Strathane Pty Ltd v Toowoomba Regional Council

[2009] QPEC 89

[2009] QPEC 89

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P&E Application No 1905 of 2009

STRATHANE PTY LTD	Applicant
and
TOOWOOMBA REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 03/09/2009

ORDER

CATCHWORDS
Integrated Planning Act 1997 s 3.5.33

No assessable development within subsecton (1)(b) where the proposed change of condition merely altered the configuration of sheds in four parallel rows from lines of 14 large, 7 small, 14 large, 7 small by reversing the last two - the circumstances not such that adverse submitter appellants in the proceedings in which the condition was set should be given an opportunity to be heard

HIS HONOUR:  The court has made an order in terms of the initialled draft.  It embodies a change of development conditions, which were set by an order of Judge Quirk of the 27th day of October 1997 in appeal number 126 of 1995 McBain & others v Clifton Shire Council.

The appellants were submitters with concerns about a piggery use.  Essentially they were unsuccessful in the appeal in 1997.  It's not clear to me whether Judge Quirk's order changed any conditions.  It did set a condition that the development comply with a plan identified as a STR-011. 

By order of Judge Wilson in this court in Toowoomba, in number 7 of 2004, on the 18th of February 2005, the development conditions were changed, essentially by substitution of the arrangements depicted in drawing number STR-012.  The only parties in that proceeding were the "developer", now Strathane Pty Ltd (which was not a party in 1997) and the Council.  Those are the only parties in the current application, which was filed on the 7th of July 2009. 

What it seeks is a change of the conditions under section 3.5.33 of the Integrated Planning Act 1997, to substitute arrangements depicted in drawing number STR-020. It's convenient to record here what the applicant's director, Mr Jones, says in his affidavit in paragraphs 7 to 11:
"7. The development has since commenced.  The first group of buildings on the western side of the site as set out on Drawing No. STR-012 have been constructed.  That is the first two (2) columns of buildings depicted on that plan. In addition Ponds Site 1 has been constructed. At present Ponds Site 2 is not required to be constructed but may subject to the future needs of the development be constructed in the future.
8. Presently Condition 8(2) requires the location of buildings to be in accordance with Plan No. STR-012.  That Plan requires the various buildings to be constructed in a configuration from west to east of fourteen (14) large sheds, seven (7) smaller sheds, fourteen (14) large sheds and then seven (7) smaller sheds.
9. It is sought to amend Condition 8(2) only to the extent that the configuration of the construction of the sheds would vary. The proposed change would result in the configuration of the sheds being, from east to west, fourteen (14) large sheds, seven (7) smaller sheds, seven (7) smaller sheds and fourteen (14) larger sheds.
10. Exhibit "IRJ6" to this Affidavit is a copy of Plan NO. STR-020, which contains the configuration of the sheds as desired to be constructed by the Applicant.
11. The change to the configuration of the sheds will improve the efficiency and management of the piggery.  Amongst other things the changed configuration improves procedures for feed delivery and the loading and unloading of pigs onto trucks.  These procedures are improved as the changed configuration provides a single access path between the rows of sheds which allow easy access to each of the sheds on either side of that pathway."

Also, the expert support for the new arrangements in Mr Binns' report:

"I can advise that on the morning of 30 July 2009, a site inspection was undertaken of the subject development site on Lot 50 SP158093. During that inspection a representative of Strathane Pty Ltd, Mr Andrew Jones, confirmed that the proposed modification to the as-approved piggery development would involve:

1.A simple change in the location of the yet undeveloped piggery buildings that were previously approved for the site; in particular , substituting a row of buildings intended to house the older, grower pigs, and vice versa;

2.No physical expansion of the facility beyond the allowable development envelope defined in the Court-approved site plans (copies of which have been provided to myself);

3.No associated alterations to the existing piggery buildings (i.e. those on the western half of the site);

4.No change to the numbers and classes of animals to be housed on site (i.e. the facility would still have an allowable maximum capacity of 40,000 standard pig units or SPU);

5.NO change to the proposed waste management practices as a result of this modification; and

6.No change in the separation or buffer distance separating the development from potential odour receptors.

I would note that owing to the substantially different accommodation needs of weaner and grower pigs, it is not possible to simply change the class of stock housed in the two rows of buildings. Furthermore, in my experience the proposed modifications will have significant benefits in terms of managing the movement of stock, feedstuffs and transport vehicles on site, and are clearly justifiable from the perspective of operational efficiency.

On the basis of the above information and the site inspection, it is possible to conclude that when compared to the as-approved development, the proposed modification should not change the nature or amount of odour emitted from the piggery buildings, or from the associated waste management infrastructure. Consequently, there should be no significant change in the amenity of nearby residents, or the general public, as a result of the proposed modification."

The only change which has been made is to rearrange the existing required configuration, which has, proceeding from west to east, sheds in lines of 14, seven, 14 and seven; to a new configuration of 14, seven, seven and 14.  Otherwise there are no changes. 

In my opinion, there is no assessable development arising from the change of condition proposed for the purposes of section 3.5.33(1)(b). There's no need for me to expand on the reasoning in Dimensions Property Group Pty Ltd [2009] QPEC 041.

It is a proper matter of concern to the court where conditions, which have been set in a proceeding involving submitters, are sought to be changed to suit the developer's interest in the absence of the submitters.  However, there has to be some relevant contribution that those submitters could rationally make if they're to be given an opportunity to participate as additional parties and that is simply not the case here, in my view. 

I'm content to proceed in the absence of the submitters, as was Judge Wilson.  

...

HIS HONOUR:  I should say more.  The proposal will involve an approach to the Environmental Protection Authority to have changes made to the existing permit arrangements, which appear in Exhibits 1 and 1A, in light of the new configuration approved by the court.  Thanks.

‑‑‑‑‑