Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPEC 34 [2018] QPELR 1102

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Bilinga Beach Holdings P/L v Western Downs Regional Council & Anor [2018] QPEC 34 PARTIES: BILINGA BEACH HOLDINGS PTY LTD (Appellant) V WESTERN DOWNS REGIONAL COUNCIL (Respondent) ERGON ENERGY CORPORATION LTD (Co-respondent by election) FILE NO/S: BD 2548 of 2016 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 6 July 2018 DELIVERED AT: Brisbane HEARING DATE: 3, 4, 5 and 6 April 2018, further written submission delivered by the parties on 11 and 13 April 2018 JUDGE: Williamson QC DCJ ORDER: I order that: (a) by 4 pm on 3 August 2018 the Respondent is to deliver a draft suite of conditions to the Appellant; and (b) the appeal is to be listed for review at 9:15 am on 24 August 2018. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – applicant appeal against refusal – whether use characterised as Transport terminal – whether a decision to approve would conflict with a planning scheme – weight to be given to new planning scheme LEGISLATION: Sustainable Planning Act 2009, ss 326, 461 and 495 Planning and Environment Court Act 2016, s 10 -- 1 of 30 -- 2 CASES: Boral Resources (Qld) Pty Ltd v Cairns City Council [1997] 2 Qd R 31 Fitzgibbons Hotels Pty Ltd v Logan City Council [1997] QPELR 208 Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPELR 480 SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24 Woolworths Ltd v Maryborough City Council (No.2) [2006] 1 Qd R 273 COUNSEL: K Wylie for the Appellant J Dillon for the Respondent SOLICITORS: DSS Law for the Appellant King & Co for the Respondent Introduction [1] This is an Applicant appeal1 against the Respondent’s decision to refuse an impact assessable application for a Transport terminal and ancillary accommodation (8 units) on land situated at 38493 Leichardt Highway, Miles (“the land”). [2] The Respondent’s reasons for refusal allege that a decision to approve the development application would conflict with two planning schemes, namely the Murilla Shire 2006 planning scheme (“the 2006 planning scheme”) and the Western Downs Planning Scheme (“the 2017 planning scheme”)2. The conflict is said to arise for three reasons. First, the application seeks approval for an industrial activity that should be located in an industrial area rather than the rural area in which it is proposed. Second, the proposed development, being industrial in nature, will have unacceptable impacts on the amenity and character of the locality, which is rural in nature. Third, there is no overriding community need for the development. [3] It is common ground that the Sustainable Planning Act 2009 (“SPA”)3 continues to apply to this appeal notwithstanding the enactment of the Planning Act 2016. Section 326(1)(b) of SPA mandates that the application must be refused if a decision to approve would conflict with the 2006 planning scheme, unless there are sufficient grounds to justify the decision despite the conflict. The Appellant contends there are sufficient grounds to approve the application in the event that conflict is established with the 2006 planning scheme. [4] It is for the Appellant to establish that the appeal should be upheld4. 1 Pursuant to s 461(1)(a) of SPA. 2 Exhibit 21, paragraphs 1, 2, 3 and 5. 3 Appellant’s submissions, paragraph 8 and Respondent’s submissions, paragraph 15. 4 s 493(1) of SPA. -- 2 of 30 -- 3 The land and surrounding locality [5] The land is an elongated narrow parcel that is 7.99 hectares in size5. It has a maximum length of 680 metres and a minimum width of approximately 74 metres6. The longest dimension of the land runs parallel to the Leichardt Highway in a north-south direction. It is relatively flat with the southern half of the land largely cleared and levelled. The southern half of the land is improved with a dwelling, associated structures and a dam7. Trucks and shipping containers are parked or stored on the land8 and exposed to view from the Leichardt Highway. The southern end of the land does not have a vegetated buffer screening the existing use from the view of drivers along the Leichardt Highway. The balance of the land is moderately vegetated and unimproved. [6] Approximately 4,900m2 of the land is burdened by an easement in favour of Ergon Energy for the purposes of high voltage power lines9. The easement is approximately 50 metres wide10 and runs in an east-west direction parallel, and proximate to, the southern boundary of the land11. [7] Save for the southern boundary, the land adjoins road reserve12. The Leichardt Highway is located to the immediate west. It is a State controlled road with a two lane sealed carriageway. The road reserve to the north and east of the land is unsealed and is identified as a designated stock route13. [8] The adjoining land to the south is similarly a long and narrow parcel that is improved with a dwelling and associated structures. It is 3.657 hectares in size14. Old motor vehicles and pieces of machinery are fully visible from the Leichardt Highway. [9] Mr Ovenden, the Appellant’s town planning witness, described the presentation of the adjoining land to the south as an eyesore15. This observation was confirmed by the photographs in evidence, namely figure 6 to the statement prepared by the Respondent’s visual amenity expert, Mr Powell16. The photograph shows that the adjoining land to the south is unsightly and does not have a vegetated buffer to screen the use from the Leichardt Highway. [10] More broadly, the land sits within a rural setting, some 5 kilometres to the north of the town of Miles. The predominant form of development in the locality comprises large rural holdings improved with a single detached dwelling and associated structures and works, such as dams17. 5 Exhibit 2, p.12. 6 Exhibit 3, paragraph 2.2. 7 Exhibit 9, p.14, Figures 7a and 8a. 8 Exhibit 9, p.15, Figures 7c and 7d. 9 Exhibit 3, paragraph 2.3. 10 Exhibit 3, paragraph 2.3. 11 Exhibit 2, p.13, “Emt A”. 12 Exhibit 2, p.12. 13 Exhibit 3, p.62, Figure E7. 14 Exhibit 2, p.12. 15 T2-16, Line 1. 16 Exhibit 9, p.13. 17 Exhibit 3, paragraph 2.7. -- 3 of 30 -- 4 [11] The locality does not have a rural residential or hobby farming character. This is reinforced having regard to the pattern of subdivision in the surrounding area. Save for the land and the adjoining lot to the south, surrounding lots are well in excess of 10 hectares in size.18 [12] A dominant feature of the character of the locality is the Leichardt Highway. The evidence demonstrates that it has a forested and woodland edge to both sides that effectively frame the highway for a considerable part of its length, both to the north and south of the land. The forested and woodland edge is not however impervious. It is broken at particular points by the presence of train lines19, private property access20 and level crossings over the existing train lines.21 One point where the forested and woodland edge is broken occurs at the land and the adjoining land to the south22. This is a consequence of the layout of the existing uses of each lot and the location of the high voltage electricity easement. There are two other breaks in the forested and woodland edge worthy of note, namely the Town of Miles itself and a Depot that is located to the south of the land23. The Depot is owned and controlled by the Respondent and located on the Leichardt Highway some 2 kilometres to the south of the land. [13] Like the land, the Respondent’s Depot was included in the Rural Zone for the purposes of the 2006 planning scheme. The Depot presents as an industrial use with large gravel hardstand areas. It is fully exposed to view along the Leichardt Highway. There is no landscaping provided to its frontage to soften, let alone conceal it, from the view of drivers along the Leichardt Highway24. The Depot, like the exiting development on the land and adjoining neighbour to the south, forms part of the existing character of the Leichardt Highway in this locality. There was no evidence to suggest that the Respondent’s Depot was planned to be decommissioned or relocated in the future. The Appellant’s business and the proposed development. [14] The Appellant operates a business that provides principally two services. It offers plant and equipment for lease, and operates a transport vehicle hire business25. Twelve staff are currently employed by the Appellant. The staff include truck drivers and plant operators26. [15] The plant and equipment made available for lease comprises tractors and plant and equipment that is fitted to tractors for land clearing and carrying out earthworks27. 18 Exhibit 2, p.12. 19 Exhibit 9, p.11, Figure 4c and Exhibit 3, p. 54, Figure D4. 20 Exhibit 9, Figure 6 and 7a. 21 Exhibit 9, Figure 5a. 22 Exhibit 23, p.3 and Ovenden: T2-6. 23 Exhibit 23, p.4. 24 Exhibit 9, p.9, Figure 3a and 3b. 25 Exhibit 7, paragraph 3, 14 and 15. 26 Exhibit 7, paragraph 5. 27 Exhibit 7, paragraph 7 and 8. -- 4 of 30 -- 5 [16] The plant and equipment is typically leased for a significant period on a “wet or dry”28 basis29. At any one time, 80% of the plant and equipment owned by the Appellant will be leased to one or a number of its customers, with the balance of its equipment stored at its current business premises30. The plant and equipment leasing business provides in the order of 60% to 70% of the Appellant’s revenue31. [17] The Appellant’s transport vehicle hire business involves the leasing of trucks and trailers to third parties, again, on a wet or dry basis32. The Appellant owns 6 trucks and 8 trailers that may be configured in different ways, including B-double and road train configurations33. It also utilises its trucks and trailers to transport the plant and equipment that is leased through the plant and equipment hire business. This was referred to in the evidence as mobilising and demobilising plant and equipment34. [18] Mr Mahnken is a director of the Appellant and was called to give evidence in the appeal. In his statement of evidence, Mr Mahnken stated that the Appellant’s major clients for plant and equipment hire are mining and gas pipeline companies that operate in western Queensland and western New South Wales35. In addition, he identified that the Appellant’s customers for plant and equipment hire include rural clients36. [19] The Appellant leases plant and equipment to farmers that are carrying out rehabilitation works on their land. The rehabilitation works are associated with re- establishing farmland, particularly in gas pipeline areas or where gas pipelines have been removed. The plant and equipment is also leased to farmers carrying out rehabilitation works to restore farmland where it was once used for forestry purposes37. [20] The precise percentage makeup of the Appellant’s revenue per annum, per client type, is variable. At present, Mr Mahnken indicated that all of the Appellant’s business is associated with agriculture and forestry38. This reduces to about 40% to 50% of the Appellant’s revenue39 when the resource sector is experiencing an economic uplift or boom. [21] The development application before the Court seeks approval for a material change of use to permit the Appellant to operate its business from the land. In addition, it seeks approval to provide short-term accommodation on-site for staff, particularly truck drivers who are required to undertake periodic rest as prescribed by relevant legislation40. 