Westlink Pty Ltd v Lockyer Valley Regional Council
[2013] QPEC 35
•31 July 2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Westlink Pty Ltd atf Westlink Industrial Trust v Lockyer Valley Regional Council & Ors [2013] QPEC 35
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/S:
2606/10
DIVISION:
Appellate
PROCEEDING:
Developer’s appeal against refusal of development application
ORIGINATING COURT:
DELIVERED ON:
31 July 2013
DELIVERED AT:
Brisbane
HEARING DATE:
3 June 2013 -7 June 2013, - written submissions to 13 June 2013
3 June 2013 - Site Inspection
JUDGE:
Robin QC DCJ
ORDER:
The appeal should be allowed, with appropriate conditions to govern the development approval and manage its impacts to be worked out
CATCHWORDS:
Integrated Planning Act 1997 s3.5.14(2)(b) - development application for a natural gas-fired electric power station in a rural area near Gatton - use inconsistent with purpose of zone - further conflict (considered minor in light of other development existing, approved and possible under the planning scheme) with the “overall outcome” desired of rural landscape character - need for proposal established - it would assist meeting and add competition in respect of peak hours demand in South East Queensland for electricity, using relatively clean fuel in a favourable location, conformably with what the South East Queensland Regional Plan 2009-2031 called for - relevance of falling overall demand for electric power - respondent Council argued proposal was not viable
COUNSEL:
C L Hughes QC with B D Job for the appellant
D R Gore QC with M A Williamson for the respondent
M Batty for the fourth co-respondent by election (direct brief)
SOLICITORS:
McInnes Wilson Lawyers for the appellant
Connor O’Meara for the respondent
After a five day hearing, Westlink’s appeal against the respondent Council’s refusal of its development application made early in September 2009 seeking a material change of use of its site a couple of kilometres north of Gatton for a gas-fired power station will be allowed for a third time by this court. The first order was set aside last year by the Court of Appeal in Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358; (2011) 185 LGERA 63 (Lockyer Valley 2011) because of an erroneous finding that the proposal was not in conflict with the planning scheme in 2011; the second was set aside by the Court of Appeal ([2012] QCA 370; 191 LGERA 452(Lockyer Valley 2012)) because a ground relied on in this court as justifying a decision in favour of the development in the face of identified conflict was held unavailable. That ground was the planning scheme’s categorisation of the proposal, had it been made by a public entity as opposed to a private one (like Westlink) as code assessable if not self-assessable. Where code, as opposed to “impact” assessment applies, a proposal is acceptable if it complies with relevant planning scheme codes or can be made to comply by conditions; in impact assessment, as the expression implies, the impacts of a development proposal generally must be considered and adjudged acceptable before any question of potential approval arises. No discussion or conclusion in that regard in this court plays any part now. I have determined the fate of Westlink’s appeal by reference only to the evidence and arguments presented in June 2013. Some reports have been used again. I have not read at any time the set aside decisions of this court or any reasons given for them, expect so far as reproduced by the Court of Appeal, nor relied on any findings that might have been made in this court. That is consistent with the approach urged by the Council that this court should not have regard to its two previous decisions (written submissions para 60 ff).
Holmes JA, with the concurrence of the other members of the Court, said in Lockyer Valley 2012, in referring to the Council as “applicant” (for leave to appeal):
“The ‘special purpose’ ground
[26] The applicant said of ground (a) identified by the primary judge that the fact that the same project would have been permissible undertaken by a public entity did not amount to a public interest, and it was an irrelevant consideration. Westlink’s response was that it had not submitted, at first instance, that the ‘special purpose point’ constituted a ground, although the question of whether it did was ‘moot’. In any case, it was submitted, it was relevant to the overall statutory task of considering the nature and extent of the conflict and whether there were grounds to overcome it, so it was not an irrelevant consideration.
[27] I doubt that the fact that a public enterprise’s undertaking will generally be self-assessable as a ‘special purpose’ has any bearing on the desirability of the same undertaking when conducted by private enterprise. Considerations for public as opposed to private undertakings are so dissimilar, for both historical and contemporary reasons, that it can be of no assistance that one is contemplated by the scheme and the other not. And the logic that if the activity undertaken by a public utility does not conflict with the planning scheme, that fact must render it a ‘matter of public interest’ (as a ground within the meaning of s 3.5.14(2)(b) must be) for the same activity to be conducted by private enterprise, does not withstand closer scrutiny. I agree with the Council’s submission: this was an irrelevant consideration in considering the sufficiency of grounds.”
Westlink’s development application was made and is to be assessed under the Integrated Planning Act 1997 (IPA), s 3.5.14(2) of which is:
“If the application is for development in a planning scheme area, the assessment manager's decision 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 decision despite the conflict.”
It may be taken from the Court of Appeal’s returning Westlink’s appeal against the Council’s refusal twice to this court that subsection (2)(a) does not apply (no party contended otherwise), that the view was taken that Westlink had some prospect of establishing sufficient “grounds” which, of course, must be considerations of public interest or benefit, as opposed to private ones: IPA Schedule 10, definition of “grounds”.
The conflict, identified in the first Court of Appeal decision and requiring to be overcome, is with s 4.12(k) of the Council’s “Gatton Planning Scheme” (this, as Westlink’s planning expert conceded, is not the only aspect of conflict). By s 4.12 the specific outcomes sought for the Rural General zone, in which the site lies, concluded:
“(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.”
The preceding specific outcomes sought included (subject to varying conditions) rural service industries, recreational, educational or tourism related uses, extractive industry uses and intensive animal industries. One of the Table 1 uses is “Special Purpose” which was defined to mean any premises or use of land by a local, State or Commonwealth Government, or its corporation or agency or a community service organisation. Fraser JA in the leading judgment in Lockyer Valley 2011 said:
“Section 4.12(k)
[29] The Council submitted that the primary judge wrongly held that the proposal was not in conflict with s 4.12(k) of the Planning Scheme. It argued that: reading the overall outcomes and specific outcomes together, the Planning Scheme identifies the specific uses which may be consistent with the purpose of the zone; Westlink’s proposed use falls outside the scope of the character of those uses; and the proposal therefore conflicts with the Planning Scheme.
[30] Westlink submitted that the primary judge adopted the orthodox approach[1] of construing the Planning Scheme as a whole, where necessary adjusting the meaning of conflicting provisions to achieve a harmonious construction. It was submitted to be important that s 4.12(k) does not set its face against the proposed use. It does not provide that it is inconsistent with or in conflict with the Planning Scheme. Westlink submitted that the provision that certain uses “are not consistent with the purpose of the zone” is insufficient in itself to establish a conflict. That conclusion was submitted to find support in a comparison between s 4.12(k) and the more specific provision in s 4.11(2)(b) that closer settlement is not consistent with the zone. Westlink also submitted that the absence of conflict was revealed by the fact that the development proposal by Westlink would have constituted a “Special Purpose” (and thus a use within a specific outcome) had the proposal been a public entity.
[1]See Project Blue Sky Inc v Australian Broadcasting Authority[1998] HCA 28; (1998) 194 CLR 355 at 381 - 382 [70].
[31] In my respectful opinion the Council’s argument must be accepted.
[32] Westlink sought a decision approving its application for a material change of use “electricity generation infrastructure” in the Rural General zone. It was common ground that this is not a defined use or one which falls within any of the specific outcomes identified in s 4.12. It therefore falls within the expression in s 4.12(k) “other not defined uses”. As was also common ground, the proposed use is not “specifically identified” in Table 1. In particular, it is not specifically identified by the last entry in Table 1, which refers to “Other (not defined uses)”. That is expressed in the most general of terms. Plainly it was not intended to suggest that all such uses are consistent with the purpose of the zone. Rather, its apparent purpose is to ensure that an assessment category and assessment criteria are specified even for uses which are not consistent. That was necessary because of the provision in s 2.1.23(2) of the Integrated Planning Act that “[a] local planning instrument may not prohibit development on, or the use of, premises.” Because it is not lawful for a planning scheme to prohibit any particular use, it is appropriate to include provisions regulating the assessment of applications for all forms of development, even development which is manifestly in conflict with the planning scheme.
[33] Accordingly, the effect of s 4.12(k) is that the proposed use is “not consistent” with the purpose of the zone for which it was proposed. The expression “not consistent” is used as a synonym for the word “inconsistent”, as is suggested also by the general provision in s 1.11(2) that “[u]ses not specifically identified in column 1 of each assessment table are considered to be inconsistent uses.” Having regard also to the context supplied by s 4.9, s 4.10, and s 4.11, s 4.12(k) conveys that the proposed use is inconsistent with the Rural General zone code. The fact that the Planning Scheme eschews any express statement of a “conflict” or “inconsistency” between the scheme and a decision on an application concerning this proposed use, or any particular use, does not detract from that conclusion. Nor does the presence of the specific provision in s 4.11(2)(b) supply a ground for reading down the clear words of s 4.12(k). In the absence of any other provision which qualifies the operation of s 4.12(k) in relation to the proposed use, that paragraph requires the conclusion that a decision to approve the application is at variance with the Planning Scheme.
[34] The primary judge was right to take into account the content of the overall outcomes and the specific outcomes in the course of construing the Planning Scheme, but his Honour’s reasons for holding that there was no conflict “in concept” do not refer to any provision which qualifies the operation of s 4.12(k). Similarly, the primary judge’s discussion of the question whether Westlink’s proposal “in fact” conflicted with the Planning Scheme was not directed to that question. In that discussion his Honour compared the nature and degree of the impact of that proposal upon the existing environment with the impact upon the environment which had occurred and was contemplated by the Planning Scheme. That comparison did not suggest that the proposed use was not squarely within s 4.12(k).
