The Corporation of the Synod of the Diocese of Brisbane v Brisbane City Council
[2025] QPEC 11
•5 June 2025
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
The Corporation of the Synod of the Diocese of Brisbane v Brisbane City Council & Anor [2025] QPEC 11
PARTIES:
THE CORPORATION OF THE SYNOD OF THE DIOCESE OF BRISBANE
(Appellant)
v
BRISBANE CITY COUNCIL
(Respondent)
and
LION-BEER, SPIRITS AND WINE PTY LTD ACN 008 596 370
(Co-respondent)
FILE NO/S:
1234/24
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
5 June 2025
DELIVERED AT:
Brisbane
HEARING DATES:
17, 18 and 19 February 2025, 29 April 2025, and 1 and 6 May 2025
JUDGE:
Kefford DCJ
ORDER:
THE APPEAL IS RETURNED TO THE APPLICATIONS LIST FOR REVIEW ON 16 JULY 2025.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – where the Co-respondent seeks approval to materially intensify its industrial use – where the Co-respondent seeks approval to intensify its use by introducing an ethanol storage facility to facilitate increased production of alcoholic beverages – where the Council approved the development application – where the Appellant as adjoining neighbour opposes the grant of an approval – whether there is an unacceptable risk to public safety and property from an explosion of the tank chamber containing the ethanol storage tanks – whether the tank chamber is appropriately located – whether the proposed development unduly affects reasonable health expectations – whether the proposed development should be approved in the exercise of the discretion
LEGISLATION:
Planning Act 2016 (Qld) ss 43, 45, 59, 60
Planning and Environment Court Act 2016 (Qld) ss 43, 45, 46, 47
Planning Regulation 2017 (Qld) s 31
CASES:
Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied
Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved
Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27, approved
Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18; [2022] QPELR 235, approved
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied
Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2024] QCA 153, applied
Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, approved
GFW Gelatine International Ltd v Beaudesert Shire Council & Ors [1993] QPLR 342, approved
Gracemere Surveying and Planning Consultants Pty Ltd v Peak Downs Shire Council & Anor [2009] QCA 237; (2009) 175 LGERA 126, applied
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, cited
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved
Onetech Pty Ltd v Shaw [1999] WASCA 289, cited
Pynhall Pty Ltd v Logan City Council [2024] QPEC 11, approved
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied
Ward v The Ritz Hotel (London) Ltd (1992) 1 PIQR 315, cited
Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied
Willis v Endall [2011] WASC 45, cited
COUNSEL:
M Batty KC and J Bowness for the Appellant
B Job KC and M Rodgers for the Respondent
C Hughes KC and L Walker for the Co-respondentSOLICITORS:
Colin Biggers & Paisley for the Appellant
City Legal - Brisbane City Council for the Respondent
Gadens Lawyers for the Co-respondent
TABLE OF CONTENTS
Introduction
What is the applicable framework for the decision?
What are the issues in dispute?
What are the relevant assessment benchmarks that remain in issue?
What is the key issue that remains in dispute?
What is City Plan’s approach to industrial risk?
What is the character of the subject land and the locality in which it sits?
What are the parameters of the proposed development?
What are the key design and construction features of the tank chamber?
What are the key design and construction features with respect to ventilation?
What are the key design and construction features with respect to the electrical system?
What are the key design features of the tanks?
What are the key design measures for detection of ethanol in the tank chamber?
What are the key design and construction measures for detection of fire in the tank chamber and the ethanol tanker unloading area?
What are the key design measures to address ethanol vapour or fire detected in the tank chamber?
What are the key design, construction and operational measures relating to access to the tank chamber and re-energising of the tank chamber?
What are the key additional design measures that assist to minimise risk during operation?
What other risk minimisation measures are proposed prior to commencement of the use?
What other general observations are pertinent with respect to the proposed development?
What is the risk issue that requires consideration?
What is the relevant evidence about risk?
What are the Appellant’s key contentions about risk?
Is there an unacceptable risk to public safety and property from a stoichiometric tank chamber explosion?
How did the evidence of the experts regarding hazard and risk evolve?
What are the relevant properties of ethanol?
What is the consequence of a stoichiometric tank chamber explosion?
What is the likelihood of a stoichiometric tank chamber explosion?
Conclusion about the risk associated with a stoichiometric tank chamber explosion
Does the location of the proposed development minimise the risk to public safety and property?
Does the proposed development comply with separation distance requirements?
Are there feasible alternative locations for the proposed development?
Conclusion regarding the location of the tank chamber
Does the proposed development unduly affect reasonable health expectations?
Does the proposed development comply with the relevant assessment benchmarks?
Should the proposed development be approved in the exercise of the discretion?
Conclusion
Introduction
The land at 185 Milton Road, Milton (“the subject land”) contains the iconic XXXX Brewery that has been used to brew alcoholic beverages for more than 130 years. The use commenced prior to the town planning laws and regulation. As such, there is no development approval authorising its commencement. The use of the subject land to brew alcoholic beverages enjoys the protection afforded to existing lawful uses by successive planning regimes.
Version 24 of Brisbane City Plan 2014 (“City Plan”) recognises the existing lawful industrial use of the subject land. It maps the subject land as part of a designated Strategic Inner City Industrial Area, the Low impact industry zone and the Brewery precinct in the Ithaca district neighbourhood plan area. Relevantly, in relation to the Brewery precinct, the Ithaca district neighbourhood plan code states:
“This precinct contains a purpose-built brewery of cultural heritage significance. The brewery is a Brisbane icon and a well-known landmark of the city, with a great physical presence in the locality. …”
Although the subject land is in the Low impact industry zone, the overall outcomes for the Brewery precinct in the Ithaca district neighbourhood plan code anticipate that the subject land may be approved for medium impact industry uses where the uses are for brewery purposes.
