Cleveland Power Pty Ltd v Redland City Council [2013] QPEC 7

1-1 [2013] QPEC 7 PLANNING AND ENVIRONMENT COURT JUDGE R JONES P & E Appeal No 5192 of 2011 CLEVELAND POWER PTY LTD Appellant and REDLAND CITY COUNCIL P & E Appeal No 4856 of 2012 CLEVELAND POWER PTY LTD and REDLAND CITY COUNCIL and THE CHIEF EXECUTIVE, DEPARTMENT AND HERITAGE PROTECTION and BIRKDALE PROGRESS ASSOCIATION INC Respondent Appellant Respondent Co-Respondent Co-Respondent BRISBANE ..DATE 28/02/2013 ..DAY 1 ORDER -- 1 of 12 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: I have two applications before me, the substantive application being an application brought pursuant to section 367 of the Sustainable Planning Act. That application is concerned with whether or not proposed changes to a bio-plant are permissible changes under that legislation. The related application is brought by - if I can abbreviate the name, the Birkdale Progress Association. That association represents citizens in the local government area where the proposed bio-plant is located and acts on behalf of members of the community who are concerned with various developments and activities within that local government area. The application to be joined is opposed by the applicant pursuant to section 367, namely Cleveland Power Pty Ltd, and was belatedly opposed by the Redland Shire Council - I say belatedly because the objection by the council did not arise until after Mr Baxter had been given the right to be heard. The association was represented by Mr Baxter who, as I understand it, has no legal qualifications but was charged with the responsibility of representing that association in Court today. Relevantly rule 69(1)(b) of the Uniform Civil Procedure Rules 1999 provides, "The Court may at any stage of a proceeding order that any of the following persons be included as a party: (1) a person whose presence before the Court is necessary to enable the Court to adjudicate effectively and completely on all matters in dispute in the proceeding; (2) a person whose presence before the Court would be desirable just and convenient to enable the Court to adjudicate effectively and completely on all matters in dispute connected with the proceeding.” The issue, or perhaps more relevantly, the proceeding before me is the application to which I have referred, namely that under section 367 of the Sustainable Planning Act. That section relevantly provides in subsection (1), "A permissible change for a development approval is a change to the approval that would not: (a) result in a substantially different development; or (b) if the application for the approval were remade including the change: (i) require referral to additional concurrence agencies; or (ii) for an approval for assessable development that previously did not require impact now require impact assessment; or (c) for an approval for assessable development that -- 2 of 12 -- 1-3 ORDER 1 10 20 30 40 50 60 previously required impact assessment be likely in the responsible entity's opinion to cause a person to make a properly made submission objecting to the proposed change if the circumstances allowed; or (d) cause development to which the approval relates to include any prohibited development.” Just returning to subsection (1)(a), that is substantially the issue before me, whether or not in fact the proposed changes would result in a substantially different development. No other or additional concurrence agencies are involved. This proposal was one that always required impact assessment and the issue of whether it is prohibited development is not a live issue in this proceeding. It seems then that the only issues which might involve the association are those under (1)(a) and (1)(c). It is clear by reference to a substantive part of the material to which I was referred during argument that the central concern of the association is not so much with the proposed changes but with the fact that this plant was approved in the first place. To his credit Mr Baxter did not shy away from that and when asked by me was quite candid in his response, namely that the association's fundamental position is that this plant should never have been approved in the first place. Their aim is to really start the process again, so their association could be more actively involved in preventing that development from occurring. I, of course, simply do not have the jurisdiction to go back and revisit the merits as to whether or not the plant should have been approved in the first place. My jurisdiction today is a limited one, namely to decide whether or not the proposed changes should be regarded as permissible changes for the purposes of the Sustainable Planning Act. In paragraph 9 of Mr Baxter's first affidavit, document 15 on the file, it is asserted that since 2009 the Birkdale Progress Association has sought clarification of standards applying to the biomass facility. There has been a lack of information and several changes to plans. The association contacted Connor O'Meara Solicitors by e-mail, 1 January 2013 at 22.22, for a copy of amended plans as listed in the amended originating application for 4856/12. Mr. Baxter asserts: "Because public submissions have not applied since the original application in 2004, the Birkdale Progress Association would make a properly made submission in objection -- 3 of 12 -- 1-4 ORDER 1 10 20 30 40 50 60 to the changes that have created uncertainty as to how the facility may operate and potentially impact on the community." I should note that the association was not a submitter in respect of the original application for the subject development, and nor has it sought to be joined as a party at any time prior to today's date. It was not made clear to me how the passage of time referred to in that paragraph, to which I have referred, is relevant, and it has not