[35] The primary judge accepted Westlink’s submission that the mere identification of the proposed use as being “not consistent with the purpose of the zone” did not necessarily result in conflict with the Planning Scheme.[2] As a general proposition that may be accepted, since in a particular case the effect of a provision in the form of s 4.12(k) might be materially qualified by other provisions of the planning scheme in which it is found. However, Westlink has not identified any provision in the present Planning Scheme which has any such effect. It is true that if the same use had been proposed by a public entity it would constitute a “Special Purpose”, in which event s 4.12(k) would have no application. That bears upon the assessment of the nature and extent of the conflict, but it does not qualify the effect of s 4.12(k) in relation to Westlink’s application.” (italics added)
[2]Westlink Pty Ltd v Lockyer Valley Regional Council [2011] QPEC 96 at [67].
The Council did not enjoy total success in the Court of Appeal. In the 2011 appeal it contended that the proposal was in conflict with s 3.1(3)(e) of the Planning Scheme which enacted a Desired Environmental Outcome in respect of Character and Landscape Quality that “the rural character, significant natural features, cultural heritage and landscape values of the Shire are protected and enhanced.” That requirement was said to have been overlooked at first instance; however, the Court of Appeal’s judgment states:
“[21]The general and value-laden terms of s 3.1(3)(e) do not reveal any necessary conflict between a decision to approve the use proposed by Westlink and the Planning Scheme.”
Apropos s 4.11(2) which provides:
“(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.”
Fraser JA said:
“24.The Council submitted that the overall outcomes and specific outcomes, when read together in the context of the structure of the Planning Scheme, dictated the conclusion that the consistent uses in s 4.12 must comply with the overall outcomes in s 4.11(2)(a), yet those were the outcomes which the primary judge held were “shattered”.
25.That aspect of the argument incorrectly attributed to the primary judge a conclusion that the overall outcomes in s 4.11(2)(a) were “shattered”. Rather, his Honour held that the “images of the pristine rural environment conjured up by the words in s 4.11(2)(a) are shattered.” The point made by the primary judge was simply that reference to the specific outcomes in s 4.12 suggested that the general expressions in s 4.11(2)(a) were not as prescriptive as might be the case if attention were confined to that paragraph.
…
27.The specific outcomes discussed by his Honour nevertheless require 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.”
28.The Council has not established that the primary judge made any error of law in his Honour’s consideration of s 4.11(2)(a).”
Bushfire risk
The co-respondents by election, of which Keep Lockyer Rural Inc was represented by Mr Batty of counsel, raised bushfire concerns, and presented a statement of evidence of a Mr Quennell, an experienced Queensland Rural Fire Service officer, who said that his organisation (which he thinks would be unable to do anything about a fire at the site in the circumstances) has not been consulted by Westlink for advice. He was not cross-examined by Mr Hughes SC, as he then was, for the appellant Westlink on the basis that he was not presented as an expert, and took no part in meetings of experts. The appellant, which was alerted to bushfire risk as a matter about which expert evidence would be presented and in the circumstances had no cause to seek an expert in the field it presented evidence to the effect that the proposal created no unacceptable fire risks, from experts in closely related fields. The 7 hectare area of the proposal proper[3], unlike the heavily forested and dominant northern parts of the parcel, is not included in the planning scheme’s overlay map showing bushfire risk of varying categories of seriousness. The court can be confident that, if and when the time comes, appropriate conditions for the proposal will be formulated by qualified persons including the appropriate fire authorities. Mr Chenoweth, called by the Council thought so (Ex 7 para 5.8) along with a number of witnesses called byWestlink. The issue will be mentioned again below, but it is highlighted here to mark the importance the courts place on considerations affecting the safety of people and other living creatures, also of property and vegetation and relevant risk of fire. In the circumstances Mr Quennell evidence does not require rejection of the proposal.
[3] The Council’s written submissions set out that the aggregate footprint of the gas turbines will be of the order of 280 metres x 140 metres, exclusive of switch yard, carpark, control and administrative buildings, warehouse and workshop, fire tank, fire system and ancillary tanks and pumps.
Need
Establishing a community or public need is crucial to Westlink’s succeeding by reference to s3.5.14(2). Further, it must be shown that there are no unacceptable impacts. The proposal is for a natural-gas fired peaking power station, one that can be brought on stream at short notice to provide electricity (a commodity which cannot be stored) at times of peak demand. Notwithstanding that environmental impacts, on air quality in particular, were modelled by Mr Welchman on the worst case assumption of operating fulltime and continuously, generation will occur only as needed at those times of peak demand, when there is a demand for the product; it is unlikely that this will be any more than six hours in any day.
Westlink is constrained to acknowledge that its “ground” of need in a planning sense has been weakened by revisions downwards of various official estimates of demand for electricity. With hindsight, the “GFC” (Global Financial Crisis) can be regarded as marking the time of reverse. When the appeal started, 2010 estimates were the latest; they indicated a serious shortfall in generating capacity to meet anticipated demand. Anticipated demand was revised downwards in 2011, again in 2012 and by one authority again in 2013. The evidence is that declining demand by large industrial users apart, the huge escalation in electricity prices attributable to the aggregate effect of factors such as the “carbon tax”, components included to fund supposedly necessary enhancement of the distribution system and other infrastructure has depressed demand: householders cannot or will not pay for the same amount of electricity any longer, it seems. As Mr Kelp explained (T4-62) demand for electric power demand has not fallen as dramatically as first appears. A huge amount is now generated through solar panels by consumers, who have reduced occasion to call on commercially generated power.
It is not entirely clear to me that a partial customer “boycott” attributable to price that reduces aggregate consumption will necessarily reduce peak demands at times when extraordinary summer temperatures make air-conditioning “necessary” for reasonable comfort. South East Queensland (the dominating target market here) has been spared severe summer temperatures in recent years. The imperative so far as electricity supply is concerned has been and remains in the view of our government (and in inferentially in the view of the community) ensuring that demand, which fluctuates enormously, is always met. Electricity has to be generated as needed, given that it cannot be stored. The relevant imperative is a political one, based on what the community including voters are presumed to want. The court should accept it as an imperative conducing to a community need for sufficient electric power at peak demand times. The Council called Mr O’Dwyer as an expert in this area. His evidence that Queensland peak demand could be met by capacity in the national grid was unconvincing. He insisted that it occurred around 2.30 pm – ahead of the evening peaks in the south – in the face of a clear invitation to accept 4.00 to 8.00 pm, which evidence in a form of Powerlink and Energex publications showed represented the true situation. It seems clear he envisaged peak demand being satisfied by “dirty” generation from coal.
I agree with Mr Hughes that, while acknowledging the dramatic downwards revision of projections of demand – now in the order of 30 per cent – and more generally that assessment of the proposal should occur by reference to current conditions established by the evidence, rather than those obtaining at some early time[4], a longer term approach ought to be taken rather than a short term one. The respondent’s case is that on present projections, demand can be satisfied without approval of new generating capacity until 2020 or 2021, which on the view I favour is not particularly far off. Lead times for electricity generating proposals to come on stream are necessarily long, far outstripping those for, say, shopping centres, which were said to require only a couple of years in the usual course to advance to implementation stage. Further, it is in the nature of projections that numbers may be revised upwards as well as downwards. Population increases in South East Queensland are, the court was told, expected at a rate of 1.9 per cent annually and will contribute to increasing demand for electricity, which all conceded was a necessity of life in modern conditions. The views set out in this paragraph are based on an assumption, which I think is entirely unjustified, that peak demand for electricity will fall in the same degree as overall demand.
[4] In this regard the Council cited R v Luckin, ex parte Sunshine Pty Ltd [1967] Qd R 49, 53 and Logan v Woongarra Shire Council [1983] 2 Qd R 689, 691.
I am satisfied that there is a need, the claims of which for recognition are strengthened by environmental considerations expressly recognised in the South East Queensland Regional Plan 2009-2031(SEQRP) and also locational advantages. Those advantages (which are to do with the proposal’s being located immediately adjacent to the Roma gas pipeline and an electricity substation) apart, further, the site’s proximity to the market brings benefits in reduced loss of electricity in transmission which is a function of distance it has to be carried. Other gas fired power stations, operating or proposed, are located more remotely.
Mr Kelp, disclaiming any particular expertise in assessing economic benefits at national and local levels of proposals like Westlink’s, accepted Mr O’Dwyer’s estimate of a one-off national economic benefit from construction of stage one of $138,000,000 (as against a local benefit up to $11,000,000), abandoning his earlier espousal of a higher multiplier. He was impressed by the relatively modest capital cost in comparison with other generating projects he had seen in recent times – which I take as a commendation and a factor conducing to viability (T4-58). These economic benefits should be kept in mind.
The Council presented the following argument against Westlink’s assertion that it could show “need” as a “ground” for approval of its proposal notwithstanding conflict with the planning scheme, using Mr Kelp’s original report used in the 2011 hearing in this court as the “starting point”:
“88.Against the background of the 2010 AEMO[[5]] Supply Demand Calculator which accompanies the Statement of Opportunities prepared by that very organisation, Mr Kelp concluded that the supply-demand outlook suggested at that time that Queensland will face what is described as a ‘low reserve condition’ as early as 2013-2014. The consequence of this was said to mean that ‘without further supply, Queensland’s supply reliability may fall below the accepted reliability standard (unserved energy is not to exceed more than 0.002% of demand)’.
[5] Australian Energy Market Operator
89.The position in 2010 and the figures taken from the AEMO’s Statement of Opportunities for 2010 is depicted in Exhibit 40 before this Court.
90.The 2010 Statement of Opportunities is to be contrasted with Exhibit 41, which is a document from the same organisation, save that it contains updated figures to February 2013. A comparison of Exhibit 40 and 41 reveals that there is a big adjustment between the low reserve condition in 2010 compared to 2012. Indeed, if one takes the medium economic growth position, the LRC point or reserve deficit were said to engage in 2013-2014 in the 2010 Statement of Opportunities. This compares to the year 2020-2021 in the 2012 Statement of Opportunities.