28 Equipment leased on a wet basis means that the Appellant provides fuel, plant maintenance and operators for the equipment. Plant leased on a dry basis means that the Appellant provides only the plant and equipment. No fuel, maintenance or operator is included in the leasing arrangement. This is discussed in Exhibit 7, paragraph 10. 29 Exhibit 7, paragraph 10. 30 Exhibit 7, paragraph 11. 31 Exhibit 7, paragraphs 3(a). 32 Exhibit 7, paragraph 15. 33 Exhibit 7, paragraph 16. 34 Exhibit 7, paragraph 15. 35 Exhibit 7, paragraph 4. 36 Exhibit 7, paragraphs 12 and 29. 37 T1-31, Line 45 to T1-32, Line 9. 38 T1-48, Line 14 to 44. 39 T1-48 to T1-50. 40 For example, Heavy Vehicle (Fatigue Management) National Regulation (Exhibit 14). -- 5 of 30 -- 6 [22] The land was selected by the Appellant as being a good site for its business given it exhibits a number of favourable attributes41. From the Appellant’s perspective, the land is effectively a large site that is an “island” with only one neighbour. It enjoys direct access to the Leichardt Highway, a recognised B-double route. The land is located approximately 5 kilometres to the north of the town of Miles and the confluence of the Leichardt and Warrego Highways. From a road transport perspective, the Leichardt and Warrego Highways are recognised as the backbone of the east coast of Australia. These highways are used to transport goods from Tasmania through to North Queensland and the Northern Territory42. [23] The proposed plan of development43 indicates that the existing house and dam is to be demolished and the proposed use is to be limited to only part of the land, being an area of approximately 8,000m2 44. Within that area, the use will include: (a) a maintenance shed (216m2); (b) three modest buildings (dongas) providing workers accommodation and dining and recreation facilities; (c) retention of two existing crossovers providing access to the Leichardt Highway; (d) retention of one existing access to the gazetted road reserve to the east; (e) hard stand areas for vehicle circulation and manoeuvring; (f) 9 standard car parking spaces; (g) 6 elongated truck-sized parking spaces; (h) a 3m wide vegetated buffer to part of the western boundary; and (i) a 3m wide vegetated buffer, earth mounding and 1.8m high timber fence located on the southern boundary. [24] The Appellant intends to store the plant, equipment, trucks and trailers that are not the subject of a lease in the 6 elongated truck-sized parking bays45. The maintenance of plant, equipment or trucks would be carried out predominantly inside the proposed maintenance shed. Only one piece of plant, equipment or a truck or trailer would be the subject of maintenance at any one time46. [25] The worker’s accommodation component of the proposal is to assist the Appellant to manage its obligations with respect to driver fatigue. 41 Each of the attributes are set out in Exhibit 7, paragraph 21. 42 Exhibit 7, paragraph 21(b) and T1-27, Line 30 to 34. This is also recognised in the 2017 planning scheme at s 3.6.2.1(4) and (5) at Exhibit 12, p.53. 43 Exhibit 3, p.49. 44 Ovenden: T2-35, Line 1. 45 Exhibit 7, paragraph 18. 46 Exhibit 7, paragraph 19. -- 6 of 30 -- 7 [26] Mr Mahnken explained in his oral evidence that employed truck drivers are not permitted to work longer than a period of 12 hours, and are obliged to rest for 30 minutes after 5 hours of driving47. In any 7 day period, a driver must also have a 24 hour break48. It is intended that drivers employed by the Appellant will take their 24 hour break in any 7 day period at the accommodation proposed on the land. During the rest period, the employed truck drivers are to be provided with a relaxed environment where they can “sleep, rest and eat properly”49. [27] The rooms providing accommodation will be allocated to specific drivers so they can store their belongings without having to “check in” or “check out” like a motel or hotel. Each of the rooms will have air-conditioning, black-out blinds, a television and wardrobe to be a small home away from home50. The kitchen facilities will be stocked with food to enable the truck drivers to make their own meals. It is intended that the food supplied to the drivers will be sourced from the town of Miles. [28] The hours of operation for the proposal will be as recommended by the noise experts in their joint report51. The Transport Terminal will be operated between the hours of 6:00am to 7:00pm, Monday to Saturday. The short term accommodation will operate 24 hours a day, 7 days per week. Mechanical repairs may occur 24 hours a day, 7 days per week where undertaken inside the proposed workshop. Repairs undertaken outside of the workshop will be limited to the hours of 7:00am to 7:00pm, Monday to Saturday. [29] Two preliminary issues were raised by the Respondent about the development proposed. [30] First, the Respondent was critical of the level of detail provided by the Appellant in support of the proposed development. In particular, it was submitted on the Respondent’s behalf that there was uncertainty about the size and scale of the proposal52. Mr Powell, the Respondent’s visual amenity expert, was critical of the detail provided to examine the impact of the proposal on rural character and visual amenity53. It is unclear whether the Respondent presses this issue as a reason for refusal in its own right. The point was not identified as such in Exhibit 21, being the Respondent’s amended list of reasons for refusal. [31] In any event, to the extent the issue of uncertainty is pressed as a reason for refusal, I do not accept that the development proposal before the Court is uncertain. The Respondent’s submissions and the evidence of its experts appear to lose sight of the fact that the proposal is a simple and uncomplicated development. It is a Transport Depot on the Leichardt Highway in a Rural area. The significant component of the proposal involves hardstand areas for parking and vehicle manoeuvring. The built form proposed is small in scale and uncomplicated by nature comprising effectively single storey demountable buildings (Dongas). 47 T1-28, Line 40 to 42, 48 T1-29, Line 1 to 2. 49 T1-29, Line 20. 50 T1-29, Line 33 to 35. 51 Exhibit 6, paragraph 10. 52 Outline of Respondent’s submissions, paragraph 13. 53 Exhibit 9, paragraph 2.11. -- 7 of 30 -- 8 [32] Further, a basic landscape screen is proposed for the southern and western boundaries. That location and intended performance of that screening is easy to understand. The precise specifications of the vegetation species that will be used to create the screen, in my view, is a matter for conditions, rather than an issue going to approval or refusal. Finally, the Appellant is willing to accept a condition limiting where plant, equipment, trucks and trailers are stored or parked on the land. The parameters of that condition are clear and do not leave any doubt that plant, equipment, trucks and trailers will be stored or parked in the elongated truck parking bays. [33] I am far from persuaded that the development proposal is uncertain, but even if it was fairly characterised in this way, the uncertainty is not such as to prevent this Court determining whether s 326 of SPA is engaged in this case54. Accordingly, I do not accept that the proposed development should be refused by reason of uncertainty. [34] The second preliminary issue raised goes to the proper characterisation of the use for which approval is sought. The Respondent contends that the development proposal should be assessed on the footing that it is a Transport terminal as defined in the 2006 planning scheme. That use is defined in the 2006 planning scheme as follows55: “Transport terminal – means “Premises” used for the transport of goods and people, including the loading, unloading and temporary storage of goods. The term also includes the garaging and routine servicing of vehicles engaged in the transport of such goods and people.” [35] I do not accept that the application seeks approval for a Transport terminal simpliciter under the 2006 planning scheme. [36] The development application stated that approval was sought for a material change of use of premises for a Transport terminal (including ancillary accommodation) and Caretaker’s residence56. The application was amended to remove the Caretaker’s residence during the IDAS process. The town planning witnesses examined the development proposal on the premise that it was properly described as a “Transport Terminal (including ancillary accommodation for 8 units and a manager’s residence)57. [37] The material change of use described in the development application is not a Transport terminal as defined in the 2006 planning scheme. That definition does not include an accommodation component, such as that proposed. Further, the ancillary accommodation component proposed does not fall within the extended definition of “use” in a way that would enable the accommodation component to be captured by the definition of Transport terminal. [38] The 2006 planning scheme defines “Use” by reference to the Integrated Planning Act 1997, being the Act in force at the date the 2006 planning scheme took effect. The relevant definition is in the following terms58: “use, in relation to premises, includes any use incidental to and necessarily associated with the use of premises.” 54 SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24, [26] and [27]. 55 Exhibit 11, p. 10. 56 Exhibit 1, p.32. 57 Exhibit 3, para 3.1. 