Shannon v Dalby Town Council

[2004] QPEC 62

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Shannon & Ors v Dalby Town Council & Ors [2004] QPEC 062

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:

29 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

19, 20 and 21 July 2004 (Dalby)
22,23,26,27 and 29 July 2004 (Brisbane)

JUDGE:

Alan Wilson SC, DCJ

ORDER:

CATCHWORDS:

PLANNING LAW – PRECAUTIONARY PRINCIPLE – BURDEN OF PROOF – proposed ethanol plant in environs of provincial town – appellants’ concerned about emissions, odour and environmental effects, and amenity effects – whether these matters properly dealt with by conditions – application of Precautionary Principle – burden of proof, discussed

Environmental Protection Act 1994
Integrated Planning Act 1997
Local Government (Planning and Environment) Act 1990

Cases considered:

Broad v Brisbane City Council (1986) 2 Qd R 317

CSR Limited v Caboolture Shire Council (2001) QPELR 398
Daikyo North Qld) Pty Ltd v Cairns City Council (2003) QPELR 607
Elliott v Brisbane City Council (2002) QPELR 425
Leichhardt Municipal Council v Minister Administering Environment Planning and Assessment Act 1979 (1992) 77 LGRA 64
Histpark Pty Ltd v Maroochy Shire Council (2002) QPELR 134
Meison v Randwick Municipal Council (1991) 23 NSWLR 734

Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council (1994) 85 LGERA 408
Telstra Corporation Limited v Pine Rivers Shire Council (2001) QPELR 350
Weightman v Gold Coast City Council (2002) 121 LGERA 161

COUNSEL:

Mr J Haydon for the appellants
Mr W L Cochrane for the respondent
Mr H Fraser QC and Mr R Jones for the first co-respondent
Mr E Morzone for the second co-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

1. This is a submitter appeal against the decision of Dalby Town Council to approve the development of a grain ethanol refinery about four kilometres north-west of the town centre.  The appellants are four residents of Dalby.  The proposed developer (the first co-respondent) Dalby Bio-Refinery Limited carries the onus of establishing the appeal should be dismissed:  Integrated Planning Act 1997 (IPA), s 4.1.50(2).

1. Dalby is a long-settled, pleasant and, to the eye of the visitor, apparently quite prosperous town of 10,000 residents on the Warrego National Highway about 2.5 hours west of Brisbane.  It has its own Town Council, managing the town proper and its immediate environs.  It is at the crossroads of the Warrego, Moonie, Condamine and Bunya Highways, and is bisected by Myall Creek.  It can be described as a rural service centre, connecting central and western areas to south-east Queensland and the southern states.  Its population is fairly stable, with only a minimal increase expected in the foreseeable future[1].  Nevertheless it was clear from an inspection of the town, and evidence taken there from local witnesses, that it has attracted quite significant local industry which, in turn, has created a stable workforce of residents who treasure their lifestyle in the town, and district.  It was the possibility of some detriment to that lifestyle which apparently motivated the appellants who contended, in summary, that the ethanol plant (as approved) yet carried some risk to the health of townsfolk, and the amenity of Dalby, because evidence about its operations and, in particular, emissions from it left too many doubts about safety.  These concerns were accompanied by an assertion that control conditions imposed by the Environmental Protection Agency (EPA) were inadequate, and too imprecise.

   [1]Exhibit 16, para 3.3: Report of town planner, Mr Mackenzie

1. The appellants’ residual doubts about the plant’s ability to operate safely were colourfully summarized by an American expert they called, Mr McGinley, who said that the ethanol industry is still young, at least in respect of information about the emissions it produces and their effects and that, although these questions have undergone scrutiny there is still debate around the industry, and:

…after the plant has been built and after most of the control equipment or the process equipment has already been put in place and started running … you end up with … horses out of the corral … not quite sure how many of them you can gather back up.[2]

[2]Transcript 383.40

1. Ethanol is a combustible liquid produced by fermentation – essentially, an alcohol.  In Queensland there has been a good deal of publicity about its production from sugar cane, and what is said to be the importance of developing “bio fuels” as an alternative, or supplement to, fossil fuels which are said to be finite, and declining.  Here, the proposal is to use grains grown on the Darling Downs which will be transported to the site and crushed and then treated through a process of fermentation, distillation and dehydration to produce, primarily, ethanol for blending as a fuel additive; and, also, high protein stock feed in liquid form; and, after further processing of some of that product by dehydrating, dry fodder. The high protein stock feed will, it is said, be used in feedlots and piggeries on the Darling Downs[3]. The applicant asserts the project will create work for 120 people during its 12 months construction period, 34 permanent jobs at the completed plant, and over 100 additional positions indirectly because of increased demands for transport of grain to the plant, and ethanol and fodder products from it.

