B M Carr Holdings atf The Carr Farming Trust v Southern Downs Regional Council & Anor [2012] QPEC 73 (2013) QPELR 119

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: B M Carr Holdings atf The Carr Farming Trust v Southern Downs Regional Council & Anor [2012] QPEC 73 PARTIES: B M CARR HOLDINGS PTY LTD ACN 095 465 735 as trustee for the CARR FARMING TRUST (appellant) v SOUTHERN DOWNS REGIONAL COUNCIL (respondent) and DEPARTMENT OF TRANSPORT AND MAIN ROADS (co-respondent) FILE NO: BD 700 of 2012 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 14/11/12 DELIVERED AT: Brisbane HEARING DATE: 05/10/12 – 12/10/12 JUDGE: Searles DCJ ORDER: 1. Application approved in relation to 28 sheds over Pads 1, 4 and 5; 2. Condition 4 requiring amalgamation/restrictive covenant is an unreasonable condition; 3. Appeal adjourned for parties to resolve conditions. CATCHWORDS: Appeal - Refusal to approve – Material change of use – Poultry farm – Two proposals – Impact assessment - Principles governing interpretation of Planning Scheme - Sensitive Receptor – Conflict with planning scheme – Weight to be given to new Scheme Integrated Planning Act 1997 Sustainable Planning Act 2009 Warwick Shire Planning Scheme 1999 Southern Downs Region Planning Scheme 2012 COUNSEL: Applicant: D.R Gore QC & J.J Haydon -- 1 of 70 -- 2 First Respondent: M.A Williams & M.Batty SOLICITORS: Applicant: Mullins Lawyers First Respondent: Connor O‟Meara Appeal [1] The Appellant appeals a decision of the Respondent (Council) of 30 January 2012 relating to a development application to establish a poultry farming operation containing 48 sheds on 5 Pads (Pad 1- 8 sheds, Pads 2, 3, 4 and 5- 10 sheds each) some 20 kilometres south east of Warwick on Cullendore Road, Murrays Bridge. The subject land has an area of 881.7 hectares and has frontages to Cullendore Road, Wickham Road and Gravel Pit Road Elbow Valley. The appeal was initiated on 23 February 2012 appealing the Council‟s refusal in relation to Pads 2 and 3 and some of the conditions of approval of Pads 1, 4 and 5. Appellant’s application [2] In its application, lodged with Council on 4 March 2011, the Appellant sought1 development approval for a material change of use for an intensive animal use (poultry farm – up to 2,880,000 birds), and Environmentally Relevant Activity (ERA) No. 4(2) (Poultry Farming, farming more than 200,000 birds), and reconfiguring a lot for an access easement over Lot 2 RP 36824 to benefit Lot 1 RP 36824 and Lot 1 to 38 RPM 34534. . Applicant’s Original Proposal [3] The original proposal involved a poultry farm to operate either as a broiler farm or as a breeder/rearer farm. If operated as a broiler farm there would be 2,880,000 birds. If operated as a breeder/rearer farm there would be 720,000 birds. There was to be a total of five Pads containing 48 sheds; Pad 1 with 8 sheds and Pads 2, 3, 4 1 Exhibit 17, para 3.10; Exhibit 2. -- 2 of 70 -- 3 and 5 with 10 sheds each. There were 30 submissions received upon public notification.2 Nature of proposed operation [4] All access to the proposed poultry farm is to be off Cullendore Road with access to the four Pads (2, 3, 4 and 5) contained within an easement.3 The farm operation would involve a batch of one day old chickens being delivered to the farm from a hatchery and subsequently collected from the farm at various stages of the growing cycle for transport to a processing plant. As mentioned, each shed fully stocked would have up to 60,000 birds and they are grown for about 56 days with progressive thin-outs to take birds out for processing. After the last birds have been removed the sheds will be washed down, litter collected and removed and fresh litter placed on the shed floor ready for the next batch of birds. A growing cycle involves the following steps – placement of fresh litter, the placement of day old birds, the progressive removal of the birds as abovementioned, the cleaning of the sheds and the removal of the used litter. On average there will be 5.6 cycles per year.4 Council decision [5] By decision notice dated 30 January 20125, the Council advised the Appellant that the application was approved in part only in relation to Pads 1, 4 and 5 subject to conditions but refused in relation to Pads 2 and 3. The effect of that was to approve 28 sheds over Pads 1, 4 and 5. The Council‟s grounds of refusal related to issues of odour and noise. Appeal and Applicant’s new Proposal [6] On 11 September 2012 the Appellant‟s solicitors notified the Council‟s solicitors that, in its appeal, it would now be contending for only the 28 sheds on approved 2 Exhibit 17, paras 3.12 and 3.15. 3 Exhibit 5, first acoustic joint report, p 6, paragraph 20. 4 Exhibit paras 20 and 21. 5 Exhibit 2, p 49. -- 3 of 70 -- 4 Pads 1, 4 and 5 plus a further 6 sheds on Pad 3, a total of 34 sheds (proposal). On 6 July 2012 the Court granted Council leave to change its appeal position to contend for a refusal of the entirety of the development application, that is, including the 28 sheds previously approved.6 Agreement re conditions [7] The parties have agreed on many of the disputed conditions and have agreed that, subject to the determination in relation to Condition 4, it was appropriate to defer the resolution of outstanding issues on the remaining conditions until this appeal was determined. Condition 4 is a Council requirement that all relevant lots comprising the site be amalgamated or the subject of a covenant to retain ownership until the proposed use ceased. Relevant planning schemes [8] There are two planning schemes to be considered. The first is that in force at the date of the application, the Warwick Shire Planning Scheme 1999 prepared under the Integrated Planning Act 1997 (“IPA”) (1999 Scheme)7. The second is the Southern Downs Region Planning Scheme prepared pursuant to the Sustainable Planning Act 2009 (“SPA”) (2012 Scheme), adopted by the Council on 6 August 2012 to take effect on 14 August 2012.8 [9] Under the 1999 Scheme the land is included in two land use areas, Rural and Rural Pastoral. Under the 2012 Scheme it is included in the Rural Zone, which is divided into precincts, and is within the Sandstone Rises and Traplock Hills precinct. Statutory assessment regime [10] The application was made under SPA and, being impact assessable, is to be assessed by reference to s 314 of SPA and decided by reference to ss 324 and 326. 6 Exhibit 9, p 5, paras 2 and 3(d) 7 Exhibit 11; Exhibit 26 8 Exhibit 27 -- 4 of 70 -- 5 Under s 326 any decision must not conflict with a relevant instrument which includes a Planning Scheme9. [11] Under SPA s 495 the appeal is by way of re-hearing and must be decided based on the laws and policies applying when the application was made which is the 1999 Scheme. It further empowers the Court to give such weight to any new Scheme the Court considers appropriate, hence the relevance of the 2012 Scheme. Finally, the onus is on the Appellant to establish that its application should be approved.10 Subject site [12] The application site comprises six allotments11: Lots 1 and 2 RP 36824, Lot 1238 M 34534, Lot 1 SP 214513, Lot 1 RP 175357 and Lot 1 SP 167953. Lot 1 SP 167953 and Lot 1 RP 175357 are included solely because it is intended that they provide water to the proposed poultry farm. [13] A 5,000 SCU (standard cattle unit) cattle feed lot on Lot 2 RP 36824 was approved on 28 July 1989 and a development permit for Environmentally Relevant Activity No. 2(d) Cattle Feed Lot was issued by the Department of Primary Industries and Fisheries on 9 July 2007. The feed lot is not currently operating and has never operated at full capacity.12 To assist in better understanding the land layout I attach as Annexures A and B respectively, a Smart Map of the land,13 and a Drawing showing the location of the five Pads the subject of the application,14 bearing in mind Pad 2 is no longer relevant. Proposed Layout and Operation [14] Mr Carr explained15 that he was currently a chicken grower for the poultry processor Inghams at his poultry farm at Caboolture. He has an agreement with an 9 SPA s 314(2)(i). 10 Ibid, s 493(1). 11 Exhibit 17, paras 3.2 to 3.9. 12 Ibid, para 3.9. 13 Exhibit 10. 14 Exhibit 34, Figure 2. 15 Exhibit 25 para 10; T4.22.40-50; 4.33.20-25, .45-60. -- 5 of 70 -- 6 unnamed processor for this project and explained the relationship between processor and grower. The processor supplies day old birds and feed to the grower who then supplies shedding and management to grow the birds for market. Each of the proposed pads sits on a separate lot because the processor requires that each pad operation be run as an individual farm. It is proposed that each pad be separated by a distance of 1km which is an industry bio-security standard. Disputed issues [15] The following issues fall for determination:- (a) Does the proposal conflict with the 1999 Scheme; (b) Does it conflict with the 2012 Planning Scheme; (c) What weight is to be given to the 2012 Planning Scheme; (d) Is Condition 4 (Amalgamation/Covenant) an unreasonable imposition on the development; and (e) If the proposal for 34 sheds is not approved, should 28 sheds be approved? Principles governing interpretation of Planning Scheme [16] Before dealing with each of the Schemes I set out a summary of principles relating to the construction of Planning Schemes from Westfield Management Ltd v Pine Rivers Shire Council16: “(a) They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach (ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd [1992] 1 Qd. R. 352 of 360; Yu Feng Pty Ltd v Maroochy Shire Council [1996], 92 LGERA 41 at 73, 75, 78; Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313 at 318); 16 (Unreported) Planning & Environment Court, Brisbane, 14 November 2003, 1627/03 at pp 8-9. See also Kotku Education & Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267 at [271]-[272]. -- 6 of 70 -- 7 (b) They should be construed as a whole (Luke v Maroochy Shire Council & Anor [2003] QPELR 447); (c) They should be construed in a way which best achieves their apparent purpose and objects (Luke v Maroochy Shire Council & Anor (SUPRA); Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368 at 370; Acts Interpretation Act 1954 s. 14A); (d) In the light of the proscription against prohibiting development contained in IPA (s 6.1.2 (3)); (e) Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate (Degree v Brisbane City Council [1998] QPELR 287); (f) A Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved (Lewiac Pty Ltd v Gold Coast City Council [1994] 83 LGERA 224 at 230; (g) A Strategic Plan should be read broadly and not pedantically (Yu Feng Pty Ltd v Maroochy Shire Council) SUPRA); (h) Although planning documents have the force of law they are not drawn with the precision of an Act of parliament; (i) A conflict alone may not have the effect of ruling out a particular proposal (Fitzgibbon’s Hotels Pty Ltd v Logon City Council [1997] QPELR 208 at 212; -- 7 of 70 -- 8 (j) Implementation Objectives must be read sensibly and in context. They are but a function of the principal objective. The purpose of the objective is better understood by reading all the implementation objectives and understanding the strategy that is inherent. (Jenkinson Pty Ltd v Caloundra City Council [2002] QPELR 527 at 528).” Relevant extracts from 1999 Scheme [17] The following provisions of the 1999 Scheme are relevant:- (a) 1.3.2 Land Use and Development The division of the Shire into the various land use areas provides the key structure of the assessment framework; (b) 2.4 CULTURAL, ECONOMIC, PHYSICAL AND SOCIAL WELLBEING (i) … (ii) … (iii) … (iv) … (v) The Shire‟s communities will enjoy a high level of amenity, created by:- Effective buffering of incompatible land uses, activities and building forms; and (c) 4.11 RURAL -- 8 of 70 -- 9 4.11.1 … 4.11.2 Policy Intent … Regardless of whether land within this area can be determined to be good quality agricultural land or not, it is intended that any proposed development will facilitate the productive use of the land or will provide for its conservation for the use in the long term. … The amalgamation of land titles will be encouraged in order to facilitate more co-ordinated land management and to preserve agricultural options in the longer term. (d) 4.11.4 Applicable Assessment Criteria and Codes 4.11.4.1 Impact Assessment Criteria In assessing applications for development requiring impact assessment in the Rural Land Use Area, Council will consider the following matters in addition to any other relevant provisions of this Planning Scheme: (a) … (b) The likely impact on the landscape character and rural amenity of the locality having regard to: -- 9 of 70 -- 10 The prominence of the site and the suitability of buffers to roads and adjoining properties. The impact of any emissions of noise, odour, dust or light and measures to mitigate those impacts. (e) 4.13 RURAL PASTORAL 4.13.1 Key Policy Statement (i) Pastoral land resources will be managed to ensure their long term use for such purposes and to protect their ecological and landscape character value. (f) 4.13.2 Policy Intent Land within this area is primarily intended to be used for a range of rural purposes, including grazing and some irrigated and dry land agricultural activity suited to its topographic and climatic characteristics. These activities are important to the maintenance of the rural base of the Shire‟s economy. Within this area intensive animal and rural based industries may be appropriate. There will be suitable separation distances to other activities and remoteness from the more intensively settled parts of -- 10 of 70 -- 11 the Shire, and where potential environmental impacts may be adequately managed … (g) TABLE OF DEVELOPMENT – RURAL PASTORAL LAND USE AREA 4.13.4 Applicable Assessment Criteria and Codes 4.13.4.1 Impact Assessment Criteria In assessing applications for development requiring impact assessment in the Rural Pastoral Land Use Area, Council will consider the following matters in addition to any other relevant provision of this Planning Scheme. (a) … (b) The likely impact on the landscape character and rural amenity of the locality, having regard to: The prominence of the site and the suitability of buffers to roads and adjoining properties. The impact of any emissions of noise, odour, dust or light and measures to mitigate those impacts; (h) 6.7 BUILDING DESIGN AND DEVELOPMENT LAYOUT (i) … (ii) … -- 11 of 70 -- 12 (iii) In considering applications, Council will, to the extent relevant, take into consideration the following matters relating to the design of buildings and layout of the development: Development should be designed and constructed to ensure that it is integrated into its surroundings and enhances the amenity of the area. (i) 7.13 INTENSIVE ANIMAL USE DEVELOPMENT CODE 7.13.1 Application This code applies to intensive animal uses and development associated with these purposes. 7.13.2 Purpose The purpose of this Code is to regulate intensive animal uses in a manner which seeks to minimise overall environmental effects. 7.13.3 Controls Performance Objective To ensure that the impacts of intensive animal use on the amenity of a locality are minimised. Acceptable Solutions -- 12 of 70 -- 13 Separation distances to urban, village or rural residential areas, other sensitive land uses or facilities and water courses are to be in accordance with current State government guidelines relevant to the particular type of industry; Performance Objective To ensure that likely adverse impacts on ecological and hydrological processes are adequately mitigated. Acceptable Solutions Compliance with current State government guidelines relevant to the particular type of industry. Guideline Odour Impact Assessment from Developments [18] The State Government Guideline referred to in the Acceptable Solutions above is reference to the Guideline – Odour Impact Assessment from Developments,17 issued by the Environmental Protection Agency, to chiefly assist applicants for environmental authorities and development approvals for environmentally relevant activities.18 That document contains the following statements:-19 “(a) Odour Impact Assessments need to reflect the levels of exposure that result in nuisance in communities affected by 17 Exhibit 13. 18 Ibid, p 3. 19 Ibid, p 6. -- 13 of 70 -- 14 the odour impact. The Odour Impact Assessment for a new facility or for modifications to an existing facility needs to be conducted for the purposes of achieving an environmental outcome, which meets a typical environmental authority condition for odour: „There must be no release of noxious or offensive odours or any other noxious or offensive airborne contaminants beyond the boundary of the site that causes environmental harm at any odour sensitive place.‟ Odour sensitive places include residences, schools, hospitals, caravan parks, national parks, shops and business premises that may be affected by odour. …” “(b) Odour Annoyance Threshold (Concentration) Guidelines Proponents of new facilities may undertake an impact assessment with relevant inputs of emissions and local meteorology to an air dispersion model to provide estimates of the likely odour impacts in the surrounding environment. The inputs should be as detailed as possible, reflecting any variation of emissions with time and including at least a full year of representative hourly meteorological data. The modelled odour concentrations at the „most exposed existing or likely future off-site sensitive receptors‟ should be compared with the following guideline values: 2.5 OU, 1-hour average, 99.5th percentile for ground- level sources and down-washed plumes from short stacks; and … These guideline values should not be used as a „pass‟ or „fail‟ test as there are a number of limitations in modelling. Sources of uncertainty include odour sources underestimated or overlooked, short term peak emissions such as turning a compost window not catered for in the guideline, the guideline not being stringent enough for specific substances of greater offensiveness, variability and emission rates, models under predicting actual concentration and use of peak to meet ratios too low for actual disbursements. However if the modelled odour concentrations at the „most exposed existing or likely future off site sensitive receptors‟ are less than the guideline values then adverse chronic odour impacts are not likely in most cases. …” -- 14 of 70 -- 15 “(c) Sensitive Receptor Sensitive receptor means:- (a) A dwelling, mobile home or caravan park, residential marina or other residential premises; or (b) … (c) … (d) … (e) … (f) … (g) … It includes the curtilage of such any place and any place known or likely to become a sensitive place in the future.” (emphasis added) Evidence re odour [19] Two air quality (odour) experts gave evidence, Mr Galvin (Appellants) and Ms Richardson (Council). They produced three joint reports20 dated respectively 22 August 2012, 7 September 2012 and 5 October 2012 together with an individual report each.21 The third report was prepared on 5 October 2012 pursuant to an order of the Court of 3 October 2012, two days before the hearing. That order was made against the background of the delivery on 21 September 2012 by the Council of Amended Notice of Disputed Issues.22 That document put the Appellants on notice that the Council would be relying upon land owned by submitters, Mr and Mrs Wilson and Mr Usher,23 as containing likely future sensitive receptors. If established, they would fall within the above definition of sensitive receptor. First joint air quality report 22 August 2012 20 Exhibits 4 and 14. 21 Exhibit 20 Galvin 17.9.12; Exhibit 29 Richardson 21.9.12. 22 Exhibit 9 p 35. 23 Refer Annexure B Smart Map. -- 15 of 70 -- 16 [20] This report followed the first meeting of the experts on 30 July 2012 and records agreement on the following24:- (a) That the Queensland Odour Guideline (QEPA 2004)25 was the appropriate benchmark for odour from the farm; (b) If Lot 105 was not held by the appellant, it would be a critical receptor with regards to the development in that the development could only proceed on the basis that the entirety of that lot was not covered by the C99.5 1 hr = 2.5ou line. The modelling predictions for the original five farm application, as lodged with the application, identified that the whole of Lot 105 was predicted to be covered by odours in excess of C99.5 1 hr = 2.5ou; (c) K = 2 odour modelling provided with the application is not in accordance with the 2011 Poultry Odour Modelling Guideline which recommends adoption of a K = 2.2 emission rate. This represents an increase in emissions of approximately 10 per cent in the emission rate adopted for the odour assessment lodged with the application. Mr Galvin in his evidence26 explained what was meant by the K factor. He said that originally when the odour emissions model used for modelling chicken farms was developed, the K factor was used in a way to effectively rate well and poorly run farms.The K factor is struck by measuring the amount of odour coming out of the shed and the odour concentration so that an odour emission rate can then be calculated. The odour emission rate is then compared to the kilograms of birds in 24 Exhibit 4, paras 14, 19, 20, 26 25 Exhibit 13 26 T 4.47.15 -- 16 of 70 -- 17 the shed at the time by reference to the number of birds and their estimated weight. Calculations are then done to arrive at the K factor.27 Second joint air quality report 7 September 2012 [21] In this report28 the experts recorded their agreement on, relevantly, the following issues:- (a) that the Queensland odour guideline defining a criteria of 2.5 odour units (OU) as the 99.5th percentile of hourly values over a year was the relevant odour criteria for the proposal when assessed at the nearest sensitive receptors. Those receptors are identified in the first joint report Figure 1 being the nearest existing residences; (b) a 28 shed farm on Pads 1, 4 and 5 with staged bird placement, namely, approximately one week spacing between commencement of stocking at individual farms was considered acceptable from an odour perspective subject to suitable conditions; and (c) as to Lot 105, there may be scope for construction of a further six sheds on Pad 3 subject to Lot 105 being purchased by the Appellant or the resolution of the issue of a potential dwelling on that lot unaffected by odours. Mr Galvin’s individual report 17 September 201229 [22] In this report, Mr Galvin considered emission rate data and addressed the concern expressed by Ms Richardson in the second joint acoustic report. That concern was what she saw as the potential for coincidence of maximum emission events with 27 T 4.47.40 28 Exhibit 4 paras 64 and 72, 75 and 76. 