Westlink P/L v Lockyer Valley Regional Council

[2012] QPEC 31

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Westlink P/L v Lockyer Valley Regional Council & Ors [2012] QPEC 31

PARTIES:

WESTLINK PTY LTD AS TRUSTEE FOR WESTLINK INDUSTRIAL TRUST
(appellant)

v

LOCKYER VALLEY REGIONAL COUNCIL
(respondent)

and

CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(first co-respondent by election)

and

MICHAEL WILLIAM ASHLEY
(second co-respondent by election)

and

GERALD SCOTT
(third co-respondent by election)

and

KEEP LOCKYER RURAL INC
(fourth co-respondent by election)

and

LYNNE HALL
(fifth co-respondent by election)

and

GEOFFREY KING
(sixth co-respondent by election)

FILE NO:

2606/2010

DIVISION:

Planning and Environment

PROCEEDING:

ORIGINATING COURT:

Brisbane

DELIVERED ON:

27/04/12

DELIVERED AT:

Brisbane

HEARING DATE:

09/03/2012

JUDGE:

Searles DCJ

ORDER:

1.          Appeal is allowed. The appellant’s development application should be approved after the resolution of the issue of suitable conditions. 

2.          Appeal adjourned to allow that issue to be finalised.

CATCHWORDS:

Appeal – Application for a Development Permit – Conflict – Extent of Conflict -Sufficient Grounds to Justify Approval of Proposal Despite Conflict - s 3.5.14(2)(b) Integrated Planning Act 1997- South East-Queensland Regional Plan 2009-2031 – Gatton Planning Scheme   

COUNSEL:

Appellant: CL Hughes SC & B Job
Respondent: D.Gore QC & M.Williamson

SOLICITORS:

McInnes Wilson Lawyers

Connor O’Meara

INDEX

Background

Determination of whether sufficient grounds exist

Planning documents

Conflict with Scheme

Nature and extent of the conflict

Westlink’s arguments re nature and extent of conflict

Council’s response re nature and extent of conflict

Conclusion re nature and extent of conflict

Sufficient grounds

Westlink’s argument

Council’s arguments

Need

Proximity to infrastructure and other utilities

Benefits of efficient supply of electricity

Management of impacts

Summary

Westlink’s response to Council’s argument

Are there sufficient grounds to approve the application notwithstanding the conflict

Conclusion re sufficient grounds

Background

1. This matter involves an appeal against the Council’s decision of 11 August 2010 to refuse the appellant’s application for a Development Permit for:-

(a)       A Material Change of Use – Electricity Generation Infrastructure;

(b)       Environmentally Relevant Activity (ERA) no. 14 – electricity generation; and

(c)       Operational Works – Vegetation clearing.

1. The appeal came before this court in May 2011 and the court allowed the appeal.[1]  Part of the finding of the court was that there was no conflict between the proposal and the relevant planning scheme.  The Court of Appeal in upholding the Council’s appeal[2] from that decision (P&E decision) found there was a conflict with s 4.12(k) of the Scheme and remitted the matter to this court for determination according to law.

   [1]Westlink Pty Ltd v Lockyer Valley Regional Council [2011] QPEC 96.

   [2]Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2011] QCA 358.

1. This court must now determine whether, given the conflict, there are sufficient grounds to justify approval of the proposal despite the conflict in accordance with s 3.5.14(2)(b) of the Integrated Planning Act 1997 (IPA).  As explained in the P&E decision[3] the appeal is to be heard and decided under IPA.  This judgment should be read with the P&E decision where findings were made which were not disturbed by the Court of Appeal.

   [3]Westlink Pty Ltd v Lockyer Valley Regional Council [2011] QPEC 96 at [12].

1. IPA s 3.5.14(2)(b) provides:-

“A.       3.5.14

Decision if application requires impact assessment

(1)         ...;

(2)If the application is for development in a planning scheme area, the assessment manager’s decision must not:-

(a)       …; or

(b)conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict.

(3)         …

(4)         …”

Grounds in that context are defined as[4]:-

“1.        Grounds means matters of public interest.

2.Grounds does not include the personal circumstances of an applicant, owner or interested party.”

[4]IPA Schedule 10.

Determination of whether sufficient grounds exist

1. In Weightman v Goldcoast City Council[5] Atkinson J said, in relation to the now repealed Local Government (Planning & Environment) Act 1990[6]:-

   [5][2003] 2 Qd R 441 at 453 [36].

   [6]With whom de Jersey CJ at [8] and McMurdo P at [14] agreed.

“In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s 4.4(5A)(b) of the P&E Act, the decision maker should:

1.        Examine the nature and extent of the conflict;

2.Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;

3.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.”

1. Subsequently in Woolworths Ltd v Maryborough City Council(No. 2)[7] Fryberg J said, in relation to IPA s 3.5.14(2)(b) hereunder consideration:

“If s. 3.5.14 (2)(b) is dealt with in the sequence suggested by its form the identity of any conflicts between the decision and the scheme will have been established by the time the question of justification comes to be considered. That question will require the identification of planning grounds which might justify the decision and the determination of their sufficiency to do so. In making that determination regard will doubtless be had to the nature and extent of the conflict. That is substantially the process approved by this Court in Weightman v. Gold Coast City Council[8] in relation to a previous section it would, however be a mistake to treat the relevant passage in that judgment as if it were a code for the determination of justification….”

[7][2006] 1 Qd R 273 at 286-287 at [25].

[8][2003] 2 Qd R 441

1. Later again, in Australian Capital Holdings Pty Ltd v Mackay City Council[9] Muir JA said:-

“The primary judge, having concluded that there were conflicts with “relevant strategic plans(s)” was required to decide if there were “sufficient planning grounds to justify approving the application despite the conflict.” In this case that exercise required the identification of “planning grounds”; an assessment of the role and importance to the planning scheme of the provisions which would be infringed should the application be approved; the adverse consequences, if any, which might flow from such infringement and the competing merits and weight of the planning grounds relied on to justify approval. Also relevant were the matters in s 4.4(3) of the Integrated Planning Act 1997 (Qld).”