   [3]Exhibit 4, para 4.2

1. The site is described as Lot 1 on RP 126296, a parcel containing about 40.5 hectares of which the plant will occupy some seven hectares.  It lies 3-4 kilometres north-west of the town.  The nearest residences are about 700 metres away.  The Dalby Refuse Station lies to the south, and Dalby Aerodrome is about two kilometres to the south-east.  The plant will have a maximum floor area of one hectare, and a frontage of 245 metres to the Dalby-Jandowae Road.  It is intended to process a minimum of 150,000 tonnes of locally grown grain[4] and would include on-site storage for ethanol, and stock feed. 

   [4]Exhibit 16, para 4.2, Exhibit 4, page 117

1. All incoming grain and outgoing product will be transported by road.  Vehicles approaching from the south are intended to access the site via a 150 metre deceleration lane on the western shoulder of Dalby-Jandowae Road, while those from the north would use a similar lane on the eastern side.

1. An inspection of the site confirmed it is remote from the town, with one residence visible in the middle distance, and the airport some way further off.  There is a stand of remnant bushland immediately to the south but otherwise all the surrounding area (save the dump) is used for agriculture.  The site itself is designated under the Dalby Planning Scheme within an area for which the Preferred Dominant Land Use (PDLU) is “industrial”, a purpose described in s 2.4.2 as:

To provide for existing and future development of industrial uses.  New and existing uses of this nature will be strongly encouraged to locate in these areas particularly those possessing physical and social attributes that are detrimental to residential activities.

1. The Statement of Objectives for this industrial designation in the Planning Scheme appears to support a development of this kind:

Industrial areas under this designation which are situated near residential designated land will incorporate performance standards as indicated in s 3.3 and local planning policy to ensure minimal impact on residential amenity.

Hazardous, noxious and offensive type uses identified as “designated developments” … in Local Planning Policy 5, subject to a favourable environmental impact assessment, will only be approved for that land within the town boundary which is contained under this designation and situated in an area bounded by the town boundary, Jandowae Road and Winchester Street.

Industrial developments will be discouraged from situating in this area unless they are considered by Council as complementary and/or ancillary to a designated development class …

1. The Planning Scheme was gazetted in 1995, with an intended planning horizon of ten years.  Because it is a “transitional” scheme, IPA s 6.1.30(1) requires that the application must be refused if the proposed development conflicts with the scheme, unless sufficient planning grounds exist to justify approval despite any conflict.  The town planner called by the applicant, Mr Schomburgk[5], described the Scheme as “relatively unique”.  It consists of a Strategic Plan conferring land use rights (clause 2.4.1); performance standards for PDLUs; zone designations of low, medium and high constraints to residential amenity; requirements for making and considering development applications; provisions for subdivision; a regulatory map; miscellaneous and administrative requirements; and a zoning map. 

   [5]His reports are Exhibits 3, and 3A

1. The town planners (Mr Schomburgk, Mr Mackenzie and Mr Feltham) agreed[6] that Clause 2.4.2 clearly shows this site was always intended for industrial development.  Indeed, Mr Schomburgk held a strong view (shared, perhaps less vehemently, by Mr Mackenzie) that this was the only site available within the boundaries of the town in which the proposed use would not be in conflict with the Plan[7].  Mr Feltham agreed[8] that the planning documents “support” the location, and that there is no other appropriately designated area within the town but contended that did not, by default, make the site appropriate and asserted that conflict with the Planning Scheme arose by reason of environmental impacts on the airport, and nearby future residential areas to the south[9]. 

   [6]Conclave Document, Exhibit 68

   [7]Exhibit 3, pages 7-8; Exhibit 16, pages 8-13; T93.1-40

   [8]Exhibit 18A

   [9]Exhibit 18, para 4.2.7

1. The Strategic Plan Map[10] shows an area designated for proposed rural residential development about one kilometre to the south, on land believed to be safe from the major flooding the town has suffered in the past[11].  Development of that kind has already been approved in areas two kilometres south of the site[12].  An inspection of these areas shows the present development is remote, and is not proceeding rapidly.  The population figures mentioned earlier suggest this development is unlikely to be anything but slow, with the consequence that the conflicts alleged by Mr Feltham do not fall to be considered in a situation of any urgency and are more in the nature of “pure” conflict in the sense they relate, presently, to the wording of the planning documents and the evidence about the proposed ethanol plant’s impacts in its present, stable environs. 

