Tully Sugar Limited v Cassowary Coast Regional Council
[2010] QPEC 41
•7 May 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Tully Sugar Limited v Cassowary Coast Regional Council & Anor [2010] QPEC 41
PARTIES:
TULLY SUGAR LIMITED
(Appellant)
v
CASSOWARY COAST REGIONAL COUNCIL
(Respondent)
ITC TIMBERLANDS PTY LTD
(Co-respondent)FILE NO/S:
Appeal 306 of 2009
Appeal 358 of 2009DIVISION:
PROCEEDING:
Appeals
ORIGINATING COURT:
Planning & Environment Court, Brisbane
DELIVERED ON:
7 May 2010
DELIVERED AT:
Cairns
HEARING DATE:
7 and 12-16 April 2010
JUDGE:
Everson DCJ
ORDER:
The appeals are dismissed
CATCHWORDS:
PLANNING AND ENVIRONMENT – PLANNING SCHEMES – CONSTRUCTION OF PLANNING SCHEMES – whether compromise of the achievement of desired environmental outcomes for the planning scheme area
PLANNING AND ENVIRONMENT – CONFLICT WITH PLANNING SCHEME – whether conflict with planning scheme – whether sufficient planning grounds to approve development despite conflict
COUNSEL:
Mr Litster SC and Ms Kefford for the Appellant
Mr Houston for the Respondent
Mr Hughes SC and Mr Job for the Co-respondentSOLICITORS:
McCullough Robertson Lawyers for the Appellant
P&E Law for the Respondent
McInnes Wilson Lawyers for the Co-respondent
Introduction
The town of Tully lies in the heart of one of the major sugar producing regions in Queensland. It is situated south of Cairns within the local government area of the respondent. The appellant is the owner and operator of the Tully Sugar Mill (“the mill”) which dominates the town of Tully. The mill is a significant commercial enterprise which processed 22,180 hectares of sugar cane harvested in the 2009 season producing 1.66 million tonnes of cane.[1] In the 2009 season there were approximately 223 local growers who supplied cane to the mill. Not surprisingly it is a major employer in the district.[2] Historically, Tully has had a close association with the sugar industry and with the mill which was established in 1925.[3]
[1]Ex 11 para 2.2.10
[2]Ibid para 2.2.11
[3]Ibid para 2.2.8
The co-respondent is a relative new-comer to the district. It is a subsidiary of Elders Limited which develops and manages forestry plantations. This appeal concerns two proposals to establish private forestry plantations on former cane farms it has purchased south of Tully which are serviced by cane railway infrastructure. The appellant asserts that the proposals compromise various Desired Environmental Outcomes (“DEOs”) and otherwise conflict with various provisions of the respondent’s relevant planning scheme.
The subject sites
One site is situated at Stamp Road, Rockingham described as Lot 122 on SP 125442 containing an area of 1,063 hectares and located approximately 22 kms south of Tully (“Stamp Road”). It is zoned in part Rural and part Conservation, although it is only the Rural zoning which is relevant to the issues before the court.
The other site is situated at Upper Murray Road, Murrigal and is described as Lot 1 on RP 748825, Lot 69 on CWL 546, Lot 2 on RP 742041 and Lot 3 on RP 8000579 and has a total area of 253.7 hectares. It is located approximately 15 kms south of Tully and zoned Rural. It is known by the unusual name Saini Bhella and I will use this name to describe it for the purposes of this judgment.
Both Stamp Road and Saini Bhella have traditionally been used for growing sugar cane and both are serviced by the cane railway which links them with the mill. In the past a small portion of Saini Bhella has also been used for banana production. Both sites are dominated by good quality agricultural land (“GQAL”). All of Saini Bhella is mapped as being GQAL Class A1 or A2 pursuant to the respondent’s relevant planning scheme.[4] Almost all of the agricultural land on the Stamp Road site is mapped GQAL Class A2 with a very small proportion being mapped Class A5.[5]
[4]Maps 24 and 25 agricultural land overlay
[5]Ibid
Pursuant to the Far North Queensland Regional Plan 2009 (“FNQRP”), both sites fall within the Regional Landscape and Rural Production Area.