On 11 December 2020, the Council gave a development permit for a material change of use for medium impact industry. The Council approved changes to that development permit on 3 June 2021 and 17 December 2021. Properly construed, the changed development permit authorises the use of the subject land to produce ready-to-drink alcoholic beverages by mixing syrup and ethanol. The development permit, as changed, is subject to conditions, which stipulate that:
(a)the production of alcoholic beverages by mixing syrup and ethanol is only to occur in conjunction with the existing brewery use on the subject land, and that aspect of the use must cease should the brewery use cease;
(b)the ethanol tanker unloading area is to be designed and constructed to direct spills to underground spill containment tanks that have capacity to contain the largest likely spill;
(c)the underground spill containment tanks are to be fitted with a means of determining the level of their contents;
(d)the underground spill containment tanks are to be emptied by a licensed waste contractor on a regular basis to ensure capacity is maintained in the tanks;
(e)prior to the commencement of the use, certification is to be provided by a suitably qualified Registered Professional Engineer Queensland (“RPEQ”) engineer to demonstrate that the design and construction of the ethanol tanker unloading area, including the underground spill containment tanks, is in accordance with all the requirements of the conditions;
(f)prior to the commencement of the use, certification is to be provided by a suitably qualified dangerous goods consultant or RPEQ engineer to demonstrate that the ethanol pipeline, which is located between the ethanol tanker unloading area and the building containing the syrup process room, has been designed, constructed and located in accordance with Australian Standard AS1940 The storage and handling of flammable and combustible liquids; and
(g)the storage of ethanol is to be limited to 10,000 litres in intermediate bulk containers.
On 31 August 2022, the Co-respondent, Lion-Beer, Spirits and Wine Pty Ltd, made a development application to Brisbane City Council (“the Council”) seeking a development permit for a material change of use (“the development application”).
Lion-Beer, Spirits and Wine Pty Ltd seeks approval to materially intensify that part of the existing use that involves mixing flavour syrups with ethanol to produce “ready-to-drink” alcoholic beverages such as seltzers and alcoholic ginger beer. Relevantly, this practice does not require a brewing process. To that end, the development application seeks approval for three ethanol storage tanks, each with a capacity of 40,000 litres. The tanks are to be located within a tank chamber. The development application also seeks approval for a staff amenity building of approximately 12 square metres.
The composite use of the subject land, i.e., the use for beverage production by brewing and by mixing syrup and ethanol, will produce more than 200,000 litres of beverage per annum.
Under City Plan, the “High impact industry” land use definition includes:
“Food, beverages or pet food processing, smoking, drying, curing, milling, bottling or canning works, if producing 200 tonnes or more per annum.”
The development application was impact assessable and required public notification. The public notification attracted only one properly made submission. That submission was made by the Appellant, The Corporation of the Synod of the Diocese of Brisbane, which is a corporate entity under the Anglican Church of Australia Act 1985 (Qld).
The Appellant owns the land at 233 and 233A Milton Road, which adjoins the western boundary of the subject land. The Appellant’s land contains St Francis Theological College, which has been operating at that location since 1936.
The Council approved the development application subject to development conditions. The reasons for its decision and the development conditions are set out in a decision notice dated 29 February 2024.
The Appellant has appealed against the Council’s decision. It opposes approval of the development application. The Appellant acknowledges that the industrial use on the subject land and the community use on the Appellant’s land have co-existed in harmony for many decades. Nevertheless, the Appellant contends that approval of the material change of use of the subject land, authorising the introduction of the ethanol storage facility, would result in an unacceptable risk.
Ethanol is a flammable chemical that is miscible in water, i.e., it dissolves in water. The storage of ethanol is hazardous if not managed correctly. When mixed with air in the right concentration, ethanol vapours can create explosive mixtures. The consequences of an explosion in the tank chamber are potentially fatal.
At first blush, considering the explosive properties of ethanol, one can readily accept that the proposed introduction of the ethanol storage facility is incompatible with the sensitive uses on the Appellant’s land.
That said, the proper assessment of the proposed development does not end there. It has long been recognised that this Court must be careful to resist the attractions of avoiding responsibility for allowing a proposal that has been demonstrated to have its risks if not handled carefully: Lane v Gatton Shire Council [1988] QPLR 49 at 51; GFW Gelatine International Ltd v Beaudesert Shire Council & Ors [1993] QPLR 342 at 353. Proper consideration needs to be given to the nature and extent of the risk and the means by which it is proposed to be addressed: GFW Gelatine International Ltd v Beaudesert Shire Council & Ors [1993] QPLR 342 at 353; Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27 at [535]—[536]. These well-established principles are not challenged in this case. They are accepted by all the parties.
Lion-Beer, Spirits and Wine Pty Ltd bears the onus of establishing that the proposed material change of use should be approved: s 45 of the Planning and Environment Court Act 2016 (Qld).
For the reasons that follow, Lion-Beer, Spirits and Wine Pty Ltd has discharged the onus.
What is the applicable framework for the decision?
Under s 43 of the Planning and Environment Court Act 2016, subject to ss 46(2) and (5), the appeal proceeds by way of hearing anew. The Court has a broad discretion in determining the appeal. It is to be exercised judicially and subject to the limitations in the relevant statutes. The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 (Qld) provides relevant guidance in that respect.
The Court must assess the development application under s 45(5) of the Planning Act 2016 as if it were the assessment manager: Planning and Environment Court Act 2016 s 46(2). The Court’s decision is governed by s 47 of the Planning and Environment Court Act 2016 and informed by ss 59(3) and 60 of the Planning Act 2016.
Sections 45(5)(a)(i) and (7) of the Planning Act 2016 mandate assessment against the assessment benchmarks in a categorising instrument that was in effect when the development application was properly made. Version 24 of City Plan is such a categorising instrument: s 43 of the Planning Act 2016. The correct approach to the construction of planning schemes was recently confirmed in Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2024] QCA 153 at [82]–[93].
Weight can be given to amendments to City Plan: s 46(2) of the Planning and Environment Court Act 2016 and s 45(8) of the Planning Act 2016. The parties agree that there are no relevant amendments to be considered in this case.
Pursuant to s 45(5)(b) of the Planning Act 2016 and ss 31(1)(f) and (g) and (2) of the Planning Regulation 2017 (Qld), the assessment must also be carried out having regard to, amongst other things and to the extent that they are relevant:
(a)the development approval for, and the lawful use of, the premises, to which I have made relevant reference in paragraphs [1] and [4] above; and
(b)the common material for the development application.
The assessment and decision-making process is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987; Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003; Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321; and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309.
Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793 at 803-13 [35]-[86]. That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328 at 333-7 [12]–[22].
As is explained in those authorities:
(a)the ultimate decision called for when making an impact assessment is a broad, evaluative judgment that admits of flexibility to approve an application in the face of non-compliance with a planning scheme;
(b)the exercise of the discretion under s 60(3) of the Planning Act 2016 is subject to three requirements, including that it be based upon the assessment carried out under s 45 of the Planning Act 2016; and
(c)the Planning Act 2016 does not alter the characterisation of a planning scheme as a document that reflects the public interest.
With that framework in mind, I now turn to identify the issues in dispute.
What are the issues in dispute?
The issues in dispute, including the applicable assessment benchmarks, were originally identified by an order of the Court made on 26 July 2024.