   [10]To be seen, for example, in Exhibit 3, Figure 3

   [11]Evidence of Mr Mackenzie, T187.31-36

   [12]Exhibit 69

History of the Development Application

1. In October 2002 the first co-respondent lodged a Development Application seeking a Development Permit for a Material Change of Use to permit the establishment of the ethanol plant (and associated uses).  The application was accompanied by copies of another application made to the EPA for an integrated authority under the Environmental Protection Act 1994, s 311. Council’s acknowledgement notice of 5 November 2002 nominated the EPA and the Department of Main Roads as referral agencies. They were separately represented at the hearing, in the persona of the second co-respondent.

1. At the close of the advertising period 25 very similar submissions had been received by Council[13] containing lengthy representations concerning a wide range of matters.  The application was approved at a Council meeting held on 25 November 2003, confirmed in a decision notice issued 3 December under IPA s 3.5.15.  That notice contained a number of conditions and identified the two concurrence agencies, whose additional conditions were incorporated[14].   This appeal was filed on 5 March 2004.

   [13]Exhibit 4, pages 447-471

   [14]Exhibit 5, pages 503-558

1. It was contended for the appellants that, in the particular circumstances of this application, the court should give no weight to Council’s decision to approve it.  The respondents had abrogated that benefit, it was said, because an Environment Impact Statement (EIS) had not been obtained; and, Council had failed to undertake necessary and extensive community consultation; and, had wrongly ceded its responsibility, to consider and assess all of the environmental issues, to the EPA.

1. The need for an EIS and the involvement of the EPA are part of the same question involving the former, and present legislation.  Under the Planning Scheme, Local Planning Policy 5 would have required an EIS under Part 8 of the previous legislation, the Local Government (Planning and Environment) Act 1990 (LGPEA) but that Act was repealed by IPA and, so far as concerns the requirement for an EIS, replaced by the IDAS process, Chapter 3: s 6.1.28.  Mr Feltham, who did not initially appear to appreciate this point, nevertheless maintained the need for and desirability of an EIS but Mr Schomburgk’s evidence clearly established that the issues which would have been addressed in an EIS were, nevertheless, properly raised and considered through the IDAS process and the involvement of the Environmental Protection Agency, and his conclusions were not seriously challenged in cross-examination[15]. 

   [15]T 89.20-60; T 90.1-50; T 98-T 100

1. I am satisfied that the matters raised by Mr Feltham as potential topics for an EIS had been fully considered and assessed by the Assessment Manager and the concurrence agencies and the necessity for an EIS has not been established.  It is appropriate to note, too that these proceedings are in any event by way of hearing anew[16] and, for the reasons which follow, it has not been established in the case that there are gaps or inadequacies in evidence about the issues which might have been repaired by an EIS.

   [16]IPA, s 4.1.52

1. Evidence for the appellants also contained some generalized complaints about a want of information and open dealing from the Council, but the application process involved at least one public meeting and a long period of deliberation over a period of a year and it cannot be said that the nature and elements of the proposed development have not, now, been fully ventilated – a conclusion confirmed by obvious local interest in the proceedings during the hearings in Dalby, and the taking of evidence from a number of local residents.  Neither more nor less weight should be attached to the fact of Council approval than in any other, similar case. 

Issues

1. The appellants’ Notice of Appeal and Further Particulars[17] raised a number of issues many of which were, however only faintly pursued at the hearing and in subsequent written submissions from their counsel, Mr Haydon.  Broadly speaking, the major areas of dispute may be categorized as town planning issues; environmental matters including air emissions, odour and particulates, noise, and plume impacts on air traffic at the nearby aerodrome; other possible adverse effects on the aerodrome’s operations; traffic; and, potential effects of the plant’s demand for and use of water on the town’s water supply.  More particularly, the evidence focussed on odour and volatile organic compound emissions (VOCs); potential impacts on amenity on residential estates because of noise emanating from the plant and, perhaps, traffic noise; the impact of the height of, and emissions from, the stack (chimney) shown on the plant design drawings on the current and future use of the aerodrome (and, rather belatedly, risks associated with the attraction of bird life to water storage associated with the plan); and, traffic safety issues. 

   [17]Exhibit 4, page 1-6; Exhibit 4 pages 37-47; 48-60; 61-82; 83-87; 88-98; and, 99-101

1. The appellants also raised, but only faintly pressed, questions to do with the sufficiency of car parking and landscaping around the site, and fire risks associated with the storage of ethanol.  In a similar vein, it was contended that the applicant had wrongly failed to supply sufficient information to facilitate an EIS, and that the plant’s proposed sewerage system required referral co-ordination under IPA s 6.1.35C.