The proposed developments
The co-respondent wishes to establish forestry plantations of red mahogany, a tree indigenous to the local area, on Stamp Road and Saini Bhella (“the proposed developments”). It therefore applied to the council for a development permit for material change of use to allow Private Forestry “A” on each of the subject sites. A red mahogany plantation has an 18-20 year production cycle from planting to harvesting[6]. Each of the proposed developments contemplates non-commercial thinning of trees between 2-4 years after planting, with commercial thinning of trees being undertaken about 8-12 years after planting and comprehensive maintenance of each of the sites, particularly from a weed management and fire management perspective. It is not intended that personnel will be located on either site on a full-time basis.[7] Cattle may graze under the trees when they are of sufficient height.
[6]Ex 9 para 3.1.02
[7]Ex 2 para 3.1.2
The development application in respect of Stamp Road was lodged in March 2008 and approved subject to conditions on 27 November 2008.
The development application in respect of Saini Bhella was lodged in August 2008 and approved subject to conditions on 16 December 2008.
The development applications were made pursuant to the Cardwell Shire Council Planning Scheme 2007 (“the Planning Scheme”) which is the relevant planning scheme of the respondent. It is recorded that the Minister for Local Government has identified that State Planning Policy 1/92 : Development and Conservation of Agricultural Land has been appropriately reflected in the Planning Scheme.
The Planning Scheme contains an introduction in which it is stated at para 1.3:-
“The Planning Scheme seeks to achieve development Outcomes through the Desired Environmental Outcomes, the division of the Shire into Zones and Precincts and, in some instances, the inclusion of Overlays. These key elements are then supported by relevant Codes.”
The process is then represented diagrammatically as follows:-
DESIRED ENVIRONMENTAL OUTCOMES
ê
OVERALL OUTCOMES FOR ZONES, PRECINCTS AND OVERLAYS
ê
SPECIFIC OUTCOMES FOR CODES
Relevant provisions of the Planning Scheme include:-
“2.0 DESIRED ENVIRONMENTAL OUTCOMES
2.1 Introduction
The Desired Environmental Outcomes relate to the whole of the Shire and express what is sought to be achieved by the Planning Scheme. The underlying objective of the Desired Environmental Outcomes is the achievement of ecologically sustainable development and therefore the Desired Environmental Outcomes address the issues of community need and well being, economic activity and the protection of the environment.Collectively the Desired Environmental Outcomes act to reinforce the important features of the Shire and the general outcomes and desires sought by the community.
2.2 Desired Environmental Outcomes
Outlined below are the Desired Environmental Outcomes that the Planning Scheme seeks to achieve:
…2.2.7 Continued growth and diversification within the agricultural and tourism sectors of the Shire and the industries that support these sectors, in particular low key, nature based tourism.
…
2.2.9 Preservation and sustainable use of GQAL and the efficient use and protection of extractive resources by the avoidance of fragmentation of GQAL and the provision of Buffer areas between conflicting land uses.
…
3.0 DEFINITIONS
3.1 IntroductionIn the Planning Scheme various terms are defined and have been categorized into Land Use Definitions and Administrative Definitions. Defined terms are italicized in this Planning Scheme.
Terms defined in the Integrated Planning Act (IPA) have the same meaning as in the IPA.
3.2 Land Use Definitions
…
AgricultureAny land used to produce any crop or pasture for the production of food, fibre energy or other use. The term includes the use of land for crop and animal production (grazing), but excludes intensive animal uses such as feedlots, piggeries and poultry farms which are separately defined. The term includes those activities considered incidental and ancillary to or necessarily associated with agriculture, including farm accommodation (maximum of 10 persons with shared kitchen and ablution facilities), road side stalls that do not exceed 20m2 in floor area, machinery and packing sheds associated with the farming activity. The term however excludes central packing sheds which are separately defined in the Light Industry.
…
Private Forestry “A” (Plantation Forestry)Any land used for the establishment silviculture, and harvesting of either native or exotic tree species that have been planted in a regular spacing on cleared land for the primary purpose of producing and extracting timber. The term includes the primary processing of trees grown upon a property to produce products such as pulp, poles, posts, saw logs, seed, leaf and/or bark. The term also includes limited secondary processing such as portable saw milling, solar kiln drying and storage of sawn timber, but excludes fixed site sawmills, chemical timber treatment plants or industrial scale oil extraction techniques.
4.9 RURAL ZONE
4.9.1 IntroductionThe Rural Zone is identified on Maps 2-9 (inclusive) and includes areas that are suitable for agricultural uses including the growing of sugar cane, bananas, pawpaws, improved pastures, native pastures, tree crops and adapted dry season annual crops. The intent of the Rural Zone is to protect and conserve the viability of GQAL, that being land which is capable of sustainable use for Agriculture, with a reasonable level of inputs and without causing degradation of land or other natural resources.
