Theo v Caboolture Shire Council

[2000] QPEC 59

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Theo v Caboolture Shire Council [2000] QPE 059
PARTIES:	SOL THEO AS TRUSTEE FOR THE SOLON THEO FAMILY TRUST Appellant and CABOOLTURE SHIRE COUNCIL Respondent and STERITECH PTY LTD Co-Respondent
FILE NO/S:	4096 of 1999
DIVISION:	Planning and Environment Court
PROCEEDING:	Submitter Appeal
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	14 September 2000
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	Judge McLauchlan QC
ORDER:
CATCHWORDS:
COUNSEL:
SOLICITORS:	Gadens Lawyers for the Co-respondent

1. This is a submitter appeal against the decision of the respondent Council to approve

   an application for a material change of use to facilitate the use of land for the

   purpose of a sterilisation and decontamination plant. On 14 May 1999 the co-

   respondent lodged a development application with the respondent. The application

   was lodged in accordance with the provisions of the Integrated Planning Act and

   was accompanied by a report outlining the nature and operations of the proposed

   use. The application did not trigger referral to the Environment Protection Agency under the Integrated Planning Regulation 1998, nor to the Department of Main

   Roads under the Integrated Planning Amendment Regulation (No. 2) 1999.

   Radiation Health is the state agency primarily responsible in the area of radiation

   safety, but it is not a referral agency for the purposes of the Integrated Planning

   Act. However in the course of assessment of the application the respondent Council

   did seek advice from this agency. An information request was made to the

   applicant on 8 June 1999 and was responded to in the same month. The application

   was publicly notified and at a meeting on 31 August 1999 the respondent Council

   resolved to approve the application subject to conditions. The present appeal was

   lodged on or about 18 October 1999. The co-respondent bears the onus of proof:

   s.4.1.50(2) IPA.

2. The land on which the proposed use is to be carried out is situated at 180-186

   Potassium Street, Narangba, within the Narangba industrial estate which is situated

   in the localities of Narangba and Deception Bay, approximately 13 kilometres west

   of Redcliffe, 40 kilometres north of Brisbane and 12 kilometres south of

   Caboolture. The subject land is described as Lot 14 on Crown Plan 913022, Parish

   of Redcliffe, Country of Stanley and contains an area of 1.279 hectares. The land is

   approximately rectangular, with a frontage of 80 metres to Potassium Street. It

   initially slopes up from the Potassium Street frontage for a short distance, and then

   slopes at an even gradient down to the rear property boundary. That part of the

   subject land to be developed is cleared of any significant vegetation. The mature

   trees to the west (rear) of the site are to retained in a 40 metre corridor outside of

   the development area. The Narangba industrial estate is an area identified and

   developed by the Crown to promote employment and economic growth within the

   region. There is a current development application for a material change of use relating to an adjoining lot (Lot 13). This application is for the purpose of

   establishing a hide curing works which, for the purpose of the schedule to the

   transitional town planning scheme, is defined as a “hazardous, noxious or offensive

   industry”. Existing and approved uses within the Potassium Street precinct of

   Narangba (Industrial) Development Control Plan include:-

· a regulated waste treatment facility;

· two chemical manufacture plants;

· a tannery and a sheepskin tannery;

· 2 timber preservation works;

· oil recycling works;

· organic fertiliser works; and

· an agriculture product works;

All these plants use or produce substances, which unless properly handled, can

cause dangerous emissions both to persons on the site, to neighbouring sites and to

the environment.

1. The closest allotments to the subject land zoned and used for residential purposes

   are the rural residential allotments situated in Old Gympie Road, to the west of the

   subject land. The closest of these is situated approximately 750 metres to the west

   of the subject land and is separated by a significant area of vacant land zoned

   special industry, the Bruce Highway, existing industrial development on the

   western side of the Bruce Highway and Old Gympie Road. The closest residential

   properties to the north are rural residential allotments fronting Deception Bay Road,

   1.5 kilometres to the north of the subject land. The closest allotment included in the Residential A zone is over two kilometres to the subject land, and the closest

   residential property to the south of the subject land is over 1.5 kilometres from the

   subject land.

2. The proposed development involves the irradiation of packaged products by gamma

   rays emitted from Cobalt 60. Cobalt-60 is a “radio active” substance, an expression

   which connotes “radio active decay” whereby an atom in an unstable state

   transforms into a stable state, the process being accompanied by the emission of

   radiation. Radiation is a term applied to electro magnetic waves. Radiation is

   employed for the purposes of sterilisation and decontamination of various products.

