Singh v Beaudesert Shire Council& Anor

[2003] QPEC 30

DISTRICT COURT OF QUEENSLAND

CITATION:

Singh v. Beaudesert Shire Council& Anor [2003] QPEC 030

PARTIES:

TEJA SINGH (Appellant)

AND

BEAUDESERT SHIRE COUNCIL (Respondent)

AND

STATE OF QUEENSLAND (Co-Respondent)

FILE NO/S:

4594 of 2002

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

21 July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

7, 8, 9 and 10 July 2003

JUDGE:

Quirk DCJ

ORDER:

I am satisfied that the onus of showing that this application is one which should be approved has been discharged. 

CATCHWORDS:

BUILDING CONTROL AND TOWN PLANNING – town planning – council refusal – poultry farm – odour – noise – dust – water quality – visual amenity – need – consistency with planning instruments 

COUNSEL:

Mr D Gore QC and Mr J Haydon for the appellant
Mr G Gibson QC and Mr T trotter for the respondent

SOLICITORS:

Connor O’Meara for the appellant

Corrs Chambers Westgarth for the respondent

1. This appeal is against the respondent’s refusal of an application for a development permit for a material change of use and an environmentally relevant activity (a poultry farm) on land at the corner of Markwell Creek Road and the Mt Lindsay Highway south of Beaudesert.

1. The land occupies an area approximately 193 hectares and is included in the rural zone in the Shire’s current Town Planning scheme.  The site was purchased at auction by the Appellant (an experienced poultry farmer) on the 1^st March 2001.  At the time the proposed use was an “as of right” use in the zone.  On the 23^rd March of that year the scheme was amended to make poultry farming a discretionary use.  The present application was lodged on the 30^th April 2001.  An acknowledgement notice was given on the 1^st June but had to be subsequently amended.  A decision notice indicating refusal of the application was dated 30 October 2002.  The stated grounds of refusal related to :-

·     Conflict with strategic plan objectives.

·     Impact upon other rural activities.

·     Intent of the rural zone.

·     Conflict with provisions contained in the proposed amendments to the Planning Scheme.

·     Proposed traffic arrangements.

·     Insufficient information on impacts from omissions.

·     Conflict with Planning Scheme provisions.

·     Impact on amenity as envisaged by community expectations.

1. At the commencement of the hearing I was advised that the main issues in the appeal would relate to:

·     Odour.

·     Noise.

·     Dust.

·     Water quality.

·     Visual amenity.

·     Consistency or conflict with Planning Instruments particularly with various strategic plans, provisions and the intent of the rural zone.

·     Need.

There are no longer any outstanding issues in relation to traffic.

1. While initially a larger poultry farm had been intended, at the time of the hearing, the proposal was modified to comprise eight sheds and ancillary facilities.  I was informed that approval for a staged development would be sought.  The first stage would consist of four sheds and the following stage would not commence until it was demonstrated that stage one could operate satisfactorily with an acceptable level of impact upon the environment.

1. It quickly became apparent that the serious area of disagreement related to the potential for the emission from the proposal of unpleasant odours.  This evidently has been a problem for the planning authority in the Shire with some other poultry farms causing real concern.  Substantial complaint from residents of areas near these facilities has been received and pressure has been brought upon the council to take  remedial action.  Prosecutions have been launched.

1. On the 6^th June of this year, amendments to the scheme which tightened controls upon the location of poultry farms and the emission of odour were gazetted.  Additions were also made to the strategic plan dealing with potential impact upon amenity in rural areas.  These will be discussed in due course.

1. In dealing with a matter of this kind the court “must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate” (s.4.1.52).  As was pointed out in argument the phrase “considers appropriate” indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper (Mitchell v The Queen (1996) 184 CLR 333 at 346).

1. An important development in this case was that the two environmental engineering consultants engaged by the parties to deal with (amongst other things) odour, conferred and considered the idea of a first stage of this development involving only four sheds.  Fortunately for all Mr Ormerod (the Appellant’s consultant), and Mr Winders (consultant to the Council) were able to agree on a draft protocol for the odour performance criteria.  This draft was put before the Court as exhibit 15.