58 Exhibit 11, p. 10. -- 8 of 30 -- 9 [39] The definition of use in the Integrated Planning Act 1997 was not altered in SPA, being the law in force at the time the application was made to the Respondent. It is noted that the definition was amended in the Planning Act 2016 to remove the reference to “necessarily associated with”. This definition does not however apply given it was not the law in force at the date the application was made. [40] Whilst the proposed accommodation is an incidental or ancillary component of the proposed use, the evidence does not establish that it conforms with the description of being necessarily associated59 with the use of the land for the purposes of a Transport terminal as defined. Mr Ovenden effectively conceded as much in cross- examination60. [41] In my view, the development application described the proposal as one being an innominate or undefined use. There is no difficulty for an Applicant to adopt such an approach. The 2006 planning scheme recognises that undefined uses may be proposed. Relevantly, in the Rural Zone, the Table of Assessment provides that a material change of use for uses not defined in the 2006 planning scheme triggers impact assessment61. [42] Given the proposed development does not fall within the definition of Transport terminal, either by reference to the definition stated in the 2006 planning scheme, or by reference to the extended definition of use in the legislation, it would be wrong in my view to assess the proposal on the premise that it is simply a Transport terminal as defined in the 2006 planning scheme. The use includes an ancillary component, namely accommodation that was fairly and unequivocally described in the development application. [43] There is also no difficulty in treating the development proposed as a single undefined planning unit. This is in contrast to an approach where a use is described by each use definition applying to it under a planning scheme. A use described by reference to multiple use definitions is a mixed use development. In Woolworths Ltd v Maryborough City Council (No.2) [2006] 1 Qd R 273 at 291, Fryberg J (with whom McMurdo P and Holmes J (as she then was)) identified two relevant principles, namely: “i) The orthodox approach is for the decision maker to identify the appropriate ‘planning unit’ to be considered for the purpose of deciding whether or not there has been a material change in the use of land; ii) The appropriate planning unit may embrace an area of occupation within which a variety of activities are carried on and comprise a composite or mixed use, where the individual components may fluctuate in their intensity from time to time, but are not confined within separate and physically distinct areas of land; …” 59 Boral Resources (Qld) Pty Ltd v Cairns City Council [1997] 2 Qd R 31, 38. 60 T2-25, Line 37 to 47. 61 Exhibit 11, p.12. -- 9 of 30 -- 10 [44] The second of the two principles stated above has direct application to the circumstances of this case. The proposed use will comprise two integrated and associated uses62. The two uses to be carried out for the purposes of the 2006 planning scheme are defined as “Transport terminal” and “Accommodation building”63. The intensity of each component of the use may fluctuate from time to time. The proposed plan of development demonstrates that the two uses will not be confined within separate and physically distinct parts of the land. They will share the same access points, carparks and vehicle manoeuvring areas. [45] Having regard to the integrated nature of the proposal, the proposed development is appropriately assessed as a single planning unit. That planning unit is an innominate or undefined use described in the development application as ‘Transport terminal (including ancillary accommodation for 8 units)64 . The disputed issues [46] The disputed issues to be determined have evolved from the Respondent’s initial decision notice identifying its reasons for refusal65. The decision notice dated 25 May 2016 contains some 18 reasons for refusal referring to the 2006 planning scheme and the 2017 planning scheme in its draft form. In July 2017, some two months after the decision notice was published, the Respondent obtained leave from this Court to notify any further or amended reasons for refusal66. On 11 August 2017, the Respondent served a significantly expanded list of reasons for refusal. That document comprises 4 pages and alleges conflict with a significant number of provisions in the 2006 and 2017 planning scheme. The notification of reasons for refusal in this way is becoming an all too common practice in the Court and should be deprecated. It does not assist in the efficient conduct of litigation before the Court, let alone facilitate the just and expeditious resolution of the real issues in dispute. [47] The Planning & Environment Court Rules 2010 do not require parties to file and serve pleadings; however, it has long been the practice of the Court to require a party who opposes a development to identify, in writing, the planning scheme provisions it will rely upon to contend that a provision such as s 326 of SPA is engaged. This practice provides flexibility for parties, free from the strict requirements of rules with respect to pleading as set out in the Uniform Civil Procedure Rules 1999. [48] This flexibility does not mean that parties are at liberty to notify a substantial number of reasons for refusal that are underpinned by an oppressive number of planning scheme provisions. To do so smacks of a “win at all costs” attitude or, alternatively, has the appearance of a scatter gun approach to litigation. Irrespective of which description applies in any given case, the notification of issues in this way may not perform favourably when examined against the professional conduct rules mandating the responsible use of Court process and privilege67 nor when examined against rule 10(2) of the Planning & Environment Court Act 2016. 62 Exhibit 3, para 5.11 and as was confirmed by Mr Ovenden in his oral evidence at T2-17, Line 8 to 41 and T2-22, Line 45 to 2-23, Line 5. 63 Appellant’s supplementary outline, paragraph 3. 64 Exhibit 1, p. 32 and onwards. 65 Exhibit 1, p.137 and onwards. 66 Exhibit 1, p.7, para 1 (Order of Everson DCJ, 20 July 2017). 67 See Rule 21.3 of the Australian Solicitors Conduct Rules 2012 and rule 59 of the Barristers’ Conduct Rules. -- 10 of 30 -- 11 [49] I do not suggest in this matter that the Respondent, or its legal team, have adopted a win at all costs attitude. Upon the Court’s invitation the Respondent reduced the number of planning scheme provisions to be relied upon to effectively “Key provisions”. [50] Mr Dillon, counsel for the Respondent, tendered a further amended list of reasons for refusal that identified the Key planning provisions relied upon as warranting refusal of the application68. He sensibly and fairly conceded that “if your Honour finds against us on the key provisions, then I think we’ve lost”69. Given Mr Dillon’s fair concession, the planning provisions that will be the subject of specific consideration are those described as Key planning provisions. They are identified in Exhibit 21. [51] The amended issues document did reduce the number of planning provisions that were genuinely in dispute, however, the document continued to maintain alleged conflicts with planning scheme provisions that do not on their face appear to be germane to an application for a Transport depot in a Rural Zone. For example, it is alleged that a decision to approve the Appellant’s application would conflict s 3.3.1(1) of the 2017 planning scheme70. This so-called “Key provision” states71: “(1) The settlement pattern of the Western Downs supports, enhances and consolidates the existing network of communities and urban areas located on the Warrego highway as the primary locations for future urban growth and service delivery.” [52] Section 3.3.1(1) of the 2017 planning scheme has no bearing on the outcome of this appeal. It is difficult to understand how it could be suggested that a Transport depot on the Leichardt Highway in a rural area offends a higher order planning provision that speaks of the settlement pattern for the Western Downs. The provision is not a key provision with which a conflict can be established in this case. This is, unfortunately, a criticism that can be levelled at many of the so-called Key provisions identified by the Respondent in Exhibit 21. [53] A provision such as s 326 of SPA will only be engaged where conflict with a planning scheme is plainly identified72. Oblique or tangential conflict is insufficient. Further, conflict with a planning document is not established by sheer weight of numbers. The number of planning provisions notified by a party seeking to oppose a development is irrelevant. The significance, or importance, of any alleged conflict is similarly not enhanced by weight of numbers. The issue of conflict will turn on the substance of the planning scheme provisions in issue rather than the number of alleged conflicts. [54] The planning provision of primary importance in this case is s 4.1.3.3(5)(d) of the 2006 planning scheme. This provision contemplates that limited industrial uses may be located in the Rural Zone (in which the land is included), provided two matters can be demonstrated: (1) the proposed use is associated with rural production and (2) the proposed use cannot reasonably be established in the Industrial Zone. 68 Exhibit 21. 69 T2-3, Line 1 to 5. 70 Exhibit 21, p.2, paragraph (i). 71 Exhibit 12, p.18 72 Parmac Investments Pty Ltd v Brisbane City Council [2008] QPELR 480, [20] citing Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208, 212. -- 11 of 30 -- 12 [55] The Respondent’s decision to refuse the application largely is founded on the premise that the Appellant has failed to demonstrate compliance with s 4.1.3.3(5)(d) of the 2006 planning scheme. [56] Against this background73, the disputed issues to be determined in the appeal can be identified by reference to the following five questions: (a) Would a decision to approve the development application conflict with s 4.1.3.3(5)(d) of the 2006 planning scheme? (b) Would a decision to approve the development application conflict with the key planning provisions identified by the Respondent in the 2006 planning scheme? (c) If plainly identified conflict is established with the 2006 planning scheme, what is the nature and extent of that conflict? (d) Whether there are sufficient grounds to justify a decision to approve the development application despite conflict with the 2006 planning scheme? and (e) What weight, if any, should be given to the 2017 planning scheme? Would a decision to approve the application conflict with s 4.1.3.3(5)(d) of the 2006 planning scheme? [57] The 2006 planning scheme was promulgated when the IPA was in force. It divides the planning area into seven zones, one of which is the Industrial Zone. Land to the south of the Leichardt Highway in the town of Miles is included in the Industrial Zone. [58] The importance of the Industrial Zone, in a planning sense, is reflected in the desired environmental outcomes for the planning scheme area that provide, in part74: “- The Planning Scheme reinforces and consolidates the role of Miles as the Principal place for business, industry and commerce within the Shire … - The Shire’s industrial areas in Miles are consolidated and protected to ensure that their role as the key areas for industrial activity is reinforced.” [59] The desired environmental outcomes apply across the entire planning scheme area and are the basis for the planning measures in the 2006 planning scheme75. One desired environmental outcome sought to be achieved envisages that industrial activities will be consolidated and protected in Miles. 