Deenerygold Pty Ltd v Scenic Rim Regional Council [2016] QPEC 2 [2016] QPELR 215

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Deenerygold Pty Ltd v Scenic Rim Regional Council [2015] QPEC 2 PARTIES: DEENERYGOLD PTY LTD (Appellant) v SCENIC RIM REGIONAL COUNCIL (Respondent) FILE NO/S: 2190 of 2015 DIVISION: Planning & Environment PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 28 January 2016 DELIVERED AT: Brisbane HEARING DATE: 28 January 2016 JUDGE: Rackemann DCJ ORDER: A condition will be imposed in accordance with the appellant’s proposal. CATCHWORDS: PLANNING AND ENVIRONMENT – APPLICANT APPEAL AGAINST REFUSAL OF POULTRY SHEDS IN THE RURAL ZONE – parties consented to the appeal being allowed but were in dispute as to the form of the condition which should be imposed to achieve appropriate landscaping – where the condition contended for by the appellant provided an appropriate safeguard to ensure an appropriate outcome, given the context of the site and the relevant planning scheme provisions. COUNSEL: C L Hughes QC with B Job for the appellant M Loos for the respondent SOLICITORS: McInnes Wilson Lawyers for the appellant Norton Rose Fulbright for the respondent -- 1 of 8 -- 2 [1] This is an applicant appeal against the respondent’s decision to refuse a development application to facilitate the establishment of a poultry farm comprising 6 sheds with 360,000 birds. The proposal has since altered to one of seven poultry sheds to accommodate 308,000 birds. Each shed is to be 168 metres by 16.8 metres. The sheds are to be located on a part of the site which is sloping. The seven hectare pad for the sheds is to be gently stepped up the hill. [2] Although the council refused the development application, it is now common ground that the appeal ought be allowed, and an approval ought be granted to enable the development of the poultry sheds. The only remaining question relates to one condition, that relating to landscaping. Before turning to the particular dispute about the landscaping it is appropriate to say something about both the physical and planning context of the subject site. [3] The site falls within a rural area within Beaudesert. As Mr Vann, the town planning consultant engaged by the appellant, noted in the joint town planners report, poultry farms are relatively common in the area south of Beaudesert, and these uses form part of the rural landscape and character of the area, with some being visible from the highway. That is an unsurprising phenomenon, given the provisions of the planning documents. [4] The site forms part of an area which is designed under the South East Queensland Regional Plan as being for grazing/intensive animal production. More particularly, within the relevant planning scheme, the site is included within the Rural zone and the Countryside Precinct. That precinct provides for poultry farms as a consistent use. It is the only zone and precinct within which such farms are consistent uses. Indeed, poultry farms are an inconsistent use in all other zones and precincts in the planning scheme. Hence, reasonable expectations in regard to areas within such a precinct within the zone, include the prospect of poultry farms. [5] As Mr Vann said in the joint report: As a poultry farm is a rural use and a consistent use in the countryside precinct of the rural zone, it is considered that such a use is a typical and not unexpected sight in a rural area. There are already a number of poultry farms existing or under construction in this broader area, including some close to the Mount Lindesay Highway, so poultry farms are an ordinary and expected part of a landscape and views from the highway. [6] Similarly, Mr Ovenden, the town planner engaged by council, said in the joint report that he agreed: ...that poultry farm sheds are not an unexpected sight in a countryside precinct. [7] That is not to say, however, that poultry farms are permitted to be established without any regard to their visual impact. As counsel for the respondent pointed out, there are a number of provisions of the planning scheme which place an emphasis upon ensuring appropriate visual outcomes within the zone generally and, in particular, in relation to the location of poultry farms, and in the provision of appropriate landscaping. [8] In that regard the Overall Outcomes for the Rural Zone include Overall Outcome 44, which speaks of: -- 2 of 8 -- 3 ... the opportunity for non-farming development where such development maintains or enhances existing character and amenity. [9] The Specific Outcomes for the Rural zone include SO2, which provides that: ...development should provide buffering between rural uses and major transport routes. [10] That is of relevance here, because both the railway corridor and the Mount Lindesay Highway lies to the east of the subject site. [11] Specific Outcome 4 requires: ...development to protect and enhance rural scenic amenity. [12] Specific Outcome 5 seeks to ensure that: ...non-intensive broad hectare farming-type activity is the dominant landscape element. [13] Specific outcomes for the Countryside Precinct include Specific Outcome 4, which requires: ....development to protect and enhance the amenity and character of the countryside precinct by providing, amongst other things, that there is no adverse impact on visual or scenic amenity (especially from the major road network) and that development along a major road achieves a high standard of visual amenity and landscape treatment. [14] It should be noted that, although the subject site is visible from the major road, it is not located along that road, but is separated in this case from the road by more than 400 metres. [15] The overall outcomes for the Poultry Farm Code include that: ...such development is to protect the existing