[9][2008] QCA 157 at [60].

Planning documents

1. The relevant documents are the Planning Scheme for Gatton Shire (Scheme).[10]  Scheme commenced 1 July 2007 and the South East-Queensland Regional Plan 2009-2031 (SEQRP).[11]  Copies of the relevant provisions of SEQRP and the Scheme are marked respectively Appendix A and B.

   [10]Exhibit 2.

   [11]Exhibit 3.

Conflict with Scheme

The conflict which the proposal gives rise to as found by the Court of Appeal is s 4.12(k) of the Scheme dealing with special outcomes for the Rural General zone.

Section 3.1(2) states that each Desired Environmental Outcome (DEO) is sought to be achieved to the extent practicable having regard to each of the other desired environmental outcomes.  In s 3.1(3) I found the following relevant DEO’s:-

Character and landscape quality

(e)The rural character, significant natural features, cultural heritage and landscape values of the Shire are protected and enhanced.

Economic Development and Natural Resource Management

(l)A strong and diverse economic base is promoted that bills upon the Shire’s established rural strengths, its natural resources, its landscape character, and its location on strategic transport routes; and provides a broad range of employment opportunity.

(m)Sustainable industrial development is promoted with the concentration of industry activities encouraged in the centres of Gatton and Withcott achieving benefits of co-location, infrastructure availability and protection from inappropriate development.

Division 4 of the Scheme dealing with the Assessment Criteria for the relevant, Rural General zone provides:-

“Division 4 – assessment criteria for Rural General zone

4.9        Rural General zone code

The provisions in this division comprise the Rural General zone code.  They are:-

(1)Compliance Rural General zone code (s 4.10);

(2)Overall outcomes for Rural General zone (s 4.11); and

(3)Specific Outcomes for Rural General zone (s 4.12).

4.10Compliance with Rural General Zone code

Development that is consistent with the Specific Outcomes in s 4.12 complies with the Rural General Zone code.

4.11      Overall Outcomes for Rural General Zone

(1)The Overall Outcomes are the purpose of the Rural General Zone code;

(2)The Overall Outcome sought for the Rural General Zone are the following:-

(a)The zone is to provide for agricultural production, other rural activities and the maintenance of the Shire’s landscape quality that is important to the overall character of the Shire.

(b)Closer settlement, particularly urban and rural residential development, is not consistent with the zone, in accordance with the SEQ Regional Plan.

4.12      Specific Outcomes for Rural General Zone

The Specific Outcomes sought for the Rural General Zone are the following:-

(a)       …

(b)       …

(c)       …

(d)      …

(e)Rural service industries may be appropriate where complying with the purpose of the codes.

(f)A range of other recreational, educational or tourism related uses is supported in the zone, where:

(i)The intensity and scale of the use does not reduce the amenity or operational effectiveness of neighbouring properties;

(ii)There are no adverse impacts on the natural environment, including

(A)Vegetation or other features identified as having significant ecological values; and

(B)Downstream water quality;

(iii)There are no impacts on the quality of the visual landscape as uses involve only limited buildings or structures that are designed, sited and of a scale consistent with the natural environment and landscape features;

(iv)The site is connected to the Shire road network and urban centres by roads capable of accommodating the type and volume of traffic likely to be generated; and

(v)The site has access to an appropriate water supply, liquid and solid waste disposal systems and electricity supply adequate for all on-site purposes.

(g)Extractive industry uses occur within this zone where it is demonstrated that:

(i)The resource is of sufficient size and of acceptable quality to provide a sustainable and economically viable operation;

(ii)There is a community need for the product;

(iii)Environmental impacts are within sustainable levels; and

(iv)The likely transportation routes are constructed to a standard sufficient to accommodate haulage vehicles, having a regard to the safety of other road users and the physical impacts on the roads.

(h)Intensive animal industries may be appropriate in this zone.  Such uses will be sufficiently separated and buffered from the Shire’s towns, villages and rural residential communities so that there will be no adverse impact on the amenity of these areas.  Any expansion or intensification of any existing intensive animal industry use which has existing adverse impacts from odour, noise, traffic and other impacts on the settlement within the Shire is inconsistent with this zone.

(i)        …

(j)…

(k)All other defined uses and other not defined uses, not specifically identified in Table 1 are not consistent with the purpose of the zone.”

1. As the Court of Appeal said, One effect of s 4.12(k) is that the uses which are consistent with the purpose of the Rural General zone include those “specifically identified” in Table 1.  Table 1, which is headed “Assessment Categories and Relevant Assessment Criteria for Rural General Zone–Making a Material Change of Use”, includes the following entries:

Column 1 Defined Use	Column 2 Assessment Category	Column 3 Relevant Assessment Criteria or Applicable Codes
Animal Product Processing Industry	Impact Assessable	Regard will be given to the planning scheme as a whole in accordance with section 3.5.5 of the IPA
Extractive Industry	Code Assessable where involving removal of 5,000m3 or less per annum Impact Assessable where exceeding 5,000m3 per annum	If Code Assessable: Extractive Industry Code Rural General Zone Code Advertising Device Code Building Work Code Earthworks Code Landscaping Code Lighting Code Services and Infrastructure Code Vehicle Access, Parking and On-Site Movement Code If Impact Assessable: Regard will be given to the planning scheme as a whole in accordance with section 3.5.5 of the IPA
Local Utility	Exempt
Service Station	Impact Assessable	If Impact Assessable: Regard will be given to the planning scheme as a whole in accordance with section 3.5.5 of the IPA
Special Purpose	Self Assessable (a)     if for a local, state or federal government purpose; and (b)     where not conflicting with Schedule 8 of the IPA; and (c)     where complying with Probable solutions for Self Assessable development Code Assessable in all other circumstances	If Self Assessable: Advertising Device Code Building Work Code Landscaping Code Lighting Code Services and Infrastructure Code Vehicle Access, Parking and On-Site Movement Code If Code Assessable: Rural General Zone Code Advertising Device Code Building Work Code Landscaping Code Lighting Code Services and Infrastructure Code Vehicle Access, Parking and On-Site Movement Code
Telecommunications Facility	Exempt if a low impact facility (as defined under the Telecommunications Act) Code Assessable if not a low impact facility (as defined under the Telecommunications Act)	If Code Assessable: Telecommunications Facility Code Rural General Zone Code Advertising Device Code Building Work Code Landscaping Code Lighting Code Services and Infrastructure Code Vehicle Access, Parking and On-Site Movement Code
Transport Depot	Code Assessable where no building work or only minor building work Impact Assessable in all other circumstances	If Code Assessable: Rural Development Code Rural Service Industry Code Rural General Zone Code Advertising Device Code Building Work Code Landscaping Code Lighting Code Services and Infrastructure Code Vehicle Access, Parking and On-Site Movement Code If Impact Assessable: Regard will be given to the planning scheme as a whole in accordance with section 3.5.5 of the IPA
Warehouse	Impact Assessable	Regard will be given to the planning scheme as a whole in accordance with section 3.5.5 of the IPA
Other defined uses and Other (not defined uses) except use for a road	Impact Assessable	Regard will be given to the planning scheme as a whole in accordance with section 3.5.5 of the IPA

1. The proposed use is not identified in Table 1 and falls within s 4.12(k).  Therein lies the conflict with the scheme.

Nature and extent of the conflict

1. I have already set out the Weightman three step test for the identification and assessment of the nature and extent of the relevant conflict and the determination of whether on balance sufficient grounds exist to justify approval of the application notwithstanding the conflict.  It is instructive to look more closely at Weightman.

1. In that case the application that Atkinson J was dealing with was for a high rise residential development containing some 61 residential units with graduated height levels on the western side (three storeys), southern side (three to four storeys) and four storeys on the eastern side of Connor Street, Burleigh Heads.  The planning scheme, the Gold Coast Scheme incorporated the Burleigh Ridge Development Control Plan.  The use in question was specifically provided for within the scheme but with limitations, relevantly, a height limitation of three storeys where the proposed development contemplated four storeys.  Atkinson J in Weightman found that the discretionary powers of the Council to allow, in appropriate circumstances, relaxation of height restrictions were not applicable to the subject development.  As a result Her Honour found that the conflict identified was a major one arising as it did from an absolute prohibition on the height of any development exceeding the maximum stipulated height of three storeys.[12]

   [12]Weightman [37].

1. Having identified the nature and extent of the conflict identified being step 1 of the process, and bearing in mind that the matter was remitted to this court for the determination of whether sufficient grounds existed for approval notwithstanding the conflict, Her Honour, in dealing with steps 2 and 3, said[13]:-

“44The second question the decision maker has to consider is whether there are any planning grounds on which to approve, or which militate against approval of, that part of the application which is in conflict with the planning scheme.  The nature and extent of the conflict may be such as to suggest that there are significant planning considerations against that part of the application.

45The decision maker should then consider other aspects of the development and consider whether they are consistent with proper planning grounds.  Those are the planning grounds which apply whether or not the conflict exists.

46It is only after consideration of all of these matters that the decision maker is able properly to assess whether or not the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”

[13]Ibid [44]-[46].

1. It can be seen then that Her Honour explained that step 2 involved a consideration of planning grounds, both for and against, approval of that part of the application found to be in conflict with the scheme.  At that point the nature and extent of the conflict may be such as to suggest there are significant planning considerations against that part of the application the subject of the conflict.

1. The third and final step for the decision maker was to consider the non-conflictual aspects of the proposed development to determine whether or not they were consistent with proper planning grounds which would apply whether or not there was a conflict.  Armed with those planning grounds for and against the part of the development in conflict and those relating to the non-conflictual aspects of the development, the decision maker was then able to assess all those grounds to determine whether the balance in favour of the proposal outweighs those against the proposal, sufficient to justify approval of the application notwithstanding the conflict.  Importantly, nowhere in her judgment did Her Honour suggest that the planning grounds under consideration relevant to the conflict carried more weight than those grounds under consideration relevant to the non-conflictual aspects of the development, or vice versa.

Westlink’s arguments re nature and extent of conflict

1. Westlink points to the wording of s 4.12(k) “that all other defined uses and other not defined uses, not specifically identified in Table 1 are not consistent with the purpose of the zone” and argues that the conflict is of a minor nature resulting from what it describes as a default provision in the Scheme.  It says the conflict lacks any specificity of the type present in Weightman where the major conflict found was an absolute prohibition of height above three storeys.  It says that that clear expression of intent contrasts with the generality of s 4.12(k).

1. Westlink next points to the Court of Appeal decision rejecting the Council’s argument of conflict with s 3.1(3)(e) and s 4.11.2(a) of the Scheme.  It points to that court’s observation in relation to s 3.1(3)(e)[14] of the Scheme – “… necessarily contemplates many pursuits other than ones which are likely to enhance ‘rural character’ or ‘landscape values’ … regardless of the care which is taken to minimise the impact of such pursuits …”.

   [14]Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2011] QCA 358 at [20].

1. It referred also in relation to the Council’s unsuccessful s 4.11(2)(a) appeal ground, and to the Court of Appeal’s endorsement that some of the uses contemplated by the scheme for the Rural zone – “… necessarily impact upon the rural character of the environment in a way which sheds light upon the scope of the general terms in s 4.11(2)(a).  The requirements for the impact to be ameliorated and for consistency with the specified values and character must be borne in mind.  Even so, the uses contemplated by the specific outcomes .... reveal that permitted development in this zone might impact substantially upon its rural character, yet such development falls within the ‘special outcomes sought for’ and thus ‘complies with’, the Rural General Zone Code”.[15]

   [15]Ibid [26].