1. The consultants involved are highly experienced in these areas and I have no reservations about the soundness of their conclusions.  It also has to be recognised that the criteria which they have selected are specific to the proposal and this site.  Exhibit 15 must therefore be seen as a solution which is appropriate in a scientifically based sense.

1. Nevertheless the Respondent persisted in the argument that the proposal should be rejected because it could not comply with the newly introduced separation distances and other criteria set out in the amendments to the scheme.  The argument is based on the premise that substantial (indeed determinative) weight should be given to these provisions.

1. It is unnecessary to recite the contents of these new controls in full it being sufficient to refer to some of their features.  The criteria found in Part V of the scheme which contains “Special Requirements in Relation to Particular Development”.  Section 18 of Part V, deals with poultry farms.  For our purposes the separation distances are to be measured from the nearest external shed wall to the closest boundary of the subject land and, as the proposal involves up to 240,000 birds, the specified distance is 700 metres.  The stringency of this requirement is evident at once in that, in general planning practise in rural areas, separation distances are normally measured to receptor locations e.g. adjoining residences. 

1. Another curious feature of s.18 is that it purports to offer relief from the separation distance requirement in s.18.2(a)(ii) which offers, as an alternative, a requirement that a poultry farm:-

“use superior technology to achieve the emission criteria if the poultry farm:

….

(B)       Cannot be sited in accordance with the minimum separation distance specified in Table 1, measured from the nearest external shed wall to the closest property boundary.”

1. The “emission criteria” referred to have evidently been lifted from the controls which are in place in Victoria.  Mr Ormerod told me that these controls have proved difficult to apply in practice and, perhaps more importantly, that it would be very difficult to achieve the emission criteria within a distance of anything less than 700 metres from the property boundary.

1. No scientific basis for these requirements was demonstrated in the appeal.  Their origins are unclear.  They were not attributed to Mr Winders who was consultant to the Council in this matter.  The best that could be said of them were that they were the work of “a council officer” whose level of expertise in these matters was not explained.

1. It was contended for the respondent, that it was ultimately for the Planning Authority to decide what controls should be applied.  While there is something in that it must also be remembered that, if conditions of approval are to be imposed, they must be seen to be a reasonable imposition upon a particular development notwithstanding anything containing in a planning scheme (s.3.5.30(1)).

1. However this point was not really reached in the appeal.  What I have to decide is what weight is to be given to these additional general requirements which were introduced well after the application was lodged.  Political considerations are of little consequence in that exercise.  On the evidence before me which shows that two respected and experienced experts agree that sufficient protection for the environment “in terms of odour” would be provided if Exhibit 15 is respected, I am not prepared to attribute to the new controls such weight as would result in the proposal’s rejection.

1. A number of lay witnesses were called.  They spoke of difficulties experienced with other poultry farms, near which they reside.  I do not doubt their sincerity but problems of this kind in rural areas are not uncommon.  Notwithstanding what often seems to be a contrary perception, it is not reasonable to expect in rural areas an amenity free from displeasing impact.  Furthermore it would not be just to set aside the scientifically based evidence which supports this proposal because of problems which residents have experienced in other areas.

1. Mr Lucas, a thoroughbred breeder, gave his evidence with conviction.  He was concerned in the main with the emission of dust particles which might cause respiratory problems in fouls.  While I understand his concerns, the scientific evidence indicates that the emission of troublesome quantities of dust from this development is improbable.  In respect of dust and noise and water quality there was really little dispute.  Acceptable criteria have been agreed upon and can be made the subject of conditions.

1. There was some debate about a potential threat to public health.  Evidence from a Dr Blackall, an eminent expert in this field, was received.  He explained that the Australian chicken flock does not contain any viruses that pose public health problems or problems for animals in general and that, while there are bacterial pathogens that could pose risk to human and animal health associated with poultry, these risks are involved with direct contact with birds or untreated litter.

