Shannon v Dalby Town Council
[2005] QPEC 48
•15 June 2005
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Shannon & Ors v Dalby Town Council & Ors [2005] QPEC 048
PARTIES:
PETER SHANNON, AMANDA DEAR, ADAIR DONALDSON AND SAMANTHA DONALDSON
(Appellants)and
DALBY TOWN COUNCIL
(Respondent)and
DALBY BIO-REFINERY LIMITED
(ACN 101 796 436)
(First Co-respondent)and
STATE OF QUEENSLAND
(Second Co-Respondent)
FILE NO/S:
BD 831 of 2004
DIVISION:
Planning & Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:
15 June 2005
DELIVERED AT:
Brisbane
HEARING DATE:
29 April 2005, 13 May 2005; written submissions delivered 16 and 19 May 2005
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Order as per draft submitted by the Respondent (Ex 1 tendered 29 April 2005)
CATCHWORDS:
PLANNING LAW – PLANNING APPROVAL - CONDITIONS – whether proposed conditions are suitable – whether they conform to approval inherent in Court’s dismissal of appeal, with Reasons
Integrated Planning Act 1997
Shannon & Ors v Dalby Town Council & Ors [2004] QPEC 062
COUNSEL:
Mr E Morzone, Mr W Everson for the second respondent
SOLICITORS:
Shannon Donaldson for the appellants
King & Company for the respondent
Shand Taylor for the first co-respondent
Crown Law for the second co-respondent
The appellants brought an appeal in this court against the decision of Dalby Town Council to approve the development of a grain ethanol refinery about 4 km north north-west of Dalby, subject to conditions imposed by the local authority and concurrence agencies. The second co-respondent represented those agencies, including the Environmental Protection Agency (EPA). The appeal was heard in July 2004 and Reasons for Judgment were delivered on 29 October 2004[1]. At that time the respondents were invited to signify the final orders they sought in light of statements made at the hearing indicating they wanted the opportunity to hone the conditions associated with the approval, which had been amended in the course of the trial.
[1]Shannon & Ors v Dalby Town Council & Ors [2004] QPEC 062
On 29 April 2005 the respondents presented the court with a proposed form of final order dismissing the appeal and approving the application subject to conditions contained in Annexures A, B and C to it[2]. The appellants sought changes and additions to a number of the draft conditions. A timetable was set for the delivery of written submissions about the conditions, and these contentions.
[2]Ex 1, 29 April 2005.
The appellants do not challenge the conditions imposed by the respondent Council, or the Department of Main Roads but argue for a number of amendments to those imposed by the EPA which concern air quality and noise. The context of the present dispute begins with the EPA’s involvement as a concurrence agency, which occurs because the development application included various environmentally relevant activities which must be assessed by that agency[3]. The EPA has a duty to regulate development in a way which promotes protection of the environment and the power to impose conditions within the limits of its jurisdiction that are relevant to, but not an unreasonable imposition on, the development[4].
[3]Integrated Planning Regulation 1998, Sch 2, Item 5.
[4]Integrated Planning Act 1997 s 3.5.30.
The amended conditions advanced by the EPA during the hearing were attacked by the appellants on a number of grounds, canvassed in the Reasons, but ultimately rejected:
[41]The breadth of the evidence about these matters and the plain tenor of it supports the applicant’s contention that there is no reasonable ground for concern as to the effect of emissions, and the application should be accepted subject to the conditions imposed by the independent concurrence agencies which, for the reasons given earlier, is an appropriate course. Those conclusions carry the necessary inference that, contrary to the appellant’s contentions, the scientific evidence about emissions and odour is more than sufficient to extinguish uncertainty to the requisite degree.
Similarly, concerns about noise from the development were found to be satisfactorily allayed through conditions proposed during the trial by the EPA:
[44]The concession from Mr King and another noise expert, Mr Kamst, that the agreed criteria are capable of being met points to the conclusion that the EPA Conditions (which will ensure that appropriate evaluation is undertaken during the design process, so that noise limits are appropriately addressed at that stage) and the requirement for monthly reports to the EPA are, in combination with the strict noise limit criteria, a sufficient and appropriate response. It was not put to either Mr Savery or Mr Thorn that their favourable conclusions were not justified by their research or the information upon which they relied. I am satisfied the imposition of conditions, based upon the work of the experts, by the EPA is a reasonable response to the issue, attracting certainty to an appropriate degree and negating any basis for refusal on this ground.