73 And having regard to the written submissions of the parties. 74 Exhibit 11, p.11. s 3.2. 75 Exhibit 11, p.11, preamble before s 3.1. -- 12 of 30 -- 13 [60] The town planning experts agreed that the concept of co-locating and consolidating industrial activities within an identified industrial area is one of the longest held principles in modern town planning76. This concept, has at its core, the intention of containing the impacts of industrial activities, by separating industries from sensitive and conflicting or competing uses and to ensure that industrial activities are provided with urban services. It is recognised that various social and economic benefits accrue if this planning principle is adopted and implemented, including the optimisation of public and private investment in urban infrastructure77. [61] As I have already said, the use for which approval is sought by the Appellant is undefined in the 2006 planning scheme. The use is however fairly described as exhibiting characteristics akin to an industrial activity. It includes a Transport terminal that is, by definition, an industrial activity under the 2006 planning scheme. [62] The intention of the Industrial Zone in the 2006 planning scheme is to accommodate a wide range of “industrial activities”78. This is not however the only zone where industrial activities are anticipated. They are anticipated in the Rural Zone79, Mixed Use Zone80 and Small Town Zone81. The extent to which industrial activities are envisaged in the Rural Zone is qualified. Section 4.1.3.3(5)(d) of the Rural Zone Code identifies the qualification in the following terms: “(5) Within the Rural “Zone”, the Rural “Zone” Code allows for: … (d) limited industrial uses where it can be demonstrated those “uses” are associated with rural production and can not reasonably be established in the Industrial “Zone”. [63] The Respondent submitted that a decision to approve the development application would conflict with s 4.1.3.3(5)(d) on the footing that the proposed development was not “a limited industrial use”82. I reject this submission. This provision expressly contemplates limited industrial uses in the Zone. This is intended to describe the number of industrial uses in the Zone. It is not, as a matter of proper interpretation, intended to describe the nature or scale of a particular proposal. No plainly identified conflict arises with s 4.1.3.3(5)(d) of the 2006 planning scheme in this respect. [64] The Rural Zone Code contemplates that limited industrial uses may be located in the zone provided two matters can be demonstrated: (1) the proposed use is associated with rural production; and, (2) the proposed use cannot reasonably be established in the Industrial Zone. [65] Two observations can be made with respect to s 4.1.3.3(5)(d). [66] First, whilst the provision speaks of limited industrial uses, it does not purport to give any direction as to the scale of such uses in the Rural Zone. This is to be contrasted with s 4.1.3.3(5)(a) of the Rural Zone Code. This provision deals with tourism related uses and speaks of such uses being “small scale”. 76 Exhibit 3, p.23, para 5.37 and Ovenden: T2-34, Line 22. 77 Exhibit 3, p.23, paragraph 5.38 and Ovenden: T2-34, Line 22 78 Exhibit 11, p.111, s 4.5.3.3(2). 79 Exhibit 11, p.15, s 4.1.3.3(5)(d). 80 Exhibit 11, p.123, s 4.6.1. 81 Exhibit 11, p.43, industrial activities are code assessable where the Total use area is less than 60m2. 82 Outline of Respondent’s submissions, paragraph 69. -- 13 of 30 -- 14 [67] Section 4.1.3.3(5)(d) can also be contrasted with the statement of intent for the Mixed Use Zone which relevantly provides83: “The Mixed Use Zone is an intermediate “Zone” between the Urban and Industrial “Zones”, intended for “detached houses” and small scale industrial uses, where conducted in associated with the “detached house”. [68] This statement of intent is reinforced by section 4.6.3.3(2) of the Purpose of the Mixed Use Zone Code that states that the scale of industrial activities is to be “small scale, low impact” industrial activities, located on the same premises as a detached house84. By way of further example, the Purpose of the Small Town Zone Code is similar to the Purpose of the Mixed Use Zone Code in that it seeks to limit the scale of non- residential uses in the Zone. It speaks of a range of “small scale, low intensity, non- residential uses”. Neither the statement of intent, nor the Purpose of the Rural Zone Code contain phrases or terms analogous to those in the Mixed Use Zone Code or Small Town Zone Code for proposed industrial activities. [69] Second, the qualification in the purpose of the Rural Zone Code requires an applicant to demonstrate that the use is “associated” with “rural production”. Neither of these terms are defined in the 2006 planning scheme. [70] The notion of being “associated” with a character of activity should be given its ordinary meaning, that is, it connotes a connection or relationship between the proposed use and, in the case of s. 4.1.3.3(5)(d), rural production. The provision does not purport to describe the strength of the association that must be demonstrated. The provision does not require an association to be demonstrated with rural production that is carried out on the same land. Whether a use is associated with rural production is a question of fact having regard to the circumstances of each case. [71] The term “rural production” connotes an activity that is essentially primary production. An activity of this character is expressly contemplated in the Rural Zone. Relevantly, s 4.1.3.3(2) of the Rural Zone Code states that the Zone is intended to “retain its viability as an area of primary production”. Primary production, given its ordinary meaning, involves the growing of crops (i.e. horticulture) and keeping of livestock at various intensities (i.e. animal husbandry, grazing and intensive animal industries). [72] Turning then to the facts of the present case, Mr Mahnken described the nature of the Appellant’s business and its association with rural production. I accept his evidence which establishes that there is an association between the proposal and rural production. The association is one where plant and equipment is made available to farmers by way of a leasing arrangement. The farmers utilise the plant and equipment to rehabilitate or improve land for primary production purposes. The Appellant’s trucks and trailers are used to mobilise and demobilise equipment that is leased to, or transported by farmers. [73] In my view, the evidence establishes a clear association between the proposed use and rural production for the purposes of s 4.1.3.3(5)(d) of the 2006 planning scheme. That association is more than a trivial association. 83 Exhibit 11, p.123, s 4.6.1. 84 Exhibit 11, p.126. -- 14 of 30 -- 15 [74] Ms Roughan, the Respondent’s town planning witness, accepted that an association had been demonstrated between the proposed use and rural production85, but in her opinion the association was not a strong one. She described the connection as only a “minor nexus”86 and expressed the opinion that the use was not “directly associated” with rural production87. It was her view that s 4.1.3.3(5)(d) of the 2006 planning scheme was not satisfied here because the use was not one that necessitated a rural location88. It was said that the services the Appellant provided did not require co- location with the farms it served89. [75] I have difficulty in accepting Ms Roughan’s evidence in this regard. [76] In the first instance, her opinion appears to assume that the 2006 planning scheme calls for the demonstration of a “direct” association between the proposal and rural production. It also assumes that the enquiry involves an examination of whether a use necessitates a rural location. To approach s 4.1.3.3(5)(d) in this way adds a gloss to the provision. In my view, such an approach is not warranted having regard to the plain and ordinary meaning of s 4.1.3.3(5)(d) of the 2006 planning scheme. The ordinary meaning of the provision merely requires the demonstration of an association with rural production. I am satisfied that this has been established in this case. [77] The Respondent also seeks to diminish the association between the proposed use and rural production on the basis that no ongoing or permanent connection is established on the evidence. It is accepted by the Respondent that the Appellant’s business may include customers that are farmers, but it submits that the number of farming clients will vary in number if not reduce to a small part of the business when there is a resources boom90. This submission, in my view, misses the point. [78] The proposed use represents an opportunity for those involved in rural production in this planning area to have convenient access to services of the kind that the Appellant provides. That service involves leasing plant and equipment to farmers that will enable them to, inter alia, improve and rehabilitate pastures for primary production purposes. The fact that the opportunity is not fully exhausted on a day to day basis by farmers does not mean that there is no association with rural production. If the Appellant’s business is able to obtain other sources of revenue, that represents a positive for the security of its presence in the planning area, and for the range of services it is able to conveniently offer to farmers for a purpose associated with rural production. [79] In any event, it can be accepted that the Appellant’s customer base will likely vary over time to provide a greater level of service to resource industry based customers, but it does not follow that an association with rural production for the purposes of s 4.1.3.3(5)(d) of the 2006 planning scheme has therefore not been established. As I have already said, the provision does not require the Appellant to demonstrate that there is an association of a particular strength. Nor does it require an applicant to demonstrate that a connection is constant. 85 T3-36, Line 18 to 34 86 Exhibit 3, paragraph 5.41(ii). 87 Exhibit 3, paragraph 5.42(v). 88 Exhibit 3, paragraph 5.25. 89 T3-37, Line 1 to 3 and T3-35, Line 38. 