Sansom v Beaudesert Shire Council
[2002] QPEC 76
•18 December 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Sansom & Anor v Beaudesert Shire Council [2002] QPEC 076
PARTIES:
GW and J K SANSOM Appellants
And
BEAUDESERT SHIRE COUNCILRespondentFILE NO/S:
Appeal No 2247 of 2001
DIVISION:
Planning and Environment
PROCEEDING:
Appellate
ORIGINATING COURT:
DELIVERED ON:
18 December 2002
DELIVERED AT:
Brisbane
HEARING DATE:
16-17 October 2002
JUDGE:
Senior Judge Skoien
ORDER:
Certain conditions to be amended.
CATCHWORDS:
Conditions attached to approved development application for environmentally relevant activity - poultry farm.
COUNSEL:
Mr J Haydon for the appellants
Mr T Trotter for the respondent
SOLICITORS:
Messrs Carter Capner for the appellants
Messrs Corrs Chambers Westgarth for the respondent
This is an appeal against the decision of the Beaudesert Shire Council (“the Council”) to approve a development application for a Material Change of Use (Environmentally Relevant Activity - Poultry Farm) subject to conditions on land at Hawkins Road, Stockleigh. The appeal relates to some of the conditions.
The Land
The appellants are and have at all material times been the registered proprietors of 11.33 hectares of land at 82 - 106 Hawkins Road, Stockleigh. The land is and has at all relevant times been zoned Rural by the respondent’s planning scheme. It is situated about 6 kilometres north-east of Jimboomba, is lightly timbered and relatively flat.
Since January 1981, the appellants have conducted a poultry farm on the land. In 1987 they purchased an adjoining allotment (Lot 9 on RP 111746) and, in September 1998, purchased another adjoining allotment (Lot 3 on RP 170776). Neither of those lots has been used for poultry farming purposes except to the extent that they act as buffers between the land and the surrounding properties. Lot 9 is zoned Rural and Lot 3 is zoned Rural Residential A.
Initially the appellants conducted their poultry farm in two sheds. In 1987 they built a third shed and in 1998, a fourth. The chickens are grown for meat production and there is no suggestion that the appellants are not efficient farmers who use good farming practices. Two of the sheds are tunnel ventilated, the third is cross ventilated and the new shed is tunnel ventilated. The discharge of the tunnel ventilated sheds is towards the north. The evidence does not say what numbers of birds are raised in the four sheds but the application for the fourth shed specified approximately 30,000 birds. I assume therefore that up to about 120,000 could be within the sheds.
During the course of the hearing the appellants gave an undertaking to plant further vegetation to act as a buffer and to install an irrigation system to ensure that the vegetation is properly maintained. It is also noteworthy that the owner of the allotment immediately to the north of the land (Lot 3 on RP 203943) who is employed by the appellants, has consented to receive any water runoff from the northern section of the land. The rest of the natural run-off of water, the largest part of it, flows into a dam constructed on the land itself. There is no evidence that the capacity of that dam is inadequate and I therefore assume that it is adequate for all but the most extraordinary weather conditions.
Relevant Legislation
Poultry farming with a total holding capacity of between 1,000 and 200,000 birds was, at the date of the development application, and continues to be, a level 2 environmentally relevant activity (“ERA”) pursuant to Item 4 of Schedule 1 of the Environmental Protection Regulation 1998 (“EPR”) which commenced on 1 March 1998. This poultry farm falls into that category. Pursuant to s.39(1) of the Environmental Protection Act 1994 (“EPA”) the administration of an ERA has devolved on local governments.
It was accepted by both parties that, as at the date of the application to construct and use the fourth shed, the appellants were lawfully conducting the poultry farm with three sheds.
The Development Application
On 11 September 1998, the appellants lodged a development application with the Council for a material change of use of the ERA of poultry farming to permit the commencement of the use of the fourth shed for poultry farming purposes. The adjoining lots were not included in the development application. On 15 September 1998, the Council issued development approval for building work for the construction of the fourth shed.