29 Exhibit 20. -- 17 of 70 -- 18 unfavourable meteorological conditions which she considered could increase the predicted odour concentration surrounding receptors by 25 per cent or more. Mr Galvin‟s experience was that that figure was typically plus or minus 10 per cent. He confirmed in this report he was still content with a K = 2.2 factor to take into account his plus or minus 10 per cent variations. Ms Richardson’s individual report 21 September 2012 [23] In her individual report30 Ms Richardson expressed the following views:- (a) In relation to the modelling prepared by Mr Galvin relating to a 34 shed farm, “all in” bird placement being Figure 2 in her report31 did not address her earlier expressed concerns as to the underestimation of the potential for higher than average emissions to occur;32 (b) The modelling does not consider the potential for worst case co- incidence of poor dispersion conditions and maximum odour emissions33; (c) That modelling Mr Galvin represents “average” emissions for a modern, recently constructed and well run meat chicken farm but does not represent the potential for varying management regimes over time, different operators, deterioration of the farms over time and the varying levels of maintenance and operations as can arise. Further, her concern as to the coalescence of worst case coincidence of poor atmospheric dispersion conditions with maximum odour 30 Exhibit 29. 31 Ibid, p 10. 32 Ibid paras 18 and 22. 33 Ibid, para 22. -- 18 of 70 -- 19 emissions was not addressed in relation to the additional six sheds on Pad 3 making up the 34 sheds34; (d) Accordingly, there is no sufficient justification provided by the Galvin modelling for further expansion of the approved number of farms to include six sheds on Pad 3, the 34 shed proposal. [24] In the final paragraph of her report, prior to the conclusions, Ms Richardson said:35 “It is noted that, even assuming that a Figure 2 is representative of the worst case impacts, there is a significant increase in the odour affected areas for Lots 105, 1203, 1239 and 1321 on a M34534 and Lot 737 on a M34317 for the 34 shed option. These allotments do not currently have residential properties constructed, hence the risk of unacceptable odour impacts is potential rather than actual. Despite this, I note that the owners of Lot 1203 on M34534 have recently indicated that they are considering developing this lot for residential purposes. A significantly increased area of impacts for a 34 shed proposal is expected to impose a constraint to development on a far greater portion of these allotments, than for the 28 shed scenario, particularly for Lot 737 on M34317, and Lots 123 and 105 on M34534. … Third joint air quality expert report 5 October 2012 [25] The third joint air quality export report36 identified, in Figures 1 and 2, the proposed residential locations identified by the witness statements of Mrs Wilson of 28 September 201237 and Mr Usher of 3 October 201238 except lot 1239 which the Council was given leave at the trial to rely on. In her statement Mrs Wilson identified the location where she says her husband and her intend to build a house.39 Likewise Mr Usher identified40 locations of potential house sites on his land, namely, Lot 105, Lot 1239, Lot 1321 and Lot 1591, there being an existing tenanted house on the remaining Lot 737. 34 Ibid, para 24. 35 Exhibit 29, para 26 36 Exhibit 14. 37 Exhibit 32. 38 Exhibit 33. 39 Exhibit 32 paras 6 and 7; Attachment A. 40 Exhibit 33 para 14; Attachment BDU1. -- 19 of 70 -- 20 [26] I shall return to those statements when considering whether the sites identified by Mrs Wilson and Mr Usher constitute sensitive receptors as being places likely to become a sensitive place in the future within the definition of sensitive receptor in the Impact Assessment Guideline.41 Conclusions of experts in third joint air quality report [27] Both Mr Galvin and Ms Richardson agreed,42 that in the event that the Court determined that any of the locations identified by Mrs Wilson and Mr Usher were a sensitive place, their modelled odour impacts would indicate non-compliance of the Appellant‟s proposal with the relevant odour criteria in both the 28 and 34 shed scenarios. Ms Richardson acknowledged43 that this was contrary to the view expressed by her in the second joint report, but at the time of that latter report she was not aware of the evidence as to potential house sites on the Wilson and Usher land. They both acknowledged that, as all the proposed house locations in question were within the 1500m planning buffer for the existing feedlot approved, they understood that the odour impacts of that feedlot on those relevant locations would have to be determined in any application by the Wilsons or Mr Usher for a material change of use, namely, the construction of a residence. Acoustic Experts [28] The Acoustic Experts, Mr Goodfellow (Appellant) and Mr King (Council) provided three joint reports dated respectively 23 August 2012, 5 September 201244 together with an individual report each.45 First joint acoustic report 23 August 2012 [29] In this report the experts agreed on the following:46 41 Exhibit 13. 42 Exhibit 14 paras 10, 20 and 21. 43 Exhibit 14 para 10. 44 Exhibit 5. 45 Exhibit 21, Goodfellow dated 17 September 2012; Exhibit 30, King dated 22 September 2012. 46 Ibid, 5, p 16. -- 20 of 70 -- 21 (a) The appropriate evening LAeq and night time LAmax criteria; (b) With the inclusion of acoustic barriers on Pad 1 the 5 shed poultry farm would achieve the Laeq noise criteria at existing sensitive receivers. The acoustic barriers on Pad 147 are four metres in height; (c) The five pad (Pads 1, 2, 3, 4 and 5) proposal would achieve the LAmax noise criterion nominated by the experts at existing sensitive receivers. Those sensitive receivers were nine existing houses and Lot 105 ML 622;48 (d) The assessment of acoustic impact on Lot 105 included mitigation on Pads 2 and 3.49 On Pad 3 the sheds are to be divided into two groups of five with a five metres acoustic barrier at the southern end of each group, that is at the Lot 105 end of each group;50 (e) As to Lot 105, compliance with noise criteria would be achieved over the southern half of that lot only so that if a dwelling was constructed in that southern area the compliance with noise criteria would be achieved; (f) The 3 Pad (1, 4, 5,) 28 Shed proposal should be approved with respect to acoustic issues with appropriate conditions. Second joint acoustic report 5 September 2012 [30] The experts met again on 4 September 2012 to consider additional mitigation options with respect to Lot 105 for a 4 Pad (1,3,4,5) and 5 Pad farm. The 4 Pad proposal considered involved 38 sheds with 10 sheds, not 6, on Pad 3 as currently 47 Ibid, p 13, figure 3. 48 Ibid, p 3, figure 2. 49 Ibid, p 14, figure 4; p 15, figure 5. 50 Ibid, p 15, figure 5; p 26, figure 1. -- 21 of 70 -- 22 proposed. They repeated their agreement on the matters in the first report and agreed that if a dwelling was constructed on Lot 105 ML 622 in the area shaded in Figure 4,51 then that 38 Shed 4 Pad proposal would comply with noise criteria. The shaded area in Figure 4 covers substantially the whole of Lot 105 apart from a section in the north western corner. Relevantly, the conclusion regarding the 4 Pad proposal involved acoustic mitigation on Pad 3 similar to that to be described shortly in relation to the third joint acoustic report under the heading “balance lots”. [31] They acknowledged that it was for others to determine whether it was acceptable to restrict future dwelling placement on Lot 105. If that was deemed acceptable then the 34 Shed proposal should be approved with appropriate conditions.52 Goodfellow individual acoustic report 17 September 2012 [32] Subsequent to the second joint acoustic report which considered the four pad proposal with 10 sheds on all of Pads 1, 3, 4 and 5, Mr Goodfellow was notified of further configuration for a four pad farm with 34 sheds being the appellant‟s current proposal, with 10 sheds on Pads 1, 4 and 5 and 6 sheds on Pad 3. He concluded that if that four pad, 34 shed proposal was approved with appropriate conditions then a future dwelling could be constructed on Lot 105 ML 622 within an area nominated by him in his Figure 7.53 That figure shows a blue shaded area identifying the agreed acoustic criteria compliance for Lot 105 being Figure 4 in the second joint report plus an additional orange shaded area in the northwest corner of Lot 105 being an area which met Mr Goodfellow‟s acoustic criteria only. That difference of criteria between Mr Goodfellow and Mr King resulted from a difference of view in 51 Ibid, p 31. 52 Ibid, p 33, paras 23 and 24. 53 Exhibit 21, p 5. -- 22 of 70 -- 23 the first joint report as to the treatment of ambient noise levels. Mr King took the view that Mr Goodfellow‟s assessments did not specifically take account of existing ambient noise levels but rather applied Planning Levels on the basis of adopted minimum background noise levels.54 King individual acoustic report 22 September 2012 [33] This report55 also considered a four pad 34 shed proposal. Mr King considered further noise assessment information provided by Mr Goodfellow on 14 September 2012,56 relating to the 34 shed scenario on Pads 1, 3, 4 and 5 but considered that the information provided changed the resultant noise impact at existing off-site sensitive receptors little from that considered in the second joint report. He considered the reduction from 10 to 6 sheds on Pad 3 as having a consequential minor decrease only in the noise impact on Lot 105, with the result that part of Lot 105 still experienced noise levels above the noise limits he would recommend. He made the point that even under Mr Goodfellow‟s noise limits part of Lot 105 would not comply with those noise limits. He concluded by saying there is no meaningful change to his conclusions in relation to the four pad scenario addressed in the second joint report to the current four pad 34 shed scenario.57 Third joint acoustic report 25 September 2012 [34] This is the most recent report. It considered the potential impacts of noise on the Wilson and Usher land from the Appellant‟s current proposal of the four pad, 34 shed operation. The experts agreed on the following:- 54 Exhibit 5, p 9, para 38-40; p 20 – Attachment to conditions N1 to N4. 