At a late stage of the hearing, Lion-Beer, Spirits and Wine Pty Ltd proposed a change to its development application. There was no opposition to the change. For reasons given during the hearing, I am satisfied that the change is a minor change and that it was appropriate to permit the trial to proceed based on the changed development application.
The minor change to the development application resolved the earlier dispute about air quality and narrowed the focus of the dispute in relation to the risk posed by the ethanol storage facility and the appropriateness of the proposed use.
In addition, after the oral testimony of its experts, the Appellant reflected on the shortcomings of its original case. In final submissions, it further confined its case. I commend Mr Batty KC and Ms Bowness for their sound forensic judgment and the Appellant for its responsible approach in this regard.
What are the relevant assessment benchmarks that remain in issue?
As I have mentioned, version 24 of City Plan was in force when the development application was treated as properly made.
Under City Plan, the subject land is in the Low impact industry zone and requires impact assessment. As such, the development application is to be assessed against assessment benchmarks in City Plan, to the extent they are put in issue by parties in the appeal.
In final submissions, the Appellant indicates that it now relies on only eight assessment benchmarks. They are identified in Annexure A to the Appellant’s written submissions. The Appellant alleges non-compliance with each of them. It does not concede compliance with the other assessment benchmarks that were previously raised. Rather, it says that, if the proposed development warrants approval after assessing compliance with the eight assessment benchmarks identified, that outcome would not change by reason of assessment against the other assessment benchmarks. I again commend Mr Batty KC and Ms Bowness for their responsible approach in this regard.
Three of the assessment benchmarks put in issue form part of the Strategic framework. The Strategic framework sets the policy direction for City Plan and forms the basis for ensuring appropriate development occurs in the planning scheme area for the life of City Plan: s 3.1 1 of City Plan. The Strategic framework is comprised of:
(a)the strategic intent;
(b)five themes that collectively represent the policy intent of City Plan;
(c)strategic outcomes proposed for development in the planning scheme area for each theme;
(d)elements that refine and further describe the strategic outcomes;
(e)the specific outcomes sought for each element; and
(f)the land use strategies for achieving each of these outcomes: s 3.1 3. of City Plan.
The provisions of the Strategic framework put in issue relate to the juxtaposition of industrial and sensitive uses. They are:
(a)land use strategy L1.4 in s 3.3.3, Table 3.3.3.1, for Element 1.2 – Brisbane’s industrial economy of Theme 1: Brisbane’s globally competitive economy, which states:
“Existing lawful industries continue to operate with certainty and are protected from encroachment by sensitive land uses. Proposed expansions of these industries meet relevant health, safety and environmental standards.”
(b)the strategic outcome in s 3.5.1 1.j. for Theme 3: Brisbane’s clean and green leading environmental performance, which states:
“The strategic outcomes for clean and green leading environmental performance are:
j.The release of harmful pollutants is avoided or minimised and the health and safety of residents, business and visitors are protected from exposure to harmful pollutants or industrial hazards.”
(c)land use strategy L2.3 in s 3.5.3, Table 3.5.3.1, for Element 3.2 – Brisbane’s environmental quality and sustainable design of Theme 3: Brisbane’s clean and green leading environmental performance, which states:
“Development involving an interface between a residential use and non-residential use achieves the level of residential amenity specified in an applicable overlay and neighbourhood plan and does not otherwise affect reasonable health expectations.”
(emphasis reflects the Appellant’s allegation of non-compliance)
These and other assessment benchmarks in the Strategic framework record city-wide policies that are then implemented through finer-grained planning in City Plan, such as the allocation of land to zones and the assessment benchmarks in zone codes. In some instances, such as that pertaining to the subject land, finer grained planning at a local level is also provided by the allocation of land to neighbourhood plan areas and in neighbourhood plan codes. I have referred to relevant provisions in that regard in paragraphs [2] and [3] above.
With respect to the finer-grained planning reflected by the zoning and zone code, the Appellant puts in issue compliance with the overall outcome in s 6.2.5.1 2.i. of the Low impact industry zone code. It states:
“The purpose of the zone will be achieved through the following overall outcomes:
i.Development for an industrial use is located, designed and managed to maintain safety to people and provide a buffer, to avoid significant adverse effects on the natural environment and minimise impacts on adjacent non-industrial land including sensitive uses.”
(emphasis reflects the Appellant’s allegation of non-compliance)
The Appellant also takes issue with the proposed development’s compliance with four assessment benchmarks in the Industry code.
The purpose of the Industry code is to assess the suitability of development to which the code applies. That purpose is intended to be achieved through its overall outcomes. The Appellant alleges non-compliance with three of them, namely:
(a)the overall outcome in s 9.3.12.2 2.a., which states:
“Development is appropriately located and carefully designed to mitigate the impacts of industrial activities.”
(b)the overall outcome in s 9.3.12.2 2.c., which states:
“Development is compatible with a sensitive use in the vicinity of the development.”
(c)the overall outcome in s 9.3.12.2 2.d., which states:
“Development avoids or minimises the release of harmful pollutants and protects the health and safety of the occupants of a sensitive use or a zone or a zone precinct intended for sensitive uses.”
(emphasis reflects the Appellant’s allegation of non-compliance)
Finally, the Appellant alleges non-compliance with performance outcome PO3 in Table 9.3.12.3.A of the Industry code. It states:
“Development minimises the risk to public safety, property and the environment from technological hazards such as fire, explosion and toxic release and achieves the hazard and risk criteria in Table 9.3.12.3.I.
Note—A preliminary hazard analysis report prepared in accordance with the Industrial hazard and risk assessment planning scheme policy can assist in demonstrating achievement of this performance outcome.”
(emphasis reflects the Appellant’s case about non-compliance)
Pursuant to Table 9.3.12.3.I, the relevant fatality risk criteria is 0.5 in a million and the injury risk and property damage criteria is 50 chances in one million per annum.
The Appellant contends that performance outcome PO3 of the Industry code is a central provision in this case. The other parties agree. So do I.
Ultimately, the case was run by all parties on the footing that compliance, or otherwise, with the assessment benchmarks is informed by determination of the Appellant’s key contentions about the risk posed by the proposed development. I agree with that approach. It is sensible having regard to the planning provisions that remain in issue. I commend all Counsel retained in this case for their exercise of sound forensic judgment in this regard.
What is the key issue that remains in dispute?
The real issue that remains to be determined is whether the location and design of the ethanol storage facility poses an unacceptable risk to public safety and property and unduly affects reasonable health expectations. The Appellant accepts that this is a question of fact.