The following Vision Statement reflects the Planning Scheme’s Desired Environmental Outcomes and will assist in achieving appropriate development within the Rural Zone, particularly in the assessment of Impact Assessable development applications.
RURAL ZONE – VISION
The Rural Zone will facilitate the continued growth and diversification of the Agricultural sector of the Shire where sustainable agriculture management practices are adopted, the fragmentation and alienation of GQAL will be avoided and instances where incompatible uses have common boundaries with land in the rural Zone will be prevented.
…
5.16 RURAL ZONE CODE
5.16.1 Purpose StatementsThe Outcomes sought from the application of the Rural Zone Code are:-
·The protection of GQAL
·A reduction in the fragmentation of rural lands and loss of land to rural production so as to ensure that:
-farming flexibility is retained;
-conflicts between farming and urban uses do not arise;
-the long term viability of agri-industries (eg sugar mill) are not prejudiced; and
-inefficient forms of urban development do not occur that lead to increased infrastructure and service costs.
…
5.16.2 Table of Outcomes and Solutions
Specific Outcome Probable Solution (for self assessable development the ‘probable solution’ is the ‘acceptable solution’) … APPLICABLE FOR ASSESSABLE DEVELOPMENT ONLY Outcome 3 – Conservation of GQAL a) GQAL classified as A or B on Maps 24-26 is used for Agricultural and/or private forestry development
… Outcome 6 – Inconsistent Uses
The following defined uses are inconsistent with the Outcomes sought for the Rural Zone:
Accommodation building, Child Care Centre, Duplex Dwelling, General Industry, Heavy Industry, Hotel, Indoor Recreation, Light Industry (excluding fruit & vegetable central packing sheds which are Impact Assessable), Multiple Dwelling, Place of Worship, Restaurant, Service Station, Shopping Centre, Showroom Veterinary Facilities, Warehouse.a) No probable solution prescribed …
6.14 PRIVATE FORESTRY CODE
6.14.1 Purpose StatementThe Outcomes sought from the application of the Private Forestry Code is the facilitation and diversification of activities within the agricultural sector of the Shire to achieve sustainable development of timber resources and to ensure that the impacts of Private Forestry upon biodiversity, adjacent land uses and landscape amenity are minimal, or at best, highly beneficial.”
The Assessment Regime
Both appeals were commenced pursuant to s 4.1.28 of the now repealed Integrated Planning Act 1997 (“IPA”). Therefore, pursuant to s 819(2) of the Sustainable Planning Act 2009 (“SPA”) the court must hear and decide the appeals as if SPA had not commenced.
It is for the co-respondent to establish that the appeals should be refused.[8]
[8]IPA s 4.1.50
The appeals are by way of hearing anew in circumstances where the court must decide the appeals based on the laws and policies applying when the applications were made but may give weight to any new laws and policies the court considers appropriate.[9] It is significant that the decision of the court must not:-
“(a) compromise the achievement of the desired environmental outcomes for the planning scheme area;
or
(b) conflict with the planning scheme, unless there are sufficient grounds to justify the decisions despite the conflict.”[10]
[9]IPA s 4.1.52
[10]IPA s 3.5.14(2)
It is established law that planning schemes are not drawn with the precision of an Act of Parliament and should be construed broadly and in a way which best achieves their apparent purpose.
FNQRP
The FNQRP is the pre-eminent plan for the FNQ Region including the respondent’s local government area.[11] It takes precedence over all other planning instruments.[12] Local governments are required to amend their planning schemes to reflect the FNQRP[13] and any inconsistency between the FNQRP and any other planning instrument is resolved in favour of the FNQRP.[14]
[11]FNQRP, p 5
[12]Ibid
[13]IPA s 2.5A.20(2)
[14]Ibid s 2.5A.21(3)
Under the heading “Economic growth and diversification”, the FNQRP notes the region’s “relatively narrow economic base” which is stated to place the region in “a vulnerable situation”. The FNQRP goes on to state:-
“Tourism, mining and to a lesser extent primary industries, are susceptible to external influences such as international trends and commodity markets. The region’s economic base needs to be diversified in order to develop greater robustness…”[15]
[15]FNQRP p 93
The FNQRP only came into force on 13 February 2009. It was therefore not in force at the time of the development applications the subject of these appeals and it is not identified as being appropriately reflected in the planning scheme. Accordingly, the court is not required to have regard to the FNQRP in deciding the appeals but may give it such weight as the court considers appropriate pursuant to s 4.1.52 of IPA. Given the pre-eminence of the FNQRP, all parties agree that the court ought give it weight.
