Ward & Ors v Tablelands Regional Council

[2014] QPEC 72

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Ward & Ors v Tablelands Regional Council[2014] QPEC 72

PARTIES:

James Blaikie Ward
(appellant)

and

Ward Pastoral Pty Ltd

 (appellant)

and

Bruce Charles Barry

(appellant)

and

Felisa Doolan

(appellant)

and

John Doolan

(appellant)

and

Beryl Elizabeth Duffy

(appellant)

and

James Campbell Duffy

(appellant)

and

Lance Spencer Duffy

(appellant)

and

Michael Leonard Duffy

(appellant)

and

Yvonne Marie Horton

(appellant)

and

Danielle Leigh Lancini

(appellant)

v

Tablelands Regional Council
(respondent)

and

John Beattie

(co-respondent)

and

Shane Beattie

(co-respondent)

FILE NO/S:

68/14

DIVISION:

Planning & Environment Court

PROCEEDING:

Application

ORIGINATING COURT:

Planning & Environment Court at Cairns

DELIVERED ON:

5 December 2014 Ex tempore

DELIVERED AT:

Cairns

HEARING DATE:

5 December 2014

JUDGE:

Everson DCJ

ORDER:

Condition 3.12(f) to be in the terms “the monitoring and recording results required under the EMP will be provided to Council.”

CATCHWORDS:

ENVIRONMENT AND PLANNING – where the parties cannot agree on the wording of condition 3.12(f) – whether disclosing the information proposed to the public is an unreasonable imposition on the development.

Sustainable Planning Act 2009 (Qld) s 345

COUNSEL:

Ms T Fantin for the appellants

Ms P Djohan for the co-respondent

SOLICITORS:

Taylors Solicitors for the appellants

P&E Law for the respondent

Pretson Law for the co-respondents

1. This is an application for a development approval which seeks to regularise a rotational outdoor piggery on the Atherton Tablelands. The application was initially approved, but following a submitter appeal, extensive negotiations have taken place, and the parties are content that the appeal be resolved subject to the imposition of an extensive suite of conditions.  The conditions include compliance with an Environmental Management Plan (“EMP”) and a Nutrient Management Plan (“NMP”).

1. Only one condition remains for determination by the Court.  This is condition 3.12(f). The appellant and the respondent contend for a condition in the following terms:

“The monitoring and recording results required under the EMP will be provided to Council. The material need not contain any financial information or dollar values.  The Council may provide the following information to members of the public:

(a) Monthly SPU numbers;

(b) Pig movements;

(c) Paddock register;

(d) Feed records;

(e) Hay/fodder harvest records;

(f) Annual soil sampling results;

(g) Complaints register, with names and personal information    redacted;

(h) Odour and dust assessments; and

(i) any reviews of the EMP or NMP.”

1. Conversely, the co-respondent contends for the condition “The monitoring and recording results required under the EMP will be provided to Council.” 

1. It is uncontentious that the information sought to be provided to members of the public in the condition contended for by the appellants and the respondent would be available through other means.  It is submitted, however, that the legislative processes are cumbersome, time consuming and expensive and that this information would be easier to access should the condition sought by the appellants and the respondent be imposed.  It is submitted on behalf of the appellants that the proposed development is a novel development in Far North Queensland and it is difficult to ascertain compliance with complex scientific conditions of approval set out in the EMP and NMP. It is submitted that this presents difficulties for monitoring these conditions and that the information should be provided in accordance with the proposed condition. 

1. At a time shortly before the development application was lodged, the trigger for an environmentally relevant activity (“ERA”) went from 21 to 400 standard pig units (“SPU’s”). The maximum proposed pursuant to the draft conditions of approval is 150 SPU’s for this development. If an ERA was triggered, disclosure obligations would apply pursuant to chapter 11 part 4 of the Environmental Protection Act 1994 (“EPA”). It is submitted that what is sought in the condition advocated for by the appellants and the respondent is akin to, but not identical to, what is provided for in the EPA which makes provision for registers containing similar information to be made available to the public.

1. On behalf of the co-respondent, it is submitted that the information proposed to be open to inspection by the public includes information which is commercially sensitive to the co-respondent. This commercially sensitive information allegedly includes details of customers, supplies and the feed mix for the pigs.  It is submitted that this information ought not to be in the public domain as a matter of course. 

1. Pursuant to section 345 of the Sustainable Planning Act 2009 a condition must:

“(a) be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or

(b) be reasonably required in relation to the development or use of the premises as a consequence of the development.”

1. Although I appreciate that it is necessary that the proposed development be carefully and responsibly managed in accordance with the proposed conditions of approval if adverse amenity impacts are to be avoided, it is,  pursuant to both the proposed conditions of approval and the legislative framework for the policing of development approvals, the role in this case of the local government to ensure compliance with the conditions of approval.

1. I am of the view that disclosing the information proposed by the appellant and the respondent to the public as a matter of course is an unreasonable imposition on the development in circumstances where the development approval issues with the premise that the conditions of approval will be adhered to.  I am further of the view that in the circumstances, disclosure of the additional information to the public is not reasonably required in relation to the development or use of the land as a piggery. 

1. I therefore order that condition 3.12(f) be in the terms “the monitoring and recording results required under the EMP will be provided to Council.”