been made clear at any stage as to just what the case for the Association might have been in respect of the proposed changes. That is perhaps not all that surprising given the Association's primary focus on the approval ought not having been approved in the first place. There was an attempt to shore up the Association's case, if I can put it that way, by reference to an affidavit of a Mr Knudsen, an environmental scientist. Mr Knudsen, who holds a Bachelor of Applied Science/Applied Chemistry, sets out a number of matters under various headings including concerns about information, environmental concerns and specific areas of concern. Unfortunately for the Association, as far as I can tell and it was not suggested otherwise at any time, none of the matters raised by Mr Knudsen are concerned with the proposed changes. Again, consistent with the underlying concerns of the Association, they address matters which really might have been relevant at the original application stage. As I said to Mr Baxter, for better or for worse, the proceedings have advanced well beyond that stage, and a number of the matters he raises now appear to me to be largely irrelevant to the issues I have to resolve. I do not for one minute doubt the Association's genuine concern about this particular project, and I have no reason to doubt Mr Baxter's concerns expressed to me, but the simple facts are that the jurisdiction I have is limited, as I have said, and I am unpersuaded on the material and the submissions made, that the Association is either a necessary party or a party which would be desirable, and just to enable the Court to adjudicate effectually and completely on the matters in issues. For those reasons, the application to be joined is refused. ... HIS HONOUR: I will order that the applicant is to deliver to -- 4 of 12 -- 1-5 ORDER 1 10 20 30 40 50 60 the Birkdale Association its written submissions on costs on or before 7 March 2013. Such delivery to be effected by e- mailing the submissions to Mr Baxter's e-mail address. The Association's reply on costs to be filed and served on or before 28 March 2013. Now, that means you must have them delivered to Mr Williamson's instructing solicitors by that date. You can liaise with Mr McKeown from that firm about how they would be prepared to accept them. They might be prepared to accept them by e-mail as well. MR BAXTER: Very good. Yes, your Honour. HIS HONOUR: And if you or Mr Williamson want to be heard orally in addition to the written submissions you should specify that in your outlines. Do you understand that? MR BAXTER: Very good. Yes, your Honour. ... HIS HONOUR: This proceeding is concerned with an application for relief pursuant to sections 367 and 375 of the Sustainable Planning Act. The relief sought is an order by the Court to the effect that the proposed changes to the subject development are permissible changes pursuant to section 367. By way of some brief background the applicant, Cleveland Power Pty Ltd, proposes to develop land in the Mt Cotton area with a biomass power plant. Approval exists for both the material change of use of the land, and the environmentally relevant activity was granted by this Court on 7 November 2007. It was approved subject to a number of conditions, and not surprisingly, having regard to the nature of the development, a number of conditions imposed by the then Environmental Protection Agency as a concurrence agency. The power plant involves the use of significant amounts of sawdust and chicken manure as fuel. Not surprisingly, perhaps, it attracted a significant amount of negative local attention and opposition. Of particular concern, I think it would be fair to say, were issues of amenity, particularly air quality, noise and visual amenity. -- 5 of 12 -- 1-6 ORDER 1 10 20 30 40 50 60 Mr Williamson said that the changes fall into three broad categories: First, physical changes by reference to dimensions, areas and heights et cetera. Second, changes which were relevant to or necessitated because of discrepancies between various design drawings and plans when compared with other plans and in particular approved plans. The third category were a number of changes which involved a number of matters which I'll come to in some more detail in a moment, which specifically addressed the issues of noise, air quality and a number of wildlife issues. Section 367 of the Sustainable Planning Act provides in subsection (1): "A permissible change for a development approval is a change to the approval that would not: (a) result in a substantially different development; (b) if the application for the approval were remade, including the change: 1. Require referral to additional concurrence agencies or; 2. For an approval for assessable development that previously did not require impact assessment require impact assessment or; (c) for an approval for assessable development that previously required impact assessment be likely in the responsible entities' opinion to cause a person to make a properly made submission objecting to the proposed change if the circumstances allowed or; (d) cause development to which the approval relates to include any prohibited development.” The changes do not involve any additional concurrence agencies referral. It was always a development which required impact assessment, and the matter of prohibited development is not relevant. Really the application centres around whether the changes would result in a substantially different development, and associated with that, whether it would be likely to cause a person to make a properly made submission objecting to the proposed changes. The application was not opposed by the respondent counsel, nor the Chief Executive Department of Environment and Heritage -- 6 of 12 -- 1-7 ORDER 1 10 20 30 40 50 60 Protection, and it is noteworthy that a