and future amenity of the surrounding area, and the existing and future rural landscape character and natural environment of the surrounding area. [16] The Specific Outcomes include Specific Outcome 8, which seeks to: ...protect the existing landscape character of the surrounding area. [17] The Landscaping Code includes specific outcome SO1, which requires: ...development to provide landscaping that makes a positive contribution to environmental values – [18] Specific Outcome SO8 requires: ...development to provide landscaping which screens visually intrusive buildings and structures from public places, residents, and other centres of development, and maintains privacy. [19] Reference was also made to Specific Outcome 7, which requires: -- 3 of 8 -- 4 ...landscaping to provide landscaping which enhances the appearance of the premises. [20] It is not necessary that I delay on a provision-by-provision analysis of those parts of the planning scheme, or the way in which the subject development responds to each of them individually. As one can readily ascertain, the planning scheme contemplates the development of poultry farms, in areas such as these, but obviously does so subject to amenity tests, and those tests envisage that visual and character issues will be dealt with, including by appropriate landscaping. [21] In this case there are a number of measures which are to be taken to deal with the impact of the proposal upon the area in terms of its visual presentation. Before turning to those, however, it should be observed that the location of the subject site itself has some relevant features. [22] Firstly, the site is surrounded by properties which are within the ownership of the appellant or family members associated with the appellant. There is also one allotment which is owned by a company which owns another poultry farm. There is no concern at all expressed in relation to the presentation of the development to its adjoining neighbours. [23] Secondly, the site is physically separated from the transport corridors from which it might be seen, those corridors being the Mount Lindesay Highway, which, as I have already noted, lies more than 400 metres to the east; and the railway line, which is closer, but still removed somewhat to the east. [24] It has also been noted that the site is sloping. The effect of that slope is that those who might view the subject development from those transport corridors to the east would be viewing it in the context of it being cut into the side of that slope with the consequence that the development, when viewed from such a perspective, will not break the skyline but rather will present as long low buildings well beneath the vegetated hill behind. [25] Notwithstanding those features, however, it is proposed to take steps to further deal with the visual presentation of the development. In particular, it is proposed to use complementary colours so as to reduce the visual impact of those parts of the buildings that will be seen and it is also proposed that there be landscaping, which is not intended to hide the fact that there are poultry sheds on the property, but which is designed to visually break up the bulk of those buildings and, in particular, their length. [26] Insofar as that approach is concerned, it seems to have met with the favour of the town planners. In that regard, the joint town planning report records Mr Vann’s view as follows at 7.2.2: There are a number of aspects of the proposal relevant to the assessment of a visual impact, including: (a) A landscape buffer around the proposed sheds, use of green Colorbond material; (b) Stepping the sheds down the site; -- 4 of 8 -- 5 (c) The proposed sheds, when viewed from the Mount Lindesay Highway, would be below the horizon formed by the tree ridgeline on the west of the site; (d) The side of the sheds would be obvious, but not dominant when viewed from the highway travelling south; (e) The side of the sheds is not visible travelling north on the highway until almost level with the site, due to intervening topography and vegetation. [27] 7.2.3: On this basis, it is considered the proposal is not out of character with the rural nature of the locality and does not create a significant visual impact. [28] Mr Ovenden’s views were recorded as follows, 7.2.4: …the combination of vegetation screening, use of complementary colours and natural topography means that the sheds and ancillary infrastructure are unlikely to be highly visible from the surrounding area. To the extent that glimpses of the use are visible, it forms a normal part of the rural landscape. [29] I am comfortably satisfied that, subject to appropriate landscaping, which provides a level of screening - but not a complete blocking view of the development. The development is appropriate. That is, the approach that was taken not only by the town planners in the joint report, but also by the visual amenity/landscape experts who were called at the hearing. [30] At the end of the day, the only dispute relates to the form of the condition requiring landscape planting. The proposal of the appellant is to provide a landscape buffer area along part of the northern and eastern boundaries of the site. That landscape buffer is to have a minimum width of 10 metres, which would provide for a multilayered approach of having a line of shrubs, a line of trees and another line of shrubs within the 10 metre minimum width. The width of the buffer is not intended to be uniformly 10 metres. It expands out quite considerably towards the north-eastern corner of the site and along the northern part of the eastern boundary, which is the more prominent in the sense that the pad is elevated more greatly above natural ground at that point. [31] The landscaping buffer, proposed by the appellant, merges