1. Consistent with the above, Westlink pointed to the observation of the Court of Appeal[16] that the specific outcomes discussed in the P&E decision nevertheless required a liberal construction to be given to the overall outcomes for the zone of “agricultural production, other rural activities and the maintenance of the Shire’s landscape quality that is important to the overall character of the Shire.”

   [16]Ibid, para 27.

1. Westlink argues that it is the correct approach, endorsed by the Court of Appeal, [17] to take into account the content of the overall outcomes and the specific outcomes in the course of construing the scheme. It follows, Westlink says, that those provisions inform the determination of the nature and extent of the conflict.

   [17]Ibid [34].

1. Westlink next points to the fact, as the Court of Appeal accepted, that had the present proposal been made by a public entity it would constitute a “Special Purpose” in which event s 4.12(k) would have no application.  That was said by the Court of Appeal to bear upon the assessment of the nature and the extent of the conflict.[18]

   [18]Ibid [35].

1. Westlink next points to the P&E decision,[19] where it was said, that the proposal will not significantly impact on the visual amenity of the area and will not have a significant impact on the character of the area.  Those conclusions were based on the evidence outlined in that decision dealing with all of the issues of visual amenity, air quality, odour, noise, light, risk management, flora and fauna. 

   [19]Westlink Pty Ltd v Lockyer Valley Regional Council [2011] QPEC 96 at [78] and [79].

1. Westlink also points to the existence of utilities close to the site of the proposal namely:-

(a)        The Gatton Gas Compressor Station adjoining the site to the east;

(b)        The Gatton Electrical Bulk Supply Substation directly opposite the site, on the southern side of Fords Road;

(c)        The Roma to Brisbane Gas Pipeline, which traverses the frontage of the site.

IPA s 3.5.5(2)(d) relevantly provides:-

“3.5.5 – Impact assessment

(1)       …;

(2)If the application is for development in a planning scheme area, the assessment manager must carry out the impact assessment having regard to the following:-

(a)       …;

(b)       …;

(c)       …;

(d)Any development approval for, and any lawful use of … adjacent premises.

(3)       …

(4)       …”

Westlink argues that those existing utilities determine the existing amenity and character of the locality.

1. For the above reasons Westlink says the conflict is a minor one resulting from the proposed use, being undefined in the scheme, falling by default within s 4.12(k) as a use not consistent with the purpose of the relevant zone but yet one which, if proposed by a public entity, would be properly characterised as a “Special Purpose” rendering s 4.12(k) irrelevant.  Consistent with the concept of the default provision Westlink argues, the proposed development does not involve a conflict with any deliberate strategy or decision of the Council reflected in the scheme to discourage this particular type of use, does not involve conflict with multiple provisions of the scheme as was the case in Weightman, and does not involve specifically worded provisions antithetical to the establishment of the proposed use in the relevant zone.

Council’s response re nature and extent of conflict

1. Council argues that s 4.12(k) is unequivocal in its wording, reflects the fact that the scheme attaches significant importance to a use being characterised as consistent or not consistent and provides consequences for a use which is not consistent, such as the present proposed use.  It is said that is quite different from, for instance the Gold Coast Planning Scheme under consideration in Weightman.  A use which is not consistent such as we have here is, the Council says, the product of a deliberate planning decision when one considers uses consistent in the zone, those consistent but subject to compliance with specific qualifications set out in the zone code and those which are not consistent.  The court should respect the planning policy behind the scheme which is a policy intended to reflect not only a present intent but also a future planning intent and aspirations.  For that reason the court’s approach should be one of restraint.[20]  That policy, reflected in s 4.12(k) is material to an assessment of the nature and extent of any conflict.[21]

   [20]Grosser v City of Gold Coast [2001] 117 LGER 153, 163.

   [21]Ross Neilson Properties Pty Ltd v Caloundra City Council [2009] QPELR 125, 134-136; Lewiac Pty Ltd v Gold Coast City Council [2011] QPELR 495 at 504.

1. To reinforce this argument Mr Gore QC in oral submissions said[22]  the scheme, in s 4.12(k), is saying, “we don’t want things that others might think don’t have such a bad impact if it was a first principle assessment.  If you end up in that inconsistent column you’re out.  We don’t want you.  You are inconsistent.  You are a prohibition under the old language, and you don’t provide for the outcomes of this Rural General zone that we contemplate.”

   [22]T1.25.1-10.

1. The old language to which Mr Gore referred was that of the standard planning scheme format under the old local Government (Planning and Environment) Act 1999 (LGA) which identified all uses prohibited in a particular area by placing them in a column titled “prohibited use”.  With the introduction of IPA s 2.1.23(2) any prohibition on any use was, itself, prohibited - a prohibition on prohibitions.

1. Mr Gore was not arguing, contrary to s 2.1.23(2), that s 4.12(k) was a prohibition, but, rather, as I understand it, that this provision came pretty much as close as any provision could without falling foul of s 2.1.23(2).His argument was consistent with IPA s.6.1.2(3) which requires a prohibited use in a former planning scheme to be taken  as an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited.

1. Council referred to the scale of the proposed development as relevant to the issue of the nature and extent of the conflict.  That involves a floor area of all structures of about 5.8ha, a total development footprint of about 7ha with six exhaust stacks each 30m in height and six gas turbine air intakes 26m in height the equivalent of a nine storey building.  According to Mr Craven, Council’s town planner it would be the third largest power station in Queensland and the largest of the existing gas powered stations being almost four times the capability of the Oakey plant.[23]  Further in his report[24] Mr Craven said:-

“As land uses go, power stations, especially of this scale, are as large a facility as faced by a planning scheme or indeed the South East Queensland Regional Plan.  It is therefore no surprise that a planning scheme drafted for Gatton Shire does not anticipate a facility of this size.  I acknowledge that issues concerning pollution, traffic, environment impact, public safety and contamination have been addressed by the applicant and, in the absence of contradictory expert reporting, satisfactorily so.  However, the complex is huge and its impacts, particularly on its local landscape, should not be treated likely.”