91.Ultimately, the figures before the Court reflect a significant reduction in demand for electricity in South-East Queensland. This has been the consequence of a number of factors which have been identified in the need joint expert report. The demand forecasts have been revised significantly downwards in recent years because:
(a)electricity prices have sharply increased over recent years;
(b)rooftop solar panels have introduced an additional 420 megawatts of additional capacity installed during the period December 2008 to December 2001;
(c)changes to Federal and State policies have impacted upon demand for electricity. This predominantly appears to have occurred through the encouragement of cleaner energy schemes and the introduction of the carbon tax; and
(d)the global financial crisis has also impacted upon demand.
92.Against the background of this significant reduction in demand for electricity over the period which this matter has been litigated, Mr Kelp’s view as to the need for the subject proposal has materially altered. His position is now identified in paragraph 10.1 of the need joint report in this way:
“… the proposed WPP is one of a number of proposed open cycle gas turbine projects and even without this project, there is no expectation that the local community or South-East Queensland’s increasing electricity demand would go unmet.’
93.If the test which one applies to determine whether there is a need is to ask; will the community be better or worse off with the proposal, Mr Kelp’s evidence establishes that the public’s demand for electricity will not go unmet. In other words, the community will be no better or worse off with the subject proposal.”
That does not tell the whole story, which in my opinion is illustrated well by Mr Kelp (whose evidence was highly persuasive) in the following passage from his evidence in chief (T4-63-4):
“Now, I promised I’d take you to figure 1 on page 7 of the joint report and can I ask you, in circumstances where the joint report records that there seems to be sufficient capacity to accommodate demand, why does one have a peak in electricity prices in 2013 in the stop – spot price which is, with the exception of 2007, perhaps the last truly hot summer, why does that occur if there’s enough supply?---Quite right. You know, one would characterise the market, at the moment, as having ample generating capacity to meet demand. However, we have seen, to some extent, some element of supply-side response. So we’ve seen some generators mothballing units, taking them out of service, in effect, we’ve seen, you know, through the introduction of carbon pricing, we’ve seen some generators being put under financial strain because they’re now having to pay their coal costs and their fuel costs as well as their carbon costs. And so that is putting some financial strain on some generators. As a result, some of those generators are reducing the amount of money they spend on regular maintenance, particularly for the larger coal-fired power stations. The direct result of spending lower amounts on maintenance is, if you like, more forced outages, those plant tend to break down more often. So it’s – it’s a combination of those things where the market is withdrawing supply from the market due to the lower demand conditions, less maintenance spent on large coal-fired power stations which are making them less reliable. And at times during, peak – you know, if – if some of those plant failures occur during peak demand times, that can result in the pool price spiking and figure 1 does show that certainly during the December-January period in Queensland was a period of high prices.
If this project had been up and running at that time, would you have expected that sort of peak? If not, why not?‑‑‑Certainly if a project like this was operating through that period it would have acted to moderate some of those price spikes through that summer period. It’s difficult to say just by how much. It would depend on the size of the generator. You know, for example, if – if there was a, you know, an additional 1,000 megawatts, I would expect perhaps that – that price spike to disappear entirely. If it was only 200 megawatts there might only be some slight moderation in that price spike.
HIS HONOUR: Are you talking about a particular price spike there?‑‑‑It would be a range of price spikes.
You’re not talking about any particular one in figure 1 there?‑‑‑Look, I’m talking about the one that occurred just recently.
The one this year?‑‑‑Yeah, the one in ‑ ‑ ‑
This – the last summer?‑‑‑Yes, correct. That was the one I was referred to.
Queensland seems to have lost its ability to be down the bottom. Is there a reason for that?‑‑‑It – it does. Historically, Queensland has had the lowest prices. Certainly the carbon price has been a factor. Most of our ‑ ‑ ‑
Well, what – why would it‑ ‑ ‑?‑‑‑Generation fleet.
It seems to have worried Queensland more than the other states, especially Victoria?‑‑‑You – you’re quite right. I mean, we have had, you know, quite a bit of capacity mothballed in recent times. Two units of Tarong, and that has had an effect.
MR HUGHES: Well, in terms of the need for peak commanding demand electricity, I take it a proposal such as this, for a peaker station located in South East Queensland, is an – ideally addresses that?‑‑‑Yes, it does.
In terms of the balance of the graphs which you and Mr – sorry – you and Mr O’Dwyer have included from the AEMO, figures 2, 3 and 4, we were told by Mr Bones that figures 3 and 4 relate to peak demand and they’re most relevant. What do they tell us about the future demands forecast for peak power, which is power required in the times when it’s likely that this proposal will be working?‑‑‑Certainly figure 3 and figure 4 illustrate that, over previous iterations of both the Australian Energy Market Operators’ statement of opportunities report and also forecasts undertaken by Powerlink, that in recent years the demand forecasts have been downgraded. But in the longer term there is still an expectation of peak demand growth. And both of these forecasts are done on the 50 per cent probability of exceedance basis. So to the extent that we do have extremely hot summers in Queensland we would expect demands to be above those levels.”
Alleged uncertainty whether a development approval would be implemented
A number of the Council’s expert witnesses expressed opinions that the proposal would never go ahead, even if approved. Reasons advanced were that gas would not be available, that if gas were available, given dramatically escalating prices for gas in Australia, it would become too expensive for Westlink, rendering the project unviable, that Westlink’s costs of production would price it out of the market, i.e. no retailer of electricity would buy it, there would be no unmet demand in the market anyway.
The appellant’s case was criticised by Mr Gore QC, for the Council, for failure to demonstrate that such considerations would not defeat its plan. Logic and commonsense say that Westlink must start by acquiring a site with the necessary development approval, next find a market for its electricity and then secure the necessary raw materials, specifically natural gas. The last two steps may be taken in tandem with each other, and, needless to say, with securing affordable financial arrangements to fund construction, which is estimated to bring national benefits by way of expenditure of hundreds of millions of dollars, will be vital. The starting point must, I am convinced, be the development approval sought. Mr Kelp gave a clear summary of the commercial steps Westlink would be expected to pursue to establish that its project should advance to actual construction at T4-58.
I have asked the parties to present examples of approvals being denied by a court because of doubts that they would be implemented if granted. Mr Gore and Mr Williamson, whose thoroughness can be relied on, produced Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPEC 26 at [205]-[217] and [244]-[252] (citing Family Assets Pty Ltd v Gold Coast City Council [2008] QPELR 448); it establishes that “the approval of significant development in the absence of a sufficient public and community need has the potential to be problematic”; Judge Rackemann was influenced by concern that the project would never be completed, that there would not arise a sufficient need within a reasonable planning horizon. Experience is that not all approvals are acted upon. I have heard evidence from developers whose cases may be weakened by the existence of a particular “rival” approval to the effect that it will not be implemented. Approvals in some cases lapse by effluxion of time. An approval does not in any sense sterilise a site, further, different approvals may be obtained. Mr Gore is correct that an extant approval effectively constrains Council planning for a locality and may affect assessment of development applications; it creates expectations in the community as to what could happen on a site.
Mr Hughes referred to Jadmont Pty Ltd v Council of the Shire of Miriam Vale [1998] QPELR 351 and Berry v Caboolture Shire Council [2002] QPELR 96. In the former, Judge Skoien refused approval of a proposal considered too big for its locality, concerned that it never would be developed, yet would stand in the way of any future proposal for a similar development of more appropriate size for the location, for which there was a clear need. In Berry I said:
“[41]Interesting evidence (of questionable relevance) was given by Mr Gray, called by the Johnstons, and Mr Williams, called by the Appellants, bearing on the economic feasibility of the proposal from the Johnstons’ point of view and on the likelihood of benefits to consumers through lower prices than they might otherwise have to pay for decomposed granite. Mr Gray’s expertise flows from his commercial background in quarrying. Mr Williams’ was that of an economist specializing in transportation, with a particular focus on cost-benefit analyses. They held opposed views as to whether Mr Johnston would “go broke”, an issue which seems to me irrelevant in present circumstances. Jadmont Pty Ltd v Council of the Shire of Miriamvale (1998) Q.P.E.L.R. 351 shows that the unlikelihood of a proposal coming to fruition may count against is being approved. I think that the likelihood of the Johnstons’ business failing might be relevant if it involved a risk of some blight or eyesore being bequeathed to the community. There is no real risk of that here, given the secluded location of the site. Mr Williams noted the large establishment costs (I would question the appropriateness of including the cost of the land, given that the Applicants already own it), in particular the cost of works in Monkeybong Lane. Since those must be completed before any quarrying can begin, I would regard it as most unlikely that the community would be left with a half-finished ramp; the Applicants would be mad to embark on construction unless they were sure they could see it through.”
From the foregoing, I take it that everything in this regard depends on the particular circumstances. There is no reason whatever for thinking that Westlink’s proposal is pursued with any view other than getting it implemented; there is no suggestion that it represents some ploy to fend off a competitor. I reject the Council’s characterisation of it (in written submissions of 13 June 2013) as involving a “real risk” of creating an “economic White Elephant”. The evidence the court has supports the likelihood that the requisite commercial arrangements will be negotiated. The appellant’s experts in this regard, Mr Bones and Mr Kelp were far more persuasive than their counterparts who offered gloomy prognostications. Should commercial factors kill off the project, that will surely happen before the generators are constructed. It is impossible to identify any disbenefit in that outcome (setting aside the non-emergence of a new competitor for existing generators of electricity): there would presumably be rejoicing among the respondent and co-respondents. There is no reason to think that in the few years of uncertainty any embarrassment would be caused to other potential development in the locality.