90 Respondent’s outline of submissions, paragraphs 60 and 70. -- 15 of 30 -- 16 [80] To conclude otherwise would require words to be read into s 4.1.3.3(5)(d) in circumstances where it would have been easy for the drafters of the 2006 planning scheme to describe, in qualitative terms, the strength of the association that must be demonstrated by an Applicant. There is no warrant for reading words of this character into s 4.1.3.3(5)(d) of the 2006 planning scheme. [81] The second aspect of s 4.1.3.3(5)(d) requires the Appellant to demonstrate that the use cannot reasonably be established in the Industrial Zone. This, like the first part of the provision, is a question of fact that turns on the circumstances of each case. [82] The Appellant does not suggest that the proposal cannot be physically located on land in the Industrial Zone. Nor does it suggest that there is an absence of land available in the Industrial Zone. Rather, the Appellant submits that there are three reasons why it would be unreasonable to require the use to locate in the Industrial Zone91, namely: (a) the proposed development includes a component that is an incompatible use in the Industrial Zone, namely accommodation for fatigue management purposes; (b) the small-scale nature of the development would be an inefficient use of land in the Industrial Zone; and (c) access for B-double configured trucks and trailers is important for the proposed use, but this cannot be assured for land in the Industrial Zone. [83] The second and third reasons advanced by the Appellant are not particularly persuasive; however, there is considerable merit in the first reason advanced and I accept that this consideration alone establishes that the proposed development, being an integrated one, cannot reasonably be established in the Industrial Zone for the purpose of s 4.1.3.3(5)(d) of the 2006 planning scheme. The reason advanced is a simple one. The proposal is an integrated use that, if co-located with industrial uses, has the potential to prejudice existing and future industrial uses. [84] The proposed use includes an accommodation component for drivers and employees of the business92. As a general proposition, residential accommodation uses and industrial uses are incompatible. The latter has the potential to adversely affect the amenity of the former, giving rise to reverse amenity considerations. Such considerations may need to be addressed in existing or future development by adopting amenity mitigation measures93. The adoption of amenity mitigation measures may involve curtailing or prejudicing the full potential of industrial activities on surrounding or adjoining land in the Industrial Zone. This would be contrary to the Purpose of the Zone Code. Section 4.5.3.3(3)(b) of the Industrial Zone Code expressly states that “industrial activities … are not prejudiced by the intrusion of incompatible uses”. 91 Appellant’s Outline of Argument, paragraph 37. 92 Exhibit 3, paragraph5.11. 93 Exhibit 3, paragraph 5.12. -- 16 of 30 -- 17 [85] I was directed to Ms Roughan’s evidence where she correctly observed that, as a general proposition, employee accommodation that is directly associated with an industrial operation would not require the same level of amenity as housing in a residential zone or area94. This can be accepted as correct; however this does not mean that the occupants of the worker’s accommodation are not entitled to expect that their amenity will be protected to some degree. [86] The level of amenity to be expected for worker’s accommodation will be less than a residential area, but there is still an expectation that the level of amenity for the accommodation activity will be protected. The extent to which amenity is protected will be a matter of fact and degree. This protection may involve mitigation measures that are incorporated into the accommodation facility itself. Mitigation measures may also need to be incorporated in future industrial development on adjoining or nearby land. These mitigation measures may, contrary to the 2006 planning scheme, curtail surrounding or adjoining industrial land uses. [87] In my view, Mr Ovenden’s evidence establishes the self-evident planning proposition that the location of residential accommodation in an industrial area is not ideal and should be avoided. The force of that general proposition is not diluted in this case because the accommodation to be provided is associated with a Transport terminal to manage driver fatigue. [88] Unsurprisingly, it is important to the Appellant that it can provide a safe and quiet environment for its employees to rest. Mr Mahnken in his oral evidence made it clear that the Appellant regarded driver fatigue management as a critical issue for the Appellant’s business95, both from a liability perspective and in recognition of the emotional and personal cost that is suffered when an employee is involved in a road accident where driver fatigue is a contributing factor96. [89] In response, the Respondent contends97 that the accommodation aspect of the proposal is a matter of operational convenience for the Appellant98. It further contended that the Appellant could provide its employees with separate accommodation in the hotels and motels in the town of Miles or, alternatively, it could rent residential premises locally to provide accommodation for workers99. [90] The Appellant does not accept that motels would be a suitable accommodation option for its drivers to undertake fatigue management for a range of practical reasons100. Further, Mr Mahnken emphatically rejected the suggestion that the provision of accommodation in the proposal was a matter of operational convenience101. I accept the effect of his evidence that the purpose of the accommodation is to cater for the wellbeing of the Appellant’s employees. The underlying reason for this is clear enough. It is a matter of safety not just for the Appellant’s staff, but road users generally. It is unfair to describe this as a matter of operational convenience. 94 Exhibit 3, paragraph 5.35. 95 T1-30, Line 3 to 4 and T1-65, Line 30 to 38. 96 T1-31, Line 1 to 7. 97 In keeping with Ms Roughan’s evidence at T3-47, Line 10 to 12. 98 T1-45, Line 34 to 35. 99 T1-45, Lines 16 to 26. 100 T1-30, Line 23 to 37. 101 T1-45, Line 35 to 36. -- 17 of 30 -- 18 [91] I also reject the proposition that the proposal can, and should, be located in the Industrial Zone because the Appellant can provide accommodation off-site for its employees. Such a suggestion in my view misses the point. The use proposed is an integrated one that includes an accommodation component. I do not accept that the test prescribed in s 4.1.3.3(5)(d) of the Rural Zone Code calls for an assessment of parts of a development, and whether those parts cannot reasonably be located in the Industrial Zone. The proposal comprises all of its parts. It is the whole of the proposal that is to be examined against s 4.1.3.3(5)(d). [92] A further difficulty arises, in any event, with a suggestion that the proposal could be located, in part, in the Industrial Zone, with accommodation provided for the Appellant’s workers off-site. The proposition necessarily requires one to assume that the Appellant’s workers will park a heavy vehicle on unidentified land in the Industrial Zone and then make their way to the location of off-site accommodation. It is this second step that was of considerable concern to Mr Mahnken. He considered it highly undesirable that truck drivers, who were required to rest for fatigue reasons, should undertake further travel from the Appellant’s business to access accommodation that is provided for fatigue management102. That is a matter of considerable force and I accept the sense of it. [93] I am satisfied that the Appellant has demonstrated that s 4.1.3.3(5)(d) of the 2006 planning scheme is satisfied by the proposed development. It is a development that falls within the exception to the general rule that industrial uses are to be located in the Industry Zone. [94] For completeness, I note that the Respondent alleges conflict with Performance Criterion PC1 of the Rural Zone Code. That provision provides, in part103: “PC1 Non- “Rural activities” – Locational Criteria Non-“Rural activities” are located in the Rural Zone only where those activities: … (b) demonstrate a nexus with rural activities or natural or cultural resources;…” [95] Performance Criterion PC1 of the Rural Zone Code is not directed specifically at industrial uses. It is directed towards all non-rural uses in the Rural Zone. Such uses are to demonstrate a “nexus” with, inter alia, rural activities. The Respondent submitted that this requires the demonstration of an ongoing or permanent link or connection with rural activities104. [96] The demonstration of a nexus for the purposes of PC1 requires no more than a connection with rural activities. The provision does not speak in terms of that connection having a particular quality, such as one that is permanent or ongoing. This is a gloss that the Respondent seeks to apply to the provision. 102 T1-45, Line 23 to T1-46, Line 17. 103 Exhibit 11, p 16. 104 Outline of Respondent’s submissions, paragraph 60. -- 18 of 30 -- 19 [97] In any event, even assuming the Respondent’s submissions are accepted as correct in this regard, I am satisfied, having regard to the findings made above, that the Appellant has demonstrated compliance with PC1(b) of the Rural Zone Code. Would a decision to approve the application conflict with the Rural Zone code and the desired environmental outcomes in the 2006 planning scheme? [98] The Respondent alleges that a decision to approve the application would conflict with the 2006 planning scheme for essentially three reasons. It relies upon those same reasons to allege conflict with the 2017 planning scheme. The three reasons relied upon by the Respondent in the context of the 2006 planning scheme are now considered in turn. [99] Paragraph 1 of Exhibit 21 alleges that a decision to approve the development application would conflict with s 3.2, s 4.1.3.3(4)(e), s 4.1.3.3(5)(d) s 4.1.3.4 (PC1 and PC2) of the 2006 planning scheme because: “The proposed development would establish an industrial Transport Terminal use and Accommodation Buildings (Workers Fatigue Rooms) in the Rural Zone with no nexus or association with rural production or rural activities, and would undermine the consolidation of industrial zoned land in Miles in conflict with…” [100] The allegation proceeds on the footing that conflict arises with five provisions of the 2006 planning scheme on two bases: (1) the proposed development has no nexus or association with rural production; and, (2) the proposed development would undermine the consolidation of industrial zoned land in Miles. I do not accept that conflict arises with the 2006 planning scheme for either of the two bases alleged. [101] I have already dealt with the association of the development with rural production. The requisite association has been established on the evidence such that compliance with s 4.1.3.3(5)(d) and PC1(b) of the Rural Zone Code has been demonstrated by the Appellant. Compliance with the former provision of the 2006 planning scheme is also relevant to the assertion that an approval