At the date of the development application, poultry farming was an as of right use in the Rural zone of the respondent’s planning scheme.
On or about 26 March 1999, the Council issued a decision notice approving the development application subject to conditions. The appellants filed an appeal to this Court against some of the conditions. Following without prejudice negotiations, a Negotiated Decision Notice was issued to the appellants on 17 April 2001 (“the development approval”). The appellants then filed this appeal against certain conditions of the Negotiated Decision Notice.
Some time after the filing of this appeal, the appellants commenced the use of the fourth shed for the ERA of poultry farming without approval. This was lawful because s.3.5.19 of the Integrated Planning Act 1997 (“IPA”) provides that, for a development approval about which an appeal is made to the Court, the decision notice is taken to be the development approval and has effect when the appeal is finally decided.
DEVELOPMENT PERMIT
Assessable Development for a Material Change of Use
The combined effect of s.3.1.4(1) of IPA and s.63A of EPA has the effect that a material change of use of premises for an ERA is assessable development under IPA and thus requires a development permit.
At the date of the development application, schedule 9 of EPR provided that “material change of use” has the meaning given in s.1.3.5 of IPA. Accordingly, material change of use for the purposes of s.63A of EPR has the meaning contained in s.1.3.5 of IPA which provides that “material change of use” of premises means (materially):-
“(c) a material change in the intensity or scale of the use of the premises.”
At the date of the development application, s.70A of IPA provided that if:-
“(a) …..
(b) the construction, alteration or installation will result in an increase of 10% or more in the release of contaminant into the environment under the authority or approval;”
The increase is a material change of use of the premises for the purposes of IPA.
S.11 of EPA provides that a “contaminant” can be:-
“(a) A gas, liquid or solid; or
(b) An odour; or
(c) An organism (whether alive or dead) including a virus; or
(d) Energy, including noise, heat, radioactivity and electromagnetic radiation; or
(e) A combination of contaminants.”
The contaminants which are released to the environment from poultry farms include shed odours, particles of feathers, soil, litter and manure forming dusts, pathogens attached to dust and aerosols, nutrients, sediment and other mater contained in runoff, noise and heat emissions. According to the uncontradicted evidence of Mr Winders, an expert retained by the Council, the emissions of odour and dust would be increased by 20-30% because of the addition of the fourth shed to the poultry farm.
It is therefore clear and indeed was accepted that the application for a material change of use was necessary in this case.
Extent of Material Change of Use
Mr Haydon, for the appellants, initially raised the point that the application for a material change of use related only to the fourth shed, the appellants’ right to operate a three shed poultry farm being already established. That right, it was argued, would not be affected (because of s.20 of the Acts Interpretation Act 1954) by a subsequent alteration to the law requiring the application to be made in respect of the entire farm.
Ultimately, I did not understand the argument to be pursued and so I do not turn my attention to it, other than to say that the argument to the contrary of the appellants’ contention, as set out in the letter of the respondent’s solicitors to the appellants’ solicitor dated 12 July 2002, seems to me to set out the law correctly.
The approach I take, and the way the appeal was argued, is to evaluate the disputed conditions as they relate to the entire poultry farm operating from sheds. That is an entirely practical approach as it would, as was accepted by the appellants’ expert Mr Ormerod, be very difficult to isolate the physical effect of the fourth shed only.
Disputed Conditions
The disputed conditions are those which relate to disposal of carcasses, water run-off (including stormwater) and contaminants generally.
Disposal of Carcasses
The existing condition 15 requires the removal of carcasses at least “bi-daily”. That is a potentially confusing term. It is agreed that it is intended to mean “every second day” and I would substitute that phrase. Otherwise the condition, subject to any necessary renumbering, should stand.
Water Run-off
The conditions imposed by the Council in relation to this head were:-
“6. Water - Only stormwater from uncontaminated areas shall drain directly into the stormwater drainage system.