Visual amenity - impacts of the proposal
Section 4.11(2) of the planning scheme, which seeks preservation of Gatton Shire’s landscape quality, is a basis for assertions that the proposal is in conflict and in the related aspect of its impacts and their acceptability. While Westlink’s site is relevantly in the General Rural zone, part, strictly, including a tiny area in the south west apparently unaffected by the proposal, has the extra zone designation “Agriculture”. It was common ground that nothing turned on that. The proposal occupies an area of something less than 10% or 7 hectares in the eastern half of the southern third or thereabouts of the total parcel, the frontage of which is to a section of Fords Road where it no longer is flush with the Warrego Highway (as it is to the west) but deviates northwards at a small angle. Thus, while the western half of the parcel’s southern frontage is directly open (but not accessible) to the highway, the eastern half is buffered from the highway by a forested strip of increasing width to the east. There is thus some off-site screening of the visual impacts of the proposal from the highway, but none further west, where the views of occupants of vehicles heading east are unimpeded; this constitutes the aspect of concern to visual amenity experts engaged in the appeal.
It must be noted, however, that the general surrounds of the site are far from salubrious. Its eastern neighbour is one of three compressor stations, complex assemblages of pipes above ground, on the 16 inch diameter pipeline constituting the Roma-Brisbane pipeline. There are three compressor stations in other locations on the smaller 10 inch pipeline. The purpose of those facilities is to redress loss of pressure in the pipeline to enable it to operate with better efficiency. Across Fords Road from the compressor facility and the proposed development is an electricity substation on Energex’s 110kV transmission line, doubtless located where it is with a view to serving Gatton. The electricity substation lies in the narrow triangle formed by Fords Road, Adare Road and the highway east of the vegetated divider part opposite the site mentioned elsewhere. It is relatively unsightly and shares an industrial character with the compressor plant that cannot be disregarded.
The appellant’s written submissions pertinently note the “node of public utilities” immediately north of the site which is recognised and protected by Community Facilities zoning in the planning scheme. Those uses and the zoning are relevant to assessment of Westlink’s application: IPA s 3.5.5(2)(d). The busy Warrego Highway also has an influence on the character of the area, likewise the ubiquitous powerlines and poles. Essentially with attachment of some extra infrastructure to them, existing poles and towers would be able to carry the electricity generated on the site until it reached 70% of planned maximum capacity. At that stage additional powerlines (and easements) probably to the north to link with Powerlink facilties, will be required. The site and surroundings come within in the regional landscape and rural production area for the South East Queensland Regional Plan and outside the Urban Footprint this disfavouring developments such as Nimmo’s and Wallangara Pastoral’s[6]. Nonetheless, it was accepted that protecting the future amenity of those developments was a relevant consideration in assessing Westlink’s application
[6] See [28] below.
One can image Westlink’s “eureka” moment at the thought of taking advantage of proximity to these neighbours, by turning gas taken from the compressor into electricity delivered to the substation. Expert evidence shows that the windfall benefit of this fortuitous co-location is less important than might be thought at first blush, although by definition there must be some advantages in convenience and cost, not to mention the available easement arrangements that might be needed over others bound to achieve connection to an alternative site. Mr Teis’ impressive model shows the power station completed would cover almost twice the aggregate of the extent of the facilities it seeks to take advantage of. East of the sub-station extending from Fords Road to the highway and similar in area to the proposal is the Council’s dump and recycling facility, a long-term operation. Immediately south (across the highway) in Treatment Plant Road are extensive sporting fields with impressive lighting facilities established on former landfill sites; south of them the sewerage treatment plant and the pound. The dump and very large recycling shed must be accounted unsightly. An earth mound to the west will save highway users travelling east, fresh from enduring whatever vision of a power station they might have experienced, from further visual insult from the dump. Not so favoured are those heading westwards, who would observe it warts and all, but see nothing of any power station. In the overall picture, so far as impact of the proposal on rural character is concerned, the proposal may bring the sight of the very tops of six exhaust stacks. That impact is not unacceptable in the context of the existing visual impacts on bucolic rural character discussed. There is no comparison with the highly visible power station at Oakey which, as the Council observes, is much smaller than the proposal, with only a quarter or thereabouts of its capacity.
An unusual set of circumstances (see [2013] QPEC 18) gave the Council a second bite of the cherry in the visual amenity contest, when Mr McGowan, who had given evidence years ago at an earlier hearing of the appeal, was granted leave to withdraw on 24 April this year. Mr Chenoweth was engaged; he deserved credit and gratitude for providing his expert views in such a timely way. He had more misgivings than did Mr McGowan. It was not clear whether, at the end of the day, his opinion was that visual amenity impacts required refusal of the proposal; if it was, such an opinion is rejected. In his written report Ex-39, recommending refusal his conclusions were:
“15. Given the scale of the power station, the proximity to the Warrego Highway, the local landform and the need for additional 50 m tall pylons to connect the power station northwards[7], the proposed development will be in marked contrast and detract from the rural character which currently dominates views from the highway through most of the Lockyer Valley region, contrary to the intentions of the planning scheme. “
In Exhibit 7, at page 9, he favoured a site south of the Highway for the proposal, although accepting it would “be more visible to a greater number of observers”. I would observe that the local landscape is essentially helpful in concealing the proposal, that the (threatened) rural character highway views are already destroyed in the vicinity of the site and that “50m tall pylons” would presumably be the subject of some later arrangements and approval, in no way dictated by the present decision.
[7] There is considerable uncertainty about what might be applied for in this regard. In Exhibit 7 (p8) 50m pylons are anticipated by Mr Chenoweth “to connect southwards across the highway”: See also the Council’s submissions at 122.
It would be silly to overlook the assaults on rural character of the area that are coming on various fronts, leaving precious little to be “protected” or maintained. There are the “rural residential” proposals mentioned, which will involve wholesale loss of forest, not at all replicated in the proposal, and loss of traditional rural character, albeit probably not noticeably from the Warrego Highway except for light at night. Mr Gore QC, for the Council, appeared close to getting Mr Paul King to agree with suggestions that the proposal would be ablaze with light, in the interests of worker safety; however, in the end the court can be comfortably satisfied that conditions will ensure that the required lighting is sensitively installed, so as not to be an unacceptable distraction. That was Mr Chenoweth’s position.
The visual amenity issue centred on the assumed desirability of ensuring that the power station should be unseen. On the worst case, it is to consist of a serried rank of six identical assemblages of various components of a generating system, the squattest to the front, the tallest, being 14 metre exhaust stacks, to the rear. If larger capacity generators are used, the number of six will not be required to, achieve the maximum output envisaged of 1,000 kW. Construction will occur on level pad at RL114. The exhaust stacks and other components such as towers for air intakes are bulky and have far greater visual impacts than the tethered red helium balloons Dr Hassall (engaged by Westlink) and Mr McGowan (engaged by the Council) employed to mark the crucial RL128 level for purposes of ascertaining the extent to which the six exhaust stacks will be visible from numerous vantage points, supposedly destroying the expected and desired rural character of Gatton’s surrounds. These included the most elevated locations in the town near the top of Railway Street and to the west in Spencer Street, also locations on Fords Road and the Warrego Highway. As it happens, topography provides effective screening for the proposal from vantage points north, west or east, even without allowing for the forest trees which provide up to 20 metres more height of dense screening. There are ridges shown on Exhibit 45 (including one on Westlink’s land in the north) at RL140 and RL170. There is no risk of the proposal being visible from two large rural residential subdivisions (of the kind inimical to rural character and amenity now outlawed by the SEQRP but apparently likely to proceed given their circumstances), being Wallangara Pastoral Company’s east of Adare Road (144 lots) and “Nimmo and Mag 7”, north-west of the site (63 lots). Existing residences in similar developments between those anticipated subdivisions and the site are shielded in similar fashion. The work done by the appellant’s experts, Mr King in particular, and conclusions reached in reference to impacts on those closer residences can obviously be applied to the remoter developments sought to be made relevant subsequently.
The original joint visual amenity experts reports identified as the sole concern the view of the site for persons travelling east along the Warrego Highway and supported the proposal on the basis of its design including L-shaped bunds surmounted by fast-growing eucalypts, one at the south-west corner of Westlink’s land and, another roughly parallel, around the south-west corner of the pad accommodating the generators, at which locations the pad will be on fill rather than in cut. The highway lies somewhat higher than Fords Road, allowing more of tall structures behind trees to be seen and was thought more important in any event, given the relative numbers of road users.
The Council itself proposes development on the southern side of the highway whose visual impact bodes to make any of the proposal miniscule in comparison.
GWIZ and highway amenity
Exhibit 51 contains extracts from the Council’s application to itself (and its Information Request) in relation to approval sought for the Gatton West Industrial Zone on the western approach to the town. The information request is yet to be responded to. Public notification is yet to occur, denying us any idea of what community attitudes might be. Although designated as part of the Gatton North Local Development Area (LDA) lying between the highway to the north and the railway to the south, the GWIZ land has the same zoning as the site. In the western part light industry (presumably operating in large warehouse-type structures) is now proposed, and to the east a large truck stop, presumably to operate all night. The length of direct highway frontage to be developed without landscaped buffering (as may occur further east) is close to one kilometre. If implemented, this will destroy the pleasant rural character enjoyed by highway users for the moment. The area is open low lying flood plain surrounding Lockyer Creek. Structures there will be in open view from elevated positions in the town.