would undermine the consolidation of industrial land in Miles. [102] The 2006 planning scheme directs industrial activities to the Industrial Zone, however, that is not the only Zone where such uses are anticipated. The Rural Zone is one such location, provided s 4.1.3.3(5)(d) of the Rural Zone Code is satisfied. Compliance has been demonstrated with this provision. In my view, it cannot sensibly be maintained that the proposed development will undermine the consolidation of industrial land in Miles in circumstances where s 4.1.3.3(5)(d) of the Rural Zone Code is satisfied, as it is in this case. This provision facilitates locating industrial uses in the Rural Zone, outside of the Industrial Zone. [103] For the reasons set out above, no plainly identified conflict has been established with ss 3.2, 4.1.3.3(4)(e), 4.1.3.3(5)(d) or 4.1.3.4 (PC1 and PC2) of the 2006 planning scheme on the footing that the Appellant has failed to establish a nexus or association or because an approval would undermine the consolidation of industrial land in Miles. -- 19 of 30 -- 20 [104] Further, it can observed that no plainly identified conflict would have arisen with s 4.1.3.3(4)(e) or PC2 of the Rural Zone Code if the underlying factual allegations in paragraph 1 of Exhibit 21 had been established by the Respondent. The notion of a nexus or association and consolidating industrial uses is of no relevance to these provisions. [105] Section 4.1.3.3(4)(e) requires rural amenity to be maintained. This has no role to play in the nature of the association or nexus with rural production, nor does it have a role to play in terms of the need to locate industrial uses in the Industry Zone. PC2 of the Rural Zone Code is directed at non-rural activities being of an appropriate scale to protect amenity of the Zone and to not prejudice the operation or viability of other uses or activities in the zone or other zones. Again, such a provision is irrelevant to the notion of a nexus or consolidation of industrial uses. [106] Paragraph 2 of Exhibit 21 alleges that a decision to approve the development application would conflict with s 4.1.3.3(4)(c), s 4.1.3.3(4)(d) s 4.1.3.4 (PC2) of the 2006 planning scheme because: “The proposed development would not protect, maintain or enhance and would adversely impact on rural amenity and character by establishing an industrial Transport Terminal in a rural area, particularly through inappropriate operating hours for non-rural activities, and by increasing the noise, headlights/light, dust and vehicle movements being produced by non- rural activities at the site in conflict with the following provisions…” [107] The Appellant has, in my view, demonstrated on the evidence that no plainly identified conflict arises with the 2006 planning scheme as a consequence of the allegation made in paragraph 2 of Exhibit 21. It has proven that the factual allegation underlying the Respondent’s assertion cannot be established on the evidence. [108] The core of the Respondent’s allegation is that an approval would have an adverse impact on rural amenity and character because it would enable an industrial activity to establish in a rural area. I do not accept that conflict is made out on this basis. As I have already said, section 4.1.3.3(5)(d) of the Rural Zone Code is satisfied. This provision, in my view, creates a reasonable expectation that limited industrial uses may be located in the Rural Zone, subject to the satisfaction of a specific test. That test is satisfied in this case. It is therefore wrong to suggest that the character and amenity of a rural area is therefore adversely affected by the mere presence of a Transport terminal with an ancillary accommodation component. [109] Once it is appreciated that there should be a reasonable expectation that a use, such as that proposed, may occur in the Rural Zone, it is then necessary to look at the potential impacts of that use. In this case, the Court has the benefit of two joint expert reports with respect to noise105 and air quality106. The reports confirm that the proposed development, if appropriately conditioned, will have no unacceptable impacts on amenity. [110] The recommendations of the noise reports are directed at the very impacts raised in paragraph 2 of Exhibit 21. They recommend conditions with respect to: 105 Exhibit 6. 106 Exhibit 5. -- 20 of 30 -- 21 (a) the hours of operation of the proposal107; (b) the number of transport vehicle movements permitted to and from the land per day108; (c) a limitation on the type of vehicles that may be parked on the land109; (d) the location where vehicles may be parked to avoid light spill towards the existing dwelling on land immediately adjoining to the south110; (e) the provision of an acoustic barrier to the southern boundary111; (f) managing the impact of noise emissions from fixed mechanical plant112; and (g) a process for dealing with noise complaints, in the event that such complaints were received about the proposed use113. [111] Each of the conditions recommended in the joint report of the noise experts were expressed as points of agreement. The experts were not required for cross- examination. [112] The joint expert report with respect to air quality contains recommendations with respect to the management of dust and odour. The recommendations are made notwithstanding that the locality is a rural one where dust is to be expected. In any event, the recommendations of the experts include a limitation on the areas where vehicles will be parked or manoeuvred. Management measures are also required to ensure that visible dust does not move off site. Each of the recommendations in the joint report of the air quality experts were expressed as points of agreement. The experts were not required for cross-examination. [113] With respect to traffic movements, the Respondent sought to rely upon a report prepared by a traffic engineer, Mr Trevilyan. In particular, reliance is placed upon an opinion expressed by Mr Trevilyan at paragraph 22 of his report, to the effect that, the level of traffic generated by the proposal would be significantly greater than a reasonably anticipated use of the land114. This opinion assumes that the level of traffic generation to be assumed for the development may be assessed as 1 vehicle per hour per 100m2 of gross floor area. [114] I do not accept that Mr Trevilyan’s opinion properly founds a submission that the proposal will generate a number of vehicle movements that will unacceptably impact on the character and amenity of the locality. His evidence does not take into account that the proposed use, contrary to his assumption, is a reasonably anticipated use of the land. Further, it surprisingly was expressed absent any reference to the conditions recommended by the noise experts that will limit the number of vehicle movements per day. The failure to refer to the recommendations of the noise experts materially undermines the assistance that can be obtained from Mr Trevilyan’s evidence. 107 Exhibit 6, p.4, paragraph 10. 108 Exhibit 6, p.5, paragraph 11. 109 Exhibit 6, p.5, paragraph 11. 110 Exhibit 6, p.5, paragraph 11(vi). 111 Exhibit 6, p.6, paragraph 13. 112 Exhibit 6, p.6, paragraph 14. 113 Exhibit 6, p.6, paragraph 15. 114 Exhibit 8, p.3, paragraph 22. -- 21 of 30 -- 22 [115] I am satisfied that the Appellant has established on the evidence that, subject to the imposition of conditions, the proposed development will not adversely impact on rural amenity and character of the locality by reason of its operating hours, noise, headlights/light, dust and vehicle movements. [116] The Respondent’s case also relies upon the Court accepting that the proposed development will have an unacceptable impact on amenity in an intangible sense. This is consistent with Ms Roughan’s evidence. She confirmed that the potential for intangible impacts on amenity were of concern to her115. The nature of the impact was described at paragraph 5.68 of the town planning joint report in the following terms116: “Ms Roughan says that the nature and appearance of the proposed development is squarely one of an industrial character. With 6 trucks, 8 B- double trailers, 8 tractors and large laydown areas containing other large scale plant and equipment and extensive vehicle circulation areas, it falls on the larger rather than smaller scale of industrial development…” [117] The nature of the impact to which Ms Roughan refers is one that arises by reason of the very presence of the use in a rural area. There are a number of difficulties with Ms Roughan’s evidence with respect to her concerns about intangible amenity impacts. [118] It is implicit in Ms Roughan’s opinion that s 4.1.3.3(5)(d) of the planning scheme has not been satisfied by the Appellant. This assumption is incorrect and undermines in a material way the view she has expressed. She has essentially proceed on the wrong footing that reasonable expectations for amenity in the Rural Zone do not include the proposed development. This explains why it is her view that there mere presence of the development in the Rural Zone would give rise to an unacceptable impact on amenity and character in an intangible sense. [119] Further, I do not consider that Ms Roughan’s opinion gives sufficient recognition to the Purpose of the Rural Zone. Section 4.1.3.3(2) of the 2006 planning scheme relevantly states that the Rural Zone retains its viability as an area of primary production117. The uses anticipated in the Rural Zone include grazing and intensive animal industries. The Zone is a working zone. It is not intended to provide a high level of amenity consistent with a residential area or a rural residential zone. As a working zone intended for primary production, the presence of machinery, plant and equipment, trucks, B-double trailers is all part and parcel of the character of the area. An area of this character is likely to be dusty and influenced by the noise of plant, equipment and trucks utilised for a primary production purpose. A dominant feature of the locality is the Leichardt Highway that carries substantial volumes of traffic, including heavy vehicles. [120] This proposition is not diminished by reason that the land is included in the Rural C precinct under the 2006 planning scheme. The precinct designation is relevant to the Reconfiguring a Lot Code, namely as an Acceptable Solution to Performance Criterion PC1. 115 T3-57, Line 30. 116 Exhibit 3, p.30, paragraph 5.68. 