Relevantly, the FNQRP acknowledges that forestry makes an important contribution to the local economy in the Tully district,[16] “that forestry is a form of agriculture albeit one with a long crop rotation cycle”[17] and that plantation forestry projects do not alienate land for other agricultural uses in the future and are considered compatible with the objectives of State Planning Policy 1/92: Development and conservation of agricultural land.[18] Pursuant to the FNQRP agriculture is defined as including forestry.[19]
[16]Ibid p 26
[17]Ibid p 53
[18]Ibid
[19]Ibid p 175
The disputed issues in the appeals
The appellant contends that the proposed developments would:-
(a) compromise the achievement of DEO 2.2.7;
(b) compromise the achievement of DEO 2.2.9;
(c) conflict with the intent and vision in s 4.1.9 of the Rural Zone;
(d) conflict with the outcomes sought for the application of the Rural Zone Code under s 5.1.16 of the Rural Zone Code; and
(e) not be consistent with the FNQRP.
The appellant also contends that:-
(a) compromising the achievement of the above DEOs is not required to further the outcomes of the FNQRP;
(b) a decision to approve the development applications would render more difficult decisions yet to be made as to the form the Planning Scheme should take to reflect the FNQRP;
(c) there is no planning need for the proposed developments; and
(d) no grounds exist which are sufficient to justify a decision to approve the proposed developments despite the identified conflicts.
Growth and diversification with the Agricultural sector
Impact assessable uses such as Private Forestry “A”, in the Rural Zone must be assessed against the Planning Scheme as a whole. DEO 2.2.7 seeks to achieve “Continued growth and diversification within the agricultural and tourist sectors of the Shire.” This DEO is picked up in the vision for the Rural Zone which states that the Rural Zone “will facilitate the continued growth and diversification of the Agricultural sector of the Shire…”. Although the term “Agriculture” is specifically defined in s 3.2 of the Planning Scheme, the term “Agricultural sector” or the same term without a capital “A” is not defined in the Planning Scheme. The Private Forestry Code contains a Purpose Statement at paragraph 6.14.1 of the Planning Scheme which states that the outcomes sought from its application are “the facilitation and diversification of activities within the agricultural sector of the Shire to achieve the sustainable development of timber resources…” Reading the Planning Scheme as a whole, it is clear that Private Forestry “A” is, unsurprisingly, considered to be part of the agricultural sector of the Shire.
The terms “growth” and “diversification” are not defined in the Planning Scheme. It is submitted by the appellant that both requirements must be met in the context of the development applications and that they merely propose the substitution of plantation forestry for existing agriculture in circumstances where the labour requirements and reliance on service providers is less frequent and less intense for plantation forestry than for agricultural crops such as sugar cane. In the Macquarie Concise Dictionary[20] “growth” is defined as, inter alia “development” and diversification is defined as “the state or act of diversifying”. The term “diversify” is defined as, inter alia “to extend one’s activities, especially in business, over more than one field”. The development applications clearly contemplate the development and extension of the agricultural sector of the Shire into a field other than sugar cane production. Such an interpretation is entirely consistent with the purpose statement of the Private Forestry Code. Conversely, there is no evident intention in the Planning Scheme that development applications within the agricultural sector must demonstrate some form of tangible expansion of the sector as a whole. Indeed, such an interpretation appears to ignore the finite amount of suitably zoned land available to the agricultural sector within the Shire.
[20]4th Edition Macquarie University, 2006
Preservation and sustainable use of GQAL
DEO 2.2.9 seeks to achieve, inter alia “Preservation and sustainable use of GQAL… by the avoidance of fragmentation of GQAL…”. This DEO is picked up in the introduction to the Rural Zone and in the vision statement for the Rural Zone which states that “where sustainable agriculture management practices are adopted, the fragmentation and alienation of GQAL will be avoided…”. This vision is then in turn given effect in the Rural Zone Code where the Purpose Statement at para 5.16.1 states that the Outcomes sought from the application of the Rural Zone Code include the protection of GQAL and a reduction in the fragmentation of rural lands and the loss of land to rural production so as to ensure that, inter alia “farming flexibility is retained” and “the long term viability of agri-industries (eg Sugar mill) are not prejudiced…”. The terms “alienation” and “fragmentation” are not defined in the Planning Scheme. In the Macquarie Concise Dictionary[21], fragment is defined as, inter alia “to break into fragments” and alienate is defined as, inter alia “to turn away”. These concepts are most relevant to development applications seeking to use GQAL for non-rural purposes such as where GQAL is proposed to be reconfigured for residential development. Conversely, reading the Planning
Scheme as a whole, it is apparent that the use of GQAL for private forestry development is intended as a means of conserving GQAL pursuant to Outcome 3 of the Rural Zone Code. This approach is confirmed by the absence of Private Forestry “A” in the list of inconsistent uses in the Rural Zone.