The Appellant’s case is founded on the proposition that City Plan’s approach to risk is not premised on its elimination. Rather, it calls for the minimisation of risk posed by an industrial hazard by avoiding avoidable risk.
The Appellant advances three key contentions to support its submission that the evidence on this issue is such that the exercise of discretion calls for refusal of the proposed development. I identify the Appellant’s key contentions in paragraphs [155] to [158] below.
Lion-Beer, Spirits and Wine Pty Ltd and the Council each contend that the proposed development does not present an unacceptable risk and that it should be approved.
Before turning to address the key contentions, it assists to appreciate:
(a)City Plan’s approach to industrial risk;
(b)the features and character of the subject land and the locality generally; and
(c)the parameters of the proposed development, including how the risk presented by the ethanol storage facility is proposed to be addressed.
What is City Plan’s approach to industrial risk?
The Appellant’s position about City Plan’s approach to risk in performance outcome PO3 of the Industry code is supported by consideration of that provision in the context of City Plan and the documents called up by it.
The first limb of performance outcome PO3 of the Industry code requires development to minimise the risk to public safety, property and the environment from technological hazards such as fire, explosion and toxic release.
The ordinary meaning of “minimise” is “to reduce to the smallest possible amount or degree”: seventh edition of the Macquarie Dictionary. Determination of what constitutes the smallest possible amount calls for an evaluative judgment. It is a question of fact and degree that is to be determined by reference to the relevant facts and circumstances: Gracemere Surveying and Planning Consultants Pty Ltd v Peak Downs Shire Council & Anor [2009] QCA 237; (2009) 175 LGERA 126, 134 [30] and [31].
The requirement in performance outcome PO3 of the Industry code that development “minimises” risk may be compared with the intention in performance outcome PO1 that development “avoids or minimises” air emissions. The language of performance outcome PO3 recognises that industrial uses are typically attended with a level of unavoidable risk.
The overall outcomes of the Industry code acknowledge that industrial development will bring with it some impacts. They require that development:
(a)is appropriately located and carefully designed to “mitigate” the impacts of industrial activities: s 9.3.12.2 2.a. of City Plan;
(b)achieves environmental performance of a “satisfactory standard”: s 9.3.12.2 2.b. of City Plan; and
(c)ensures that buildings that are located near sensitive uses can accommodate industrial uses without causing “unacceptable impact” on the amenity of the area: s 9.3.12.2 2.e. of City Plan.
The overall outcome in s 9.3.12.2 2.d. of the Industry code uses different language (i.e., “protects” health and safety of the occupants of a sensitive use). That said, the Industry code provides an indication of the means by which that otherwise subjective intent can objectively be applied, including in performance outcome PO3 of the Industry code.
Further, although performance outcome PO3 of the Industry code requires development to both minimise the risk and achieve the hazard and risk criteria in Table 9.3.12.3.I, consideration of the criteria reveals that they deal with the same subject matter. As such, one might reasonably expect that demonstration of compliance with the criteria will assist in demonstrating that the risk is minimised, and that occupants of sensitive uses are appropriately protected.
The note to performance outcome PO3 of the Industry Code states that a preliminary hazard analysis report prepared in accordance with the Industrial hazard and risk assessment planning scheme policy can assist in demonstrating achievement of performance outcome PO3.
The Industrial hazard and risk assessment planning scheme policy plays a supporting role for City Plan: ss 1.2 2., 5.3.3 5, 9.3.12.1.1 1 (third note) and Table 1.2.6 of City Plan and s 4(e) of the Planning Act 2016. It does not contain assessment benchmarks.
The purpose of the Industrial hazard and risk assessment planning scheme policy states:
“This planning scheme policy provides information required for a development application and guidance and advice for satisfying assessment criteria for the preparation of a preliminary hazard analysis report.
Minimising risk of impact from industrial hazards will require new industrial development to implement best available risk management measures. However, even when best available measures and technologies are applied, risks from some industrial activities cannot be completely eliminated. Therefore, minimising the impact of industrial hazards on people and the environment will require appropriate separation between sensitive and industrial uses.”
(emphasis added)
The planning scheme policy defines risk as “the likelihood of harm occurring from a hazard” (emphasis added).
The matters that a preliminary hazard analysis report is to address are set out in s 2 of the Industrial hazard and risk assessment planning scheme policy. A preliminary hazard analysis report is to:
(a)identify the potential hazards associated with the development;
(b)identify sensitive uses that may be affected by hazards and risks;
(c)analyse each hazard in terms of consequence to people and the biophysical environment and the likelihood of occurrence;
(d)quantify the analysis and estimate the resultant risks to surrounding land uses;
(e)assess the risks in terms of the location, land use planning implications and hazard and risk criteria;
(f)ensure that the proposed safeguards are adequate and that the development will not impose an unacceptable level of risk;
(g)document results of the hazard and risk assessment, including comparison to hazard and risk criteria, and graphical representation of results at gridded receptors; and
(h)describe the best available hazard and risk control measures to be applied by the development to minimise hazard and risk impacts.
The identified matters envisage that there will be some likelihood of resultant risks occurring. They are to be quantified and assessed in terms of hazard and risk criteria, with an eye to determining safeguards that are adequate and do not result in an unacceptable level of risk. The best available control measures are to be described with the intention that development minimise hazard and risk impacts, rather than remove or avoid them altogether.
The preliminary hazards analysis report is to enable the assessment manager to make a judgment about the level of risk involved in a proposal and its acceptability. It should allow the assessment manager to decide if the level of risk exceeds the hazard and risk criteria and whether the level of risk can be managed. This is not language that indicates an approach of avoiding all risk.
The Industrial hazard and risk assessment planning scheme policy adopts a graded approach to risk assessment. It sets three levels of analysis. It requires an analysis and assessment only as far as is needed to demonstrate that the development does not result in sensitive uses being exposed to unacceptable levels of risk due to industrial hazards: s 3.1 1. Again, this is not an approach that calls for the elimination of risk.
In terms of the graded approach:
(a)Level 1 is a qualitative approach based on comprehensive hazard identification to demonstrate that the activity does not pose a significant hazard;
(b)Level 2 supplements the qualitative analysis by sufficiently quantifying the main risk contributors to show that risk and consequence criteria will not be exceeded; and
(c)Level 3 is a full quantitative analysis.
A Level 2 partial quantification analysis is only required for a development if Level 1 has identified one or more risk contributors with consequences beyond the site boundaries but with a low frequency of occurrence. If off-site impacts are demonstrated to be unlikely, compliance with the relevant Australian Standards, industry codes of practice and similar guidelines are considered adequate control measures: s 3.3 3.