into a proposed vegetative environment buffer, which then returns around the south-eastern corner of the site. That buffer is to be a minimum of 16 metres and is also to provide for a multilayered approach with a line of shrubs, a line of trees and another line of shrubs. [32] What was not made clear on the landscaping plan provided by the appellant, but which was clarified by Mr Chenoweth, who was called by the appellant, is that in those sections of the landscape buffer, which exceed 10 metres and which provide scope for it will have another line of trees provided. [33] The obvious intent is to provide landscape screening which involve a breaking up of building bulk and a filtering of views at the low, mid and high levels of the buffer zone adjacent to the development. -- 5 of 8 -- 6 [34] The respondent’s case, which was supported by Mr Powell, contends for a different proposal which would have a minimum width of buffer of 20 metres and would return that landscaping buffer around the south-eastern corner, so as to filter any views towards sheds 1, 2 and 3 from vehicles travelling along the Mount Lindesay Highway in a northerly direction. There was some dispute about whether that view needs to be addressed in a landscape way or not, given that for those who might have a view into that part of the development, they will be travelling along the road in a direction which would tend to direct their view away from the development and given not only the separation distance between the Mount Lindesay Highway but also intervening development, which includes houses, an elevated dam and railway corridor, as well as the sloping topography and, importantly, the fact that the intervening sites feature existing vegetation which would, in any event, provide a degree of filtering. [35] It is unnecessary to resolve that issue, however, because whether it be for landscaping purposes or not, the reality is that, even with the appellant’s proposal, it is proposed to have a vegetative buffer returning around the south-east corner. Even though it is designated as an environmental buffer rather than a landscape buffer, it still features a layered approach of vegetation including both shrubs and trees, which would also serve a screening purpose. [36] There was some dispute between the experts about an appropriate tree planting list for appropriate species. That is a matter which can be dealt with at the detailed design phase. It is not something which needs to be resolved at this stage. [37] In addition to the difference in the widths of the treatments required, the major difference between the proposal put up by the appellant and that put up by the respondent related to whether the landscaping buffer should incorporate a mound on top of a batter. The proposal by the appellant is to have landscaping planted on a batter sloping down and away from the development pad. From the appellant’s perspective, this has the benefit of allowing the pad to be free-draining. [38] It was pointed out by Mr Powell that, on the plans, as they currently present, the top of the batter at the north-eastern corner is below the pad height of the first shed. That would mean that the plants would have to grow to a greater extent before they provided screening to the building. It is accepted by Mr Chenoweth that any differential in height between the base of shed 1 and the top of the batter should be reduced as far as practicable at the detailed design phase. That should be reflected in any conditions of approval, in my view. [39] The council, however, wants there to be a mound constructed at the top of the batter. That mound would then itself be battered from the base of the mound down to the natural ground level. And the landscaping would then be constructed on the mound. The advantage of such an approach, so it was said, is twofold. The first is to provide an “immediate and guaranteed visual screen” and the second is to give a kick start, as it were, to the height of the vegetation that would be grown in order to screen the buildings. [40] As Mr Chenoweth pointed out, the value of the “immediate” visual screen constituted by the bund or mound is not great. As Mr Powell conceded, it would only, at most, obscure some views to the lower parts of the shed. It would not visually break up the length of the sheds which is, I accept, the more pertinent role of landscaping in the context of this case. -- 6 of 8 -- 7 [41] Ultimately Mr Powell put the immediate benefit no so much on the basis of the extent of screening that the bund or mound would provide but rather with what he saw as giving a greater deal of certainty or confidence that the landscaping planted on it would grow to provide a visual screen. This concern for certainty of outcome also underlies the council’s urging of a 20 metre minimum dimension for the landscaping over the minimum 10 metre dimension proposed by the appellant. [42] In support of the concerns for a failure of landscaping, Mr Powell showed a photograph of a less than successful landscaping outcome in relation to another development. However, that example does not provide a realistic view of what would be the result of landscaping as proposed in this case, in my view. The example which he gave showed a visual presentation from a position which was relatively close to the development, certainly much closer than would be achieved from those driving on the Mount Lindesay Highway in this case. It showed the visual presentation of sheds from a location above the sheds, thereby exposing the viewer to the rooves in a way that would not be similar to the subject case. The development in that case featured buildings of standard Zincalume appearance rather than the compatible colours proposed in this case. Further, and perhaps even more