55 Exhibit 30. 56 Ibid, para 24. 57 Ibid, paras 24 to 28. -- 23 of 70 -- 24 (a) The 4 Pad (1, 3, 4 and 5) 34 shed proposal would achieve the LAMAX noise criteria at existing sensitive receivers. With the inclusion of acoustic barriers on Pad 1 (Figure 3 First Joint Report) this proposal would also achieve the AEQ noise criteria at the existing sensitive receivers.58 (b) Lot 105 (Usher) The development of the four pad, 34 shed operation would result in compliance with noise criteria over a large part of Lot 105 as depicted in Figure 9 of their report.59 That shows the blue shaded area previously mentioned covering, as they said, a large part of Lot 105 which is the area both experts agree meets the criteria.As I have said, there is a further lighter orange shaded area added to the noise criteria compliance area which section Mr Goodfellow, alone, considers also meets the criteria; (c) Balance Lots As to the balance area containing Lot 1203 (Wilson), Lot 1591, Lot 737 and Lot 1321 (all Usher), again the experts concluded that compliance with the agreed noise criteria can be achieved over a large part of each of those lots. This further acoustic assessment producing the above results included acoustic mitigation on Pad 1 and Pad 3.60 As to Pad 1 the acoustic mitigation was the subject of the first joint acoustic report61 which shows a four metre high acoustic barrier on the western end of each of the eight sheds on Pad 1. As to Pad 3 the acoustic mitigation is to be found in figure 58 Exhibit 5, paras 24 and 25 59 Exhibit 5, p 53 -- 24 of 70 -- 25 8 of this report62 and it shows a four metre high acoustic barrier around the top three of the six sheds located on the northern portion of Pad 3 with a similar continuous barrier wrapped around the southern and south-eastern corner of the pad from a line from the western boundary of the western most shed on the southern end continuing along the bottom of the whole pad towards the east and wrapping around the southeast corner. Town planning evidence [35] Town planners, Mr Toombs (Appellant) and Ms Doherty (Council) gave evidence. They provided a joint report of 10 August 201263 and individual reports of 17 September 201264 (Toombs) and 24 September 201265 (Doherty). Mr Toombs also provided a further response dated 24 September 2012 which for convenience is in the same exhibit as his 17 September 2012 report.66 Joint report 10 August 2012 [36] In this joint report addressing the 5 Pad original proposal the experts agreed that, in order to achieve compliance with the 1999 Scheme, the odour and noise modelling needed to demonstrate that sensitive receptors would not be unacceptably impacted upon. They said Lot 105 ML 622 was to be treated as a sensitive receptor.67 Toomb’s report 17 September 2012 60 Exhibit 5, paras 26 and 27. 61 Exhibit 5, p 13, figure 3. 62 Exhibit 5, p 52. 63 Exhibit 17. 64 Exhibit 22. 65 Exhibit 28. 66 Exhibit 22 p 16. 67 Exhibit 17 para 6.1. -- 25 of 70 -- 26 [37] This further report of Mr Toombs addressed the Appellant‟s current 34 shed proposal over Pads 1, 3, 4, and 5. Mr Toombs‟ view was68 that, on the basis the 34 sheds achieved the relevant environmental criteria with regards to odour and noise emissions, compliance with the 1999 Scheme would be achieved. On that basis he said the 34 shed development should be approved subject to conditions. Toomb’s report 24 September 2012 [38] Mr Toombs‟ further report69 was produced against the background of the identified house sites on the Wilson and Usher land. He said Lot 1203 M 34534 (Wilson); Lot 1591 M 34569, Lot 737 M 343317 and Lot 1321 M 34534 (Usher blocks), should be treated as “likely future sensitive receptors in the same manner as Lot 105 ML 622”. As to compliance with the 1999 Scheme, Mr Toombs said that was dependent upon ensuring a reasonable opportunity for construction of a dwelling house was maintained for each of these allotments to ensure achievement of relevant environmental standards relating to noise and odour. Doherty report 24 September 2012 [39] In her report Ms Doherty concluded, that having regard to the opinion expressed by Ms Richardson as to the impact on sensitive receptors, the development of a 34 shed proposal could not comply with the 1999 Scheme. As to the 28 shed proposal she expressed the view that it could comply with the planning scheme given that there 68 Exhibit 22 para 8. 69 Ibid, p 18. -- 26 of 70 -- 27 are building envelopes available on all the sensitive receptor allotments of Wilson and Usher.70 Are the Wilson and Usher identified house sites “likely future sensitive receptors”? [40] It is appropriate now to deal with the issue of whether the house sites identified by the Wilsons and Mr Usher can be properly categorised as “likely future sensitive receptors” so as to qualify as sensitive receptors within the definition of that term in the Odour Impact Assessment Guideline.71 It will be recalled that the definition of “sensitive receptor” is in these terms:- “Sensitive receptor Sensitive receptor means:- (a) a dwelling, mobile home or caravan park, residential marina or other residential premises; or (b) … or (c) … or (d) … or (e) … or (f) … or (g) … It includes the cartilage of such any place and any place known or likely to become a sensitive place in the future.” (emphasis added) The Wilson house site 70 Exhibit 28 paras 5.23 and 5.24. 71 Exhibit 13 p 25. -- 27 of 70 -- 28 [41] Mrs Wilson in her statement72 said that she and her husband run approximately 92 head of cattle on Lot 1203 M 34534 and spend about 30 hours a week working the cattle. They intend building a house on the land at some point in the future at the location marked on the attached plan to her statement.73 Mrs Wilson was unequivocal in her statement of intention to build the house on the preferred site.74 This was despite cross-examination as to the possibility of other and better sites on the land and suggestions that there was a division between her and her husband as to the best site. Usher’s house sites [42] Mr Usher is a 35 year old grazier and gave evidence that he had inherited his holdings upon the passing of his uncle and then added to those holdings from time to time.75 There was a pre-existing house on Lot 737 M 34317 which he currently lets out. He said he had no current intention of selling his land in whole or part, but that those intentions may change for a range of reasons including rural economic conditions, his state of health, or some unanticipated factor notwithstanding his present aspirations. He considered there was a real risk that part of the Usher land would be sold in his lifetime.76 [43] Mr Usher further said77 that given the provisions of both planning schemes and the proximity of his land to Warwick, he had been considering for some time erecting dwellings on some of the allotments presently without a house, to provide a 72 Exhibit 32. 73 See also Exhibit 34, Figure A where all the housing sites of both Wilson and Usher are identified with a red cross. 74 T15-.17.50-60; T5.18.1. 75 Exhibit 33 para 2. 76 Ibid, paras 3 and 4. 77 Ibid, para 13. -- 28 of 70 -- 29 potential additional rental income stream. Those allotments are the ones he had identified as housing sites.78 Arguments on the likely Sensitive Receptor issue Appellant [44] The Appellant argues that, in interpreting the meaning of the term, “likely future sensitive receptor”, the word “likely” is to be read as “probable” which is consistent with the definition of that term in the Oxford English Dictionary.79 In its view, the relevant Guideline80 is not to be interpreted as relating to receptor locations which are mere possibilities. The Appellant says that it would be impossible for the Court to conclude that any of the possible house sites in question is a likely future sensitive receptor. In relation to the Wilson site, it says that construction of a house would require development approval which would present considerable obstacles, namely:- (a) The lot has no direct access to a constructed road and under the 2012 Scheme a lot must have frontage to a constructed road which links with a constructed road network.81 (b) It is within 1.5km of the approved feedlot on the Appellant‟s land which is inside the separation distance of 1500m between a dwelling and a cattle feedlot of 1000 standard cattle units or more in 78 Ibid, Attachment BDU 1; Exhibit 34A. 79 Sixth ed p 1602. 80 Exhibit 13. Table 5.5.10 (rural zone) re dwelling house (ex.11 pp.53-54) table 9.3.7.3 (residential uses code) PO2 (ex.11 pp.83-84), definition of “constructed road” (table SC1.2.2: ex.11 p.109), table 9.4.7.3 (physical infrastructure code) PO4 (ex.43 p.9-69) -- 29 of 70 -- 30 acceptable outcome AO5.2 of the Residential Uses Code of the 2012 Scheme.82 [45] As to the Usher house sites, it is said the same development approval obstacles abovementioned present in relation to three of the Usher lots (1591, 737 and 1321) being within the 1500m separation distance between a dwelling and a cattle feedlot83. As to the constructed road requirement the Appellant points to the fact that the first 500m of Aspinall Road from the south is not a constructed road,84 and the distance from Aspinall Road and Gravel Pit Road to the house sites on Lot 1239 is 2.4km, and Lot 105 2.8km.85 [46] Against the above background the Appellant says that it would be both impossible and inappropriate for the Court to pre-judge the outcome of any application for any of the subject houses given the lack of any evidence to address the obstacles identified, and the fact that the decision is for the Council at the appropriate time, and not the Court, except in the clearest of exceptional circumstances.86 As was held in Walker v Noosa Shire Council,87 it will only be in circumstances where there is a clear futility in such an allegation, or it is tainted with an incurable illegality, that it would be justifiable for a Court to pre-judge an application. [47] Finally, in relation to both the Wilsons and Mr Usher, the Appellant points to the fact that neither referred to any house plan or concepts, and Mrs Wilson was quite 82 Exhibit 11 pp 84 and 85. 83 Exhibit 34. 84 Doherty T5.77.45-78.50. 85 Doherty T6.2.10-35. 