   It is unquestionably a dangerous activity with the potential to cause serious injury

   or death to any organism exposed to it. The process irradiates articles exposed to it,

   and has the effect of destroying viruses, bacteria and other micro organisms. The

   co-respondent operates two radiation plants, in Dandenong in Victoria and

   Wetherill Park in Sydney, and there is also a similar plant in Upper Hutt near

   Wellington in New Zealand. The two plants in Dandenong and Wetherill Park have

   operated without injury to humans or to the environment since 1971 and 1986

   respectively and the New Zealand plant has operated in the same way since 1964.

   According to Mr West who is the general manager of the co-respondent, there are

   now over 200 gamma irradiation sterilisation and decontamination plants

   throughout the world which are of similar design to the two plants operated by his

   company. The irradiation sterilisation process is used for a variety of purposes

   including medical, cosmetic, pharmaceutical, agricultural and quarantine. Medical

   products include wound dressings, cotton wool balls, dressing kits, cotton sponges,

   catheters, custom kits for surgical procedures, cardiac kits, syringes, sutures,

   bandages, surgeons’ gloves, plastic components for intravenous drips, sterile water and material from the bone and tissue banks. Cosmetic products include talcum

   powder, shampoo, hair conditioner, creams, gels and powders, Pharmaceuticals

   include husks, capsules, petrie dishes, specimen jars, honey balm and sunscreens.

   Agricultural products include beehives, mice bait, peat soil and animal feed, and

   quarantine products include tom tom drums, furniture, toys, artefacts, carpets, rocks

   and soil, plant material, masks, saddles and bridles. There is also a miscellaneous

   category which includes a wide range of food packaging, water filters, baby bottles,

   veterinary vaccines, cricket bats, laboratory animal feed and bedding.

3. Gamma sterilisation plants are designed and constructed upon the principle that a

   sufficient thickness of water and concrete cannot be penetrated by cobalt-60 gamma

   rays. The basic requirements are:

(a) a deep water filled well to shield the radiation source when not in

use;

(b)	a thick concrete walled cell to shield the source when it is in use;
(c)	a conveyor system to introduce the produce to be irradiated into the

cell and get it out again;

(d) a simple and (hopefully) foolproof series of duplicated controls to

ensure no-one can enter or remain in the cell when the source is in

the unshielded position; and

(e) a maze for employee access and one for product access. The maze is

designed to eliminate any direct beams of radiation emerging from

the product cell when the source is in the irradiation position.

1. The industrial process consists of the receipt and warehousing of goods on a short

   term basis in a conventional storage space, then the movement of those goods by a conveyor system into an adjacent chamber of massive concrete construction, where

   the goods, in the absence of any human presence, are irradiated by an externally

   controlled automated system which suspends the cobalt-60 pencils (which

   themselves are encased in stainless steel) within the chamber. These pencils emit

   the gamma radiation which penetrates the denseness of the goods to be irradiated

   and sterilises and decontaminates them. They then leave the chamber

   automatically.

2. The irradiated goods themselves, do not carry any radiation out of the chamber.

   The cobalt-60 rods when not required for the irradiating process are automatically

   lowered into water contained by a tank which is below the floor level of the

   chamber and itself is constructed of massive concrete lined with stainless steel.

   Again the evidence is that whilst the cobalt-60 rods are immersed in water no

   radiation is present in the chamber and the chamber can be safely entered for

   maintenance for other purposes, by employees at the facility.

3. The chamber of the irradiation facility is designed to prevent any spill of radiation

   outside the chamber whilst the cobalt-60 rods are in an operating position, and any

   spill of radiation into the chamber whilst the rods are immersed in the water tank

   described above. Evidence was given of fail safe systems, some pioneered by the

   applicant itself as a result of a malfunction experience in the Victorian facility some

   years ago. The operators are trained, and the systems are designed, to ensure that a

   person cannot enter the chamber whilst the irradiating process is taking place. The

   workers are constantly monitored, by means of radiation-sensitive collar tabs, to

   ensure that they do not receive harmful doses of radiation.

4. The cobalt-60 rods are imported in robust and specially designed containers from

   Canada where the rods have been exposed in a nuclear reactor, a facility not

   available in Australia, to make them radioactive. The rods, which lose the strength

   of their gamma radiation beam over a period of time, have a comparatively short

   effective commercial life after which they are returned to Canada.