117 Exhibit 11, p.15. -- 22 of 30 -- 23 [121] The Acceptable Solution speaks of lots in the precinct having a minimum area of 10 hectares118. The accompanying Performance Criterion, PC1, states: “The reconfiguring of lots ensures the Rural “Zone” retains its viability as an area of primary production, consistent with the local character.” [122] The land and surrounding locality is fairly described as a rural area. It is not rural residential in nature. Nor does it exhibit a character consistent with small scale hobby farms. The pattern of subdivision in the locality is not akin to that envisaged by the acceptable solution relevant to the reconfiguration of land included in the Rural C precinct. [123] The character of the locality is strongly influenced by the existing pattern of subdivision. The pattern of subdivision is dominated by large rural allotments, well in excess of 10 hectares. The character is also strongly influenced by the existence of the Leichardt Highway and its vegetated edge. The proposed development in that context will be consistent with the character of the area. This consistency, in my view, will be assured through the imposition of conditions that require the establishment and maintenance of a landscaped buffer to the southern and western (in part) boundaries, along with conditions that will, if complied with, ameliorate noise and dust impacts. [124] Against the background of the above findings, I am satisfied that the Appellant has established that no plainly identified conflict arises with s 4.1.3.3(4)(c), s 4.1.3.3(4)(d) s 4.1.3.4 (PC2) of the 2006 planning scheme for the reason alleged in paragraph 2 of Exhibit 21. [125] Paragraph 3 of Exhibit 21 alleges that a decision to approve the development application would conflict with ss 4.1.3.3(4)(c), 4.1.3.3(4)(d), 4.1.3.3(4)(e) and 4.1.3.4 (PC1, PC2 and PC11) of the 2006 planning scheme because: “The location, design and operation of the proposed development would not protect, maintain or enhance, and would adversely affect the rural scale, intensity, form, character and visual amenity by increasing vehicle movements and establishing buildings associated with non-rural activities in a rural locality and would be highly visible along and adjacent to the Leichardt Highway in conflict with the following provisions…” [126] The conflict alleged is said to be underpinned by character and visual amenity impacts. This alleged impact assumed some importance in the Respondent’s case. [127] The Respondent’s submissions with respect to the visual impact of the proposal is founded on the evidence of Ms Roughan and Mr Powell. They individually criticised the application for its lack of detail. In particular, the application was criticised for the lack of detail provided with respect to the landscaping screen proposed for the western and southern boundaries. The lack of detail was said to impede the assessment carried out by Ms Roughan and Mr Powell as to the acceptability of the proposed development in visual amenity and character terms. 118 Exhibit 11, p.170. -- 23 of 30 -- 24 [128] As I have already said, the evidence, in my view, provides sufficient detail to properly assess and determine whether the application complies with, or could be conditioned to comply with the 2006 planning scheme. In that regard, I accept the evidence of Mr Ovenden that the proposed development will not have an unacceptable impact on visual amenity or character provided it is conditioned to require the establishment and continued maintenance of a landscape screen to the western and southern boundaries. The precise design and width of the buffer is a matter for conditions. The size of the land is such that there is sufficient flexibility to accommodate a screen that is designed to visually soften the development. Mr Ovenden was confident that a suitably qualified professional could design an appropriate landscape buffer to soften the appearance of the proposed development. I accept his evidence in this regard. [129] I also accept that the design will not be required to conceal the development in the manner suggested by Mr Powell119. He envisaged that the extent of screening required was akin to concealing the development from view. This is not required by any provision in the 2006 planning scheme. Further, “glimpses” of the proposal will not in my view be unacceptable. It will only be viewed from the Leichardt Highway by drivers or passengers of motor vehicles travelling at high speed. The posted speed limit for Leichardt Highway in the location of the land is 100 kilometres per hour. [130] The proposed development will be low-key and low-impact. In this regard I accept the evidence of Mr Ovenden. He expressed the view that the built form is low rise, low scale and low density. It will be located in an area that represents a fraction of the total area of the land120. This scale of the development, coupled with the setback distances proposed to the boundaries of the land and the provision of a vegetated buffer providing some screening, will protect and enhance the predominant rural character of the area121. The character that will be protected and enhanced is the existing character122 and that character planned under the 2006 planning scheme. I am satisfied that the proposed development will protect the amenity of the Rural Zone and will not prejudice the viability of other uses or activities in any other zone123. [131] The visual softening of the proposed development with landscaping along part of the western and southern boundaries will not only protect and maintain the visual amenity and character of the Rural Zone. In reality, it will represent an improvement on what presently can be seen from the Leichardt Highway in this locality124. The existing use of the land is not screened. It presents as a break in the vegetated edge to the Leichardt Highway where trucks and equipment are visible to drivers. The proposal with a vegetated screen will make a superior contribution to the character of the Rural Zone compared to what is presently located on the land. It will also make a superior contribution in comparison to the use of the land that adjoins to the immediate south, and when compared to the Depot owned and controlled by the Respondent. 119 Mr Powell appeared to suggest a screen of 90 to 95% softening (T3-16, Line 31). 120 Exhibit 3, paragraph 5.66. 121 As is required by s 4.1.3.3(4)(c) and (d) and PC2 of the Rural Zone code in the 2006 planning scheme (Exhibit 11, p.15 and 16.). 122 The existing condition of the area is discussed at paragraphs 5 to 13 above. 123 As is required by PC2 of the Rural Zone code in the 2006 planning scheme (Exhibit 11, p.16.). 124 Ovenden: T2-15, Line 41 to 47. -- 24 of 30 -- 25 [132] The proposed development, if approved, with a condition requiring a landscaping buffer providing a screening effect to the southern and western (in part) boundaries will contribute positively to the visual qualities of the Rural Zone. As a consequence, the proposed development will protect and enhance rural character. The landscape values and scenic qualities of the Rural Zone will also be protected. Rural amenity will be maintained. [133] I am satisfied that the Appellant has demonstrated that no plainly identified conflict arises with the 2006 planning scheme for the reason alleged in paragraph 3 of Exhibit 21. That is to say that the Appellant has demonstrated that the location, design and operation of the proposed development will protect, maintain and enhance rural character and amenity. Further, it has been demonstrated that the proposal would not adversely affect the rural scale, intensity, form, character and visual amenity of the locality. It will not be highly visible along, and adjacent to, the Leichardt Highway. What is the nature and extent of conflict with the 2006 planning scheme and are there sufficient grounds to warrant approval despite the conflict? [134] A decision to approve the application would not conflict with the 2006 planning scheme. As a consequence, s 326(1) of SPA is not engaged. It is therefore unnecessary to consider the nature and extent of conflict with the 2006 planning scheme and whether there are sufficient grounds to justify an approval despite conflict with that planning scheme. What weight, if any, should be given to the 2017 planning scheme? [135] On 20 March 2017, the Respondent adopted the 2017 planning scheme. This planning scheme was promulgated under SPA. It took effect some 10 months after the Appellant’s development application was refused, and approximately 9 months after the appeal was commenced. [136] The Respondent alleges conflict with a substantial number of provisions in the 2017 planning scheme which are said to warrant refusal of the Appellant’s development application. It does so on the basis that it is alleged, and submitted, that the proposed development conflicts with the Strategic Plan, Rural Zone Code and Scenic Amenity Overlay Code in the 2017 planning scheme. The facts relied upon to allege conflict include the same three allegations made in Exhibit 21 with respect to the 2006 planning, and a further allegation that no overriding community need has been demonstrated. The Respondent contends that the 2017 planning scheme should be given determinative weight. [137] In the first instance, it is my view that Exhibit 21 and the Respondent’s submissions proceed on a false premise that it is necessary to assess whether a decision to approve the application would conflict with the 2017 planning scheme and whether grounds exist to justify an approval despite that conflict. This is not required by the statutory assessment regime. [138] Section 326(1) of SPA applies to the law in force at the date the development application was made to the assessment manager. The provision does not apply to a new law or policy that took effect after the application stage of the IDAS process or during the course of an appeal to this Court. -- 25 of 30 -- 26 [139] This error has, in my view, meant that the Respondent has asked and answered the wrong question in its written submissions about the role of, and weight to be given to, the 2017 planning scheme. The question for this Court is what weight, if any, should be given to the 2017 Planning Scheme under s 495(2) of SPA. The issue is to be determined against the background that: (a) the Appellant has demonstrated compliance with the 2006 planning scheme, being the planning scheme in force at the date the application was made; (b) the factual allegations made by the Respondent in Exhibit 21 to establish conflict with the 2017 planning scheme are, save for one exception, the same factual allegations relied upon to allege conflict with the 2006 planning scheme, and those allegations were not made out on the evidence; and (c) the 2017 planning scheme does not introduce a shift or change to the Respondent’s forward planning or planning policy with respect to industrial uses in Miles, or the Rural Zone. [140] The absence of a shift or change in the Respondent’s planning is clear having regard to the following matters. [141] The 2017 planning scheme is consistent with the superseded 2006 planning scheme in two respects. It directs industrial land use and development to land designated for industrial purposes within an Urban area125. It is also provides, like the 2006 planning scheme, exceptions to this planning policy position. [142] The first of two exceptions to the planning policy position is that contained in s 3.3.9.2(9) of the Strategic Plan which states: “(9) Industrial uses will not be supported where to be established on Rural Land that is considered to be non-productive agricultural land or of an allotment size that is economically unviable for agricultural production. Should development be proposed on allotments as describe (sic) above, overriding need will need to be provided to justify and demonstrate that there is no suitably zoned available land for the use to operate” [143] The second exception to the planning policy position is contained in the Rural Zone code. [144] For the purposes of the 2017 Planning Scheme, the land is included in the Rural Zone and Rural 10 Precinct. Section 6.2.9.2 of the Rural Zone Code includes the purpose of the Zone. Relevantly, a purpose of the Zone is stated as126: “(1) Provide for rural uses including cropping, intensive horticulture, intensive animal industries, animal husbandry, animal keeping and other primary production activities;” [145] The purpose statement above is consistent with the statement of Purpose in s 4.1.3.3(2) of the 2006 planning scheme. 