7. Water - The activity shall be conducted in a manner to prevent the contamination of surface stormwater runoff.
8. Water - Wastewater shall not be released to stormwater, groundwater or discharged directly to creeks, rivers, lakes or water bodies of the state.
9. Stormwater - Should the activity result in contamination of surface stormwater runoff or should wastewater be released or discharged to water bodies, the Council is to be notified immediately and an Environmental Management Program is to be prepared. Once the Environmental Management Program has been approved by the Council the licenced activity shall thereafter be carried out in strict compliance with the requirements of this plan.
10. Stormwater - Stormwater shall be diverted away from storage and contaminated work areas.”
It emerged during the appeal that what condition 6 is intended to refer to is the Council stormwater drainage system. So the word “Council” should be inserted before the phrase “stormwater drainage system”. In fact at present there is no such system but the condition should, as amended, stand against the likelihood that one will be created some time in the future.
As to condition 7, there is no evidence that the activity is not conducted according to best practices. However, Mr Winders warned of the possibility of contaminated water filling and, in flood time, overflowing the dam which receives most of the water (see para [5]). He said there should be grass swales to remove contaminants before they reach that dam.
The main contaminants Mr Winders was talking of were those contained in the dust which comes out of the sheds. The first difficulty I have with this is that there is no satisfactory evidence that the amount of this dust or its constituent parts would contaminate storm water run-off to any extent which would cause concern. The other problem is that Mr Winders conceded that he had seen at least one swale. Finally, I thought that Mr Winders’ evidence was largely predicated on his belief that there should be a stormwater management plan in place which would deal with these matters in detail. That is no doubt true, as a counsel of perfection, but the fact is the Council did not ever require one and so it lies outside this appeal.
I am encouraged by the uncontradicted evidence, in statement form, of Mr McGahan, an expert in this very field, that the present practice on this farm would be unlikely to have any daily run-off which would contain enough manure to cause contamination. Any contamination would be from the small amounts of dust in the air drawn through the cooling pads. Importantly, the appellants have undertaken to upgrade the cooling pad system to a modern cool-cell recirculation system which will not produce any run-off water (as to which see para [30] below). Condition 7 should stand.
Condition 8 was not challenged. Condition 9 deals with the situation of actual contaminant release. In that event the sort of study and plan which Mr Winders thought to be desirable will be undertaken and prepared. These two conditions should stand.
Condition 10 is reasonable and should be read with condition 12 which requires the bunding and covering of some obvious forms of potential contamination.
As I have said in para [25], most water run-off now goes to the dam on the land itself and some flows to the north. This, with the undertaking referred to in para [27] above, should be regularised by the addition of a new condition as follows:-
“Subject to the cooling pad system being upgraded for sheds 1 and 2 to a modern cool-cell recirculation system on or before 31 December 2002, the stormwater from the roof and around the sheds shall be dealt with in the following manner:-
(a) Discharged to the existing dam on Lot 10; and
(b) Upon the consent of the owner of Lot 3 on RP 203943, directed towards the dam on that Lot 3 along the existing contour bank and should the owner of that Lot 3 withdraw consent from that arrangement then that part of the stormwater shall be diverted forthwith to the existing dam on Lot 10; and
(c) Allowed to run across the grass area on the western side of shed 4 on parts of Lot 10 and Lot 3 on RP 170776 while that grass cover is maintained otherwise it will have to be diverted to the existing dam on Lot 10.”
So conditions 6 - 10, as amended, and the new condition set out in para [30] above will adequately deal with water run-off.
Contaminants Generally
The appellants complain about the contents of two general conditions contained in the Negotiated Decision Notice itself, namely:-
“3. The following conditions constitute the final revised conditions and form the basis for this Negotiated Decision Notice, namely:-
i. Environmental values shall not be adversely effected or impacted or deteriorated as a consequence of the activity and in particular because of any unauthorised emission of odour, dust and noise, beyond any boundary of the subject premises.
ii. The operator must take all reasonable and relevant action to utilise any and all available means both at the commencement of the use and in the course of the conduct of the use into the future to ensure the activity does not adversely effect or impact upon environmental values beyond any boundary of the subject premises.”