As I will explain in more detail below, although there were no identified risk contributors with consequences beyond the subject land, Dr Mendham prepared a Level 2 partial quantification analysis to provide the Court comfort about the acceptability of the risk.
A Level 2 partial quantification analysis is to:
(a)model the consequences of all events for which hazard identification indicates there could be credible effects beyond the site boundary: s 3.4 3.a.;
(b)estimate the likelihood of each event that detailed modelling confirms would have significant off-site consequences: s 3.4 3.b.; and
(c)assess the results of the preceding steps to confirm that the overall effect of events considered would not cause criteria to be exceeded: s 3.4 3.c.;
(d)be prepared in accordance with Hazardous Industry Planning Advisory Paper No. 6: Hazard Analysis, which was published by the New South Wales Department of Planning in January 2011: ss 3.4 4; and
(e)demonstrate that the risk level performs to the criteria established in Hazardous Industry Planning Advisory Paper No. 4: Risk Criteria for Land Use Safety Planning published by the New South Wales Department of Planning in January 2011: s 3.4 4.
Hazardous Industry Planning Advisory Paper No. 6: Hazard Analysis explains that the purpose of a preliminary hazard analysis is to demonstrate that the risk levels do not preclude a development approval: p vi. The paper also explains that:
(a)a final hazard analysis is anticipated at a later stage, after detailed design: p vi;
(b)the objective of hazard analysis is to develop a comprehensive understanding of the hazards and risks associated with an operation or facility and the adequacy of safeguards: p vii;
(c)“neither quantified nor qualitative analysis should be pursued for its own sake”: p vii
(d)“quantification of all dimensions or risk is not always possible or necessary to enable judgments to be made on sound hazard management”: p 2;
(e)quantified risk results should not be seen as absolute or objective measures nor as the most significant output of the analytical process: p 3;
(f)“Quantification should be avoided where it will not add rigour in the analysis or it is clearly entirely arbitrary”: p 3; and
(g)the hazard identification process involves defining a worst-case scenario, which defines the upper boundary for the range of credible hazardous scenarios.
Hazardous Industry Planning Advisory Paper No. 4: Risk Criteria for Land Use Safety Planning explains that risk criteria should account for both the consequences and the likelihood of hazardous events. This is because criteria based on the consequences of the events in isolation are unrealistic as they ignore the availability of safeguards and may result in the unnecessary sterilisation of land: p 4.
A Level 3 full quantitative analysis is required where, relevantly, the Level 2 analysis is unable to demonstrate that the risk criteria will be met.
Those matters reinforce the materiality of demonstrated compliance with the identified risk criteria.
The Industrial hazard and risk assessment planning scheme policy indicates that preliminary hazard analysis reporting is not the last step in the risk assessment process. A range of further safety assessment studies are to be undertaken at the detailed design stage: s 3.6. The Industrial hazard and risk assessment planning scheme policy provides for a final hazard analysis: s 3.6 4. It anticipates that a safety management system and hazard audit system will be developed to ensure ongoing safety management: s 3.6 5. The policy explains that regular audits are an essential component of that. It identifies that a safety management system, which provides for regular audits, is to be finalised before commencement of operations. Its implementation is to be ongoing: s 3.6 6. One might reasonably expect that the preparation of reports of this nature would be dealt with through the imposition of reasonable and relevant conditions.
Section 5 of the Industrial hazard and risk assessment planning scheme policy introduces the ALARP (as low as reasonably practicable) principle. Irrespective of the numerical value of any consequence or risk criteria level for risk assessment purposes, new industrial development is to demonstrate the ALARP principle: s 5.1 1. This does not detract from the significance of compliance with the nominated criteria. Rather, it calls for demonstration that:
(a)all avoidable risk is avoided to ensure that risk is not introduced in an area where feasible alternatives are possible and justified;
(b)risk is reduced wherever practicable, irrespective of the numerical value of the cumulative risk level from the whole installation;
(c)the consequence of an event is contained within the site as far as practicable; and
(d)if there is an existing high risk, additional risk is avoided as far as practicable.
Section 6 of the Industrial hazard and risk assessment planning scheme policy confirms that development and overlay codes in City Plan contain hazard and risk criteria and provides an explanation of the criteria. It explains that the assessment of that risk provides the basis for compatible land use safety planning: s 6.1 2. The tolerability or acceptability of risk is influenced by factors other than the physical magnitude of that risk. Risk criteria are identified as having a quantitative technical basis and account for qualitative community concerns: s 6.1 4. Where an individual or group of people is exposed to a risk, the acceptability of that risk is that it should be low relative to other known and tolerated risks: s 6.1 6. For reasons that I explain below, that is an apt description of the calculated risk here.
What is the character of the subject land and the locality in which it sits?
The subject land has an area of 58,270 square metres. It is irregular in shape. It has frontages to Milton Road, Finchley Street, Paten Street and Heussler Terrace, Milton. Milton Road, Finchley Street and Heussler Terrace each provide vehicular access to the subject land.
As I have noted above, the subject land is improved by the iconic XXXX Brewery. The built form on the subject land includes several buildings, silos and other structures that are currently used for beverage production (being predominantly beer, but with some ready-to-drink alcoholic beverages). Ethanol is presently stored in intermediate bulk containers in one of the buildings near the western boundary.
The subject land is in Milton, which is a historical suburb of Brisbane. The suburb’s character is informed by the juxtaposition of significant commercial and industrial activity with residential development and community facilities.
Within Milton, the subject land is part of a node of inner-city industrial facilities that interface with residential areas and community facilities. The subject land is bounded:
(a)to the north by Heussler Terrace, with detached dwelling houses in the Character residential (infill housing) zone beyond;
(b)to the east by a mix of industrial and other commercial uses addressing Finchley Street that are within the Low impact industry zone;
(c)to the south by Milton Road and the railway line and station, beyond which is a high-density mixed-use area; and
(d)to the west by the Appellant’s land, which is mapped as part of the Community purposes precinct of the Community facilities zone under City Plan.
The Appellant’s land contains Old Bishopsbourne, which was the residence of the first Anglican Bishop of Brisbane, and the Chapel of the Holy Spirit. Both are State heritage listed buildings. The Old Bishopsbourne has been on the Appellant’s land since the 1860s and the Chapel was constructed in 1912.
In addition to the heritage listed buildings, the Appellant’s land includes an educational establishment, being a theological college, the college library, administration buildings, and accommodation for students and staff in the form of six multi-level townhouses and three single-storey flats.