125 Exhibit 12, p.28, s 3.3.9.2(1). 126 Exhibit 12, p.79. -- 26 of 30 -- 27 [146] Like the 2006 Planning Scheme, the Rural Zone Code anticipates non-rural uses in the Zone. Section 6.2.9.2(2) of the 2017 planning scheme relevantly provides127: “(2) Provide opportunities for non-rural uses that are compatible with agriculture, the environmental features and landscape character of the rural area where the uses do not compromise the long-term use of the land for rural purposes; and” [147] The Overall Outcomes for the Rural Zone Code includes a test that is relevant to a proposal for non-rural use in the zone. Section 6.2.9.2(4) of the Rural Zone Code relevantly states128: “(4) New enterprises such as rural service industries and tourism activities, are accommodated where: (i) They are directly associated with rural production, a natural resource or the natural environment or need to be remote from urban uses as a result of their impacts; (ii) The productive capacity of the land is not diminished and conflicts with existing intended activities in the surrounding area are avoided. (iii) The existing landscape and natural resources values of the land are maintained; and (iv) The proposed use could not be more appropriately located in another zone.” [148] Section 6.2.9.2(4) refers to “New enterprises”. This term is not defined in the 2017 planning scheme. The provision does however identify the type of uses that may fall within the ambit of New Enterprises, being rural service industries and tourism activities. These uses are neither defined nor form an exhaustive list. The real question to be considered is whether the New Enterprise proposed by the Appellant satisfies each of the four limbs of s 6.2.9.2(4). [149] The Appellant, in my view, has demonstrated that the proposed development complies with s 6.2.9.2(4) of the 2017 planning scheme. I am satisfied having regard to the evidence, and reasons stated above, that: (a) a sufficient association with rural production has been demonstrated; (b) the Respondent expressly abandoned any allegation that the proposal will diminish the productive capacity of the land129; (c) there is no basis for suggesting that the proposal would conflict with existing or intended activities in the surrounding area, particularly given that the land is effectively an island with only one immediate neighbour; (d) the existing landscape values of the land will not only be maintained, but will be improved; and 127 Exhibit 12, p.79. 128 Exhibit 12, p.79. 129 Exhibit 21, p 1. -- 27 of 30 -- 28 (e) the proposed use could not be more appropriately located in another zone, being an Industrial Zone where accommodation uses are not favoured. [150] Each party conducted its case on the basis that the planning policy embodied in the 2006 planning scheme with respect to the location of industrial development in rural areas was carried forward into the 2017 planning scheme. The town planning witnesses also proceeded on this basis. Paragraph 4.34 of the Town Planning Joint Report records Ms Roughan’s position as follows130: “The 2017 planning scheme effectively carries forward the intentions of the 2006 planning scheme but does so with a broader explanation of the planning outcomes this is meant to achieve” [151] Mr Ovenden conceded in cross-examination that “there really was a consistency of strategic planning intent” between the two planning schemes131, but the 2017 planning scheme “ratchets things up a notch”132. I take the last statement to include a reference to the test contained in s 3.3.9.2(9) of the Strategic Plan and s 6.2.9.2(15) of the Rural Zone Code which states133: “(15) Where development is not consistent with the purpose and intent of the rural zone, overriding community need will need to be demonstrated as well as valid planning justification provided as to why the proposed use cannot be reasonably established in a more appropriate zone.” [152] The overriding community need test is a new test that is engaged in one of two circumstances. First, where an industrial use is proposed for unproductive rural land. Second, where development is not consistent with the purpose and intent of the Rural zone. The introduction of the overriding need test does not alter the policy position that development such as that proposed may be located in the Rural Zone, subject to satisfaction of particular tests that focus on the locational characteristics of the use, and the particular characteristics of the location where it is proposed. [153] The 2017 Planning Scheme includes Overlays and associated codes. The Overlays have no analogue in the 2006 planning scheme. One of the relevant Overlays is the Scenic Amenity Overlay. For the purposes of the Scenic Amenity Overlay, the associated mapping demonstrates that the land is included within the scenic route buffer134. The scenic route that is buffered is the Leichardt Highway. The extent of the buffer and the scenic route is substantial. It includes a substantial distance of the Leichardt Highway leading into Miles, and within the township of Miles itself. [154] The Strategic framework mapping depicts a forested and woodland downs buffer designation that is coincident with the Leichardt Highway and the scenic route buffer referred to in the Scenic Amenity Overlay. This buffer is to be protected and maintained135. 130 Exhibit 3, p.14, paragraph 4.34. 131 T2-18, Line 1 to 5. 132 T2-18, Line 16 to 24. 133 Exhibit 12, p.80. 134 Exhibit 3, p.63. 135 Exhibit 12, p.40, s 3.4.6.1(1)(c) and p.94, PO2 of Scenic Amenity overlay code. -- 28 of 30 -- 29 [155] The evidence establishes that the Leichardt Highway is vegetated on each side for some distance north and south of the land. That vegetation is broken at particular points by existing development that is not screened by vegetation. One such development is the Respondent’s Depot located to the south of the land. [156] Subject to the imposition of a condition requiring a vegetated screen to the southern and western (in part) boundaries, the proposed development will protect and maintain the existing character of the scenic route buffer. Indeed, as I have already said, the proposal will represent an improvement in character terms in contrast to the existing use of the land. [157] Overall, it is my view, that the 2017 planning scheme has little if any role to play in the outcome of this appeal for essentially four reasons. [158] First, section 495(2)(a) of SPA mandates that the Court must decide the appeal based on that law in force when the application was made. The proposed development complies with the law in force at the date the development application was made. In such circumstances, it is my view that compelling reasons would be required to refuse the application on the basis of the 2017 planning scheme, being a matter of weight only. No compelling reasons exist in my view. [159] Second, the 2017 planning scheme does not introduce a shift in planning policy, let alone introduce a new planning policy that mandates refusal in this case. The document directs industrial development to industrial areas, with a limited exception for, inter alia, the Rural Zone. The Respondent’s planning policy has not changed in this regard. As Ms Roughan correctly observed: “The 2017 planning scheme effectively carries forward the intentions of the 2006 planning scheme but does so with a broader explanation of the planning outcomes this is meant to achieve”. [160] Third, if it is assumed that conflict was established with the 2017 planning scheme because the proposed development involves an industrial use in the Rural zone, being inconsistent development136 which would not be concealed from view137 and for which no overriding community need138 was demonstrated, that conflict I would accept is serious. In this case however, that conflict would not be accompanied by any consequent undue impact. When assessed on its merits, and in context, there is no undue impact likely to arise from the proposed development in terms of amenity or character. [161] Fourth, this is not a case where a proposal will undermine or cut across higher order planning, planning for Miles or indeed in any other respect. Ms Roughan readily conceded as much during her oral evidence139. She accepted that this was a case about conflict with, rather than compromise of, a planning policy. The conflict of which Ms Roughan speaks assumes that the Appellant has failed to demonstrate compliance with provisions such as s 4.1.3.3(5)(b) of the 2006 planning scheme and s 6.2.9.2(4) of the 2017 planning scheme. This assumption has not been made out on the evidence. 136 Exhibit 12, p.81. 137 Exhibit 12, p.94, PO2(b). 138 Exhibit 12, p.80, s 6.2.9.2(15) and p.29, s 3.3.9.2(9). 139 T3-52, Line 1 to T3-53, Line 7. -- 29 of 30 -- 30 Conclusion [162] The Appellant has discharged the onus and the appeal will, in due course, be allowed. [163] I will give the parties an opportunity to formulate an agreed suite of conditions of approval, and order as follows: (a) by 4pm on 3 August 2018 the Respondent is to deliver a draft suite of conditions to the Appellant; and (b) the appeal is to be listed for review at 9:15 am on 24 August 2018 either for the purpose of making final orders in the appeal or, failing agreement between the parties, for the purpose of making directions to facilitate the resolution of any dispute with respect to the suite of conditions of approval. -- 30 of 30 --