[21]Op cit
It follows that should the crops of red mahogany on the subject sites fail due to unforseen reasons, they could be put to another rural use, thereby ensuring that farming flexibility for the subject sites is retained. There will be no alienation of GQAL in any event.
Accordingly, the development applications contemplate the preservation of GQAL by the avoidance of fragmentation of it as contemplated by the Planning Scheme.
In the course of the hearing of the appeal, considerable time was devoted to whether the proposed developments constituted a sustainable use of GQAL. It is also important to note the extent of the inquiry which can be legitimately undertaken in this regard. A detailed investigation of the economics of the particular commercial purpose proposed has in the past been viewed as outside the province of a planning appeal.[22]
[22]Brown v Morton Shire Council (1972) 26 LGRA 310 at 313
A number of experts gave evidence as to whether the proposed developments were sustainable on the subject sites. On behalf of the appellant, Mr Thompson, an agricultural scientist, expressed reservations as to whether the soils were appropriate for the proposed plantations and Mr Hawkes, a forester, expressed reservations as to the growth rates which could be achieved for red mahogany on the subject sites. On behalf of the co-respondent, Mr Werren, the manager responsible for the proposed developments gave evidence that they are part of a managed hardwood plantation estate of approximately 170,000 hectares across Australia and the sites are selected after a vigorous land selection process.[23] Mr Werren outlined the land selection process which was undertaken to select the subject sites and various techniques which were intended to be utilised to boost their productivity. Mr Quill is a Registered Professional Forester who has been engaged by the co-respondent as an Independent Forester with respect to the proposed developments. In this capacity he has a number of duties to prospective investors and recently revised downwards prospective yields from the region.[24] He expressed the view that with appropriate management techniques including mounding, drainage and genetic selection of tree stock, both of the subject sites will be sustainable forestry sites.
[23]Ex 5 para 8 and paras 10-16
[24]Ex 26
I accept the evidence of Mr Werren and Mr Quill in this regard. There is no credible evidence before me which suggests that the co-respondent will fail to sustainably use the subject sites for red mahogany plantations utilising the selection and management techniques outlined by Mr Werren and Mr Quill. There may be other sites which better address the concerns raised by Mr Thompson and Mr Hawkes but that is not relevant to the exercise the court must undertake. I therefore am of the view that utilising the subject sites for red mahogany plantations constitutes a sustainable use of GQAL.
Impacts on the long term viability of the mill
Much attention in the course of the hearing of the appeals was focussed on the impact of the proposed developments of the long term viability of the mill. On behalf of the appellant Mr Borrell, an economist gave evidence that:
“At worst, the displacement of sugar cane land with forestry will severely reduce economies of scale in sugar, reduce in mill profitability and viability and lead to closure of the mill.”[25]
His counterpart expert was Mr Duane. He expressed the view that the approval of the development applications “will contribute towards the diversity in the rural sector and will not result in the Tully Sugar Mill or the sugar industry generally, becoming unviable”.[26]
[25]Ex 12 para 19
[26]Ex 8 para 3.10
The mill has had a long and prosperous history. It is currently fighting a hostile takeover from the Maryborough Sugar Factory Limited. This precipitated a supplementary target’s statement under s 644 of the Corporations Act dated 23 December 2009 wherein the directors of the appellant stated that the appellant “has a high quality sugar milling business which has historically been profitable and will continue to be so in the future.”[27] The directors of the appellant made no reference to the development applications and emphasised that the appellant had long term sugar cane supply agreements which “will help to ensure that the mill operates profitably over coming years and that a substantial proportion of its capacity is utilised”.[28] The view expressed on behalf of the appellant in this document was inconsistent with that expressed by Mr Borrell who did not have the benefit of this information in preparing his report.
[27]Ex 17 para 3.2
[28]Ibid
On the evidence before me I find that the long term viability of the mill will not be prejudiced by the development applications.