The neighbours’ submissions
The parcel of which the site forms a part extends from Fords Road to Ranger Road in the north, which runs parallel. Directly across Ranger Road the submitter Mr Geoffrey King lives, on his two large parcels. It seems there will have to be easement access across one for powerlines if Westlink is to expand its output above 700 megawatts to the envisaged maximum of 1,000 megawatts, because of capacity constraints Mr King is one of the 70 members of the association, the fourth respondent, now under the leadership of Mr Hall, who was Mr Batty’s instructor, also a submitter; Mrs Hall is a co-respondent by election, who attended the hearing, but presented no case herself; they have land west of Mr King’s where they have operated a riding school until difficulties arose to curtail operations; the Halls hope to re-establish that business. They fear a power station will jeopardise that (by putting potential clients off the locality), impair the attractive, quiet rural amenity they moved to Gatton for and the future of native wildlife, said to be abundant (as sightings on the court’s inspection served to corroborate). This last is the concern of the site’s eastern neighbour, and remaining local submitter, Mr Ashby, who has dedicated his holdings to a voluntary scheme which provides an unofficial reserve/sanctuary/refuge for wildlife, considerably enhanced in that regard by a large water body. The security offered the wildlife is in doubt, as the main point of the submission seemed to be that the property was proposed to be mortgaged to a bank to support borrowings for some extraneous business proposal and that two separate valuations suggested a power station next door would reduce the land’s value; presumably it is contemplated that the property might be sold by the bank, at a loss to the interests of the wildlife. Loss of land value attributable to the advent of a power station loomed large in the submissions against the proposal. Even if this was potentially a planning consideration (Mr Craven’s reference to the topic suggests he so regarded it), there was no evidence of a qualified expert presented to the court to support the point.
Extent of community opposition
Although the contention was persisted in that there was widespread community opposition to the proposal, it is the case that, as the Council’s planner Mr Craven agreed, to the extent that opponents spoke up, whose genuineness and depth of feeling must be accepted, their number is miniscule, even if the leap of faith of taking every member of Keep Lockyer Rural Inc as an opponent be taken; some did put in private submissions. According to the South East Queensland Regional Plan, the town of Gatton has 9,000 inhabitants. The public relations campaign conducted by Westlink (alleged in some submissions, without any helpful particulars, to have been misleading) may well have borne fruit, in quelling potential opposition. What matters in this appeal is not the volume of submissions, but the potency of arguments against the proposal. Claims of widespread community opposition, for whatever those may be worth, are very wide of the mark.
GWIZ and the disappearing alternative site issue
Mr Gore disavowed mounting an argument that there was a better site for the proposal in the GWIZ area. The expert evidence before me was overwhelmingly against the suitability of the GWIZ for an equivalent proposal. The second Court of Appeal apparently dealt with an alternative site argument. See [2012] QCA 370 at [28]-[32]. I did not understand that this was some sort of mistake or false issue that arose in response to something else that fell for discussion. Nothing turns on this. The court has not usually entertained alternative site arguments. Mr Gore adhered to the general point that there would be any number of potential sites located on or near the gas pipeline from which, on the evidence, gas can be drawn at any point. I agree that Westlink does not show that its is the only site potentially available; however, it is clearly a very suitable site on the evidence; whether an alternative might emerge (theoretically possible) is a matter of speculation.
The “special purpose” issue
Westlink and its counsel made it plain that they did not ask for a successful outcome of their appeal if it depended on the easier path to approval for the proposed use (presumably with the same impacts) were the use applied for by a public entity. They eschewed presenting any other submissions in relation to it, even though their planning expert, Mr Vann sought to retrieve some advantage for Westlink from this feature of the planning scheme. The company is not disposed to court further delay and cost and risk a future defeat on appeal by advancing any argument along these lines. This court should respect that. I make it clear that the decision in favour of the development application would be the same even if a public entity applicant faced exactly the same hurdles as does Westlink.
Nevertheless the issue is obviously one of importance in the planning world, and to the community generally, so that it would seem odd if nothing was said about it. Other local governments’ planning schemes (I have no idea how many) contain the same feature. We are in an era where carrying out of traditionally governmental functions is entrusted to private enterprise which operates prisons, hospitals, educational institutions from kindergarten to university level, transport infrastructure (airports, toll roads, railways etc), telecommunications and, of course electricity generation (as SEQRP expressly acknowledges, at page 127) and distribution. It is important to know whether and how the planning law applies to what bodes to be our future. Of course it is a rational approach to favour public entity operators. Questions may well arise as to the consequences if the site of an operating use approved on a public entity’s application is transferred – or the shares in a “corporatized” public entity are sold – to a private entity. Is the approval then ineffective? Mr Craven, triumphant in Lockyer Valley (2012), suggests that there would be a new use; Mr Gore so submitted. What is to be made of a proposal by a “public private partnership?”
Lockyer Valley 2012 determines authoritatively that the “special purpose” consideration cannot be a s 3.5.14(2) “ground”. It is not clear whether it was determined that this consideration has no relevance at all. I am inclined to think it bears upon the seriousness of conflict, as Fraser JA appeared to say at paragraph [35] in Lockyer Valley 2011. If a proposal becomes acceptable should it be made or taken over by a public entity, why should that not say something about how implacably the planning scheme disfavours the proposal?
The Council’s assessment
The planning officer(s) responsible for assessing Westlink’s development application produced a careful report which recommended approval. In view of the fate of the recommendation, I considered the report carefully, without the benefit of submissions from the parties. It lacks the status of ordinary evidence, the parties had no opportunity to ask questions of the author(s); however, the parties agreed to its inclusion within the “Appeal Book”. It impressed me as appropriately thorough, and the result of an independent mind or minds applied to the assessment task, which is no less than one would expect of professional planners (but not, of course, to say that they are necessarily correct). To expand on that theme, Westlink or its consultants provided a detailed schedule of responses to the points made by submitters; the planning report might have adopted those responses; instead it offers thoughtful ones of the planner(s). The Council’s Director of Planning endorses the planning report in an unusually expansive memorandum of his own. It appears to have been written with appreciation that the approval would be contentious and proffered to the Councillors eight issues for their consideration with draft reasons for refusal based on them. As things turned out, all seven Councillors who considered the recommendation adopted all eight reasons. The Director had warned that this appeal might come about in the event of refusal and that the Council would have to be prepared to resist it by engaging experts and the like. The veiled suggestion that it may be difficult to locate convincing expert evidence against the proposal has been borne out. The eight reasons have dissipated in the sense of being abandoned by the Council or dismissed by this court following earlier hearings or dismissed by the Court of Appeal, where the Council has been unsuccessful on some issues, albeit successful in obtaining rehearings of the appeal in this court on the basis that conflict with the planning scheme held not to exist did exist, and later on the basis that a ground relied on to overcome that conflict was not available.
Advantages of the proposal
The appellant relies on the evidence of its planning expert Mr Vann who, supported by other experts called, made good the following contentions set out in the preamble to the appellant’s written submissions:
“4.Co-location of facilities is a sound, and obvious, town planning objective. It is unsurprisingly one which is expressly contained within the SEQRP, and is recognised by the IPA as a means by which the purpose of the Act to achieve ecological sustainability is to be achieved. This proposal is a “model” of the benefits which can be achieved in that regard. The co-locational advantages which the subject land offers are probably unparalleled anywhere else in the region. It is an ideal location for the proposal, being adjacent to:
(a)the Roma to Brisbane Gas Pipeline (to deliver and store gas);
(b)the Gatton Gas Compressor Station which facilitates access to the gas pipeline;
(c)existing electricity lines;
(d)existing electricity easements; and
(e)the Gatton electrical bulk supply substation which facilitates the distribution of up to 70% the electricity which is generated.
5.Importantly also, the land is also close to existing and future electrical load centres in and around Southeast Queensland which minimises transmission losses.
6.As a result, the proposal on the site has the following advantages:
(a)lower gas connection costs compared with sites that are removed from existing gas pipelines, and most importantly, no additional lateral gas pipelines or easements with attendant disruption to landowners;
(b)proximity to the gas compressor station facilitates efficient and cheaper above ground access to the gas pipeline;
(c)the gas pipeline also provides a necessary gas storage function, thereby removing the requirement for other storage options;
(d)a favourable transmission loss factor given its proximity to the major electrical load centre in SEQ;
(e)the ability to connect into both the local 110kV electricity distribution network and Powerlink’s nearby high voltage transmission network;
(f)a variety of connection options which, in turn, provides a great deal of flexibility which allows the development to be tailored to meet market needs;
(g)the ability to negotiate connection agreements with two different network companies, which, on the evidence, is quite unusual, and creates the opportunity to exploit competition to achieve the lowest possible connection cost;
(h)its location closer to the coast than areas in south-west Queensland results in higher thermal efficiency for the power plant;
(i)substantial cost savings to consumers generally associated with the deferral of development of Powerlink’s 500kV transmission network, with consequential deferral of associated, very substantial, transmission network charges; and
(j)the avoidance of impacts which would otherwise be associated with installation of gas and electricity infrastructure, and the acquisition of new easements for that purpose, with attendant interference with land use activities and amenity generally.
7.Those advantages inevitably assist in reducing cost of electricity to consumers. It is obvious by the fact that it is a competitive market – and that infrastructure costs are inevitably paid for by the public – the consumers “in one way or another”, including through government approved regulated charges.”
Against the appellant it was suggested that to the extent that savings result from the “advantages” it will follow its own self-interest and pocket them, rather than passing them on to consumers, this being presented as proof that the s 3.5.14(2) “grounds” relied on for overcoming conflict with the planning scheme are not matters of public interest at all, but ones of private interest. No doubt every development application owes its existence to pursuit of the private interests of the applicant or an associate. There can be no guarantees that benefits secured will be passed on or shared. This, I would say, is a feature of development applications generally. There are never guarantees. One never knows whether promised competition will in the event result in lower prices. One never knows whether a reduction of infrastructure charges payable by a developer of homesites will be shared with those purchasing new residential blocks. That a competitive market works is, for better or worse, taken as an article of faith, as I think it ought to be here. The Council made much of Mr Kelp’s inability to quantify the potential financial saving to consumers, which he conceded would be modest. It cannot be concluded that there would be no benefit from the entry of a new competitor (from which no harm would result).
Conflict with the Planning Scheme
The Court of Appeal’s later (2012) decision provides guidance for this court now in respect of the extent of conflict:
“[11] The Council argued that the trial judge had erred in diminishing the significance of s 4.12(k) by categorising it as a default provision and emphasising its repetition through the Planning Scheme. …
[12] Westlink submitted that the only conflict identified by this Court on the earlier appeal was that with s 4.12(k). As to the significance of that conflict, the “not defined” uses in s 4.12(k) were to be distinguished from the situation where a Council deliberately identified uses which were not desired. … non-consistent uses were not prohibited, but had instead to satisfy Council on good town planning grounds that they should be approved.