The buildings on the Appellant’s land that are closest to the subject land’s western boundary are:
(a)the college library, which is open to the community and contains over 35,000 books and a lecture or function space at the lower level;
(b)the spiritual direction building to the north of the library, which includes an office and two meeting rooms; and
(c)townhouses containing residential accommodation.
The Appellant’s land is open to the public. It is used for functions, school visits, conferences, weddings and funerals. The area between the boundary shared with the subject land and the library is used as a breakout space during lectures.
What are the parameters of the proposed development?
The development application seeks to materially intensify that part of the existing use of the subject land that involves producing beverages by mixing ethanol and syrup. The intensification is sought to be facilitated using liquid ethanol. The liquid ethanol is to be stored in a new ethanol storage facility containing three tanks, each with capacity to store 40,000 litres of ethanol.
The ethanol storage facility is proposed to be situated on part of the existing ethanol tanker unloading area near the western boundary of the subject land. The ethanol storage facility is between 9 and 10 metres in height. It will sit at a lower ground level than the Appellant’s land. It is setback a minimum of 3.5 metres from the western boundary and 7.7 metres from the nearest building on the Appellant’s land.
The proposed ethanol storage facility will interface with the existing pipework from the existing ethanol tanker facility to facilitate retrieval of ethanol for use in the production of beverages. It is apparent from the common material that the development application does not only seek authorisation for the introduction of the ethanol storage facility. It also seeks authorisation to produce ready-to-drink alcoholic beverages by connecting the ethanol storage facility to the existing ingredients store and syrup mixing room and other parts of the brewery.
The proposed development involves many design, construction and operational features that are directed to minimising the risk posed to public safety, property and the environment by the proposed storage of ethanol and its use in the beverage production process. Many of the proposed design, construction and operational features are detailed in the approved drawings and documents referenced in the Council’s decision notice and conditions. Two approved reports are particularly informative, namely:
(a)the report titled “Project Alpha 2 Tanker Unloading Area and Bulk Ethanol Tank Chamber – Dangerous Goods Report Revision 5” dated 3 August 2023 (as amended in red by the Council on 7 February 2024) (“the approved Dangerous Goods Report”); and
(b)the report titled “Project Alpha Phase 2 Ethanol Tanker Unloading & Storage in Tank Chamber – Hazardous Area Classification Revision 5” dated 3 August 2023 (as amended in red by the Council on 7 February 2024) (“the approved Hazardous Area Classification”).
Other details of the proposed development have been incorporated as part of the minor change application made during the trial. They are detailed in Exhibit 36. I identify some of the key risk mitigation features of the proposed development in paragraphs [88] to [120] below.
What are the key design and construction features of the tank chamber?
The ethanol storage facility is an enclosed and roofed blockwork structure, which is referred to as a tank chamber. The ethanol storage tanks are to be placed together inside the tank chamber.
As a minimum, the tank chamber is to be designed and constructed to comply with the requirements of Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids, section 5.13 (Installation Method for Tanks in Tank Chambers). This requirement, of itself, involves incorporation of stringent measures that are intended to minimise risk.
Australian Standards represent the consensus of professional opinion and the practical experience about sensible, safe precautions: Onetech Pty Ltd v Shaw [1999] WASCA 289 at [17] citing Ward v The Ritz Hotel (London) Ltd (1992) 1 PIQR 315 at 317. They are reviewed periodically to reflect progress in science, technology and systems.
Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids supersedes AS1940—2004. It was prepared by Standards Australia Committee ME-017. That committee was constituted by experts and received the assistance of other expert individuals during the draft’s public comment period. Committee ME-017 contained representatives from, amongst others, Australasian Fire and Emergency Service Authorities Council, Australasian Institute of Dangerous Goods Consultants, Australian Industry Group, Department of Defence, Engineers Australia, Fire Protection Association Australia, Plastic and Chemicals Industries Association, SafeWork SA, WorkCover NSW, Workplace Health and Safety Qld and WorkSafe Vic.
Most of the design requirements for the tank chamber are set out in section 6.3 of the approved Dangerous Goods Report. Some have been changed by the minor change application. The design features exceed the minimum requirements in the Australian Standard. Relevantly, the tank chamber is to be designed and constructed so that:
(a)the tank chamber walls will have a fire resistance level of 240/240/240;
(b)the tank chamber floor will have a fire resistance level of 180/180/180;
(c)the tank chamber roof will have a fire resistance level of 180/180/180 and is to be constructed with hollow-core, precast roof planks and a concrete topping reinforced concrete slab that is at least 150 millimetres thick;
(d)there will be a clear space of at least 1,100 millimetres between tanks, at least 600 millimetres between any tank and any wall of the tank chamber, and at least 2,100 millimetres between the top of any tank and the underside of the tank chamber ceiling;
(e)the doorway to the tank chamber will be protected by an entry door with a fire resistance level of -/120/30 that will ordinarily remain closed and fire shutters on a fusible link with a fire resistance level of -/120/30;
(f)the sill of the doorway will be raised to provide a liquid-tight compound capable of sustaining the hydrostatic load and having a net capacity of approximately 78,000 litres, being a volume well in excess of the largest tank;
(g)in place of the spillage disposal measures described in section 6.3.2 of the approved Dangerous Goods Report, the bund sump in the tank chamber will include a valve to discharge any spillage in the bund to the existing underground spill containment tanks referred to on Drawing SA106 Issue K14. The bund sump and valve will be designed to be:
(i)capable of draining at a rate of at least 11.4 kg/s;
(ii)activated on either or both of:
(A) detection of liquid by a level switch system (see paragraph [108] below); and
(B) de-energisation of the tank chamber; and
(h)the tank chamber will withstand pressure resistance of at least 30 kPa.
These design measures ensure that the tank chamber will be fire-rated and act as a radiant heat barrier to neighbouring buildings.
Prior to the commencement of the use, certification is to be provided by a suitably qualified RPEQ engineer or appropriately qualified dangerous goods consultant to demonstrate that the tank chamber has been designed and constructed as proposed.
What are the key design and construction features with respect to ventilation?
Each tank will be fitted with a free vent system that facilitates venting via vent lines that penetrate the eastern wall.
There is to be a condenser fitted to the vent lines to condense the ethanol as liquid. The condensate from the vent lines will drain to the underground spill containment tanks. The condenser will be designed and constructed to achieve an ethanol reduction efficiency of at least 98 per cent.
The condenser will include a system for monitoring the condenser instruments (including refrigerant supply/return temperature, refrigerant flow and compressor power draw) during the filling process.