Consistency with the FNQRP
As noted above the FNQRP is the pre-eminent plan for the FNQ region including the local government area administered by the respondent. The respondent is required to amend the Planning Scheme to reflect it. I am therefore of the view that it should be accorded substantial weight in the determination of these appeals. As noted above the FNQRP contemplates the need to diversify primary industries in order to develop greater robustness. In this regard, forestry is contemplated in the district surrounding Tully as a form of agriculture which does not alienate GQAL. The development applications are therefore consistent with the FNQRP.
As to the assertion by the appellant that a decision to approve the development applications would render more difficult decisions yet to be made as to the form the Planning Scheme should take to reflect the FNQRP, it is important to have regard to the principle that appeals should not be determined on the basis that approvals of the subject applications establish a precedent for other approvals for similar proposals in the Shire. As was previously observed by the court “each case must be assessed on its individual merits. Such an assessment does not generally create a precedent for other approvals.”[29]
[29]Chesol Pty Ltd v Logan City Council [2007] QPLER 285 at [66]
Planning need
The development applications are expressly contemplated by both the Private Forestry Code and the Rural Zone Code within the Planning Scheme. Despite the appellant raising the issue of planning need in the appeals, it is not a consideration which is required in any identified provision of the Planning Scheme. The proposed use within the Rural Zone is identified as being an appropriate use within it and the question of need is therefore irrelevant to the determination of these appeals.
Sufficient grounds
The development applications do not, in my view, compromise the achievement of the DEOs for the Planning Scheme area or conflict with the Planning Scheme. Indeed, the use of the subject sites for Private Forestry “A” appears to be supported by the relevant provisions of the Rural Zone Code discussed above and the Purpose Statement of the Private Forestry Code. If, however, I am wrong in this regard it is necessary for me to consider whether there are sufficient grounds to justify the approval of the development applications despite the conflict. The task to be undertaken was summarised by the Court of Appeal as involving the following process:-
“In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict…, the decision maker should:-
(i) examine the nature and extent of the conflict;
(ii) determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme if the conflict can be justified on those planning grounds;
(iii) determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”[30]
[30]Woolworths Ltd v Maryborough City Council [2005] QCA 262 at para 53
The legislative regime has changed slightly since the above process was mandated and it is now sufficient “grounds” rather than sufficient planning grounds which are the focus of the inquiry in question. If I am incorrect in the view expressed above that the development applications will result in continued growth within the agricultural sector of the Shire which is contemplated by DEO 2.2.7 and also the vision statement for the Rural Zone, I need to firstly examine the nature and extent of this conflict. If the term “growth” is to be given a meaning which requires the development applications to demonstrate some tangible growth of the broader agricultural sector, then it will be necessary to determine the existence and adequacy of grounds as contemplated by the process quoted above. The planner who gave evidence on behalf of the co-respondent, Mr Schomburgk, expressed the following view in this regard:-
“Even if the Court finds that there is conflict, and that the conflict is not minor or inconsequential, it is my opinion that grounds that justify these approvals, despite any such conflict, are that the proposals facilitate the diversification of rural activities within the Shire and Region, and that the proposals facilitate and ensure the conservation of GQAL on the subject sites.”[31]
The diversification of the primary industry base of the region to overcome the vulnerabilities of it being susceptible to external influences such as international trends and commodity markets is expressly stated as a goal of the FNQRP. The issue of diversification is most relevant to any conflict with a requirement that the development applications make the agricultural sector of the Shire larger. The fact that this may not be an obvious or immediate consequence of the approving of the development applications in question can, in my view, be justified on the ground of facilitating the diversification of rural activities within the Shire. The conflict is relevantly minor. It only relates to the temporal loss of two sites for other rural pursuits. The achievement of such diversification is on balance sufficient in my view to justify approving the development applications, notwithstanding the conflict.
[31]Ex 2 para 5.3.2
Conclusion
The development applications do not compromise the achievement of DEO 2.2.7 or DEO 2.2.9. They do not conflict with the intent of the Rural Zone or the Rural Zone vision. On the contrary, the GQAL which has been identified on the subject sites will be conserved and used in a viable and sustainable manner for plantation forestry. Farming flexibility will be retained and the long term viability of the Tully Sugar Mill will not be prejudiced. The approving of the development applications is also consistent with the FNQRP.
If there is a conflict with the Planning Scheme it is a minor one and the achieving of diversity in the rural sector is a ground which is on balance sufficient to justify approving the development applications despite the conflict.
The appeals are therefore dismissed.
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