[13] In my view, “default provision” is not inapt as a description of s 4.12(k) – it is, after all, the category which applies when no others do – but it has little to say about the nature or the extent of the conflict between permitting a use which falls within it and the Planning Scheme. It is plain that the conflict cannot be characterised as minor purely by reason of the fact that the use falls within the s 4.12(k) description…
[14] Westlink’s submission, that the only relevant conflict was with s 4.12(k), is an oversimplification of what this Court said in the previous appeal: that overall outcome s 4.11(2)(a) was to be given a liberal reading …. That … has implications for the nature and extent of any conflict between that outcome and a proposed use…. The discordance between the proposed use here and the purpose of the zone which outcome s 4.11(2)(a) identified was, at the least, part of the context in which the more directly expressed conflict presented by s 4.12(k) had to be considered. ...
[15] … the Council had identified in some detail, in s 4.12 and table 1, the uses it regarded as acceptable…. Westlink’s proposed use was not among them. … It is, no doubt, correct to say that Council intended “a proper consideration of any such proposal”, but that is true of any proposal involving an impact assessable use. It was an error to say that the fact that the proposed use fell within s 4.12(k) meant no more than that.”
The conflict is significant, the Council says major, in reliance on the analysis of a similar planning scheme provision in Gillion Pty Ltd v Scenic Rim Regional Council [2013] QPEC 15. In fact, the only reference to conflict there by the court as “major” was in recording oral submissions made . See [136]. Judge Roberston rejected the developer’s contention that the conflict was only technical or mechanical: Ibid [187]-[189]. He said of the proposed use (Commerical Groundwater Extraction) that:
“[188]….. exclusion from the Consistent Table of Uses in the Tamborine Moutain Zone and indeed in all Zones in the Shire was as a result of a deliberate policy decision.
[189] Council may have had this particular use in mind. There is no evidence of that. However when it is read as a whole, and in a practical and sensible way, it is clear from its Planning Scheme that Council did not want a use such as this anywhere in the Shire but, in anticipation that such a use may be applied for, it set a high bar in by making the use an inconsistent use in all Zones and relelvantly, in the Tamborine Mountain Zone.
[190] Its designation therefore as an inconsistent use in the Tamborine Mountain Zone is significant in this case…”
That he rated the conflict as “significant” appears from his conclusion:
“[214] The grounds are not sufficient in my opinion to overcome what is significant conflict with the Planning Scheme. I can indicate that if I had accepted Gillion’s argument that conflict with the Planning Scheme amounted to a technical or mechanical conflict, I would have been persuaded that the grounds, despite my reservations, were sufficient to overcome the conflict and allow the appeal.
I find myself in a similar situation to Judge Robertson’s facing equivalent planning scheme provisions. The difference lies in Westlink’s having established sufficient grounds. Conflict is with s 4.11(2)(a) as well as s 4.12(k). As to the former, in actuality, its vision is already frustrated for the general locality of the site by the gas compressor facility, electricity substation (and associated powerlines) and the Council dump, as well as the burgeoning rural residential development existing and approved or likely to be approved contrary to what s 4.12(2)(b) wants; nor should we overlook the threat to rural amenity if uses acceptable under the planning scheme included in Table 1 referred to by the Court of Appeal in 2011[8] are introduced.
[8][2011] QCA 358 at [9]-[10] The appellant’s submission summarises them as follows:
“68.There are a range of uses which are not identified as being inconsistent in the zone, including:
(a)‘Special Purpose’ (such as ambulance station; cemetery; crematorium; community hall and centre; fire brigade; ‘government purposes’; hospital; public utility or ‘statutory authority purposes’);
(b)‘Animal Product Processing Industry’ (being land used for ‘adding value to animal products including processing animal skins, meat or other food products including pet food, and includes an abbatoir’;
(c)‘Educational Establishment’ including academies, colleges, schools and universities and ancillary accommodation on the site;
(d)‘Extractive Industry’ including crushing and screening and other processing;
(e)‘Intensive Animal Industry’ including feedlots, piggeries, poultry farms, kennels and catteries;
(f)‘Local Utility’ including any public undertakings by Council, other agency, or organisation providing community infrastructure including the conveyance of water, sewerage and stormwater drainage; reticulation of electricity or gas; collection of garbage; and public transport facilities, including railways;
(g)‘Outdoor Entertainment’;
(h)‘Rural Service Industry’;
(i)‘Service Station’;
(j)‘Telecommunications Facility’ including any line, equipment, tower, antenna or other structure;
(k)‘Transport Depot’; and
(l)‘Warehouse’.”
Whether major, substantial or significant, the conflict in practice is less concerning than that emerging by testing the proposal only by reference to the language of the planning scheme would suggest. It is necessary to proceed with reference to what exists in reality in Gatton today. One of the Council’s points was that the size of the built form would make it the biggest in Gatton. I take that into account, but note that Mr Teis’ model supports the suggestion of one witness that the built forms in the showground are comparable. The s 4.11(2)(a) conflict is not serious. The s 4.12(k) conflict is stark. The planning scheme does not want a power station here, unless it comes at a “special purpose” as defined; its definition does not admit Westlink.
Planning provisions favouring the proposal are easily found. Westlink’s submissions (which I agree with in this regard) conveniently, perhaps repetitively, establish that:
“
(b) The SEQRP
41.A summary of the effect of the SEQRP is contained in the planners’ joint report. It records that the SEQRP:
(a)includes the land within the Regional Landscape and Rural Production area;
(b)does not identify the site as a ‘high value regional landscape area’ or a ‘multiple landscape area’ (in s.3.2);
(c)provides limited guidance on the preferred location for this type or scale of facility;
(d)establishes that the proposal does not constitute an ‘urban activity’ (as Schedule 2 of the Regulatory Provisions excludes electricity infrastructure) and accordingly is not inconsistent with the Regulatory Provisions for the Regional Landscape and Rural Production Area;
(e)notes that it is likely that new large-scale electricity generation developments will need to locate to an area outside major electricity consumption areas in Southeast Queensland; and
(f)notes the development of significant employment and residential areas cannot occur without support of adequate and suitable infrastructure.
42.The SEQRP’s ‘strategic directions’ include addressing climate change including by way of reducing greenhouse gas emissions. Desired Regional Outcome 1 is to similar effect and is supported by Principle 1.1 through ensuring ecologically sustainable development. Principle 1.3 seeks the reduction of greenhouse gas emissions from development. The Notes in support of that principle including maximising opportunities for the use of low emission technologies.
43.More particularly, the Desired Regional Outcomes for infrastructure are supported by Principle 10.4. It relates to the protection of key infrastructure sites and corridors. Section 10.4.2 seeks to ‘identify opportunities for co-location of joint infrastructure services, sites and corridors’. The accompanying notes refer to pipelines and transmission lines and provide:
‘Co-locating infrastructure has the potential to reduce need for new infrastructure sites and corridors, thereby reducing the overall cost to the community’.
44.Principle 10.5 ‘Energy’, is also noteworthy:
‘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.’
45.The supporting policies under this principle seek to ensure the use of gas is promoted as an energy source (10.5.4); increase the proportion of energy derived from low emission sources (10.5.5); and encourage opportunities for, inter alia, low emission and ‘decentralised sources of energy supply and supporting infrastructure’ (10.5.6).
46.The supporting Notes intend that the energy sector will contribute to a national greenhouse gas reduction target by accelerating the development of low emission and renewable technologies. New large-scale generation developments are contemplated as is the need for infrastructure upgrades and low CO2 emission gas generators.
…
(b) Compliance with the SEQRP
76.There are two material considerations with respect to the SEQRP. The first is the consistency or otherwise of the proposal with the SEQRP objectives. The second is ‘whether the development can or should be located on an alternative site in the area designated in the Gatton North Enterprise Opportunity Area.’
77.Clear support, in fact encouragement, for the proposal is offered by the SEQRP. In particular:
(a)it is a very clear objective that greenhouse gas emissions are to be reduced (pp 11, 39, 42-3, 127);
(b)gas is consistently encouraged as an energy source (p 127);
(c)low emission technologies are encouraged (p 42). Gas fired electricity generation is a ‘low emission energy source’’ (as Mr Welchman’s evidence showed) [9]
[9] T2-65/26-41
(d)opportunities for co-location of joint infrastructure services, sites and corridors are to be identified. That is in recognition of the fact that ‘Co-locating infrastructure has the potential to reduce the need for new infrastructure sites and corridors, thereby reducing the overall cost to the community’(p 126). The Notes to Policy 10.4 make it obvious that the Policy has gas and electricity infrastructure firmly in mind; and
(e)electricity infrastructure is excluded from the definition of ‘urban activities’(p 168) and accordingly is not a use which the Regulatory Provisions seek to exclude from the Regional Landscape and Rural Production Area.
78.Council seeks to rely upon the recognition within the SEQRP that ‘large infrastructure projects, such as powerlines, pipelines, roads and railways, have potential to undermine the attractiveness and function of the regional landscapes. That ignores however, the fact that the pipelines, powerlines (and the highway) already exist here. The principle upon which Council relies in fact highlights that the SEQRP the benefits of co-location. Further, electricity infrastructure is clearly contemplated in the Regional Landscape and Rural Production Area.
79.In terms of the Gatton North LDA, for this re-hearing the Order identifying the issues specifically required the respondents to notify ‘whether the development can or should be located on an alternative site in the area designated in the Gatton North Enterprise Opportunity Area in the Regional Plan’.