5. Apart from the planning authority required, there are two other levels of

   governmental requirements to be satisfied. These are the specialist state health

   units dealing with radiation matters, in Queensland the agency known as Radiation

   Health, and the licensing requirements of the Commonwealth government for the

   importation and disposal of the cobalt-60 rods. There are regulations which require

   the cobalt rods or pencils to be carried in specially constructed containers by air or

   sea to and from Australia.

6. Although the process proposed by the co-respondent involves the employment of

   material which has been made radioactive it is not a “nuclear facility” in the

   accepted meaning of that term. That is, the proposed facility is not a plant which

   produces radioactivity. It relies upon the emission of radiation from a source which

   is already radioactive but does not itself produce radioactivity. Nonetheless there

   are instances throughout the world where persons associated with plants such as

   proposed have been irradiated and seriously injured or killed. I think it is right to

   say that in these instances there has been an unacceptable laxity in the safety

   procedures laid down at those facilities, or in the execution of those procedures.

7. The plan of the proposed sterilisation plant contains an area of approximately 2,600

   square metres of which the irradiation plant itself occupies 570 square metres, the remaining area being taken up by the warehouse office, amenities and awning. The

   site cover is 24 per cent and there is provision for carparking for 22 cars. With

   respect to the irradiation plant the source well or pool is to be 8.43 metres deep with

   cell walls of 1.9 metres thick concrete, maze walls 1.22 metres thick and a design

   capacity of 3.5 million curies. No persuasive argument has been addressed with

   respect to the design of the plant, except in the form of an argument that the dangers

   associated with such a use are such that it ought not in any circumstances to be

   permitted.

8. The land in question, the Narangba industrial estate, was developed by the State

   government as an industrial estate and is served at its road frontage by a bitumen

   road designed for industrial traffic with easy access to the Bruce Highway and other

   principal roads and transport corridors within south-east Queensland, including

   access to the Brisbane Airport and Port of Brisbane. Both the latter are important

   for the importation of the cobalt-60 rods as well as in relation to requirements of the

   quarantine service and in relation to export industries.

[14] The town planning scheme provisions which fell for consideration in the

assessment of the application were the Schedule gazetted in March 1988 which,

inter alia, sets out zones and defines uses within the Shire, the Strategic Land Use

Plan of 1993 and Development Control Plan No. 3 – Narangba (Industrial). At the

time of lodgment of the application the Development Control Plan had not been

gazetted but it had been initiated and advertised and without significant change was

finally gazetted on 17 December 1999. At the same time as the DCP was gazetted

there was also gazetted a change of zoning of the subject land from the “General

Industry” Zone to the “Special Development Zone”. That was necessary, if the DCP was to apply to the Narangba Industrial Estate, by a requirement of the DCP

which provides that to undertake development within the DCP area land must be

included in the “Special Development” Zone.

1. The Schedule contains statements of the intent of “General Industry Zone”,

   “Special Industry Zone”, and “Special Development Zone”. These provisions are

   as follows:

   “General Industry Zone - the purpose of this zone is to provide for a wide range of industrial activities with the heavier based industries requiring Council’s consent to ensure their suitable location.”

   “Special Industry Zone – the purpose of this zone is to provide, by town planning consent, for industries which may be hazardous, noxious or offensive to other uses or people such that it is desirable to segregate the uses from uses which are not so classified.”

   “Special Development Zone – this zone is intended to confer land use rights in accordance with the provisions of a gazetted development control plan in force over the area to which the Special Development Zone is allocated.”

2. The expression “hazardous, noxious or offensive industry” is also defined in the

   Schedule in the following terms:-

   “Any land building or other structure or any part thereof used or intended for use for any industry which by reason of the processes or materials involved or a method of manufacture or the nature of the processes or materials used or produced, relies isolation from other buildings or areas of human activity or occupation because of the detrimental effect which such processes or material have or might have on the amenity of such areas or the health of its occupants and including those shown in Appendix III hereto; or an activity which is in the opinion of the Council consistent with the activities so

   listed:-”

   The list includes such activities as acid manufacturing, ammonia manufacturing,

   arsenal chemical works, explosive manufacturing, petroleum and petroleum

   products refinery, germicide manufacturing, gas manufacturing, tannery and many

   others.