1. The only real problem in this case is whether air expelled from the chicken sheds could pose an unacceptable health risk.  However, as Dr Blackall explained, available knowledge in the scientific field does not provide any support for such a possibility and long experience with poultry farming in this State would indicate to the contrary.  I accept the evidence of Dr Blackall.

1. Visual amenity was raised as an issue but the evidence of Mr Chenoweth (an experienced consultant in this field) was not seriously challenged.  There are many poultry sheds in the rural area of Beaudesert and the visual impact of the proposal will be no worse and probably a good deal better than most of these.  The sheds are of a height less than that of a single storied house and will be constructed of materials which are intended to reduce glare and be “easy on the eye”.  Mr Chenoweth has recommended appropriate landscaping arrangements to soften the impact of the structures.  The extent to which these will be visible from relevant locations in the area was explained and this does not give rise to any concern        that would call for the proposal’s refusal.

1. The respondent, in it’s case, sought to make the point that there was some conflict with the Town Planning Scheme and strategic plan.  Any suggestion that poultry farms are inconsistent with the intent of the rural zone is a little unrealistic in that the use was, until only two years ago, an as-of-right use in the zone.  While one can understand the tightening of controls by making the use a discretionary one, the contention that it is not really a use which is rural in nature is tenuous to say the least.  It is but another instance of primary production.

1. If the controls which the council seeks to put in place (e.g. the 700 metres separation distance to the boundary) are maintained, it is difficult to see where such uses might locate.  The suggestion that such farms are more in the nature of a “rural industry” runs contrary to the expressed intent of the rural industry zone.  As mentioned, poultry farms are already present in numbers in the shire.  Other uses which have a potential to displease adjoining residents (e.g. kennels, stables, mushroom farms, piggeries, lot feeding of cattle, dairies, extractive industries) must also be seen potentially at least, as part of the rural fabric.  The stated intent of the Rural Zone includes an indication that “uses in this zone should generally be compatible with primary industry activity”.  The proposal is clearly consistent with this stated intent.

1. It is true that the strategic plan, in it’s rural area objectives, mentions the importance of tourism and the Shire image.  Objective four requires that developments be unobtrusive and fit with the dominant rural character.  It also requires the minimisation of building bulk through variation in building form and landscaping so as to achieve lower impact on the character of the area.  I am satisfied on the evidence that the proposal will not conflict with these objectives.

1. Mention was made of a recent strategic plan amendment which, in the economic development objectives envisages that:

“Development for an intensive rural based activity, such as those to which Division VI and Division X of Part V, of the Planning Scheme applies, must not impact on other rural based activities in particular non-intensive rural based activities such as tourism, horse and related industries, wineries, agriculture (including ancillary processing) and animal husbandry (including ancillary processing).”

Impacts on activities of these kinds were specifically examined in the case .

1. Need was raised as an issue but not pursued in any persuasive way.  While it has recently been acknowledged by the Court of Appeal that an issue of need (or it’s absence) can properly arise on an application for Town Planning consent, it was also acknowledged that:

“It may well be that need is seldom of great importance except in cases which would formerly have required an application for rezoning.” (Ballymont Pty Ltd v Ipswich City Council 2002, 120 LGERA 318 at 334).

1. One needs little worldly experience to understand the importance to the community of a chicken meat industry.  The continual spread of residential development poses an ongoing threat to the effective operation of this form of primary production.  Indeed evidence was given that the appellant has chosen to locate here because of pressures upon, and a forced relocation from, a similar enterprise at Thornlands.  If it was important to show that the development would be in the communities interests, this was not a difficult task.

1. On the whole of the evidence I am satisfied that the onus of showing that this application is one which should be approved has been discharged.  Conditions of approval will need to be formulated and these should provide for an environmental management plan incorporating the recommendations of the various consultants.  Acceptable procedures for the demonstration of satisfactory performance of stage one, will need to be put in place.  I will adjourn the further hearing of the matter to enable this to be done.