[23]Report Mr Craven, Exhibit 14, para 39.

[24]Paragraph 57.

1. For the above reasons the Council says that the conflict could not be described as minor or technical but is a significant conflict.

Conclusion re nature and extent of conflict

1. It is to be noted that there is an identical equivalent of s 4.12(k) in each one of the twelve zone codes in the Planning Scheme.  That militates against the argument that s 4.12(k) is a specific provision designed to reflect the Council’s policy decision that any proposed use  falling within that provision is, intended by the scheme to attract, in the words of Mr Gore QC, the greeting that “if you end up in that inconsistent column you’re out.  We don’t want you.  You are inconsistent.  You are a prohibition under the old language and you don’t provide for the outcomes of this Rural General zone that we contemplate.”

1. Looking at the scheme as a whole I prefer the interpretation that s 4.12(k), as with its equivalent in the other zone codes, is aptly categorised as a default provision the product of a decision of the authors of the scheme that any qualifying non-consistent use are not prohibited, as of course they cannot be, but would need to satisfy the Council on good town planning grounds of any proposal of that type.  That is a sensible alternative to an approach which sought to anticipate and identify every possible future use and to deal with it in detail in the scheme.  It cannot be said, consistent with IPA s 2.1.23(2) that the Council intended anything beyond a proper consideration of any such proposal.

1. It is not insignificant either that had this proposal been put forward by a public utility, it would have qualified as a Special Purpose and would not have been confronted by s 4.12(k).  As to the scale of the proposal this court has accepted the evidence of Mr Vann in preference to that of Mr Craven on the issue of the impact on visual character.[25]

   [25]Westlink Pty Ltd v Lockyer Valley Regional Council [2011] QPEC 46 at [22] and [78]-[79].

1. On  the spectrum of a minor to major conflict I consider the conflict tends towards the minor rather than the major.

Sufficient grounds

Westlink’s argument

1. Westlink relies upon the following aspects of the proposal:-

1.          Assists in meeting the community’s increasing demand for electricity;

2.          Facilitates a more sustainable and flexible, fast-start, peak power generation that is capable of being bought into service quickly to meet daily short-term peak demand and avoid power outages;

3.          Will produce substantially less greenhouse gas emissions than a comparable coal fired power station with associated fuel transportation as it has the advantages of both:

(a)        relatively clean technology; and

(b)        clean and efficient transportation of gas via pipelines, compared with coal transportation;

4.          Involves an ideal location to supplement the growing public demand for electricity (particularly at peak times) in South East Queensland given the land’s:

(a)        Co-location with associated infrastructure (namely the gas pipeline, gas compressor station and the Gatton electricity substation)

(b)        Proximity to existing and future electrical load centres in SEQ;

(c)        Location amongst other complementary land uses including the waste disposal facility and landfill; the sewage treatment plant; the Highway; and the Gatton North local development area; 

(d)        Topography, which is such that the proposal is physically disconnected, well screened, and separated from rural residential localities;

5.          Will contribute towards the minimisation of the cost of electricity to the community by providing a low cost, efficient, power generation facility with advantages again including:

(a)        the proximity of the land to existing gas and electrical infrastructure;

(b)        a favourable transmission loss factor given the proximity to major electrical load centres in SEQ;

(c)        the ability to connect into the local electricity distribution system to serve local electricity load;

(d)        lower capital and operating costs; and

(e)        higher plant efficiency relative to alternative remote and regional power generation locations;

6.          Will provide an economic stimulus for the local region and Queensland, including significant capital investment, and the creation of jobs during both the construction and operational phases;

7.          Will facilitate Outcomes sought by the South East Queensland Regional Plan[26]; and

8.          Will advance the purpose of IPA and SPA to achieve ecological sustainability.[27]

[26]Eg. Mr Vann, T3-93/1-45

[27]Moffitt, Ex.10, s.2.3.1, p.17 and s.3.1, p.24; T3-6/5-25

1. I have already made findings in favour of the evidence of Mr Vann (town planning) over that of Mr Craven and Mr Hassall (visual amenity) over that of Mr McGowan.  Further I have accepted the evidence of Mr Kelp and Mr Dalton with respect to the benefits that flow to the local and wider community.  Lest there be any doubt, I also accept the evidence of Mr Welchman (air quality/odour), Mr King (noise and light), Dr Miller (risk management) and Mr Moffitt (flora and fauna).  Accordingly there is no need for me to revisit the details of those issues again, unless necessary in addressing the arguments of Council.

Council’s arguments

1. The Council says that the grounds advanced by Westlink are not directed to the conflict with the Planning Scheme as contemplated by the second step of the Weightman test but rather are grounds advanced for consideration within the third limb of that test.  It further says that grounds within the third limb are much less weighty than grounds that come within the second limb as the latter are not directly responsive to the particular conflict that are of a more general nature.  I have already said that I do not find in Weightman any grading of the importance of grounds considered under steps two and three.  Here it is apparent that the grounds advanced by Westlink are in the third limb of the test because of the lack of any specificity in the scheme of the proposed use and the general default nature of s 4.12(k). It is entirely different from the Weightman situation where the use was specifically identified in the planning scheme which detailed provisions relevant to that use.   Such detail is absent here.