1. The core of the appellants’ case appears in their original Notice of Appeal[18]:

   [18]Exhibit 4, page 3

4The decision is wrong and contrary to law in that:

(a)It is vague and uncertain because it leaves important matters to be decided at a later date …

(b)The proposed development will have a significant deleterious effect on the environment …in particular, the decision does not achieve ecological sustainability nor has the respondent applied the precautionary principle

1. A matter relevant to the first contention is that during the course of the hearing the EPA, having apparently considered some of the evidence further, advanced additional conditions concerning limits upon, and the management and monitoring of noise (Exhibit 92) and odour and emissions (Exhibit 96).  Those conditions provide for the use and monitoring of specific equipment, and the development of a management plan.  There are defined limits set for the quantity of “contaminants” (VOCs, odour, and particulate matter) the plant may emit.  A primary submission for the appellants (consistent with Mr McGinley’s metaphor about horses) is that monitoring, to determine compliance with defined limits, is not an adequate response if the information upon which those limits are based is inadequate, and that the process set up by these conditions leaves important matters undetermined.

1. As the Court of Appeal pointed out in Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council (1994) 85 LGERA 408, when an attempt has been made to discern objective criteria relevant to an issue, and that information is then used as the basis for defining limits under procedures which are scientifically ascertainable, it cannot be said that the decision of an essential matter has been deferred to a future occasion. As the court pointed out[19] cases in which the criticism has been properly levelled[20] involved conditions under which some essential element of the application was not finally resolved, or left to be decided on a later occasion, by another person.  Here, the limits upon emissions (and noise) are plainly defined in the conditions, and the question whether those limits and conditions are themselves adequate, reasonable and safe is quite another matter, and falls to be determined by weighing the expert evidence about the emissions and their potential adverse impacts and deciding whether it is satisfactory and lawful for them to be dealt with by the imposition of conditions, or whether these matters yet remain uncertain to a degree which means this application should be refused until greater certainty is established.

   [19]At 410-411 per McPherson JA and Ambrose J

   [20]Leichhardt Municipal Council v Minister Administering Environment Planning and Assessment Act 1979 (1992) 77 LGRA 64; Meison v Randwick Municipal Council (1991) 23 NSWLR 734

1. The appellants’ second general, major criticism is that insufficient homage has been paid to the precautionary principle and that, by reference to it, the applicant has failed to discharge the onus of proving that, even assuming adherence to the conditions imposed upon it, the plant can operate safely.  To put the matter another way the appellants, as I understood them, contended that the cautious approach inherent in the principle meant the expert evidence adduced for the applicant fell short of establishing the plant could operate safely, within its tenets. 

1. As Robin QC, DCJ pointed out in Elliott v Brisbane City Council (2002) QPELR 425 the precautionary principle ordinarily applies only where there is a state of uncertainty about environmental impacts. In the present case the appellants, principally through Mr McGinley, have attempted to raise uncertainty but unless it is the conclusion to which the weight of evidence necessarily points, the application of the principle may not arise. Certainly, as his Honour also pointed out in Elliott, it will have no particular relevance where the impacts are capable of being identified and the true question involves balancing those impacts against other factors and deciding whether, in light of that exercise, the application should be refused.  A decision about which category any particular case falls into involves, then, a primary determination about whether or not the evidence establishes uncertainty or perhaps more precisely, fails to establish the requisite degree of certainty.

1. Statements touching the burden of proof in cases like this appear in the decision of Quirk DCJ in CSR Limited v Caboolture Shire Council (2001) QPELR 398 in which, having recited the precautionary principle as it appears in IPA s 1.2.3(2), His Honour said:

[52]This statement of principle does not, as I read it, depart in any important way from the approach which this court has taken conventionally with such matters prior to the statements becoming part of the legislation.  It has generally been held that the appellant faces a burden of establishing, on the balance of probabilities, that when a particular activity might pose a risk of environmental harm, those risks have been evaluated and measures intended to provide protection from environmental harm are feasible and likely to be put in place.

1. As McLauchlan QC, DCJ has noted, the principle is not concerned with “… bare possibilities of … damage, but with situations where such damage can reasonably be said to be threatened.  This would, in my view, exclude situations where environmental damage was a theoretical but highly unlikely possibility”[21].  It is also established that, if the evidence falls short of proving that amenity would be reduced to an unacceptable level by things like odour and emission, the court will be cautious about refusing a development which is otherwise in accordance with a planning scheme, and where an appropriate authority has set conditions.  As Skoien SJDC said in Daikyo North Qld) Pty Ltd v Cairns City Council (2003) QPELR 607 at 609:

[22] The prevailing philosophy, based on sound common sense, is to balance risk and economics.  the Council has undertaken that balancing exercise in setting the standard reproduced in this condition (as well as others).  The court is not the planning authority and it is not the court’s responsibility to set the standard:  see Grosser v Gold Coast City Council (2001) 117 LGERA 153 at para [38] and Telstra Corporation Ltd v Pine Rivers Shire Council (2001) QPELR 350 at paras [117]-[120].