number of changes that are presently before the Court involved the input of that department particularly insofar as matters involving environmental sensitivity were involved. The Wildlife Society was intending to seek to be joined as a party to this application, but was given leave to withdraw. That came about because a number of the proposed changes adequately addressed the concerns of that society. The changes are set out in detail in the amended application filed by leave today. I do not intend to go into them in detail other than to say that they do, in my view, fall within the three broad categories to which I have already referred. And I should note that consistent with what I have already said are particularly concerned with environmental amenity issues. By way of example in this regard, at page 5 of the originating application, a number of the changes are identified, and reading from page 5 of the originating application include: "Reduction in the overall height of the fuel hall by reducing the apex of the roof by 3.5 metres but retaining the wall height at the western end of the fuel hall so as to maintain that function of the wall as a physical screen to views from the east of the machinery plant and some operations. Increase the floor area of the turbine generator room from 68 metres squared to 115 metres squared. Condition 4 of the Assessment Manager Conditions be amended so as to include the deliveries of chicken litter to the power plant must not exceed 15 trucks her day when averaged over a period of one week. Condition 5.2 of the Assessment Manager Conditions be amended so as to include the following which relevantly placed a limit on the amount of chicken litter and sawdust not to exceed 66,000 tons per year." Dealing first with the issues of acoustics and air quality, in the joint expert report attached to Mr Buckley's affidavit, document 5 on the Court file at page 112, it was identified by the experts that from the date of the initial approval, 7 November 2007 to the time of these changes, a number of policies and laws dealing with noise and air quality had changed. In paragraphs 8 to 9 of the joint expert report it was -- 7 of 12 -- 1-8 ORDER 1 10 20 30 40 50 60 relevantly identified that in respect of air quality the SO2 annual average criteria had reduced from 60 UGM cubed to 57 UGM cubed, and NO2 one hour average criteria had reduced from 320 UGM cubed to 250 UGM cubed. Other matters were also identified in paragraph 8. Then dealing with the question of noise or acoustics, a number of matters were set out in sub-paragraphs (i), (ii) and (iii). Dealing particularly with what's referred to as "Background creep and sleep disturbance and prevention." As to the discrepancies, to which I have referred to above as forming one of the broad categories, they were identified at page 113 to the affidavit of Mr Buckley. The matters were addressed by the relevant experts, and in Mr King's affidavit, which is document 4, the following is deposed to in paragraphs 6 through to 12. "As a consequence of the meetings in our joint reports, Ms Richardson and I identified that: (a) there were discrepancies in the design of the proposed plans shown on the approved plans (first joint report at paragraph 13); (b) parts of the former Environmental Protection Agency's conditions of approval relating to the quality of emissions could be amended to provide greater certainty that the approval is consistent with current laws and policies (second joint report at paragraph 15); (c) the approved plans and EPA conditions would need to be amended if the issues identified in paragraph 6(a) and 6(b) above were to be resolved." The changes to the approved plans, in accordance with paragraph 6(c) above as shown in the amended plans contained in Exhibit CGB6 to the affidavit of Christopher Buckley, are described as thereafter various drawing set out which would replace the preexisting drawings. In paragraph 8 Mr King deposes the changes to the approved EPA conditions, as detailed in paragraph 11(b) to 11(k) of the affidavit of Christopher Buckley, are in accordance with or as a result of the following additional requirements as recommended: (a) a minimum efflux temperature of a 150 degrees centigrade; (b) a minimum efflux velocity of 20.5 M/S; (c) annual monitoring of [indistinct] efflux temperature and efflux velocity; -- 8 of 12 -- 1-9 ORDER 1 10 20 30 40 50 60 (d) a maximum diameter at [indistinct] exit (release) point of 1.3 metres. Paragraph 9, the changes identified in paragraphs 7 and 8 above are related changes identified in paragraph 11 of the affidavit of Christopher Buckley resolved the issues identified in paragraph 6 above. I should note that in paragraph 7(e), reference is made to a reduction to the fuel storage hall to which I referred to earlier. Mr King's affidavit then goes on in paragraph 10, 11 and 12 to say: "The only change to the plans, which was not a result of expert recommendations, is an increase in the floor area of the turbine generator room from 68 metres squared to 115 metres squared which is shown on drawing CP100/A. The change was made to better accommodate the plant equipment. The changes proposed to the plans and the EPA conditions are all positive in that they correctly identified discrepancies where they existed and they adopt contemporary air quality standards in respect of operation of the development. It is difficult to identify anything to the above changes that could be objectively described as adverse to the community and its members. In my view the changes are in the nature of positive changes which address inconsistencies in earlier approval and impose stricter standards of compliance." Mr Buckley also addressed the proposed changes in his affidavit, Court document 5 particularly at paragraphs 13 to 18, is worthwhile setting out those