Need

1. The Council accepts that there is a general community need for the provision of an electricity peaking station but say that, of itself, cannot justify departure from the specific siting requirements for this particular site.  Further it says there is no evidence to suggest that the accepted general community need is so pressing or critical that it cannot be met, or adequately met by existing planning documents.  It points to Isgro v Gold Coast City Council[28] where the court said:-

“Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community (Fitzgibbons Hotel Pty Ltd v Logan City Council, Bunnings Building Supplies Pty Ltd v Redland Shire Council).  Of course, a need cannot be a contrived one.  It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met.  (Indooroopilly Golf Club v BCC; William McKeown Pty Ltd v BCC)”.  (citation is not included)

[28][2003] QPELR 414 at [21]-[22].

1. Of course, need is a relative concept to be given greater or lesser weight depending on all the circumstances.[29] and does not necessarily mean pressing need, critical need, widespread desire or anything of that nature.  Rather a thing is needed if its provision, taking all things into account will improve the physical well-being of the community[30] and would improve the services and facilities available in a locality.

   [29]Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13 at 34.

   [30]Cut Price Stores Retailers v Caboolture Shire Council [1984] QPLR 126 at 131.

1. The Council next says that there is no suggestion that the need is not being adequately met by the planning documents in their present form.  It relies for that submission on the existence of the Gatton North Enterprise Opportunity Area south of the Warrego Highway which it says has been identified in the SEQRP as intended to accommodate industry.  This evidence was given by Mr Craven[31] who was of the view that this proposal had the scale and potential impacts consistent with large scale industry and should be assessed as such.  I have already considered that evidence and preferred that of Mr Vann.

   [31]Westlink Pty Ltd v Lockyer Valley Regional Council [2011] QPEC 96 at [22].

1. Next it is said there is no relevant aspect of the planning scheme lending support to the siting of this development in a zone where it is treated as inconsistent.  Rather than building upon the Shire’s landscape character, the Council says this proposal works to its detriment.  Finally on need the Council says that whereas there is a general community need there is no evidence to suggest that the need must be met on the subject land.

Proximity to infrastructure and other utilities

1. The Council argues that the proximity of the facility to other utilities and infrastructure, whilst no doubt of benefit to Westlink because it will allow the delivery of electricity at a lower cost, the evidence fell short of demonstrating that that result could not be achieved through compliance with the planning document or that the benefit justified a departure from the planning scheme.

Benefits of efficient supply of electricity

1. The Council accepts Mr Vann’s evidence of a benefit in terms of efficiency of electricity supply in locating the proposed development close to locations where energy consumption is required which is said to meet the need of the community.  The Council says that that does not take the matter very far because it falls well short of establishing that as a consequence of that location, a public benefit accrues over and above that which could be achieved through compliance with the planning documents, or more importantly, is of such great benefit to justify departure from the planning scheme.  In short this so called ground does not justify the general community need for an electricity peaking station being met on the subject land.

Management of impacts

1. In relation to the evidence of the management of the visual impacts that, it is said, is not a relevant planning ground and is no more than a suggestion that there will be an absence of negative unacceptable impacts.  That of itself is not a legitimate ground supporting approval.[32]

   [32]Grosser v City of Gold Coast [2001] 117 LGERA 153 at [50]; Palyaris v Gold Coast City Council [2004] QPELR 162 at 169 [38].

1. In relation to this court’s findings[33] that Column 1 of Table 1 in the scheme[34] details a range of uses not identified as being inconsistent with the Specific Outcomes of the Rural General Zone and picked up by s 4.12(k) the Council makes the point that it is important to recognise that those uses are themselves subject to important qualifications details of which the Council set out in its supplementary submissions[35]

   [33]Westlink Pty Ltd v Lockyer Valley Regional Council [2011] QPEC 96 at [68]-[80].

   [34]Exhibit 2, p 25.

   [35]Exhibit 3.

1. As to the Special Purpose definition which would encapsulate this proposal if proposed by a public utility, the Council again advances the argument put forward by Mr Craven at first instance that this results not from the compatibility of the proposed use with the range of activities covered by the Special Purpose definition but rather stems from an historical legacy of government agencies not being bound by planning schemes or a tacit acceptance that they should not be so bound.[36]  In his report Mr Craven says:-

“23… The rationale has nothing to do with any compatibility of the range of activity spanned by “special purpose” with a local environment.  Rather it stems from an historical legacy of government agencies not being bound by Planning Schemes or a tacit acceptance that they should not be so bound.  To an extent, there is an acknowledgement that site selection for utilities run by public entities – especially large, potentially controversial ones – involves a political process that in effect covers the same issues as those raised in a Planning Scheme.  In effect, most councils adopt a “why fight the inevitable” position.  Utilities run by a private entity do not go through this process.”

[36]Exhibit 14, report Mr Craven, para 23.

Summary

1. In summary the Council says that the Westlink grounds do not establish that there is a public benefit that can be achieved through the proposal that would not otherwise accrue by compliance with the planning document.  Further the public benefit argued is not of such force as to compel a decision to depart from the important planning policy in the planning scheme.

Westlink’s response to Council’s argument

1. In answer to the Council’s submissions Westlink makes the following response:-

(a)       As to the issue of proximity to the gas compressor station and the Energex sub-station, the benefits in economic terms flow to the community as well as to Westlink namely:-

(i)        The avoidance of community disruption and associated impacts of the construction, for example, of additional gas pipelines to carry the fuel to the electricity generator which also removes the need for any amenity or potential amenity impacts or environmental impacts associated with such new infrastructure construction;

(ii)       Given that systemic electricity transmission losses over long distances are passed on to consumers, this proposal being immediately adjacent to Gatton and the planned industrial development area Gatton North will limit the distance of transmission resulting in cheaper electricity for consumers;

(iii)      The proposal involves the prospect of local employment and investment.

(b)       The established utilities next to the proposed site establishes the character of this area and the proposal will not have any impact let alone an unacceptable impact on that existing character.  The provision of this facility without unacceptable impacts is a very positive ground in favour of the proposal; and

(c)       The location of the proposal across the highway in the Gatton North Industrial Area south of the Warrego Highway would be on  flat land, closer to the Gatton township and result in visual impacts being exaggerated as a result of the flat topography, the absence of existing vegetation particularly the heavily vegetated slope forming the background to the proposed development and will increase the number of static view points within the Gatton township.