[21]Sol Theo as Trustee for the Solon Theo Family Trust v Caboolture Shire Council (2001) QPELR 101 at 109

1. This approach to the principle was also adopted by Newton DCJ in Telstra Corporation Limited v Pine Rivers Shire Council (2001) QPELR 350, at 381:

[121] The precautionary principle, as expressed in the Integrated Planning Act, applies in the case of threats of serious or irreversible environmental damage.  Having accepted the evidence of Dr Black and Professor Elwood, I am satisfied that no such threat exists in this case … even where the principle applies, it requires careful evaluation “to avoid wherever practicable serious or irreversible environmental damage including, if appropriate, assessing risk-weighted consequences of various options.  Having regard to the wide safety margins incorporated by the relevant Standard and that the proposal is so located that the potential emissions are a fraction of that standard, thus increasing the safety margin, and also bearing in mind that the facility will operate by varying its output to ensure that only the minimum power is used at any time, I conclude that the precautionary approach has been satisfied in this case, even though the circumstances requiring its application may not have been established.

1. It is appropriate, then, to determine whether or not the principle applies by considering the evidence which might attract it and determining whether, on balance and by reference to the requisite standard of proof there remains, nevertheless, a state of uncertainty about environmental impacts.  Importantly, that does not involve placing an onus upon the applicant to extinguish, with absolute certainty, the risk of environmental harm.  As Robertson DCJ said in Histpark Pty Ltd v Maroochy Shire Council (2002) QPELR 134 at 141:

[21]… The precautionary principle is not concerned with “bare possibilities” of serious or irreversible environmental damage …; nor is the appellant required to prove the complete absence of any likely future environmental harm (per Quirk DCJ in GFW Gelatine International Limited v Beaudesert Shire Council (1993) QPLR 342 at 353). These cases, and many others establish that where the precautionary principle is applied, it is not necessary for an appellant to prove with scientific certainty the absence of any possibility of serious environmental harm in the future.

1. Otherwise, some of the issues raised by the appellants were not actively pursued.  The adequacy of carparking at the proposed plant was shortly addressed by a traffic engineer, Mr Holland, who said the parking requirements were more than adequate[22].  While the town planner called by the appellants, Mr Feltham, thought it might be better to plant more mature trees during the landscaping phase it was not submitted either of these issues was, ultimately, of material concern.  The risk of fire associated with the storage of ethanol on the site was addressed by Dr Danaher[23], an expert with considerable experience in the area of risk management at refineries, whose evidence established that the risk to neighbouring properties and the town of Dalby from any fire at this plant would, with appropriate on-site management (and, having seen the Development Application, Dr Danaher believed fire fighting provisions were adequate) be “negligible”.  His evidence satisfactorily addressed the concerns of some of the lay witnesses and suggested the applicants’ response to the risk was comprehensive, and appropriate. 

   [22]Exhibit 9, page 3

   [23]Report, Exhibit 10

1. Mr Feltham also raised an additional matter concerning the treatment of waste from the plant[24] and asserted that insufficient information had been provided by the applicant to determine whether satisfactory provision has been made for its storage and disposal.  In fact, both the Assessment Manager and the EPA had imposed conditions dealing with the matter and in cross-examination Mr Feltham appeared to acknowledge his concerns were groundless[25].  Certainly, he conceded the issue was minor and that the matter could be dealt with by the imposition of reasonable conditions, which is what has occurred.

   [24]Exhibit 18, pages 11-12

   [25]T 143.5-30

Town Planning Issues

1. In his reports[26] Mr Feltham addressed what I understood him to categorize as the major issues in the case – odour and emissions, traffic, noise, potential effects on the operation of the aerodrome, and questions of amenity and the reasonable expectations of the residents of Dalby – in the context of the Dalby Planning Scheme and sought to show the development raised issues attracting significant conflict with some of the Scheme provisions; and (again, as I understood his evidence) that the application lacked sufficient information and certainty about these issues to justify approval, in any event.  It is convenient, then, to address these issues in the context of the Scheme provisions and, simultaneously, the other major submission made for the appellants: that the evidence about environmental impacts and the risks associated with them still leaves these matters, or some of them, in a state of uncertainty.

   [26]Exhibits 18, 18A

1. Mr Feltham’s concerns were grouped and advanced by reference to a number of provisions of the planning documents which it is useful to collect:

Strategic Plan Section 2.2:  … It is the aim of the Strategic Plan to achieve sustainable management of the Town by managing the use, development and protection of physical, social and economic resources in a way, or at a rate, which enables the residents of the Town to meet their present needs without compromising the ability of future generations to meet their needs.