86 cf Walker v Noosa SC 1983 2 QdR 86, 89B-D, 90C; Ogilvy v Redland SC 1996 QPELR 205, 208K; Imbercote Pty Ltd v Maryborough CC 1996 QPELR 376, 378B-C; Welsh v Burke SC 1997 QPELR 72, 75 87 [1983] 2 Qd R 86. -- 30 of 70 -- 31 unaware of the costs involved in creating constructed road access to her property, although she acknowledged it would be a significant amount. Council’s response on likely future sensitive receptor issue [48] The Council submitted that the correct meaning of “likely” is a “real, not remote chance” and relies upon KT Corporation Pty Ltd v Logan City Council88 where Skoien SJDC said:- “[13] The word „likely‟ had been variously interpreted. A useful start is the definitions in the Dictionary. The Shorter Oxford English Dictionary gives, relevantly, „probable‟, as does the excellent Encarta Dictionary. The High Court, in R v Boughey (1986) A. Crim. R 156 discuss the meaning of the word. Gibbs CJ and Brennan J were most influenced by the fact that the word was used in a statute to define murder (an act „likely to cause death‟) and the seriousness of that offence led them to view that probability was meant. Mason, Wilson and Deane JJ came to the same conclusion but in discussing the word said that its ordinary meaning was a „substantial chance, a real, not remote chance, regardless of whether it is more or less than fifty percent.‟ That was also what Gibbs CJ, Mason, Wilson and Dawson held in Waugh v Kippen (1986) 64 ALR 195, where the phrase was „likely to cause risk of injury‟. I propose to apply that.” [49] The Council pointed to the evidence of Mrs Wilson; that she and her husband intended to develop the land in the location identified,89 and were not deterred by the prospect of road construction and other costs.90 As to Mr Usher, the Council says that whilst his present intention is to continue to graze cattle he has indicated a long term intention to develop the land with houses for rent to diversify his income stream. I think it is put too high to say he had developed an intention. His evidence was, he was considering that option.91 The Council further argues that the fact that 88 [2005] QPEC 119 at [13]. 89 T5.15.1-7; T5.15.5; Exhibit 32 p 1. 90 T5.28.25. 91 Exhibit 33 para 13. -- 31 of 70 -- 32 any construction of houses by Mr Usher, if it happens, may be long term; that does not alter its proper categorisation as a real not a remote chance. Conclusion re likely future sensitive receptor issue [50] I accept that the meaning attributed to the term “likely” by Skoien SJDC in KT Corporation Pty Ltd v Logan City Council and State of Queensland relied on by the Council is the appropriate test. That involves determining whether there is a “substantial chance, a real, not remote, chance, regardless of whether it is more or less than 50 per cent” of Mrs Wilson or Mr Usher constructing a residence on the sites they have identified. I shall consider them separately. The Wilson residence [51] Despite the doubtless strong intention on the part of the Wilsons to build a dwelling on the site identified by them on Lot 1203, the reality is that Council approval would be required. The Appellant has identified obstacles to be overcome namely the cost of a constructed road to its frontage and the fact that the lot is within the 1.5km separation distance of the approved cattle feed lot. The Appellant rightly points out that it is not for this Court to make any findings on any such application except in exceptional circumstances which do not apply here. It seems to me that for the Wilsons to satisfy the Court that their designated future residential site is a likely future sensitive receptor, they must do more than simply express that desire and intent. No evidence was adduced addressing the prospects of a future approval under the 2012 Scheme specifically the obstacles raised by the Appellant and any other which may confront them. Such evidence would assist the Court in determining whether in any future application for approval for the residence the -- 32 of 70 -- 33 prospects of success such as to make that chance of success substantial or real rather than remote. Any opinion of the Court based on such evidence would be simply that – an opinion, which the Council, in any later assessment of such an application, would be not be bound by. I do not speak here of the preparation in detail of a fully fledged application but rather evidence from experts in the field as to their opinion of the likelihood of success. Mr Usher [52] The same considerations apply to Mr Usher who has not even, at this stage, formulated an intention to build the subject residences but is simply considering that as an option down the track depending on some or all of those factors he identified coming to fruition. In that sense he is in a weaker position than the Wilsons. [53] I am not satisfied that any of the lots of Mr and Mrs Wilson and Mr Usher are future likely sensitive receptors. Arguments re conflict with 1999 Scheme Appellant [54] The Appellant asserts that the only issue arising under the 1999 Scheme is, whether from an odour perspective, the six sheds on Pad 3 are acceptable. If they are, it says, there is no conflict with the Scheme. [55] In support of its position the Appellant pointed to the agreement of the odour experts that a 28 shed farm was considered acceptable from an odour perspective -- 33 of 70 -- 34 subject to suitable conditions92 with the potential for 6 further sheds on Pad 3 if the odour issue was resolved. [56] As to noise93 the Appellant makes the point that the experts agreed that both the LAMX (night-time) noise criteria and the LAEQ (evening) noise criteria would be achieved in the 4 Pad (134 and 5) 34 shed proposal94 though in relation to the evening criteria that would be achieved with the inclusion of the acoustic barriers on Pad 1. As to Lots 5, 1203, 1591, 737 and 132195 were to a large part noise compliant by reference to the agreed criteria not leaving aside the issue of whether it is acceptable that any of those lots would not be noise compliant. [57] As to the Town Planning evidence the appellant points to the town planner‟s joint report96 where they state that the noise and odour modelling at that point uncompleted, needed to demonstrate that sensitive receptors would not be unacceptably impacted.97 They further agreed that the reasonable amenity test for poultry farming does not require noise and odour to stop at the boundary of the land the subject of the Development Application but rather should be measured at the nearest sensitive receptors.98 [58] The Appellant also relies upon the evidence of Ms Doherty the Council planner and to her report of 24 September 2012,99 prepared after she had seen the first Joint Acoustic Report of 23 August 2012 and the second Joint Air Quality Report of 92 Exhibit 4, p 29, para 75 93 Ibid, p 29, para 76 94 Exhibit 5, p 61, paras 24 and 25 95 Exhibit 5, p 61, paras 26 and 27. Lot 1239 is not relied upon by Council until trial is not included but it is not the subject of any oral evidence so I intend treating it as the same category as all of the Usher lots. 96 Exhibit 17 of 10 August 2012 97 Page 6, para 5.4.5 98 Ibid, para 5.4.6 -- 34 of 70 -- 35 7 September 2012.100 In that report Ms Doherty asserted that the potential noise impacts from a 34 shed farm as proposed would not compromise the 1999 Planning Scheme.101 As to odour, she said that all sensitive receptors would not experience odour nuisance from a 28 shed (3 Pad) farm and that there were building envelopes available on all sensitive receptor allotments. She considered a 28 shed, 3 Pad farm could comply with the 1999 Scheme and could be approved without compromising that Scheme.102 [59] Further Ms Doherty gave evidence at the hearing consistent with the above opinions expressed and said she unhesitatingly supported an approval of the 28 shed proposal under the 1999 Scheme103 Council Submissions re conflict with 1999 Scheme [60] The Council stepped away from the evidence of its own town planner, Ms Doherty as to her opinion that a 28 shed proposal would not conflict with the 1999 Scheme. The Council says it does not share that view given the evidence put before the Court. It says that it does not matter which proposal is considered, be it 28 or 34 shed, a decision to approve the development application in part would conflict with the 1999 Scheme. [61] Any such approval, it is said, would conflict with the Intensive Animal Use Development Code particularly s 7.13.3104 which is set out above.105 That section 99 Exhibit 28 100 Exhibit 28, paras 5.12 and 5.16 101 Ibid, para 5.15 102 Ibid, paras 5.24 and 6.2 103 Transcript 5.7, 5.45-55 104 Exhibit 6, p 46 105 Page 12 of this judgment -- 35 of 70 -- 36 contains the Performance Objective which requires any such use to ensure that the impacts of intensive animal uses on the amenity of a locality are minimised. In the Council‟s view the evidence supports the conclusion that the proposal will not achieve that and that it has not been designed with this town planning purpose in mind. Rather, the Council says, it has been designed to achieve appropriate industry levels of internal separation for bio-security reasons rather than for good town planning reasons. [62] As to the siting of the proposal the Council points to four indicia evidencing that it has not been designed to minimise impacts on the amenity of the locality namely:- (a) The poor quality of separation distances between the pads particularly Pads 3, 4 and 5 from land to the west which is the Wilson land and the majority of the Usher land;106 (b) Maintenance of the internal 1,000 metre bio-security separation distances between pads at the expense of separation distances from that land to the West of the site; (c) The need to provide 1,000 metres of acoustic barrier 4 metres in height to address impacts; and (d) The fact there is sufficient land on the site to achieve appropriate setbacks to the boundaries to provide an opportunity to achieve the level of development proposed. 