significantly, the landscaping there did not incorporate any significant shrub level planting such as is proposed in this case. [43] There can, of course, always be some degree of failure of plantings in any landscaping scenario. However, there are a couple of things which should be borne in mind in this regard. Firstly, as Mr Chenoweth pointed out in his evidence, the number of shrubs and trees to be planted in this case would number in the order of 400, so that even with some failure of trees, there would be substantial plantings to achieve a visual breaking up of the bulk of the buildings and in particular their length, notwithstanding some degree of mortality. Further, the obligation to which the appellant says it should be subject, and by way of conditions, is not an obligation to plant and forget but rather is an obligation to not only carry out the landscaping but to maintain the landscaping at all times. And also for dead or diseased trees to be replaced as soon as practicable. There is no reason to suppose that such an obligation would not be complied with or would not be enforced by the local authority. [44] It was urged, on behalf of the council that its preferred landscaping model is superior and should be preferred to the appellant’s in order to advance the provisions of the town planning scheme referred to earlier. Mr Chenoweth did not accept that the approach of the council would achieve a superior landscape outcome. As he pointed out, bunds or mounds have their own difficulties. In particular, they can dry out, resulting in a poorer growth rate of the plants. Mr Powell, the expert called by the council, acknowledged that bunds or mounds were not necessarily better than batters but in this case, the fact that there would be sheet flow water coming from the development would ensure that there would be enough water at the bund or mound to provide a proper growth rate. [45] That however, it was pointed out, presents its own complication. The bund or mound would mean that the site was not free draining. Accordingly, an engineering solution would have to be found in order to concentrate the water to get it beyond the bund or mound. The difficulty then is, because of the erodibility of the soils, there would need to be a further engineering to spread the flow so that there was not erosion. -- 7 of 8 -- 8 [46] As counsel for the respondent pointed out, there are things to which an engineering solution could probably be found at a detailed design phase. But they introduce at least a complication which is not inherent in the option preferred by the appellant. [47] Further, the construction of the bund or mound would mean that the slope of the batter, in order to return to the existing ground level, would be steeper at about one in three - rather than one in four. That would, as Mr Powell acknowledged, present a greater degree of risk for workmen working on the maintenance of that area. It may not amount to something which itself makes the council’s proposal unacceptable, but it introduces a relevant matter to consider in weighing up the two options that were presented to the Court. [48] There was some discussion about whether the mound, bund and/or the batter, as case may be, would be mulched or be partly mulched around the trees and shrubs and then otherwise grassed. The appellant prefers the latter option as a way of reducing fuel load to minimise fire risk. The council had assumed the entirety of the area would be mulched, on the basis of some material that the appellant had given it. Mr Powell did not appear to have a difficulty with there being a combination of mulching around the vegetation and some grassing. It is unnecessary, therefore, to pause on that any further. [49] Council contended that the condition which it preferred would be a reasonable and relevant and condition and a moderate response in the circumstances. I do not consider that the condition proposed by the council would fail the test in section 406 of the Act so as to be unlawful. But as was pointed out in Intrapac Parkridge Pty Ltd v Logan City Council [2014] QPEC 49, there is no requirement for either the assessment manager, nor the court, to impose each and every condition which might pass the test for lawfulness. There remains a residual discretion as to what conditions to impose on the approval at hand in order to address the planning provision. [50] In my view, the condition which is favoured by the appellant would result in a form and extent of landscaping which would be entirely appropriate in the circumstances to address the visual impact of the proposal, and would meet the relevant provisions of the town planning scheme. In reaching that conclusion it is appropriate to have regard to the effect of the landscaping once it is given a reasonable time to grow. It is not usual for the court to insist upon landscaping which is mature from day one. That would be an unreasonable approach in the circumstances. [51] Whilst I appreciate that the council, in putting forward a different proposal, has sought a greater assuredness of an appropriate outcome via an increased width of 20 metres, and via the incorporation of a mound or bund, in my view neither of those are required, and the dimensions which are proposed by Mr Chenoweth, together with the requirement for there to be maintenance of the landscaping, and for any tree deaths to be replaced as soon as practicable, provide an appropriate safeguard to ensure that an appropriate outcome is achieved, and I note that such an option achieves an appropriate outcome without some of the complications, as discussed, which would be attendant upon the council’s preferred option. [52] In the circumstances, therefore, I will impose a condition in accordance with the appellant’s proposal. -- 8 of 8 --