Planning Study: Section 3.03 – Industrial … Hazardous industries should be located in an area likely to pose minimal risk to public and environmental safety.

Planning Study: Section 6.01 – Land Use, Conflict and Quality of Lifestyle … In pursuing land use activities, environmental effects are generated which can be perceived as undesirable by persons not engaged in those activities.  The effects can inhibit the use of adjoining surrounding land, detrimentally affect the environment and potentially lower a person’s perception of the quality of lifestyle.

Strategic Plan: Section 2.3.1.8  The efficient functioning of the Dalby Aerodrome and other aeronautical facilities will be protected from encroachment and incompatible land uses.

Strategic Plan: Section 2.4.2  Any subdivision or development which would restrict the service capacity of the aerodrome’s operation will not be approved.

Strategic Plan: Section 2.4.2   Hazardous, noxious and offensive type uses identified as “designated developments” Class 11 Subclass (D) in Local Planning Policy 5, subject to a favourable environmental impact assessment, will only be approved for that land within the town boundary which is contained under this designation and situate in an area bounded by the town boundary, Jandowae Road and Winchester Street.

Local Planning Policy 1 (xv)  Whether adequate provision has been made for protection of amenity in accordance with the zones designated by the Planning Scheme.

Local Planning Policy 1 (xvi)   Whether there are any local planning policies adopted by the Council which are applicable to the proposal and whether the proposal would accord with or conflict with any such policies.

Other parts of the Strategic Plan including, in particular, the Statement of Intent set out earlier appear, however, to strongly support a development of this kind, in this location.  Mr Feltham ultimately appeared to agree, in oral evidence, that but for questions concerning the aerodrome none of the other issues he raised by reference to the planning controls would, individually, be sufficient to warrant refusal[27], and that (except for issues of visual amenity) a combination of appropriate conditions imposed by concurrence agencies and this location (by reference to the Strategic Plan) were, together, acceptable grounds for approval[28].

[27]T 147.1-35

[28]T 148.10-30

1. That concession was only qualified by Mr Feltham’s assertion that there remained, nevertheless, a “perceived real impact on amenity”[29].  His mistaken insistence upon the need for an EIS, the concessions he was obliged to make (which were not, it should be said, inappropriate) and his perceived failure to attempt a balancing of what he asserted were, on the one hand, areas of conflict with the planning documents with, on the other, the passages in the Strategic Plan which clearly support this proposal ultimately led me to discount his evidence, and to prefer the views of Mr Schomburgk and Mr Mackenzie whose opinions were, generally speaking, clearly expressed, redolent of a genuine attempt to balance all of the issues, and maintained in a plausible way during cross-examination. 

   [29]T 148.31

Traffic

1. Mr Feltham’s concerns, expanded during his oral evidence, appeared to revolve around general safety questions and, in particular, “rat running” through residential areas.  He expressed concern about the prospects of grain trucks turning from the Bunya Highway into Cooper and Knight Streets, within the town, in the direction of the plant.  He conceded, however, that this risk could be ameliorated by appropriate signs, and directions to drivers to use specified routes (incorporated into actual contract agreements with those drivers). 

1. The traffic issues raised and particularized by the appellants were considered in reports from expert traffic engineers, Mr Holland[30] and Mr Eppell[31], with the former specifically addressing potential impacts on the general Dalby road network.  Both concluded there were no traffic issues which warranted refusal of the proposal and, indeed, none of any real moment.  Their evidence is persuasive, and Mr Feltham’s concerns about rat running are remote to a degree which does not justify the imposition of any further conditions.

   [30]Report, Exhibit 9

   [31]Report, Exhibit 14

The Aerodrome

1. The appellants’ contention was that the development might compromise operations from, or the future expansion or licensing of, the Dalby Aerodrome.  Presently, the evidence indicates the aerodrome is only lightly used and unlikely to be upgraded[32] but Mr McGhie, an experienced local pilot called by the appellants, advanced some concerns that the height of the stack at the refinery and emissions from it might affect flying activities, and that a water storage pond on the site could increase the risk of bird strike.  These matters were addressed by Mr Hayman, a very experienced engineer specializing in airport design and operation who concluded the plume from the stack would not affect takeoffs or landings or, at least, that any residual concern could easily be rectified by amending airport instructions to require pilots to turn right at the height of 500 feet.  Mr McGhie ultimately agreed with Mr Hayman that there would, in fact, be no impact[33].  Mr Hayman’s evidence made it clear that this absence of adverse effects applied whether or not the airport was upgraded.