Hence the appellants’ recent submissions involve some attempt to re-open issues about which there was detailed evidence from experts at the trial and which were addressed in the Reasons, and the subject of concluded findings. An example is an ongoing criticism of an alleged want of detail about the type, configuration, operation and monitoring of a device called a thermal oxidiser which was introduced into the draft conditions by the EPA during the hearing and which is directly related to emissions.
The draft conditions attached to the proposed order provide for the use of a thermal oxidiser or “… an alternate emission control technology to effectively minimise the release of odours and ensure compliance with conditions …”.
In the Reasons I expressed satisfaction with the use of a thermal oxidiser or “… equivalent emission control technology”:
[38]It is clear the proposed refinery has the capacity to produce emissions and odour, and much of the evidence in the case was taken up with the nature and extent of those emissions. Changes to the EPA conditions occurred as a consequence of the evidence of the scientists, Mr Ormerod and Dr Bofinger (and Mr Potas) from which it was apparent that, with the introduction of a device called a thermal oxidiser or equivalent emission control technology, the discharge of emissions (VOCs, etc) and odour could be managed in a way which met appropriate EPA limits, and conditions. Dr Bofinger was prepared to conclude, from Mr Ormerod’s modelling, that provided maximum release limits stipulated in the new EPA conditions are met, there should be no breach of EPA odour guidelines or any odour or VOC problem[5].
[5]T 365-6.
The word “equivalent” in the Reasons connotes, in context, nothing more than an acknowledgement that other technology may exist or may be created which will provide an equivalent or higher level of control or treatment for air emissions, accepting that a thermal oxidiser is the best available emission control technology to achieve the appropriate release limits presently available. Moreover, any alternative must “… effectively minimise the release of odours and ensure compliance with condition B1 and B18”, which contains the table of limits imposed by the EPA, themselves found to be appropriate. I am satisfied the condition accords with the conclusions set out in the Reasons, and is appropriate.
Various other amendments urged by the appellants come up hard against the primary hurdle of the finding in para [41] that the application ought to be accepted “… subject to the conditions imposed by the independent concurrent agencies which, for the reasons given earlier, is an appropriate course”. Some of the conditions they propounded concerned an alleged need for continuous monitoring and sampling of emissions, a requirement which would impose burdens far heavier than those implicit in that finding and, as the evidence at trial persuaded me, unnecessary and superflous[6]. In particular, I am satisfied that EPA proposed condition B18 provides an adequate regime concerning these and associated matters.
[6] This conclusion applies to the appellants’ proposed amendments to conditions B3A, B4, B6, B7, B8, B9A, B12, B15, B 16A, B18, B18A, B19, and Sch H.
EPA condition A4 prohibits any changes to the plant or equipment in the proposed development if the change increases or might substantially increase the risk of environmental harm and gives an example of a substantial increase as 10% or more in the quantity of the contaminant released into the environment. The appellants seek to delete the example but I accept that it provides general guidance to the plant operator and its deletion is unnecessary in light of the fact that specific conditions dealing with emission levels have been elsewhere imposed by EPA which, it is clear, cannot be exceeded despite the example in A4.
The appellants also seek to extend EPA condition A8, which relates to the keeping of records about waste for five years, so that it includes air quality but that is unnecessary when condition B4 specifically refers to monitoring of the drier emission control plant. Nor am I persuaded that actual sampling is a reasonable requirement, when condition B18 imposes an appropriate condition which is, as the EPA submits and I accept, within its reasonable powers of enforcement.
The appellants also propose that the administering authority have power from time to time to appoint parties to conduct independent analysis or assessment of odours or emissions, but that condition would merely repeat the law: Environmental Protection Act 1994, Ch 9 Pt 2, which requires access to be given in relevant circumstances. The appellants also contend that, by the imposition of a new proposed condition A11, the developer should be held to a late concession it made to the effect that it would not consume more than 251 ML of water per annum but, as the EPA points out, those matters are outside its jurisdiction. It is also superfluous in light of the findings in para [52] of the Reasons.
The appellants also urge a new noise condition D9 which, it is said, will avoid confusion as to whether the noise of concern is from the building of the plant, as opposed to its operation, but again that is a matter outside the EPA’s jurisdiction which is only in respect of the carrying out of the environmentally relevant activities, and not the construction of premises. Condition B6 addresses noise in that respect in a way which, as previously found, is satisfactory.
I am satisfied the draft conditions accord with the findings at trial and are consonant with the conclusions reached in the Reasons, and are otherwise satisfactory and appropriate. The appeal should be finally disposed of in terms of the draft order tendered on 29 April 2005, and made Exhibit 1 on that day.
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