80.There was good reason for Westlink requiring that Order. In the second Court of Appeal proceedings the Court noted the Council’s submission that it was relevant to consider whether any benefits to be achieved by the proposal could be met through compliance with the SEQRP, and specifically the Gatton North LDA. (That was not that the Gatton North area provided a ‘better location’, but that the development could be carried out at Gatton North with the same advantages, consistently with the SEQRP.) The Court of Appeal considered that the SEQRP was ‘plainly relevant’ as, to the extent that the Planning Scheme varied from the SEQRP, the Scheme required amendment.
81.Despite that, the Council’s grounds on this occasion appear to eschew the submission which the Court of Appeal seems to have favoured. Instead, it merely alleges that the proposal ‘fails to achieve the outcomes sought by the (SEQRP), namely … the outcomes for the Gatton North Local Development Area and Enterprise Opportunity Area’.
82.Location of the proposal at Gatton North is not supported by any of the evidence. Indeed the evidence is overwhelmingly that Gatton North is an unsuitable location.”
The Council in its written submissions at para 17 ff placed emphasis on SEQRP provisions recognising the Gatton North Enterprise Opportunity Area (p 35) as earmarked for industrial purposes (it does not include the site, being immediately south of the highway: see the map in attachment 5, Ex-3), and provisions referring to the importance of “regional landscape” (pp 55-56) which might be threatened by “poorly designed urban and industrial development that is highly visible from rural roads” (p 64). It downplayed the SEQRP provisions invoked by Westlink as instances of the phenomenon noted in Degee v Bundaberg City Council [1998] QPELR 287, 289: “one can always find isolated provisions in a Planning Scheme supportive of a proposal. Equally one can also find statements which work against a proposal. The SEQRP is not immune to this proposition”, says the Council. Thus s 10.4 was said to be “counterbalanced with s 10.3”(para 31). My opinion is that the SEQRP contains strong support for the proposal and little telling against.
The IPA itself is pointed to by Westlink as the source of a “ground” in its favour. Its purpose identified in s 1.2.1 is seeking achievement of “ecological sustainability”. Section 1.2.2(1) requires decision makers to have regard to that in processing development applications. Advancing IPA’s purpose includes, as the appellant says, the prudent use of non-renewable natural resources and “supplying infrastructure in a co-ordinated, efficient and orderly way”: s 1.2.3.
Relevantly too – but of course not in any way determinative, given that there are double authorisations of the use required[10], planning approval and an approval of the Environmentally Relevant Activity (ERA) – the submissions record that:
[10] See Pinjarra Hills Pty Ltd v Brisbane City Council [1995] QPLR 334, 341, cited by Mr Gore; there Judge Newton said: “The appellants submit that sufficient emerged from the evidence of Mr Gordon-Brown to be satisfied that Queensland Transport will make responsible decisions. Whilst I have no doubt that Queensland Transport will make responsible decisions in this matter I cannot abrogate my duty to assess the traffic impact. Nor can I simply assume that the Department and the developer will negotiate some mutually satisfactory arrangement as to upgrading Moggill Road or constructing the Moggill Pocket Arterial Road.”
“32.The application was referred to various State agencies including DERM with respect to the ERA and native vegetation; and DMR with respect to the State-controlled road. All agencies approved the application subject to conditions.
33.The ERA granted by DERM is noteworthy. It includes onerous conditions which relevantly require:
(a)all reasonable and practicable measures be taken to prevent or minimise the likelihood of environmental harm; to ensure compliance with the conditions; to maintain plant and equipment; and to operate it in a proper and efficient way;
(b)the implementation of a Site-Based Management Plan covering environmental commitments; identification of environment issues; control measures; contingency plans and emergency procedures; monitoring of contaminants; the conduct of environmental impact assessments; staff training, record keeping; review of environmental performance; and to undertake continuous improvement in the overall environmental performance of the ERA;
(c)an audit compliance;
(d)the administering authority to be notified of any release of contaminants not in accordance with the conditions of approval;
(e)no environmental nuisance from dust or particulate matter, or odour, any sensitive place or commercial place; air quality standards which must not be exceeded; and air quality monitoring;
(f)the installation of noise attenuation; ensure no environmental nuisance from noise; prescribe noise limits; and requirements for monitoring;
(g)complaints recording; and
(h)lighting to comply with AS4282-1997, and the prohibition of light nuisance.”
The planning issues
The expert planners in their second joint statement on planning issues (Exhibit 10) neatly identify the issue(s) for the court:
Greg Vann
“… there is clearly conflict with the planning scheme, which is mainly in relation to the provisions relating to the Rural General zone, particularly 4.12(k) and overall outcome 4.11(2)(a). However, that overall outcome , if read strictly, would preclude anything that is not agricultural production or rural activities, when the zone itself clearly contemplates the possibility of a wider range of uses.
Since the planning scheme came into force, there have been significant changes to the broader planning context established by the SEQ Regional Plan 2009-2031 and accompanying SPRP, which:
(a)identify the importance and role of infrastructure of this nature;
(b)contemplate the location of such electricity infrastructure in rural areas;
(c)identifies the Gatton North Development Area for industry purposes, covering a large area of land in the immediate locality of this site.
In relation to sufficient grounds, these would exist if it is established that there is a need for this development, that this site has particular locational characteristics in relation to gas and electricity infrastructure that the use requires, having regard to the already compromised rural character of the locality, the further effect on that character from development of the Gatton North area, and the ability for the use to handle its impacts. These are being assessed by other experts, and if that assessment demonstrates these aspects, then approval of the proposal is considered appropriate.
Steve Craven
(a) The conflict with the planning scheme is major.
(b) It conflicts with S4.12(k).
(c)It conflicts with S4.11(2)(a) when given a liberal reading, which includes an assessment against the entire planning scheme. The scheme defines a rural shire that does not anticipate major industry or infrastructure – especially in its rural areas – where character of the rural areas defines the nature of the community and where characteristic aspects of home environments are valued and protected.
(d)The SEQ Regional Plan:
(i)Acknowledges substantial population increases across the region and a consequent need for support infrastructure.
(ii)Identifies rural areas as potential locations for large infrastructure projects, but acknowledges their potential for substantial impacts.
(iii)Does not state how or where such projects should locate, but identifies many logical sites capable of accommodating them.
(e)The draft Strategic Framework opposes development of this nature. While not statutory, it confirms the Gatton planning scheme’s intent and has been informally acknowledged by the State as satisfactorily addressing the responsibilities created by the Regional Plan.
(f)While the site is close to a range of infrastructure elements, they are relatively small local utilities that are common in urban areas. They do not pave the way for a major infrastructure project.
(g)The locality is home to potentially 1000 residents. While they may not be able to see the proposal from home, it will seriously affect the values of the locality that make it their home.
(h) A potential need for the facility (though this is subject to expert evidence) is acknowledged, as is the possibility that some of the potential impacts could bee ameliorated. However, the grounds presented to overcome the conflict are insufficient to justify an approval. Local residents and travellers are being presented with a major incursion into their amenity and sense of place which is justified by grounds that suggest no loss of these standards, but do not off a positive benefit.”
Mr Craven justifiably argued against co-location being a ground helpful to the proposal on the basis that it was completely out of scale with the relevant existing facilities; he said by way of example that a large hardware store, such as a “Bunnings” could not rely on co-location with a small shopping centre. However, he was not prepared to say whether a scaled down power station, limited to a couple of generators, could rely on co-location with what is there, or to nominate what development might qualify. I was driven to conclude that he would not support a power station on the site at all. Indeed, I had the impression that a number of the Council’s experts succumbed to a kind of desperation at the difficulty of their tasks, determined not to acknowledge any good in the proposal, lest it be seized upon by the court as a telling admission. I agree with Mr Craven on the “Bunnings” hypothetical, assuming that the comparison with “small” is overwhelming, but do not think that is a convincing analysis of the situation here.
As to the s.4.11(2)(a) issue I prefer Mr Vann’s approach. I think that in the circumstances nothing of real consequence is lost, and that the proposal does offer positive benefits by satisfying, without adverse impacts , a public and community need(in Gatton as much for the whole region)[11] for security of power supply at peak time’s. The appellant establishes the ground of “need”. The way in which it proposes to satisfy the community need for electricity to meet peak demand (a demand which community standards expect to be satisfied whenever it arises) is strengthened - from the point of view of its being a ground based on public interest -by its site’s locational advantages (which are undeniable, even if not as significant as was originally thought) and its use of “clean” fuel. No negative impacts are threatened except for the minor one of exposing eastbound users of the Warrego Highway for a few seconds to a view of the very tops of exhaust stacks above the bush. It seems to me that the undesirability of that is essentially assumption, which I have accepted for the purposes of this appeal, although contemplating that the community’s sensitivities in a matter such as this may well fluctuate over time. The situation is the one described in Lockyer Valley 2012 at [25] of lack of negative impacts including the relatively positive “isolation and screening of the project” there said to be “properly considered as a ground, to be weighed with other grounds in considering the sufficiency.” Need, with the special features mentioned above, is such a ground which in my opinion strongly outweighs the conflict identified.
[11] The Council’s condemnation of the proposal as too big instances as one aspect that its capacity on completion of all stages would supply Gatton’s current power needs 33 times over. If this is intended to challenge that there is a relevant need for the proposal, I reject that. In this context public and community need is assessed by consulting the needs of a wider community than Gatton; South East Queensland generally is relevant, and, while it is unnecessary to look further, arguably locations beyond.
I decline to place any weight on the Council’s draft strategic framework. Mr Gore QC’s submissions for the Council include the following:
“52.As part of preparing the Planning Scheme, the Council has published it Strategic Framework for informal community review. The Strategic Framework is dated September 2012.
53.It is accepted that the Strategic Framework represents the very preliminary stages undertaken by the Council (under the statutory process) to prepare its Planning Scheme and, as a consequence, a “Coty issue” does not arise. The Strategic Framework does however reflect a consistency of policy directions in a planning sense relevant to this appeal.