106 See Exhibit 10 Smart Map -- 36 of 70 -- 37 [63] The Council argues that the proposed layout also conflicts with s 4.11.4 1(b) and s 4.13.4.1(b) of the Scheme107 which require the assessment manager to consider the location of the proposal on its site and the impacts of that location on character and amenity. These two sections are set out in paragraph 17 above. [64] The Council then says that the proposal will not minimise the impact on amenity when regard is had to the likelihood of future sensitive receptors and relies upon the future house sites identified by the Wilsons and Mr Usher on their respective lots. I have already determined that none of those lots are likely future sensitive receptors. [65] As to the nature and extent of the conflict with the 1999 Scheme the Council says it is a major conflict. It says that the encouragement offered in the Planning Scheme Area for the conduct of intensive animal industries is not unqualified and that one qualification is that appropriate separation distances are provided to sensitive land uses. In its view the proposal effectively ignores separation distances to the West of the subject site and that appropriate separation distances can only be there achieved if future development of sensitive uses, such as a dwelling house, is excluded on the Wilson and Usher land to the West. In summary the Council says that the poor layout is the product of commercial imperatives rather than town planning considerations and that the proposal, in any form, should be refused is excluded. That is particularly so given that the development could proceed, in the Council‟s view, in a way where suitable separation distances can be readily achieved. Appellant’s response to Council Submissions re conflict with 1999 Scheme 107 Ibid, pp 31 and 37 -- 37 of 70 -- 38 [66] In response to the Council‟s submissions the appellant rejects the suggestion that any conflict arises with s 7.13.3 of the 1999 Scheme. It says that, subject to the likely future sensitive receptor issue which I have determined, the odour experts agreed that there was compliance. That agreement was in relation to the 28 shed proposal. As to the provision contemplating the minimisation of impacts the appellant makes the point that courts have accepted that such phrases must be read in context and that it must be taken into account that any development will generally result in some impairment to amenity.108 Conclusion re conflict with 1999 Scheme [67] I am not persuaded by the Council‟s argument that the appellant has failed to minimise the impact of the proposed 28 shed development. All of the odour acoustic and town planning experts have concluded that a 28 shed proposal does not conflict with a 1999 scheme. As to the minimisation of impacts, I am satisfied that the Appellant has adequately addressed the impacts minimisation requirement. Minimisation of impacts on amenity is a common theme in planning schemes. That must be read with all other provisions of the Scheme. It is but one indicia of assessment and, requires minimisation of impacts to be addressed. It does not require their eradication nor the minimum possible relevsnt distance in each case. Some impacts from noise and odour will always be attendant upon development of this type until the human race masters control of the elements, which, I suspect is some way off. With the best modelling in the world based on empirical data, hitherto unseen meteorological phenomena are always possible. All experts agree that the level of amenity sought by the 1999 Scheme in relation to a 28 shed 108 See Lockyer Valley RC v Westlink Pty Ltd (2011) 185 LGERA 63, 73 [20] -- 38 of 70 -- 39 proposal will be achieved. I see no conflict between that proposal and the Scheme. As to the 34 shed proposal now proposed by the Appellant, I consider it is in conflict with the Scheme given the odour impact on Lot 105. 2012 Scheme [68] As earlier stated, this Scheme was adopted by the Council on 6 August 2012 and took effect on 14 August 2012. Ms Davies, the Council‟s Manger of Strategic Planning who had the responsibility to prepare this Scheme gave evidence that the planning process commenced in 2008.109 The public consultation period was from 28 July 2011 to 16 September 2011.110 Attachment C to this judgment is a chronology of events extracted from the appellant‟s written submissions.111 Under this Scheme as I have said the site is within the rural zone and the Sandstone Rises and Trap Rock Hills precinct of that zone. Relevant extracts from 2012 Scheme [69] The following are relevant extracts from the 2012 Scheme:- 1. Part 1 about the Planning Scheme 1.1 … 1.2 … 1.3 … 1.4 … 1.5 Rules for determining the assessment criteria 109 Exhibit 47, para 2.2 110 Exhibit 17, p 8, para 5.5.1 111 Paragraph 9. -- 39 of 70 -- 40 (1) Where there is inconsistency between provisions within the Planning Scheme, the following rules apply:- (a) The Strategic framework prevails over all other elements to the extent of the inconsistency. (2) Part 3 Strategic framework 3.1 Preliminary (1) The Strategic framework sets the policy direction for the Planning Scheme. (2) … (3) For the purpose of articulating the policy direction for the Planning Scheme, the Strategic framework is structured in the following way:- (a) The strategic intent; (b) There are seven themes that work together to articulate the complete policy direction which includes:- (i) Settlement pattern; (ii) Natural environment; (iii) Community identity and diversity; (iv) Natural resources and landscape; (v) Access and mobility; (vi) Infrastructure and services; (vii) Economic development (c) … (d) … (e) … (f) … (4) 3.3.10 Element land use impacts Incompatible uses are separated to maintain the wellbeing and health of residents and support the ongoing activity of uses that are -- 40 of 70 -- 41 important to the Southern Downs‟ economy and the employment of residents and visitors. The impacts of uses are contained within the site, identified buffer area or zoned area. (emphasis added) 3.3.10.1 Specific Outcomes 3.3.10.1 Land use strategies (1) … (2) … (3) … (4) … (5) Odour generated by new intensive animal industry operations that potentially impacts in a negative manner on a sensitive receptor is contained on the same site as the intensive animal industry. This may have the effect of restricting new intensive animal industry development to very large sites. (emphasis added) (5) 3.4.4 Element Environmental Impacts Adverse impacts on the environment can potentially effect quality of life and wellbeing of the community as well as the natural environment. Pollution of land, air and water is avoided. 3.4.4.1 Specific Outcome (1) New development is located, designed, operated and managed so that it does not result in pollution of air, land or water and adverse environmental impacts are avoided or effective mitigation measures are implemented. (6) 3.6.4 Elements Base – Intensive Animal Industry Intensive animal industry operations are likely to be a continuing feature in the Southern Downs. Such uses require an adequate water supply, good road access and large lots on which to deal with land management requirements and incorporate buffering. The uses are challenging to locate having regard to the high level of rural land fragmentation in the region. -- 41 of 70 -- 42 3.6.4.1 Specific Outcomes (1) Intensive animal industries are an important facet of the rural economy and are likely to be a continuing feature in the northern part of the region with potential to consolidate into a fewer number of larger operators and potential to diversify into poultry. Large intensive animal industries are established on suitable sites located in the Sandstone rises and traprock hills precinct where fewer lots are fragmented and used for residential purposes and the impacts of the use can be contained on a large lot. (emphasis added) 3.6.4.2 Land Use Strategies (1) Intensive land use industries require an adequate water supply and good road access and larger lots on which to deal with land management requirements and incorporate buffering. Major challenges in locating intensive animal industries satisfactorily also relate to potential impacts on ecological values and water quality as well as conflict with other (notably residential) uses primarily as a result of odour, noise and truck traffic. These issues are particularly difficult to deal with given the level of rural lot fragmentation. New large intensive animal industries are supported in the Sandstone rises and traprock hills precinct in the western part of the Southern Downs and only where detailed site analysis confirms that the selected lot is suitable for the use in terms of good truck access, ecological impacts, effective buffering from uses that are sensitive to the external impacts of the use and water availability. The sandstone rises and traprock hills precinct has the least fragmented settlement pattern and more large lots which may allow for greater control of external impacts. (7) Table 5.5.10 Rural zone Use Level of Assessment Assessment Criteria Dwelling house Code assessment If: (a) … (b) The lot does not Rural zone code Residential uses code Physical -- 42 of 70 -- 43 have a frontage to a constructed road; or (c) … infrastructure code Part 6 – Zones 6.1 Preliminary Zones organise the Planning Scheme area in a way that facilitates the location of preferred or acceptable land uses. (2) … (3) … (4) … (5) … (6) … (7) … (8) The following are the zone codes for the Planning Scheme: (a) … (b) … (c) … (d) … (e) … (f) … (g) … (h) … (i) … (j) Rural zone code (i) … (ii) … (iii) … (iv) … (v) … (vi) … (vii) Sandstone rises and traprock hills precinct KLM … (8) 6.2.10 Rural zone code -- 43 of 70 -- 44 6.2.10.2 Purpose The purpose of the rural zone code is to:- Provide for a wide range of rural uses including cropping, intensive horticulture, intensive animal industries, animal husbandry, animal keeping and other primary production activities; … .. (2) The local government purpose of the zone code is as follows:- (a) … (b) … (c) … (d) … (e) … (f) … (i) … (j) … (k) Provide for intensive animal industry including feed lots, piggeries and poultry farms in specified parts of the region where potential impacts can be managed and at a scale that allows for on farm diversification consistent with management of those impacts. (3) The purpose of the code will be achieved through the following overall outcomes:- (a) Zone outcomes (i) Land is used for a wide range of agriculture and environmental purposes. Within the rural zone agricultural uses will range in intensity from grazing to permanent plantations, cropping and intensive horticulture and intensive animal industry such as piggeries and feed lots. The location of the various uses depends on the available resources of water and soil, the natural environment and vegetation, access, the existing and future settlement pattern and potential for conflict with -- 44 of 70 -- 45 existing uses in the size and scale of the use. (b) (c) (d) (e) (f) (g) (h) Sandstone Rises and Traprock Hills precinct outcomes (i) … (ii) … (iii) Intensive value adding rural activities and intensive animal industries are located on sites that are large enough to accommodate appropriate buffering and water/water waste treatment requirements and are accessed via a network of roads and are constructed to accommodate the traffic generated by the use. 6.2.10.3 Assessment criteria Tale 6.2.10.3 – Rural zone – assessable developments of Rural zone Performance outcomes Acceptable solutions PO6 All uses are located, designed, orientated and constructed to minimise noise, dust, odour or other nuisance from existing lawful uses including rural and industry uses AO6 There is no acceptable outcome identified (9) 9.3.6 Intensive animal industry code 9.3.6.2 Purpose (1) The purpose of the intensive animal industry code is to ensure that intensive animal industry is located, constructed and operated: -- 45 of 70 -- 46 (a) … (b) To minimise impacts on urban residents, rural residential residents and residents of nearby rural properties; (c) … (d) … (e) … The purpose of the code will be achieved through the following overall outcomes: (a) … (b) Intensive animal industry does not adversely affect the surrounding areas and is not located in close proximity to urban or rural residential areas including towns and villages where air quality, odour and noise generated by the use could have a detrimental impact on the rural residential and urban residents. 