   [32]Exhibit 65

   [33]T 426

1. Mr McGhie referred only to the bare possibility of the pond attracting wildlife, with a consequent increase in the risk of birdstrikes, but Mr Hayman’s evidence established that the imposition of a requirement for netting of the pond was unnecessary, and superfluous.  Hence, Mr Feltham’s expressed concerns about the impact of the plant on the present operations of the aerodrome, or its upgraded operations (if that occurs) are unwarranted.

Emissions

1. 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[34].

   [34]T 365-6

1. The evidence was at times complex, and Mr McGinley expressed doubts about the efficacy and appropriateness of both the stipulated limits, and the proposed conditions.  He called in aid references to an ethanol plant in Minnesota which had clearly had some operational problems and attracted community concern and opposition, but its situation and mode of operation were shown to be very different from this proposal, particularly concerning design, location, and high temperature drying (without an effective thermal oxidiser) and the surrounding environment.  He was ultimately obliged to concede that it possessed features that plainly differ from those of the plant proposed here.  He otherwise declined to express a firm view about the appropriate thresholds or criteria for particular emissions, and it was clear that he is unfamiliar with the models used by Mr Ormerod for his testing.  Mr McGinley’s reliance upon an inappropriate comparison and want of familiarity with the highly sensitive and advanced measuring devices and models used by Mr Ormerod meant his opinions were less compelling than those of the Australian experts, whose evidence I preferred.  Significantly, too, the expressed conclusions of Dr Bofinger and Mr Ormerod that fugitive emissions could be controlled as required by the EPA conditions were unchallenged.

1. Insofar as any residual uncertainty could be said to arise from the testing and modelling undertaken, and data collected and modelled, by the experts that occurs only in respect of some parts of Mr Ormerod’s modelling but his evidence, which I accept, was to the clear effect that with the use of the thermal oxidiser predicted emission levels are so far below the appropriate criteria that it is reasonable to be confident there will be no material adverse impacts.  Dr Bofinger reached the same view[35].  The EPA guidelines specifically endorse the models used by Mr Ormerod, and the limits set in the conditions are by any measure conservative.  Mr McGinley, who was given an opportunity to advance specific criticisms of those limits, chose not to do so (other than to suggest they did not cover all release points).  Otherwise, he agreed that setting limits was an excellent approach[36].

   [35]T 365-6

   [36]T 410

1. 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.

Noise

1. The appropriate limits for noise generated by the refinery were agreed at a conclave of experts and reproduced in Exhibit 92, the EPA Conditions[37].  They provide for noise evaluations to be carried out during the detailed design phase and for investigation procedures in the event of a complaint after the plant begins to operate.  For the EPA, it was submitted these measures are adequate to avoid unreasonable noise impacts upon the surrounding community and that there is no need for any further conditions which, it was contended, would involve a usurpation of the IDAS process and require excessive EPA involvement in the detailed design phase.

   [37]Table 1, Schedule 6

1. Noise experts, Mr Thorn[38] and Mr Savery[39] undertook modelling exercises and gave evidence for the co-respondent.  Each concluded that with appropriate building design and layout, outside mitigation measures and appropriate screening the development could operate within the limits set by the EPA Conditions.  Those conclusions were not challenged by the appellants who did, however, call an expert, Mr King[40] who expressed some dissatisfaction with the design features and noise attenuation measures, but did not contend that it was impossible to comply with the defined limits. The amended EPA Conditions[41] include a detailed technical prescription, contributed to by the experts, of the design process necessary to meet those criteria. 

   [38]Exhibit 7

   [39]Exhibit 8

   [40]Exhibit 19

   [41]Exhibit 92

1. 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.

1. Some concern was also raised by the appellants about the possible adverse effects of traffic noise but the evidence of the traffic engineers shows, not surprisingly, that the Dalby road network already carries high volumes of commercial traffic and the operations of this plant would only add in a minimal way to that volume.  Certainly, the evidence does not establish a basis for concluding that vehicle noise would affect amenity in a way giving rise to conflict with the provisions of the Strategic Plan.

Visibility of the Emission Stack

1. Mr Feltham also expressed concern about the effects that visible gaseous emissions from the stack might have on amenity at nearby residential estates (both present and future) to the south and, further afield, in the town.  The evidence showed that the gaseous emissions would create a “plume” not unlike steam vapour which would be visible to residents during daylight hours but Mr Schomburgk said, and I accept, that there is nothing particularly surprising or unnatural about that, in the context of the overall amenity of a rural service centre like Dalby. 