54.First, the strategic intent within the document emphasises the importance of the protection, maintenance and enhancement of rural character. This is reflected in statements such as:
‘These farming lands, and the creeks running through them, are complemented by beautiful green backdrops of mountain ranges and valleys. Together, these assets create a place of particular character and rural focus.
…
The community of the Lockyer Valley already enjoys a range of lifestyles in its towns, townships, rural and natural areas, all with a common theme of their connection to its rural character and heritage.’
55.Second, the strategic framework makes it clear that economic activities contemplated to support population growth are discouraged to the extent they do not support the vision for the area. This discouragement has included discouraging industries of a type or scale not consistent with the intent for the “Lockyer Valley brand”.
56.Third, scenic amenity elements are dealt with in the Strategic Framework. Specific outcomes contained in s. 3.5.4.1, not unlike the current planning, reinforce that the Lockyer Valley’s landscape is characterised by its valleys, mountain ranges and slopes, which are valued by the community and protected for the enjoyment of future generations.
57.The Strategic Framework also provides in this regard:
“Important scenic amenity areas and views are protected from the impacts of development. Development location and building design minimises visual impacts on locally important views and scenery.”
58.Finally, with respect to the introduction of new industry or major industry in the Lockyer Valley, it is clear the strategic framework turns its face against such land uses. Indeed s. 3.6.10.1 relevantly provides that “new hazardous industries are not developed in the Lockyer Valley”.
59.Overall, the Strategic Framework, being the Council’s most recent statement of planning intent, is consistent with the notion that character and scenic amenity values of the region are to be protected and enhanced. This is plainly consistent with relevant planning objectives in the SEQRP.”
The draft strategic framework may have been prepared with this appeal in mind. I am fortified in my decision to disregard it by Flinn v Bundaberg City Council (1972) 24 LGERA 408. Mr Gore’s submissions did not highlight the following provisions at page 5:
“Ultimately the “brand” of Lockyer Valley is of a growing rural community. Industries of a type or scale not consistent with this intent are not supported. Very large or intensive manufacturing activities and energy infrastructure, such as chemical manufacturing plants and power stations, that negatively impact on amenity environment or the continual conservation of the natural and rural estate as well as existing or proposed urban and rural lifestyle areas are not supported for these reasons” [12]
[12] Exhibit 23 - Page 5.
Non-planning Arguments against the proposal
The parties opposed to the project presented grounds of opposition based on the appellant’s alleged failure to establish the viability of its project (a complaint dealt with by the appellant’s evidence, in my view) and, as is proper in an impact assessment process, apprehended adverse impacts of the proposal which might tell against the court’s forming a conclusion favourable to the development under s 3.5.14(2)(b). The appellant adduced evidence sufficient to allay all of those concerns. All three visual amenity experts who have given opinions were satisfied that conditions can deal effectively with any concerns. Emissions/air quality concerns have, one assumes, been dealt with by the Department of Environment and Resource Management in assessing the Environmentally Relevant Activity for which it granted an approval. In a belt and braces approach, the appellant presented evidence of Mr Welchman which satisfies the court that there are no air quality concerns. That evidence was sought to be countered by Dr Polya’s, he being called by the fourth co-respondent by election, Keep Lockyer Rural Inc. Dr Polya appeared to be engaged in a wider campaign in defence of the environment and critical of the state of technical and scientific knowledge; he is not satisfied with what I take to be the received wisdom that gas-fired electricity generation has marked environmental advantages over coal-fired generation. He observes that actual measurements of emissions from gas-fired power stations have not been considered, assuming those are available, which seems doubtful. He was dissatisfied with the recourse had to modelling, to which there would appear to be no alternative. What is known is that other gas-fired power stations exist in Queensland and around the world. There is no soundly based assertion that the court heard of of untoward emissions occurring. I accept Dr Welchman’s evidence. Mr King dealt with sound as well as light, satisfactorily allaying any concerns about noise. The ERA approval contains specific noise criteria to be satisfied.
The Council raised no environmental issues but the co-respondents by election have done so, relying on a considerable number of statements of lay witnesses. The court accepts Mr Moffitt’s evidence, helpfully summarised in the appellant’s written submissions:
“153.Mr Moffitt has reviewed the background ecological assessments associated with the development application, and undertaken his own investigations and inspections, both for the earlier proceedings and more recently.
154.He previously concluded that:
(a)the vegetated northern portions of the land support ecosystems which are listed as “Least Concern” under the Vegetation Management Act (VMA). They are common and widespread at the regional, sub-regional and local scales. His Tables 1 to 4 identify miniscule percentage losses (the maximum being 0.7% of the local extent). The southern part of the site, upon which the proposal is to be developed, is of comparatively lower ecological value;
(b)the site does not provide essential habitat for listed species under the Nature Conservation Act 1994. It also does not contain re-growth providing essential habitat for any of these species. None of the three species of conservation significance which have been recorded by fauna surveys are likely to be significantly affected; and
(c)DERM’s approval demonstrates that it is satisfied that the proposal achieves the purpose of the VMA by way of prevention of the loss of biodiversity, and the maintenance of ecological processes.
155.Mr Moffitt’s recommendation of regeneration of the 2 hectare detention basin area will result in the re‑establishment of a vegetation type that has been largely cleared from the landscape (RE12.3.3 which is Endangered under the VMA) and which provides important forage habitat for both the Koala and Grey-headed flying fox.
156.The balance of the land, comprising some 60 hectares, is to be preserved. It will continue to provide connectivity, buffering and habitat.
157.Mr Moffitt has also specifically convinced [sic-I read this as “considered”] potential noise impacts. He noted that existing background noise from the highway is significant, and considered that there would be no impact upon wildlife from the proposal.
158.Although no allegation is made of any conflict with the Scheme’s Biodiversity Code, Mr Moffitt established compliance with it.”
The court also accepts the evidence of the “risk” expert there summarised as follows:
“
(l) Risk
160.Dr Miller’s original report involved a comprehensive assessment of risk. It is convenient to refer simply to his conclusions, based upon a quantitative risk assessment following NSW Department of Planning Guidelines and risk criteria. He concludes that:
(a)land use safety criteria for the site can be met, and that risks from possible hazard scenarios evaluated for nearest residences are likely to be very low or negligible;
(b)the proposed risk management measures, including high standards of safety management systems, are “industry standard”;
(c)the proposal is not a new, or particularly dangerous, technology; and
(d)the low levels of managed risk involved are within acceptable risk levels and do not justify refusal of the application.
161.The risks from possible hazard scenarios evaluated for nearest residences were likely to be very low or negligible and certainly well less than the risks of an accident in the home or in a motor vehicle. The proposed risk management measures, including high standards of safety management systems both during construction and operational phases, were “industry standard”. Further, the proposal was not a new, or particularly dangerous, technology. He concluded that the low levels of managed risk involved were within acceptable risk levels and did not justify refusal of the application.
162.Mr Miller’s opinions are unaltered.”
In arguments raised against its proposal, the appellant was constrained to engage experts in many fields. Mr Dash and Dr Lewis (called by the council) held different opinions as to the viability of the proposal from the point of view of secure access to sufficient gas. The former, called by the appellant, has, as his counterpart acknowledged, the advantage of years of familiarity with the pipeline. Mr Dash’s confidence leads me to set aside the misgivings Dr Lewis entertains, on what seems to me a rather hypothetical basis. In one respect Mr Dash rated the costs of Westlink getting underway as higher than Dr Lewis anticipated, in the costs of initial connection to the pipeline. It might be noted that gas availability is expected to be enhanced in the relatively near future when a major consumer turns to cheaper North American sources of supply. This will assist the market for gas in eastern Australia from the consumer viewpoint
There was similar controversy between Mr Bones (Exhibit 3) with Mr Frearson (engaged by the Council and Exhibit 4) and Mr Kelp (Exhibit 16, as well also Joint Report Exhibit 6) on the one hand and Mr O’Dwyer on the other as to whether Westlink would find a buyer for power generated by it. Mr O’Dwyer’s expertise was in demand, he said, rather than supply. He noted Mr Kelp’s reliance in April 2011 on the (now revised) projections of the Australian Energy Market Operator. Westlink has established sufficient likelihood of being able to arrange adequate gas supply and a buyer or buyers for its product to justify the approval of its site for the use sought – without which it would be pointless to start negotiating commercial arrangements.
Bushfire
The appellant relied on the combined evidence of Messrs Moffitt, Miller, Chenoweth and Hassall as a basis for urging the court to find that issues of bushfire risk can be adequately addressed by conditions. Their combined views the court accepts. The bushfire issue was a matter of particular concern for Keep Lockyer Rural Inc and the subject of a written reply prepared by Mr Batty of counsel. That helpful and clear submission urged the court not to accede to the “combined evidence”. The submission correctly observes that none of the four gentlemen is a bushfire expert. He noted Mr Chenoweth’s concession in that regard and his willingness to “defer to the views of Mr Quennell on bushfire issues”. It was suggested that Dr Hassall, who also made the concession, avoided the issue of deference, although agreeing that the Queensland Rural Fire Service should be consulted in respect of the development proposal. Mr Miller’s analysis was said to show that bushfire events could be anticipated – at least two on the “subject site” in the 30 year period the proposal was expected to operate for, and maybe more because of climate change in low rainfall years.
My understanding is that concerning bushfires on the site are likely to be in the large forested part north of the generators. Mr Moffitt’s qualifications and practical experience in relation to bushfire issues was said to be too limited. Accepting that Mr Quennell has practical experience, as noted elsewhere, he was not nominated as an expert in accordance with the court’s practices. The conclusion I have reached is that this important matter should be dealt with by conditions in a process in which Mr Quennell or equivalent people are likely to have a say. At this stage, the issue should be left to the stage of working out conditions, on the assumption that there can be an appropriate resolution, which I am satisfied is the case.
The foregoing reasons establish in my view that the appeal should be allowed, but adjourned for the time being to enable the parties to work out appropriate conditions for inclusion in a development approval.
4
5
0