9.3.6.3 Assessment criteria Table 9.3.6.3 – Intensive Animal Industry Code – Assessable Development Performance Outcomes Acceptable Outcomes Control of impacts PO5 The use does not have unacceptable impacts on people or properties not associated with the use PO8 The lot has an appropriate area and dimensions for the siting of:- Separation distances between the use and sensitive receptors AO5.1 New uses are separated from sensitive receptors in accordance with table 9.3.6.4 or in accordance with the requirement of a development approval – whichever is the greater AO5.2 The use does not cause environmental harm or nuisance -- 46 of 70 -- 47 Table 9.3.6.4 – Intensive Animal Industry – Separation distances Sensitive Element Minimum Distance (Metres) Poultry Farm Existing houses in the Rural zone Poultry Farm More than 100,000 birds – the minimum distance required to ensure that 2.5 odour units as determined in accordance with the Queensland guideline for Odour Impact Assessment from Development is contained on the same land as the poultry farm (emphasis added) Table 9.3.6.5 Intensive Animal Industry – Boundary setbacks and minimum site area Use Use Use Poultry farm – more than a 1,000 birds Minimum lot size 100 hectares Minimum setback from boundaries 500 metres 9.3.7 Residential Uses Code 9.3.7.2 Purpose (1) The purpose of the Residential Uses Code is to ensure that dwelling houses, dual occupancy, hostels, multiple dwellings and retirement facilities are located and designed to:- (a) Meet the needs and expectations of the community for safe, convenient, pleasant and suitable accommodation; (b) Be attractive and consistent with the developed character of the particular neighbourhood. (2) The purpose of the code will be achieved through the following overall outcome. All dwelling houses, -- 47 of 70 -- 48 dual occupancy, hostels, multiple dwellings and retirement facilities:- (a) Occur only land that is suited to the development and occupation of residential buildings; (b) Are located on land which is not in the vicinity of land uses that would adversely effect the occupation and use of buildings for residential purposes and conversely where the residential uses could prevent or inhibit the conduct of existing land uses (This is an important provision) 9.3.7.3 Assessment Criteria Table 9.3.7.3 – Residential Uses Code – Self Assessable and Assessable Development Performance Outcomes Acceptable Outcomes For self-assessable and assessable development Access PO2 – Dwelling houses … are accessible to vehicles from pedestrians and cyclists and have access legal and practical access via constructed road that links to the existing constructed road network AO2 (a) All dwelling houses … are erected on lots that have frontage to a constructed road. Dwelling house and Dual Occupancy – Rural Zone PO5 Were located on an existing lot in proximity to an existing or approved extract of industry operation or rural activity including animal keeping and intensive animal industries, the dwelling house or dual occupancy incorporates location, design, orientation and construction measures that mitigate the effects AO5.2 All dwellings (when located on a different lot to the use listed below) are separated by at least the distance listed below, or the separation distance calculated from the Department of Primary Industries and Fisheries publications (separation guidelines for Queensland piggeries and Reference Manual for the establishment and operation of beef cattle feed lots in Queensland) if it is greater. -- 48 of 70 -- 49 of noise, dust, odour and other impacts arising from the industrial or rural use (a) Cattle Feed Lot Number (standard cattle units 1,000 or more Separation Distance (Metres) 1,500 metres (c) Poultry farming 200,000 or more birds 1,500 metres 10.10 SC 1.2 Administrative Definitions Term Definition Buffer An area of land, including waterways, required for maintaining separation distances: Between different land uses; From a major noise source … … A buffer is not exclusive of other uses and may incorporate lower intensity activities which assist in mitigating the overall impact on external uses. As a general principle a buffer is not extended over a third party‟s property without their consent. Constructed Road A road constructed to a minimum standard of 4 m – 6 m width of 100 mm compacted gravel -- 49 of 70 -- 50 Frontage to a Constructed Road Vehicle access to a site that is via a constructed road that joins the constructed road network Council’s arguments as to conflict with the 2012 Scheme [70] The Council contends that both the 34 shed and 28 shed proposals are in very serious conflict with the 2012 Scheme because in neither case can the noise and odour impacts be contained within the boundaries of the subject site. That is not contested by the appellant and could not be, given the evidence of the acoustic and air quality experts with which I have dealt. [71] The Council further argues that this represents a conflict with a planning policy decision of the Council embodied in the 2012 Scheme and that it is well established that this Court adopts a cautious approach in relation to matters of planning policy. It relied on Grosser v Council of the City of Gold Coast,112 a unanimous decision of the Court of Appeal where White J (as she then was), with whom Thomas and Williams JJA agreed, said:113 “[38] The proper approach of the Planning and Environment Court and of its predecessor, the Local Government Court, to matters of planning policy has long been recognised as one of restraint. Most recently this Court affirmed the desirability of a self-limiting approach, at least when considering town planning matters in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2000] QCA 268 unreported decision of 14 July 2000. The Court quoted with apparent approval at [42] the following passage from the 112 [2001] QCA 423. 113 Ibid [38]. -- 50 of 70 -- 51 judgment of Quirk DCJ in Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 at 211: „It should not be necessary to repeat it but his [sic] Court is not the Planning Authority for the City of Brisbane. It is not this Court‟s function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper has to adopt (sic) (Brazier v Brisbane City Council 26 LGRA 322 at 327). As was observed by Carter J in Sheezel & Anor v. Noosa Shire Council [1980] QPLR 130 (when he then constituted this Court), it would be quite inappropriate for this Court to deal with an individual application for rezoning in a way which might be construed as determinative of some wider question. Adopting the phraseology of those cases which deal with the non-derogation principle, I feel that to allow this appeal would be to „cut across‟ in quite unacceptable manner, a planning strategy which has been adopted by the Planning Authority and publicly exhibited for community comment.‟ This stated a proposition which the Court said was „common sense … for which no authority was required‟ [46]. See also Ampol Petroleum (Q’land) Pty Ltd v Pine River Shire Council [1989] QPLR 133 per Row DCJ at 134, 136; Bullock v Hervey Bay Town Council [1983] QPLR 98 per Carter DCJ at 100; Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205 per Quirk DCJ at 208; and the discussion in Fogg Land Development in Queensland (1987) pp 390 et seq.” [72] Council pointed to the evidence of Mr Toombs, the appellant‟s town planner,114 in submitting that he acknowledged the conflict and that it was a serious conflict. I do not agree with that latter proposition that Mr Toombs agreed any conflict115 was serious. He did acknowledge116 that where the proposal is inconsistent with the forward planning decisions of a Council it could represent a conflict, but whereas 114 T5.57.10-30; T5.58.30-35. 115 T5.58.33. 116 T5.57.13. -- 51 of 70 -- 52 the question referred to a serious conflict the answer did not. Indeed, shortly after that question the following exchange took place117:- “It points to a very, very serious conflict, I‟d suggest? Answer: Again, I would not say it is a serious conflict. If there is any inconsistency there, well there well then, as a planner we would look at the balance of the Scheme, potential impacts and then come back to the strategic framework and then measure the degree whether it is a serious conflict or not. [73] In relation to the above response of Mr Toombs, the Council points to s 1.5 of the Scheme providing that, in the event of an inconsistency between the provisions with the Planning Scheme, the strategic framework prevails over all other elements to the extent of the inconsistency. As the argument runs, given the nature of the conflict as one which is serious and squarely in conflict with the strategic framework, the seriousness of the conflict is not ameliorated by the prospect of an alternative solution. It clashes with an important planning policy. In any event, the Council argues, Performance Outcome PO5 (Control of Impacts) does not lend any encouragement to impacts extending beyond the boundaries of the site. Likewise if the proposal conflicts with PO5 it will have unacceptable impacts on the property because of its inability to comply with the overarching planning policy of containment of impacts within the relevant site. The conflict is serious the Council says because it relates to a fundamental element of the Scheme. Council’s arguments re weight to be given to the 2012 Scheme [74] In the Council‟s view, the 2012 Scheme should be given determinative weight in the application in relation to both the 34 sheds and 28 sheds, resulting in both proposals being refused. This is particularly so, it is said, because the proposal could be 117 T5.57.25. -- 52 of 70 -- 53 designed to fit within the land with appropriate setbacks so as to comply with the Scheme. [75] The Council advances the following reason as to why determinative weight should be given to the 2012 Scheme. Firstly, because the proposal would represent a head on clash with an essential element of the Scheme as was the case in Maher v Hervey Bay City Council.118 The policy of site containment, it is said, is a sound one given the requirement of adequate buffers or separation distances to sensitive land uses when operating in