A control system will be installed that blocks the transfer of ethanol from a tanker to the ethanol storage tanks if the condenser is not operating at the temperature necessary to achieve the required ethanol removal efficiency.
The vent lines for the tanks will terminate via a single combined vent outlet. The outlet will be fitted with a flame arrester and insect exclusion device. In accordance with recommendations made in a joint report of air quality experts, the vent outlet will be at a height of RL 29.6 and located at the eastern end of the canopy that covers the tanker unloading area. That location is farther from the Appellant’s land than the originally proposed vent location.
All tanks will have a pressure relief or emergency vent that will discharge within the tank chamber. The tank chamber is a sealed building that has a single ventilation supply duct with a fan at a high level and a single ventilation exhaust duct at low level. The downstream ductwork will extend beyond the roof of the chamber. Both ducts will be on the eastern side wall and will be protected with fire-rated shutters that will ordinarily be closed.
What are the key design and construction features with respect to the electrical system?
The tank chamber will contain an equipotential bonding system that electrically bonds and earths all piping, tanks and metal surfaces to eliminate the likelihood of static discharge that is otherwise potentially capable of igniting ethanol vapour.
The electrical system in the tank chamber will be an explosion-protected electrical system designed and constructed in accordance with section 6.1 of the approved Hazardous Area Classification. This includes a requirement that all electrical equipment is to be designed in accordance with Australian Standard AS60079 Explosive atmospheres, Part 14 – Electrical installations design, selection and erection.
The electrical system will be independently audited and approved by a Queensland Government accredited hazardous area auditor prior to its initial energisation.
What are the key design features of the tanks?
The tanks within the tank chamber will be constructed of grade 304 stainless steel.
The tanks will contain a volume comparison alarm that measures:
(a)the level of ethanol within the tanks (via a level transmitter); and
(b)the amount of ethanol being transferred into the tanks (via a flow transmitter).
What are the key design measures for detection of ethanol in the tank chamber?
The tank chamber will contain ethanol vapour detectors capable of measuring the concentration of ethanol vapour within the tank chamber. Those ethanol vapour detectors will be self-testing and are to be designed and installed up to safety integrity level 3.
The vapour detection system will automatically trigger the activation of:
(a)alarms within the subject land that alert the operators of ethanol concentration exceeding a low-level trigger point;
(b)a ventilation system to restore the concentration of ethanol vapour to within acceptable limits inside the tank chamber; and
(c)a personnel safety lockout system that prevents people accessing the tank chamber until ethanol vapour levels are considered acceptable for entry.
A level switch system will be designed to detect liquid within the bund sump and installed in the bund sump as shown on Drawing DA303 Issue C. It will be designed and installed to safety integrity level 3.
What are the key design and construction measures for detection of fire in the tank chamber and the ethanol tanker unloading area?
The tank chamber and the ethanol tanker unloading area will be fitted with a fire detection system that detects the presence of ignited ethanol. This will trigger an automatic alarm signalling to the Queensland Fire Department and an onsite emergency response. The fire detectors will be self-testing.
What are the key design measures to address ethanol vapour or fire detected in the tank chamber?
The minor change to the development application replaces the internal fixed foam pourers with a water mist fire and explosion suppression system (“the water mist system”)
The water mist system will create water particles of an appropriate size to:
(a)dissolve ethanol vapour in the tank chamber; and
(b)extinguish an ethanol fire (in compliance with Australian Standard AS4587:2020 – Water mist fire protection systems).
The water mist system will be:
(a)powered from a separate power supply to the tank chamber;
(b)provided with a continuous backup power source (for example, from a diesel generator); and
(c)tested and certified as meeting the proposed requirements prior to the commencement of the use, and the certification will be provided to the Council.
The water mist system will activate, and the tank chamber will be automatically de-energised, if any one or more of the following occurs:
(a)the ethanol vapour detectors detect ethanol vapour concentration at, or above, 5 per cent of the lower explosive limit of ethanol;
(b)the level switch detects 100 millimetres of liquid in the bund sump;
(c)the volume comparison alarm for the tanks detects a discrepancy between the volume of ethanol being transferred to the tanks and the volume of ethanol in the tanks;
(d)the fire detectors in the ethanol tank chamber are activated; or
(e)any sensor, detector or switch referred to above is not operating correctly.
What are the key design, construction and operational measures relating to access to the tank chamber and re-energising of the tank chamber?
The tank chamber will be fitted with a personnel lockout system that prevents access to the tank chamber until ethanol vapour levels are considered acceptable for entry (as required by section 6.3.3 of the approved Dangerous Goods Report). The system will deny access if any of the situations in paragraph [113] above occur.
The tank chamber will not be re-energised if any of the situations in paragraph [113] above remain present.
What are the key additional design measures that assist to minimise risk during operation?
Signage will be displayed on the tank chamber in a location that is visible to operators, tanker drivers and persons on the internal roadway. The signage will include warning labels that identify:
(a)danger – no smoking, no naked flames;
(b)the class of the danger, i.e., class 3 – flammable liquids diamond; and
(c)that ignition sources (including electrical devices, tools, mobile phones or other similar devices) are not permitted in any hazardous zone.
Also, signage will be displayed at the site entry identifying:
(a)warning – restricted area, authorised personnel only;
(b)the relevant emergency contact names, titles and phone numbers;
(c)the name, address and phone number of the occupier; and
(d)the location, by diagram, of any fixed fire services that have been installed, the drainage system and any emergency stop switches.
There will be visible and audible alarms that indicate the status of the tank chamber as healthy or unhealthy. The “unhealthy” status alarm will be triggered on the occurrence of, amongst other things, any one or more of the following:
(a)there is a power or control failure;
(b)any emergency stop switch has been activated;
(c)a fan has a run signal, but no running is detected;
(d)a liquid level is detected within the sump; and
(e)there is an ethanol atmosphere monitor reading of more than a specified value.
What other risk minimisation measures are proposed prior to commencement of the use?
Following the detailed design of the measures identified above, a final hazard analysis is to be prepared in accordance with s 3.6.4 of the Industrial hazard and risk assessment planning scheme policy.
The final hazard analysis is to be submitted to, and approved by, the Council prior to issue of a development permit for building works.
What other general observations are pertinent with respect to the proposed development?
The common material for the development application reveals that the proposed development has been the subject of extensive input from experts. The experts provide a detailed explanation of the proposed development and an assessment of its performance against the many relevant assessment benchmarks in City Plan.
As one would expect for a development such as this, the common material reveals that the Council carefully reviewed the development application. It requested clarification and further details about certain matters. Lion-Beer, Spirits and Wine Pty Ltd responded to the important issues that were raised by the Council during its assessment, including by refining details of the proposed development.