3. Although at the time of the application the DCP had not been gazetted it had been

   adopted by Council on 2nd March 1999 and was publicly advertised between 24

   April and 25 June 1999. On this basis it was appropriate for Council to give the

   document considerable weight.

4. I accept that the use proposed by the co-respondent should be regarded as falling

   under the heading of hazardous noxious and offensive industries. It was

   accordingly a prohibited use in the then zoning of the land as “general industry”.

   Accordingly an application for a material change of use under IPA was required.

   That remains the position, notwithstanding the gazettal of the DCP, and the change

   of zoning of the subject land to “Special Development Zone”: section 6.1.28(1)

   IPA.

5. At the time the application was lodged the Preferred or Dominant Land Use for the

   site and surrounding areas pursuant to the 1993 Strategic Plan, was “Industrial

   Area”. The intent for the “Industrial Area” designation states as follows:-

   “These areas are shown coloured purple on the strategic land use plan map and designate existing major industrial developments and areas appropriate for industrial development within the Shire. Future industrial development should utilise existing undeveloped industrially zoned land. Expansion outside of existing industrial areas should, where practical, be confined to land adjoining these areas with such expansion only permitted when justified.

   Uses considered appropriate for industrial areas include a wide range of industrial development, except for Special Industries which shall be limited to the Narangba Industrial Estate. Other uses which are considered to be appropriate and compatible with industrial development include takeaway food premises, service stations, storage facilities and warehouses.”

6. Although the term “Special Industries” is not defined in the planning scheme it is

   obviously intended to connote industries which would be located within the Special Industry Zone, the purpose of which zone has already been indicated. In my

   opinion the strategic plan strongly indicates that a use such as that proposed by the

   co-respondent should be located in the Narangba Industrial Estate.

7. In my view there is no conflict between the proposal and the Objectives and

   Implementation Criteria of the Industrial Area designation. One of the

   Implementation Criteria refers to the “findings of the Integrated Catchment

   Management Strategy and the Atlas of Natural and Cultural Resources” to which

   regard is to be had in assessing any applications in order to retain wherever possible

   any pockets of remnant vegetation of significance. With respect to the Integrated

   Catchment Management Strategy, the evidence is that to date only the Saltwater

   Creek Catchment Management Plan has been prepared and is dated June 1999. The

   strategy has not yet been adopted by Council. The Atlas of Natural and Cultural

   Resources was published in 1995. However with reference to this particular

   Implementation Criterion the evidence does not indicate any significant remnant

   vegetation on the site apart from mature trees at the rear of the site which will be

   retained and which are separated from buildings and activity upon the site.

8. As indicated above Development Control Plan No. 3 was gazetted on 17 December

   1999. The DCP area covers all of the Narangba Industrial Estate. The estate is

   divided into nine precincts and the subject land is included in Precinct 5 – called the

   “Potassium Street precinct”. The general intent with respect to this precinct is as

   follows:-

   “Land included in the Potassium Street precinct is located on the southern portion of the DCP area over the existing industrial estate and extends west to the Bruce Highway. The northern limit of the precinct is defined by the Saltwater Creek Conservation Precinct and provides physical separation between this precinct and the precinct to the north. Saltwater Creek provides a green link, environmental and fauna corridor around and through the precinct and uses should not adversely affect the water quality established for this creek system.

   The Potassium Street precinct is intended for uses that are best separated from residential areas and other sensitive land uses although it is acknowledged that some of the current activities are within close proximity to non-industrial land uses. The precinct is considered to be of regional significance for the difficult–to-locate businesses and industries in south-east Queensland.

   New activities permitted in this precinct should be aiming to minimise any adverse impacts upon the amenity of residential areas outside the Narangba Industrial Area and upon other precincts located within the DCP area. This will be achieved through the compliance with the development standards contained in the DCP.

   Uses that are inconsistent with this intent and which could reasonably be located elsewhere in the DCP area will not be permitted.”

1. The DCP contains further provisions with respect to Amenity, Built Form and Site

   Development for uses within Precinct 5. I am satisfied that the current proposal

   conforms with these requirements. With respect to the general intent of Precinct 5 I

   consider that the second paragraph, referring as it does to uses that are best

   separated from residential areas and other sensitive land uses, and to the regional

   significance of the precinct for difficult to locate businesses and industries in South-

   East Queensland gives a strong indication that this precinct of the Narangba

   Industrial Estate is a suitable location for an irradiation sterilisation and

   decontamination plant.