Are there sufficient grounds to approve the application notwithstanding the conflict

Conclusion re sufficient grounds

1. Having regard to all the arguments I have come to the view that there are sufficient grounds within IPA s 3.5.14(2)(b) to justify the approval of this application notwithstanding the conflict. The grounds I consider that fit that description are these:-

(a)       Were this proposal to be developed by a public utility it would qualify as a Special Purpose within the scheme in which case s 4.12(k) would have no application.

(b)       The proposal will be of benefit to the community in assisting in meeting its increased demand for electricity providing fast start peak power generation capable of being brought on line quickly to meet daily short term peak demand and to avoid power outages. This can be done, Mr Welchman[37] has said, with nitrogen dioxide, particulate matter, sulphate dioxide and carbon monoxide emissions “well below both short-term and long-term air quality objectives” for protecting human health, amenity, agriculture and vegetation[38]

[37]Exhibit 8.

[38]Ibid, para 8.

(c)      The proposed location of the development is ideally located to meet the public demand for electricity at peak times given its co-location with the Roma to Brisbane Gas Pipeline along with the Gatton Gas Compressor Station joining the site to the east and the Gatton Electricity Bulk Supply Sub-Station directly opposite the site to the south.   I do not agree with the Council that the scheme provides a better location than the Gatton North Enterprise Opportunity Area or any other area.  That addresses the qualification placed on the Council’s acceptance of the community need for a peak power station.

(d)      It is located amongst what I see as not incompatible land uses including the Gatton Waste Disposal Landfill fronting Forge Road and the Warrego Highway, the Gatton Sewerage Treatment Plant, the Gatton Electricity Bulk Supply Sub-Station.

(e)       The topography of the area is such that the proposal is physically disconnected, well screened and separated from rural residential localities.  I accept that the absence of a negative impact is not, of itself, a proper ground for consideration but the screening I speak of is part of the issue of any impact on the amenity of the area;

(f)       Apart from contributing towards the minimisation of electricity costs to the community it will also provide an economic stimulus to the community resulting from the inflow of capital and the creation of employment both short-term and long-term therefrom;

(g)       The proposal is consistent with the outcomes sought to be achieved by SEQRP[39] and purposes of both IPA and SPA on the issue of ecological sustainability.[40]

[39]T3.9, 3.1- 45 Mr Vann.

[40]Exhibit 10, Report Mr Moffitt, paras 2.3.1, 3.1; T3.6.5-25; IPA s 1.2.3, SPA s 5.5.

1. The appeal is allowed and the appellant’s development application should be approved after the resolution of the issue of suitable conditions.  The appeal is adjourned to allow that issue to be finalised.

APPENDIX A – SEQ REGIONAL PLAN PROVISIONS

Regional Landscape and Rural Production Area

Part F–South East Queensland
Regional Plan 2009–2031 State planning regulatory provisions

Schedule 2 contains ‘use’ definitions. ‘Urban activity’ means:

Urban activity means a residential, industrial, retail, or commercial activity. It does not include the following—
(a)  tourist activity;
(b)  sport and recreation activity;
(c)  community activity;
(d)  outdoor recreation;
(e)  forestry and primary industry activity or an activity reasonably associated with such a purpose for which the premises or surrounding area is used, including, for example the following—
           (i)  farm workers’ accommodation;
           (ii) a mechanical repair workshop for farm machinery or vehicles;

(iii) vehicle storage associated with transporting forestry or primary industry produce or resources;
(iv) processing and packaging forestry or primary industry goods, including crushing and screening of extracted materials and wholesale nurseries.

(f) an aeronautical facility;
(g) an emergency services facility;
(h) water cycle, waste management, telecommunications and electricity infrastructure;
(i)  a cemetery crematorium;
(j)  an animal boarding facility.

Infrastructure

Extracts from section 10.5 ‘Energy’:

Principle
Provide energy generation production, transmission and distribution capacity to meet the needs of a growing population and support the use of viable low emission energy sources where appropriate.

Policies
10.5.1 Identify and prioritise additional electricity transmission lines, substations and auxiliary infrastructure required to support the preferred pattern of development.

10.5.2 Identify, preserve and acquire sites and corridors for substations, easements and other necessary energy infrastructure.

10.5.3 Ensure energy infrastructure agencies address long term regional energy needs.
10.5.4 Ensure the use of gas as an additional energy source is considered for new developments.

10.5.5 Increase the proportion of energy derived from low emission and renewable sources to reduce greenhouse gas emissions from electricity use.

10.5.6 Encourage opportunities for low emission, renewable and decentralised sources of energy supply and supporting infrastructure.

Program
10.5.7 Identify and protect optimal locations for low emission, renewable energy resources, taking into consideration needs and constraints arising from market mechanisms, infrastructure and growth.

Extracts from section 10.4 ‘Protecting Key Sites and Corridors’

Principle
Identify, protect and manage key infrastructure sites and corridors.

Policy
10.4.1 Identify, preserve and protect key sites, corridors and buffer areas for current and future regional infrastructure and services.

Programs
10.4.2 Identify opportunities for co-location of joint infrastructure services, sites and corridors.

10.4.3 Minimise impacts from essential economic infrastructure by providing offsets in accordance with the principles of the Queensland Government Environmental Offsets Policy and relevant specific issue offset policies.

APPENDIX B – RELEVANT PLANNING SCHEME PROVISIONS

1. Strategic framework – Section 1.4

This Section summarises the overall effect of Parts 4, 5 and 6 of the planning scheme as follows:
….

(b) The Rural General zone provides for agricultural production, other rural activities and the maintenance of the Shire’s landscape quality that is important to the overall character of the Shire.