1. As a consequence of an EPA condition the emission stack might need to be up to 30 metres in height and that is in conflict with s 3.2.2 of the Planning Scheme which may, however, be relaxed by Council.  Both Mr Schomburgk and Mr Mackenzie thought a relaxation was justified and, in cross-examination, Mr Feltham concurred[42].  While a number of statements from Dalby residents raised questions about health and amenity issues, very few expressed concerns about the visibility of the stack or the emission plume itself.  In light of the distance to the nearest residential estates and the nature of the stack and its plume, and the PDLU for this site a relaxation of the height limit is not inappropriate.  During the hearing further evidence suggested the height of the stack could, possibly, be reduced.

   [42]T 144.45-60; T 145.1-10

Conflict with the Planning Scheme

1. The Planning Scheme makes it clear that an enterprise of the kind proposed by the applicant is an appropriate one for this site, and all of the town planning experts agree.  Neither Mr Schomburgk nor Mr Mackenzie saw conflict of the kind mentioned in LGPEA s 4.13(5A) and, ultimately, Mr Feltham appeared to concede that potential interference with the operation of the aerodrome was the only issue which, in his view, would itself warrant refusal, and create conflict.  That conclusion is, for the reasons already explored, incorrect.  Otherwise, the evidence about each of the other matters said by him to give rise to inconsistencies with the Scheme is not, in line with the findings already made about each of them, capable of being said to generate conflict and I am not persuaded that any arises.

1. Even if that conclusion is mistaken the application of the test posed by Atkinson J in Weightman v Gold Coast City Council (2002) 121 LGERA 161 suggests, at worst, that any conflict should only be categorized as minor, and that there are strong planning grounds which, on balance, would nevertheless justify approval. Those planning grounds primarily arise from the designation of the site for purposes of this very kind, and the absence of evidence of impacts – in the context of very stringent examination by independent concurrence agencies, which have imposed clear and strict criteria on the design and operation of the plant. The applicant also contends, and I accept, that there are other town planning reasons which justify approval. They include the economic objectives of the Strategic Plan, and associated economic benefits including additional markets for grain, and direct and indirect employment opportunities.

Water Supply

1. The appellants assert[43] that the proposed development would consume too much fresh water from the already limited and rationed Dalby Town water supply.  Their specific concerns were the risk of more onerous water restrictions, and associated loss of amenity.  Mr Cameron, a water engineer called by the Council, has had a lengthy involvement with the town water supply and, in his report[44] concluded that notwithstanding the fairly heavy water usage an ethanol refinery would demand, the Council is presently able to maintain reticulated water supply and that additional usage would have no detrimental effect; and that, if recommended works are constructed in the future, capacity will remain sufficient to cope with drought, or water restrictions and other relevant matters, like the demands of firefighting.

   [43]Exhibit 4, pages 14 and 286

   [44]Exhibit 17

1. Some of these questions were also addressed in another report[45] and, while water issues are obviously of vivid (and entirely reasonable) concern to residents, the evidence established there is both present capacity, and appropriate forward planning to meet existing and future needs by augmentation of the existing supply.

   [45]Exhibit 89

1. The residents concerns should be allayed, too, by later developments in the applicants’ case which established a reduction in anticipated water use at the refinery, information which tended to reinforce Mr Cameron’s conclusions.  Even on the most pessimistic view the advent of the refinery might bring forward, by some years, the time for necessary augmentation of the water supply but, as Mr Cameron’s evidence established, that augmentation was likely to be necessary in any event.

Amenity Concerns of Local Residents

1. A number of local residents expressed what were, essentially, inchoate concerns about the possible effect the mere presence of a plant of this kind might have upon the amenity of Dalby, in the sense that it might adversely affect enjoyment of their pleasant lifestyle there and, as a prominent local businessman Mr Briggs implied, inhibit the chances of attracting future residents.  Not dissimilar concerns have confronted the court on a number of occasions and the fact that, in light of the absence of clear evidence establishing a rational basis for them, those perceptions should properly be categorized as subjective does not mean they must or should be ignored; although, as Newton DCJ remarked in Telstra Corporation Limited v Pine Rivers Shire Council (2001) QPELR 350 at 363, after reference to the well known passage from the judgment of de Jersey J (as His Honour then was) in Broad v Brisbane City Council (1986) 2 Qd R 317 at 325 they will not, however, necessarily be found to be determinative.

1. Here it would be unfair to describe the residents’ concerns about amenity as irrational, but they have to be considered in light of the expert evidence and, importantly in this case, the zoning of this land which has, for a long time, been plainly envisaged for uses like that which is now proposed.  As analysis of all of the relevant provisions shows there is, in truth, no conflict with the Planning Scheme and no scientific or planning basis which can reasonably be said to support those fears or concerns.  I am compelled to give credence, and weight, to the expert opinion which, in the words of de Jersey J in Broad, mean the proposal finds “… justification in specific, concrete likely effects of the proposed development”.

Conclusion

1. I am of the view, then, that the appeal should be dismissed.