2. Pursuant to the provisions of the DCP with respect to Precinct 5, an application for

   a material change of use to carry on a hazardous, noxious or offensive industry

   requires that the application be subjected to Impact Assessment. This process,

   including public notification has been applied in this case.

3. The first two disputed issues in the appeal are that the proposed development -

(a) conflicts with the Strategic Land Use Plan for the Shire of

Caboolture and there are not sufficient planning grounds to justify

approving the application despite the conflict;

(b) conflicts with the objective of the Industrial Areas designation of the

Planning Scheme for the Shire of Caboolture.

1. In my opinion it is evident that no conflict is to be found between the proposed

   development and the Strategic Plan of the respondent. More particularly the

   respondent was entitled in my view to take into account the provisions of the

   Development Control Plan referred to above, as is this Court. The Development

   Control Plan was at an advanced stage at the time of the application. The approval

   was granted on 31 August 1999 and the Development Control Plan was gazetted on

   17 December 1999 and at the same time the land in the Narangba Industrial Estate

   was included in the Special Development Zone. See Coty (England) Pty Ltd v

   Sydney City Council 2 LGRA 117; and s. 4.1.52(2)(a) IPA. At the time of the

   application the proposal, as a noxious, hazardous or offensive industry was

   prohibited in the General Industry Zone whereas at the time of the appeal it was a

   permissible use in the Special Development Zone. In each case an application for

   material change of use under IPA is required by virtue of s.6.1.28(1) of that Act.

   (Section 6.1.9(3A) IPA provides that a prohibited use in a transitional planning

   scheme is taken to be an expression of policy that the use is inconsistent with the

   intent of the zone in which the use is prohibited.)

2. The location of the proposed use within the Special Development Zone and more

   particularly within Precinct 5 of the Development Control Plan appears to me to be appropriate in town planning terms having regard, in addition to the matters already

   mentioned, to the proximity of this location to the main arterial road, the Bruce

   Highway, the Port of Brisbane (via the Gateway Arterial) and the Brisbane Airport.

   Other matters advanced by the appellant in support of the above grounds appeared

   to have little or no substance. There were unpersuasive submissions in relation to

   vegetation on the land and some paper bark trees behind the proposed site as to

   which it appeared to me there was no demonstrated threat from the proposed use. It

   was urged that there were threats to the environment from the escape of radiation or

   gases from the proposed facility and a further submission that earthquakes of

   sufficient intensity could result in the breaching of the concrete and stainless steel

   lined water tank with an escape of radioactive or contaminated water. While

   recognising that that is at least a theoretical possibility it seemed to me to be an

   argument which would effectively require the prohibition of such a plant almost

   anywhere. The submission was not supported by any expert evidence on the point

   and was rejected by the expert engineering evidence called by the co-respondent.

   There was further complaint that no environmental impact statement was obtained

   but such was not called for under the IPA and Regulations.

3. The respondent did consult Mr Simon Critchley, a physicist and director of

   Radiation Health of the Queensland Department of Health in relation to the danger

   of radiation escaping from the chamber in the proposed facility or from the cobalt

   pencils in the course of transportation. His evidence suggested that neither of these

   matters was of serious concern realistically. The respondent and this Court are

   entitled to rely upon the expert views of such an authority in such a matter.

4. It is obvious that there is some confusion in the presentation of the appellant’s

   submissions in that they are not always directed to the correct issue and also in that

   the submissions are frequently made without any basis in fact having been

   established in the evidence before the court. There was a submission based upon

   the dangers of food irradiation, but the evidence is that is not legal to irradiate food

   under the controls presently in place, and that a change would require the approval

   of a ministerial council involving ministers from the whole of Australia and New

   Zealand. The respondent local authority is not empowered to and does not make

   those decisions.

5. The third disputed issue is that the development “is contrary to good town planning

   principles and practice”. I have been unable to discern anything relevant to this

   issue in the appellant’s submissions which has not already been referred to in

   relation to the two preceding issues. To the contrary, it appears to me that the

   proposed establishment of the facility on the site in question is generally in accord

   with good town planning principles and practice.

6. Appeal Ground (d) is that the proposal -

   “is contrary to each of the Saltwater Creek Management Plan and the

   Draft Narangba (Industrial) Development Control Plan.”

