Wilmar Sugar Australia Limited v Burdekin Shire Council

[2013] QPEC 42

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Wilmar Sugar Australia Limited -v- Burdekin Shire Council [2013] QPEC 42

PARTIES:

WILMAR SUGAR AUSTRALIA LIMITED     (appellant)

v

BURDEKIN SHIRE COUNCIL  (respondent)

and

AUSTCANE PTY LTD  (co-respondent)

FILE NO/S:

BD 1229 of 2011

DIVISION:

Planning and Environment Court

ORIGINATING COURT:

Brisbane

DELIVERED ON:

8 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2013

JUDGE:

Rackemann DCJ

COUNSEL:

Litster QC, RS and Job, BD for the co-respondent

SOLICITORS:

Minter Ellison for the appellant

King and Company for the respondent

Connolly Suthers for the co-respondent

1. This is an application by the co-respondent developer for orders that would permit the appeal to proceed on the basis of an amended proposal.  The task of the court in such circumstances is to determine whether the change is a minor change within the meaning of the legislation.  Of relevance here is whether the changes result in a substantially different form of development.

1. The proposal is for an ethanol plant to be located in the middle of a sugar cane farming area.  The proposal is for the plant to process 1 million tonnes of sugar cane per year in order to produce the ethanol.  The process produces not only ethanol, but also other by-products, including dunder and ash.  Those products are stored on site, before being trucked away to be used on the farms from which the sugar cane was taken.

1. The proposed amendments do not change the proposal, in the sense of the nature of the use.  It is still an ethanol plant.  They do not change the proposed site for that plant.  What they do is to make what the co-respondent referred to as operational changes, being changes to the access and vehicular circulation arrangements, a reduction in the height of the boiler stack, changes to the water management system, changes to the location of various components of the infrastructure on the site, identification of the cooling tower release points, and changes to the landscaping for the development.

1. Whilst the question of whether the changes are minor is one which the court must determine, even if the change is not opposed by other parties,  I should record that the council’s attitude was simply to abide the order of the court, whereas the appellant was also prepared to abide the order of the court, subject to bringing to the court’s attention concerns it had about whether the applicant had properly explained certain changes in relation to the production and storage of dunder.  Since that was the point which was specifically raised, I will deal with it first.

1. The proposed change is to relocate the dunder storage on site and to increase the storage so that you can store dunder produced over about twice the time that was contemplated within the development application.  Mr Bowie raised a question about whether the relocation had the potential to have consequences for odour, and Mr Cox was called to give evidence.  In that regard, he explained that the storage area was moved from near the boiler area to an area which is to the east of the evaporation infrastructure, and that the dunder is transported from the evaporation area to the storage area by means of a sealed pipe.  Once it gets to the storage area, it is stored in a sealed storage, before being loaded into sealed tankers to be taken to the farms.  This seems to deal with that part of the concern that was raised by the appellant.

1. The appellant also drew attention to the fact that the material, which has now been produced, nominates a certain quantity of dunder to be produced and at a certain concentration, in terms of the proportion of solids in the dunder.  These constitute more changes of information than any real change to the process, it would seem.  When one has regard to the information which accompanied the application, there were gross inconsistencies in the predictions of the production of dunder.  This was seized upon by the experts, who are looking at this matter for the purposes of the case.  Their most recent analysis of the amount dunder which will, in fact, be produced, lies within the wider range of figures that were otherwise mentioned in the application documents, and documents in support thereof. 

1. There seems to be no particular consequence to the number now having been identified or indeed to the increased storage.  The increase of storage carries with it the prospect that the number of vehicles transporting the dunder to the farms might be somewhat more concentrated than otherwise, but when one has regard to the assumptions that the traffic engineers made when doing the traffic analysis the – in the information which accompanied the application or in support of the application – it can be seen that the likely traffic volumes are likely to be well within what was assumed for the purposes of the traffic analysis.

1. The solicitor for the appellant also had a query about whether the change in relation to Dunder reflected some change in the amount of sugar cane which had been processed, but it was confirmed by Mr Cox that there is not intended to be any change to the proposal in that regard.  This then seems to be all with the matters or the queries which were raised in this respect by the appellant.  Looking at the matters otherwise, the changes to the site access and vehicular circulation arrangements are as a consequence of the requirements of the council which sought an improved site access arrangement.  The changes have been examined by Mr Viney, an expert traffic engineer, who has expressed the opinion that the changes to the access and internal traffic arrangements are not only appropriate but will not significantly impact upon traffic flows or the transport network. It would not change the traffic volumes associated with the proposed use or introduce any new traffic impact or result in any unacceptable traffic impact.  That change appears to be within the meaning of a minor change. 

1. Insofar as the height of the boiler stack is concerned, it is now proposed to be reduced in height.  That could only have a positive effect in terms of any visual amenity concerns.  In relation to air quality, the reduced height, of 40 metres, complies with the requirements of the Department of Environment and Resource Management as stipulated in their agency response and is consistent with what was assumed in the report which formed part of the common material for the relevant application. 

1. There has also been an identification of the cooling tower release points. They have been identified in accordance with the requirements specified by the Department of Environment and Resource Management. 

1. There has been a change in the water management system in that the area which is now shown for aeration treatment channels and various ponds and reservoirs has been increased and the volume increased by an even greater degree.  The location of them on the subject site is generally similar.  These areas are a potential source of odour.  The potential of the changes to exacerbate any odour concerns was examined by Mr McKenzie having regard to information in an affidavit by Mr Sutherland.  He points out that, while the total volume has increased significantly, the water surface area has only increased to a much lesser degree.  Further, the same odour control measures will be applied to the changed system as would have been applied to the previous arrangement.  In his view, the change of the waste water treatment system will have no material impact.

1. The changes to the landscape treatment of the frontages of the site were examined by Mr Hassell, who formed the view that neither those changes nor the other changes to which reference has been made, would have any material adverse impact in relation to visual amenity and character.  In particular, it would not increase the visual impact of any part of the proposed development or introduce any new visual impact of an unacceptable kind.  

1. There are other changes to the location of the various elements of the infrastructure on site, for example, the fermentation area has been rotated on its axis and there have been other changes to locations of various elements.  When the matter is looked at broadly and fairly, however, it seems to me that these changes neither individually nor collectively result in a substantially different form of development. 

1. As Mr Lister pointed out, the proposed plans lodged with the application obviously did not descend to detailed design.  There has been some degree of development of the design as the matter has progressed.  That is not unusual.  It seems to me that the changes are, by and large, of an operational nature and do not change, in any substantial way, the nature of the proposal which is put forward by the co-respondent.

1. In the circumstances, I am satisfied that the proposed changes are within the expression “minor change” for the purposes of the legislation.