paragraphs out in full. "13. Accepting that ultimately the decision about whether the changes are "permissible" is a matter for the Court and notice that the development application, giving rise to the development approval was subject to impact assessment, I observed that the changes described above would not: (a) result in a substantially different development, having regard to the statutory guidelines 06/09, substantially different development when changes applications and approvals (the guideline), and to the extent it is relevant the proposed changes do not result in any of the changes identified in the guideline, in particular: -- 9 of 12 -- 1-10 ORDER 1 10 20 30 40 50 60 1. No new uses are proposed; 2. The changes do not involve any new parcels of land; 3. Whilst there is a change to the layout of the development, there is no significant change to the build form of the development in terms of scale, bulk and appearance; 4. The change proposal will still function and operate in the same way as the approved development; 5. There is no proposal to remove any integral components of the development; 6. There is no impact upon traffic flow and the transport network; 7. In my view, the change proposal does not result in new impacts nor does it increase the severity of known impacts; 8. There is no proposal to remove any incentive or off-set component; 9. The change proposal will have the same impact on infrastructure provision. (b) if the applications for the development approval were remade, including the change, require referral to any additional concurrence agencies; (c) be likely to cause a person to make a properly made submission objecting to the proposed change in the circumstances allowed; (d) cause development to which approval relates to include any prohibited development. 14. With respect to paragraph 13(c) above, I have been informed that the members of the community have expressed concern about the development approval and I have read, in the course of preparing for the joint report described in paragraph 8 above, the submissions made at the time the application was notified. The submissions were numerous and raised the following issues: (a) undue noise, air, radiation and odour impacts; (b) increased truck traffic; (c) pollution to waterways, farmland, flora and fauna; (d) incompatibility with rural landscape and character of Mt Cotton; (e) inconsistency with the planning scheme. I might skip paragraph 15 and go on to paragraph 16, 17 and 18. 16. The changes proposed are improvements to the operations and performance and go to the heart of addressing the themes of objection relating to [indistinct] commissions and pollution which understandably have attracted and continue to attract the interest of the community. -- 10 of 12 -- 1-11 ORDER 1 10 20 30 40 50 60 17. It is considered, therefore, that any submissions objecting to the changes whilst likely to be received because of the substantial interest in the development would be unlikely to raise new issues and would be of a character that would exist regardless of the improved operating conditions the changes would bring into effect. 18. In making this observation, I take considerable comfort from the agreement in the joint report of the town planners referred to in paragraph 8 above that the proposal is as consistent with the current planning scheme and South-East Queensland regional plan as it was at the time of the original approval." I just pause for a moment to make two observations. As Mr Buckley correctly identified, the ultimate decision is one for the Court, and it is also apparent that a number of the matters, to which Mr Buckley referred, are beyond his area of expertise. It should be noted, though, that Mr Buckley is a very experienced town planner. And insofar as he refers to matters beyond his area of expertise, they are matters, I am sufficiently satisfied, are matters which were dealt with by appropriate experts in other fields and Mr Buckley was attempting to bring the input of those other experts together. I also consider Mr Buckley's assessment to be a fair one after having regard to the material that has been placed before me. By and large the changes are as a consequence of various experts in various fields coming together to arrive at a superior result. As Mr King identified, all of the changes involved improvements, save for what might be viewed as an increase in the floor capacity from 68 square metres to 115 square metres, but I accept that when that change is looked at in the totality of what is proposed, it does not result in any material change to the dimensions and/or bulk of the proposal. As Mr Williamson candidly accepted, given the level of opposition to this development, the improvements brought about by these changes may not have resulted in any material decrease in the number of submitters in opposition to the proposal, but that, of course, is not the test. Looking at these changes objectively, broadly and fairly, I am satisfied that the changes, either singularly or collectively, do not result in a substantially different development, nor would they be likely to agitate a person, or persons, to make -- 11 of 12 -- 1-12 ORDER 1 10 20 30 40 50 60 a properly-made submission. Put simply, the changes do not raise new facts, matters or circumstances. They go to addressing those that have already existed, and as I have probably repeated too many times now, by and large overall result in a number of significant improvements. And also as I have said, the other provisions of section 367 of the SPA are not in issue. Accordingly, the application succeeds. ... HIS HONOUR: All right. There will be a judgment in those terms. ... HIS HONOUR: All right. I'll make a separate order dealing with appeal 5192 of 2011 that it be adjourned for mention on 8 March 2013. -- 12 of 12 --