   This ground appears to be supported only by the hypothesis that water will escape

   from the stainless steel lined massive concrete in-ground tank in the irradiation

   chamber into the water table. This has not been demonstrated by any admissible

   evidence and its likelihood has been denied both by the co-respondent and by the

   engineer called on its behalf. In addition, it is the case that the salt water creek

   management plan is not a statutory planning document determinate of land use entitlements, but merely sets out general principles. The reference to the Narangba

   development control plan has already been dealt with.

7. The next disputed issue is that the proposal "will have an adverse affect on the

   environment".

8. The appellant declined to particularise this issue but the following matters have

   been raised as matters of concern: -

(a) the risk of an earthquake destroying the facility and exposing cobalt

60;

(b)	contamination of ground water;
(c)	"liquefaction";
(d)	the risk of accident during transport of the cobalt 60;
(e)	the storage of cobalt 60 in Narangba after its use;
(f)	emissions of ozone and nitrous oxides.

1. With respect to the first two issues, the engineer, Mr. Curtis, stated that the prospect

   of an earthquake in Caboolture is particularly remote, and in addition the building

   (because of its requirement for massive concrete to shield the gamma radiation is

   over-designed by a factor of 15 to 20 times to withstand earthquake damage. Mr

   Curtis' evidence is also relevant to the issue of liquefaction. According to his

   evidence this is simply not a possibility having regard to the soil structure and the

   presence of sandstone bedrock beneath the pool chamber.

2. The risk of accident during transportation of the cobalt 60 must be considered to be

   very small. There has never been such an accident in the history of the use of this substance for irradiation sterilisation. The containers designed to carry the cobalt

   60 are massive and designed to resist all credible accidents. The transportation is

   carefully controlled by government regulations. With respect to storage, after its

   use, all of the evidence indicates that the cobalt 60 is returned to its place of

   manufacture in Canada for safe storage for the balance of its active lifetime.

3. With respect to air emissions the evidence indicates that the plant will be fitted with

   an ozone detector which will shut down operations automatically if safe levels are

   exceeded, and there appears to be no evidence that the process produces nitrous

   oxide in excess of safe limits.

4. Disputed issue (f) is that the proposal - "will not advance the purpose of the

   Integrated Planning Act 1997, which is to seek to achieve ecological sustainability.

5. Section 1.2.1 IPA provides that the purpose of the Act is to seek to achieve

   ecological sustainability by -

"(a)	co-ordinating and integrating planning at the local, regional and State levels; and
(b)	managing the process by which development occurs; and
(c)	managing the effects of development on the environment (including managing the use of premises)."

1. Section 1.2.2 (i) provides that if under the Act a function or power is conferred on

   an entity, the entity must (subject to irrelevant exceptions) perform the function or

   exercise the power in a way that advances the Act's purpose. "Entity” is a word

   which in general applies to anything that exists. Under the Interpretation Act 1954

   it includes a person and an incorporated body. It includes a local government under

   IPA. The function or power of deciding an application is conferred upon the Assessment Manager which will usually be the local government within whose

   local government area the development is proposed: IPA s.3.1.7(1)(a). Under

   s.1.2.3 (i) advancing the Act's purpose includes applying the precautionary

   principle. The precautionary principle is stated to be:-

   "the principle that, if there are threats of serious or irreversible environmental damage, careful evaluation must be made to avoid wherever practicable serious or irreversible environmental damage including, if appropriate, assessing risk weighted consequences of various options."

2. "Ecological sustainability" is defined in s.1.3.3 to be a balance that integrates -

"(a)	protection of ecological processes and natural systems at local, regional, state and wider levels; and
(b)	economic development; and
(c)	maintenance of the cultural, economic, physical and social wellbeing of people and communities."

1. Generally speaking the proposed location for the sterilisation and de-contamination

   plant appears to me to take into account in a balanced way local, regional and state

   interests. It does not appear to me to be reasonable that commercial enterprises and

   other bodies wishing to avail themselves of such facilities should be obliged to send

   their product to New South Wales or Victoria for processing and return to

   Queensland, a situation which involves obvious unnecessary economic cost and use

   of infrastructure in the states involved.