….

2. The following Desired Environmental Outcomes for the local government area set out in Part 3 section 3.1:

Desired environmental outcomes
(1) The desired environmental outcomes are based on ecological sustainability established by the IPA and are the basis for the measures of the planning scheme.

(2) Each desired environmental outcome is sought to be achieved to the extent practicable having regard to each of the other desired environmental outcomes.

(3) The desired environmental outcomes for the local government area are as follows—

Environment
(a) Gatton Shire’s natural environment is protected, so that biodiversity, ecological processes and air, land and water quality are maintained.

(b) The disposal of wastes is effectively and sustainably managed.

(c) Sustainable land management practices are promoted.

(d) Places, areas or sites identified as being susceptible to land degradation, including erosion, landslip and contamination are protected and further degradation minimised.

Character and Landscape Quality
(e) The rural character, significant natural features, cultural heritage and landscape values of the Shire are protected and enhanced.

Settlement Pattern, Amenity and Safety
(f) The town of Gatton retains its role as the primary centre in the Shire for retail services, employment opportunities and higher order community services and facilities, with Helidon, Withcott and Grantham serving as secondary centres.

(g) Urban and rural residential development in Gatton Shire occurs in discrete centres or localities that provide a sense of place and community identity, and possess a high level of safety, convenience and amenity for residents.

(h) Housing options to meet the needs of community members throughout life are encouraged.

(i) Planning and design takes into account the potential adverse effects from natural hazards such as bushfire, landslip or flooding.

Access to Services, Facilities and Employment Opportunities
(j) Convenient and efficient access to services, facilities and employment opportunities is promoted.

Cultural Heritage
(k) Gatton Shire’s areas or places of cultural heritage significance such as those of indigenous cultural significance, or aesthetic, architectural, historical, scientific, social or technological significant, to the present generation of future generations are managed and their ongoing significance for the community is maintained or enhanced.

Economic Development and Natural Resource Management
(l) A strong and diverse economic base is promoted that builds upon the Shire's established rural strengths, its natural resources, its landscape character, and its location on strategic transport routes; and provides a broad range of employment opportunities.

(m) Sustainable industrial development is promoted with the concentration of industry activities encouraged in the centres of Gatton and Withcott achieving benefits of colocation, infrastructure availability and protection from inappropriate development.

(n) Low-impact tourism activities based on the scenic and rural values of the Shire are encouraged to contribute to the economic growth of the Shire.

(o) Development is encouraged to have regard to the function and effects of existing infrastructure.

3. Rural General Zone code

Section 4.9: The provisions in this division comprise the Rural General Zone code. They are—
(1) compliance Rural General Zone code (section 4.10);

(2) overall outcomes  for Rural General zone (section 4.11); and

(3) specific outcomes for Rural General zone (section 4.12).

4. Compliance with Rural General Zone code – section 4.10

Development that is consistent with the specific outcomes in sections 4.12 complies with the Rural General Zone code.

5. Provisions relating to the Rural General Zone, in section 4.11 ‘Overall outcomes for Rural General zone’:

(1) The overall outcomes are the purpose of the Rural General Zone code.

(2) The overall outcomes sought for the Rural General zone are the following-

(a) The zone is to provide for agricultural production, other rural activities and the maintenance of the Shire’s landscape quality that is important to the overall character of the Shire.

(b) Closer settlement, particularly urban and rural residential development, is not consistent with the zone, in accordance with the SEQ Regional Plan.

6. Specific outcomes for Rural General zone are contained in section 4.12 —

The specific outcomes sought for the Rural General zone are the following:
(a) Downstream water quality is protected from impacts resulting from the development.

(b) New uses and works associated with new development are located, designed and managed to minimise adverse effects on environmental values.

(c) Access arrangements required to service new development are designed to accommodate the type and volume of traffic likely to be generated.

(d) Development achieves effective separation or buffering from existing incompatible uses or those that may establish in the future.

(e) Rural service industries may be appropriate where complying with the purpose of the code.

(f) A range of other recreational, educational or tourism related uses is supported in the zone, where:

(i) the intensity and scale of the use does not reduce the amenity or operational effectiveness of neighbouring properties;

(ii) there are no adverse impacts on the natural environment, including

(A) vegetation or other features identified as having significant ecological values; and

(B) downstream water quality;

(iii) there are no impacts on the quality of the visual landscape as uses involve only limited buildings or structures that are designed, sited and of a scale consistent with the natural environmental and landscape features;

(iv) the site is connected to the Shire road network and urban centres by roads capable of accommodating the type and volume of traffic likely to be generated; and

(v) the site has access to an appropriate water supply, liquid and solid waste disposal systems and electricity supply adequate for all on-site purposes.

(g) Extractive industry uses occur within this zone where it is demonstrated that:

(i) the resource is of sufficient size and of an acceptable quality to provide a sustainable and economically viable operation;

(ii) there is a community need for the product;

(iii) environmental impacts are within sustainable levels; and

(iv) the likely transportation routes are constructed to an standard sufficient to accommodate haulage vehicles, having regard to the safety of other road users and the physical impact on the roads.

(h) Intensive animal industries may be appropriate in this zone. Such uses will be sufficiently separated and buffered from the Shire's towns, villages and rural residential communities so that there will be no adverse impact on the amenity of these areas.  Any expansion or intensification of any existing intensive animal industry use which has existing adverse impacts from odour, noise, traffic other impacts on a settlement within the Shire is inconsistent with this zone.

(i) Industrial development relating to explosives manufacture is not located within 2 kilometres of the town of Helidon for safety reasons.

(j) Development is restricted in the Tenthill historic subdivision area due to servicing constraints.

(k) All other defined uses and other not defined uses, not specifically identified in Table 1are not consistent with the purpose of the zone.

7. Table – Assessment Categories and Relevant Assessment Criteria for Rural Uplands Zone – Making a Material Change of Use