data is not obtained from the dams, the Australian Water Quality Guidelines for Fresh and Marine Waters, ANZECC 1992.
Mr McNeilage says that he and Mr Chessels agreed that stormwater from the open run areas will be “relatively pure”. Mr Chessels says that he would not use such terminology as it is unscientific. Having heard Mr Chessels give evidence on a number of occasions, I am inclined to accept that he is very careful to express opinions on the basis of supporting scientific evidence; and is (at least in relation to this environmentally sensitive development) averse to reliance on generalisations and “motherhood” statements of intent. He has been consistent throughout in this regard. The specific standard set out in the Table is recommended by Mr Chessels because of the reoccurring issue of absence of information about quality of stormwater runoff as a consequence of the system as designed. In cross-examination, Mr McNeilage focused on what he sees as an obligation in this condition that his client conduct testing. He says that the system he has designed will easily achieve the release quality characteristics limits set out in the table. I agree with Mr Skoien that the condition does not impose any testing obligation on the developer. However, if council officers or EPA officers did wish to test to ensure that the system was producing the results that Mr McNeilage is sure it will produce, then obviously a standard should be incorporated somewhere either as a condition of the permit or in the EMP. In my view, this condition is reasonable, and because it imposes no obligation on the developer to conduct expensive testing, it does not constitute an unreasonable imposition on the development.
Conditions H.8 – H.13
The appellant’s contention is that these conditions impose a very onerous and unnecessary regime for testing. I have already referred to the impact of the relevant environmental legislation; and it is important that appropriate monitoring of discharges be provided. The condition is site specific. Importantly, condition H9 provides for flexibility, and the monitoring frequency of once every two years in H11 could hardly be said to be an unreasonable imposition given the environmentally sensitive nature of the use.
Conditions H.14 – H.25 and H.26 –H.32
These conditions relate to groundwater and were introduced for the first time as part of the revised conditions. It is unfortunate that given that Mr Duffey describes condition H14 as “essential”, it was not raised earlier. Both experts have expertise in this area, although Mr McNeilage’s is probably more extensive. Some of these conditions come from the EPA. Mr McNeilage regards these conditions (as a whole) as excessive; and refers to the fact that this is a rural area subject to animal manure loadings and fertilizer application. The evidence is that the groundwater appears to be sitting above the clay layer some 50 cm to 1 metre below the surface. Mr Chessels does not specifically criticise the appellant’s evidence on this point, but says he lacks sufficient detail. In my view, some form of monitoring of groundwater is necessary, but the conditions as presently framed are over-prescriptive and unreasonable. I am reluctant to invite the parties to agree on a more general condition given the history of the matter, but I do so in the light of these observations. I stress that I am satisfied that a condition is necessary relating to the monitoring of groundwater, but that it should not be overly prescriptive.
Condition H.34
The experts agree that this is a reasonable condition, but that it should be amended to ensure that sampling is taken by a suitably qualified person and testing is performed by a suitably accredited laboratory.
Condition I.15
Council accepts that the definition of noise sensitive place in this condition should be amended to read:
“I.15 “Noise sensitive place” means:
(a) a dwelling, mobile home or caravan park, residential marina or other residential premises; or
(b) a motel, hotel or hostel; or
(c) a kindergarten, school, university or other educational institution; or
(d) a medical centre or hospital; or
(e) a protected area; or
(f) a public park or gardens.”
Conclusion:
It is uncontentious that the conditions required by the Environment Protection Agency relating to unexploded ordinance (see annexure “A” to the statement of Mr Walters) are reasonable and relevant.
The appeal is allowed accordingly. I will adjourn the further hearing of the matter for 21 days to enable the parties to draft appropriate conditions in terms of these reasons.
Finally, I should refer to a frequent refrain from Mr McNeilage that many of these conditions should be (a) in general terms, and (b) left to the EMP. I agree with Mr Skoien that given the history of the matter with accusation and counter accusation and disputes over what was said and agreed, the utility of such an approach is unattractive. However, conditions imposed by the Court can only be varied by the Court, whereas conditions in an EMP can be varied more simply and inexpensively by agreement. The Council’s position appears to be that provided the EMP contains conditions of the specificity and detail set out in these reasons; such a course may indeed be appropriate. Mr Chessels said as much in answer to some questions from Mr Skoien on page 93 of the transcript. Given the matters set out above, the Court would see merit in an agreement between the parties generally to the effect that appropriate conditions now approved by the Court could instead be transferred into the EMP.
The only remaining issue is the appellant’s application for costs, which was adjourned on 26 May 2003 for determination. For the reasons expressed above, I think the application misconstrued the effect of the order made on 13 February 2003, and repeats the appellant’s erroneous approach to the experts’ conditions. I can appreciate the frustrations of the appellant and Mr Manning, But I think the appellant has contributed to the difficulties referred to by Mr Manning in his submissions on 26 May 2003, as a consequence of the attitude of Mr McNeilage to which I have already referred. There is no basis for an order for costs under section 4.1.23 of the IPA and the application is refused.
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