2. At the same time, there is an obligation to apply the precautionary principle as

   indicated above. Essentially this principle calls for the avoidance of serious or

   irreversible environmental damage whenever practicable. The principle is

   concerned with environmental damage, not with danger to human life. Further, the

   principle is not concerned with bare possibilities of such 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. The section also calls for an assessment of "risk

   weighted consequences of various options" where appropriate. There are, as the

   evidence indicates, other processes which can be employed for sterilisation

   procedures, including steam, gas and electron beams. The evidence also indicates,

   however, that these methods are not effective or are far less efficient for the purpose

   of the sterilisation and de-contamination of packaged goods than gamma ray

   sterilisation. The evidence does not to my mind indicate a possibility of

   environmental damage arising out of the proposed operation of such a magnitude

   that it can be described as a threat. Of course there is always the possibility of

   catastrophic events against which human foreseeability cannot guard and there is

   also the possibility of human error in the management of dangerous substances.

   However the procedures which will be set in place seem to me, to reduce the latter

   possibility to a minimal risk. Also the possibility of escape of radiation from the

   plant by reason of natural disasters seems to me to be very remote. The standards

   of safety incorporated in the design of the plant are such that I do not think any

   reasonably foreseeable event would produce this result. Obviously such a result

   might occur if, for example, there were a completely unpredictable earthquake of

   enormous intensity affecting the Caboolture area, or perhaps, if the plant were to be

   struck by a meteor or some other object from space. I do not think however that

   application of the precautionary principle requires the respondent council or this

   Court to take into account possibilities of that sort. It seems to me, as a general

   proposition that environmental damage should not be seen as "threatened" unless it

   is reasonably foreseeable.

3. "Ecological sustainability" requires that attention be given to the physical wellbeing

   of people and communities, and thus requires an assessment of risk to the lives or

   health of plant personnel, and other persons who may be affected by the operation

   of the plant. There have been instances throughout the world where people have

   died as a result of lax procedures or failure to comply with procedures in

   sterilisation plants involving gamma radiation. However, the systems proposed by

   the co-respondent would, in my opinion, ensure an extremely high level of safety

   for personnel connected with the plant. In this connection there is the further

   consideration that approval of the application will not of itself permit the co-

   respondent's operation to proceed. The requirements of Radiation Health will have

   to be complied with and the evidence is that these requirements are very stringent

   and of course a prime concern of that body is the question of risk to the health and

   life of any persons arising out of the operation. It appears to me that it is

   appropriate that a body specifically entrusted with authority to make relevant

   decisions in the area of radiation, having regard to the risk involved in that process,

   should undertake an assessment of the risk and provide the Court with the benefit

   of its opinion in the matter. The question of danger associated with the proposed

   operation is primarily a question for that body within the State pursuant to the

   Radiation Safety Health Act 1999 rather than for the respondent or the court and it

   seems to me that, except in a clear case, it would not be appropriate for the court to

   refuse a development application upon the basis of matters which are properly

   subject to decision by a body such as Queensland Radiation. At the least, in my

   view, the court should give very considerable weight to the considered opinion of

   such a body. Evidence was given by Mr Critchley, the director, Radiation Health,

   and secretary to the Radiation Advisory Council. He is responsible for overseeing the administration of the Radiation Safety Act 1999 and related legislation. He gave

   evidence to the court concerning the operation and requirements of that Act, and in

   relation to the proposal before the court he stated his confidence that the Act and all

   related instruments grant to the regulatory authority, Queensland Health, sufficient

   powers for the licensing and enforcement of licence conditions for the plant of the

   type that the co-respondent is proposing to build and operate to ensure that persons

   and the environment are protected from any relevant health risks. I accept his

   opinion on the matter, balanced as it is against very wide ranging vaguely expressed

   and emotive submissions from the appellant of a largely political nature.

4. The remaining disputed issues are that the development was not supported by

   adequate information to enable proper assessment of the application and that the

   development is not needed. I do not think there is any substance in the first point

   concerning the lack of adequate information. Fairly detailed information was

   supplied by the co-respondent pursuant to an information request by the respondent

   council and the council consulted with Radiation Health in considering the

   application. The appellant has had the opportunity to put before the court in the

   hearing of the appeal any other information which he considers relevant. This court

   has had the benefit of town planning reports and reports from Mr Crichtley and

   from Mr West of the co-respondent. In my view the court has been adequately

   informed for the purpose of considering the appeal. As to the contention that the

   development is not needed, I think it is clear that there is a need for a facility such

   as is proposed in Queensland, and a number of commercial enterprises and bodies

   have indicated as much. I do not think it can be said that the need is adequately met

   by facilities which exist in Sydney and Melbourne. There is in my opinion no

   substance to this ground of appeal.

5. In the result the appeal is dismissed. The decision of the respondent Council to

   approve the application subject to conditions is confirmed.