The appellants content that those conditions are too broad, effectively exposing them to breach proceedings for any adverse effect on environmental values, no matter how slight, as long as they are detectable beyond the boundaries of the land.
“Environmental Value” is defined in s.9 of EPA as follows:-
“(a) a quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety; or
(b) another quality of the environment identified and declared to be an environmental value under an environmental protection policy or regulation.”
It is evident that the conditions are draconian in their content and potential effect. On behalf of the Council it was said that the appellants have no reason to fear action resulting from some breach of the de minimus type. That may be so, but it does not answer the basic objection to the conditions.
It was also said that all those conditions do is to remind the appellants of their duties under the law. That is a laudable object, but should not be the guise under which a condition which is far too strict should be imposed. These conditions 3(i) and 3(ii) cannot stand.
Condition 20 of the specific conditions of approval is as follows:-
“Notice of Other Duties - The holder of this approval is advised that not withstanding this environmental authority, there may be obligations at law created by the Federal, State and Local Governments.
Further, the holder of this approval must comply with all relevant provisions of the Environmental Protection Act 1995 and Environmental Protection Policies. All parties have a general environmental duty not to cause environmental harm. Any environmental harm must be notified immediately to the Administering Authority and an Environmental Management Program prepared.”
From the point of view of the perfectionist, it may be said to be otiose to put a condition on an approval which says, effectively, “it is a condition that you obey the law” but it is often seen, does no harm and acts as a reminder. And it does serve the useful purpose of making a breach of the law a breach of the development approval from which different or extra consequences may flow. Furthermore, the condition requires notification of the causing of environmental harm which is highly desirable. All in all I think it is a condition worthy of inclusion and indeed, on the retyping of the conditions as amended and renumbered, might profitably be printed in bold lettering.
It was suggested by Mr Haydon for the appellants that conditions 3(i) and 3(ii) should be replaced with:-
“The poultry farm shall be operated in such a manner as to not cause unlawful environmental harm at any sensitive place.”
I do not propose to follow that suggestion. The provisions of EPA in Chapter 1, Part 3 (ss.7 et seq.) set out the key concepts of the Act and define the important concept of contamination and the various types of environmental harm. Chapter 8, Part 3 (ss.436 et seq.) sets out the various offences which can be committed under EPA. If the respondent has evidence that the appellants have committed an offence, it can prosecute them. To succeed it must prove the necessary acts or omissions and exclude any lawful defences open to the appellants (including, I would think, defences available under Chapter 5 of the Criminal Code). See also s.436(2) of EPA.
In the course of the appeal, the concept of environmental harm being measured at a “sensitive place” was generally accepted as desirable. On reflection I think that expression should not be used because it is too vague and may be meaningless. It goes without saying that any investigation of environmental harm will necessarily require evidence that the harm has some practical effect on people or things. The place where those people or things are could perhaps be described as a “sensitive place”. It adds nothing to include the expression in a condition. If, when a condition is framed there is an undoubted “sensitive place” to be protected (e.g. a neighbouring house, from odour or noise), then the desirable thing would be to identify it, rather than simply to use the expression.
So EPA has set out the guidelines which apply to people like the appellants who carry on an ERA. It would be a needless complication to impose conditions which may be seen to vary or even contradict the statute. So, I do not intend to replace conditions 3(i) and 3(ii).
Finally, the appellants have volunteered to accept an extra condition as follows:-
“Shed 3 is to be tunnel ventilated within 12 months of the Order of the Planning and Environment Court.”
Conclusion
I adjourn this appeal to a date to be fixed to allow the parties to draw up a list of conditions and draft order to reflect these reasons.
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