Similarly, Lion-Beer, Spirits and Wine Pty Ltd responded to legitimate matters of concern raised by the expert witnesses retained for this hearing, even those raised late in the trial. One relevant example of this is the way Lion-Beer, Spirits and Wine Pty Ltd responded to the criticisms about the effectiveness of its proposed measures to minimise risk of a stoichiometric tank chamber explosion. This is one of the key remaining contentions raised by the Appellant. I will return to that issue in due course.
The risk mitigation measures proposed by Lion-Beer, Spirits and Wine Pty Ltd are extensive and multi-layered.
The effectiveness of the proposed risk mitigation measures can be ensured by the imposition of reasonable and relevant conditions, like those imposed in the Council’s decision notice. (None of the Council’s conditions were challenged by either Lion-Beer, Spirits and Wine Pty Ltd or the Appellant).
The Appellant’s allegations are founded on its proposition that the location of the proposed development does not minimise the risk to public safety and property as required by performance outcome PO3 of the Industry code. That proposition underpins the Appellant’s case that the location of the tank chamber near the boundary is not compatible with the sensitive uses on the Appellant’s land.
The Appellant concedes that if the Court is satisfied that the proposed development complies with performance outcome PO3 of the Industry code, then there is no remaining planning reason for refusal. However, it says that if there is some non-compliance with performance outcome PO3 of the Industry code, then the proposed development would unduly affect the reasonable health expectations of those occupants of the sensitive uses on the Appellant’s land.
Considering my findings above, it is unnecessary to further address this issue.
For reasons already given, I am satisfied that the proposed development complies with performance outcome PO3 of the Industry code and that it will not unduly affect reasonable health expectations. It complies with the assessment benchmarks in land use strategy L2.3 in s 3.5.3, Table 3.5.3.1, for Element 3.2 of Theme 3 of the Strategic framework and the overall outcomes in ss 9.3.12.2 2.c. and d. of the Industry code.
Does the proposed development comply with the relevant assessment benchmarks?
For the reasons provided above, I am satisfied that the proposed development complies with each of the assessment benchmarks that remain in issue.
Should the proposed development be approved in the exercise of the discretion?
All parties agree that the outcome of this case is dependent on the view of the Court on the issue of risk. It is also common ground, and I accept, that the approach to be adopted in examining risk is informed by the principles summarised by His Honour Judge Williamson KC in Pynhall Pty Ltd v Logan City Council [2024] QPEC 11 at [51], wherein His Honour observed:
“[51] Having regard to the above decisions, and those set out at paragraph 41 of Council’s written submissions, a number of propositions of general application can be distilled with respect to an examination of risk. The propositions are as follows:
(a)caution, and a careful approach, is appropriate where matters of public safety are involved;
(b)the presence of risk does not, in and of itself, call for a nervous approach or intolerance;
(c)the attractions of avoiding responsibility for allowing a proposal which has an element of serious risk, while only too obvious, must be resisted because to adopt such an approach would be superficial and an abrogation of the judicial function;
(d)the standard to which the Court must be satisfied that a development will not be a source of unacceptable risk is the civil standard, namely a degree of persuasion of the mind according to the balance of probabilities; and
(e)the assessment of risk and its acceptability calls for an examination of:
(i) the nature and extent of the risk; and
(ii) the means by which the risk is proposed to be addressed.”
As I have explained above, the Appellant advances three propositions that are fundamental to its case for refusal, namely:
(a)there is an unacceptable risk to public safety and property from a stoichiometric tank chamber explosion that will result in effects beyond the failure of the tank chamber;
(b)the location of the proposed development adjacent the Appellant’s land does not minimise the risk to public safety and property because:
(i)the separation distance between the tank chamber and the Appellant’s land does not meet the requirements of Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids;
(ii)there are alternative feasible locations on the subject land; and
(c)the proposed development will unduly affect reasonable health expectations.
With respect to the third proposition, the Appellant’s case was founded on an assumption that the Court would make some findings consistent with the first two propositions advanced by the Appellant.
For reasons explained above, the evidence comfortably persuades me that none of the Appellant’s concerns are established.
The observations of His Honour Judge Quirk in GFW Gelatine International Ltd v Beaudesert Shire Council & Ors [1993] QPLR 342 at 353 are apposite in this case. His Honour observed:
“The onus of showing that the application for town planning consent should be approved of course rests with the Applicant, but this is not to say that in a proposal yet untried, the complete absence of any likely future difficulty must be demonstrated. It is essential that it be shown that the relevant procedures and their likely impact on the environment are properly understood by the Appellant and its expert consultants and that there is a capacity to deal with any difficulty that might arise in a way which will preclude unacceptable results.
The results that are achieved are all important and the means whereby these results are achieved are less so. While there should be no uncertainty at all about the standards that are called for, there is more room for flexibility regarding the way in which these results are attained. Lessons will be learned in practice and there will, no doubt, be advances in technology. As I have already said, the proposed Environmental Management Plan is of considerable importance in this context and I accept that, prior to the commencement of the proposed use, the form of this Plan be carefully settled to the satisfaction of the appropriate authority.”
Lion-Beer, Spirits and Wine Pty Ltd has persuaded me that it and its expert consultants properly understand the nature of the risk, its likely impact, applicable standards, and the relevant risk management measures and procedures.
Lion-Beer, Spirits and Wine Pty Ltd’s response to the issues belatedly raised by Dr Abdel-jawad with respect to the foam suppression system shows that there is capacity to responsibly respond to any difficulty that might arise in a way that will preclude unacceptable results.
On the evidence given in the appeal, I am satisfied that the proposed development, with all its risk management features, can be carried out in a responsible manner that affords protection to the community’s interests.
As such, having considered the nature and extent of the risk and the way the risk is proposed to be addressed, I am comfortably satisfied that the risk will be appropriately addressed by the grant of a development permit subject to conditions. The conditions included in the Council’s decision notice will require refinement to reflect the changed development application and to ensure the incorporation of each of those features identified in paragraphs [83] to [120] and conditions of the type referred to in paragraph [126] above.
The Council may also wish to consider the imposition of conditions of the type mentioned in paragraph [72] above.
Conclusion
Lion-Beer, Spirits and Wine Pty Ltd has discharged the onus.
In due course, the Council’s decision will be set aside and replaced with a decision to approve the development application (as changed) subject to conditions.
To facilitate the preparation of a suite of conditions, I will return the appeal to the applications list for review on 16 July 2025. The appeal will remain on that list unless and until a dispute arises about conditions of approval.
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