intensive animal industry. If the policy was confined only to separation distances or buffers; those distances and buffers must be protected or controlled by the use and that control is facilitated by the site containment policy. [76] Next, the Council points to the relative age difference between the 1999 and 2012 Schemes. The former being at least 13 years old. It argues that the planning thinking behind that Scheme has been overtaken by more contemporary thinking in the 2012 Scheme which manifests a different direction for the future development in the Shire. Against this background, the proposal flies in the face of contemporary thinking. [77] The third reason advanced is that, whereas fairness to an applicant is not an irrelevant consideration with respect to the weight the Court should give to the 2012 Scheme, nevertheless, it should be borne in mind that the Scheme only defeats the proposal in one sense, that is, its poor layout, not suitability of the land use in the precinct. All the 2012 Scheme requires is for the proposal to be redesigned to 118 [2008] 166 LGERA 274 at 298-299. -- 53 of 70 -- 54 maintain impacts within the boundaries. The Council says both planners, Mr Toombs119 and Ms Doherty,120 agree this could be achieved. Appellant’s submissions re 2012 Scheme [78] The appellant says that the 2012 Scheme should not be given such weight as to result in a decision adverse to an approval in its favour, because the conflict with the site containment provisions largely arise as a result of amendments made in 2012 to the Scheme which was publicly advertised in 2011. Those amendments introduced the site containment provisions not contained in the advertised version of the Scheme, and are internally inconsistent with those advertised provisions which recognise the prospect of external impacts and identify the existing uses, rather than site boundary as being the point of interest for the containment of impacts. Further, the proscriptive site containment provisions in the Scheme Table 9.3.6.4121 apply only to poultry farms and not the intensive animal industries of piggery and cattle and sheep Feedlot the subject of the Table. This, it is said, reflects an unprecedented and excessively conservative approach. [79] The appellant compared and contrasted the existing use provisions and the site containment provisions to demonstrate, it said, the quite different pictures presented by each. 119 T5.59.11. 120 T5.68.10-28. 121 Exhibit 11 p 81. -- 54 of 70 -- 55 Existing use provisions [80] Dealing firstly with the existing use provisions; the appellant identified those which recognise that large intensive animal industries will involve external impacts. I have already set out the relevant provisions of the Scheme but at the risk of repetition, set out those extracts relied upon by the appellant: (a) 3.6.4 Element intensive animal industry “...New large intensive animal industries are supported in the Sandstone rises and traprock hills precinct...and only where detailed site analysis confirms that the selected lot is suitable for the use in terms of...effective buffering from uses that are sensitive to the external impacts of the use...The Sandstone rises and traprock hills precinct has the least fragmented settlement pattern and more large lots which may allow for greater control of external impacts.” (b) 6.2.10 Rural zone code “...Within the rural zone agricultural uses will range in intensity from grazing to permanent plantations, cropping and intensive horticulture and intensive animal industries such as piggeries and feedlots. The location of the various uses depends on the...potential for conflict with existing uses...” (c) Table 6.2.10.3 – rural zone – assessable development rural zone PO2 – Sandstone rises and traprock hills Uses are located on lots that are large enough to provide adequate buffers between the use and existing or potential agricultural activity on adjacent lands.” (d) 9.3.6 Intensive animal industry code (e) 9.3.6.2 Purpose “(1) The purpose of the Intensive animal industry code is to ensure that intensive animal industry is located... (b) to minimise impacts on...residents of nearby rural properties;” (f) 9.3.6.3 Assessment criteria Table 9.3.6.3 – Intensive animal industry code – assessable development Control of impacts PO(5) -- 55 of 70 -- 56 The use does not have unacceptable impacts on people or properties not associated with the use. (g) PO(8) The lot has an appropriate area and dimensions for the siting of: … Separation distances between the use and the sensitive receptors; (h) Table 9.3.6.4 – Intensive animal industry – separation distances Sensitive element Poultry farm Existing houses in the rural zone Piggery Existing houses in the rural zone Feedlot Existing houses in the rural zone Principal Site containment provisions [81] The principal Site containment provisions are:- (a) 3.3.10 Element – land use impacts … The impacts of uses are contained within the site. (b) 3.3.10.1 Land use strategies “(5) odour generated by new intensive animal industry operations that potentially impacts in a negative manner on a sensitive receptor is contained on the same site as the intensive animal industry …” (c) 3.6.4 Element – intensive animal industry 3.6.4.1 specific outcomes “… Large intensive animal industries are established on … sites … where … the impacts of the use can be contained on a large lot.” (d) Table 9.3.6.4 – Intensive animal industry – separation distances … Minimum distances (metres) Poultry farm -- 56 of 70 -- 57 … More than 100,000 birds – the minimum distance required to ensure that 2.5 odour units as determined in accordance with the Queensland Guideline for Odour Impact Assessment from Developments is contained on the same land as the poultry farm. (e) Table SC1.2.2 – Administrative definitions Buffer An area of the land … required for maintaining separation distances; Between different land uses … As a general principle a buffer is not extended over a third party‟s property without their consent. Circumstances surrounding introduction of the Site Containment provisions in February 2012 [82] As I have said the public consultation period for the 2012 Scheme went from 28 July 2011 and ended on 16 September 2011. The relevant Site Containment provisions were not contained in the publicly notified draft but were added to the Scheme following a report from the Council‟s Manager of Strategic Planning, Miss Davis of 16 December 2011 to the Council‟s Planning and Environment Committee.122 This report was considered by the Council at a Special Meeting on 6 February 2012 some 12 days after the Council‟s 25 January 2012 approval of a 28 shed proposal on Pads 1, 4 and 5123 122 Exhibit 12, p 5, note the meeting date 6 February 2011 should be 2012. Further, the report is not dated but the Council resolution at p 4 of the Exhibit contains the date 26 December 2011. 123 Exhibit 2, p 49. Council decision 25 January 2012 notified to Appellant 30 January 2012. -- 57 of 70 -- 58 Davis Report 16 December 2011 [83] Attachment 2 to Ms Davis‟ report is a Report on Submissions received on the Appellant‟s original application.124 That reported on two submissions, one from Mr Brett Richter of Inghams Enterprises Pty Ltd and the other from Mr John Greacen. Ms Davis summarised the Richter submission as follows: “Summary of Submission The submitter objects to the separation distances contained in the Intensive Animal Industries code. The submitter proposes that rather than separation distances, reference should be made to the Queensland Odour Guideline to provide effective buffers between poultry farms and sensitive receptors.” In her comments on the issue Ms Davis said:- “Council has recently considered an application for a very large poultry farm which has provided the opportunity to ground truth (separation distances relating to Poultry farms). As a result of consideration of the application and also consideration of the matters raised in this submission it is considered reasonable to change to separation distances as outlined in the recommendation. The Queensland Guideline Odour Impact Assessment from Development is proposed to be used to provide criteria to replace separation distances….” [84] Ms Davis then recommended that the relevant Table in the advertised scheme dealing with separation distance for a poultry farm be amended, in effect, in the following manner:- (a) The relevant Sensitive Receptor from which the distance to the poultry farm was to be measured be changed by deleting “existing houses in the rural zone” and inserting in lieu thereof “boundaries of the subject site”; 124 Exhibit 12, p 8. -- 58 of 70 -- 59 (b) As to the minimum distance requirement the words – “more than 200,000 birds – 1.5km or in accordance with the requirements of licence under the Environmental Protection Act whichever is the greater” to be deleted with the insertion in lieu thereof – the minimum distance required to ensure that 2.5 odour units as determined in accordance with the Queensland Guideline for Odour Impact Assessment from Developments is contained on the same land as the poultry farm.” [85] A further recommendation of Ms Davis in her report was in these terms:- “RECOMMENDATION THAT the report of the Manager of Strategic Planning dated 16 December 2011 in relation to the proposed planning scheme be received and that Council:- (a) Resolve to approve the recommended changes to the proposed planning scheme arising from the submissions and changes to the QueenslandPlanningProvisions; (b) Resolve that the proposed changes do not result in the proposed planning scheme being significantly different to the version released for public consultation; (c) Resolve to proceed with the proposed planning scheme with the proposed amendments; and (d) …” The Council resolved in those terms125 [86] By letter dated 14 February 2012126 Ms Davis wrote, on behalf of the Council, to the Minister for Local Government and Planning advising that the Council had met on 6 February 2012 and resolved to approve recommended changes to the Scheme. Relevantly that letter provided on page 2: “As no policy changes arose as a result of this re-write it is considered that there is no reason for this part of the planning scheme to be re-advertised.. A new Strategic Intent has been included in the Strategic framework. This intent does not introduce new policy but 125 Ex 12 p.4 126 Exhibit 48B -- 59 of 70 -- 60 distils a policy position contained in the Strategic framework.”(emphasis added) [87] On page 3 of that same letter the Council advised:- “Council resolved that the planning scheme should not have to be renotified as a consequence of the changes resulting from consideration of the submission. Council does not believe that the changes are significant. The reasons in support of this are as follows:- The changes do not alter a material planning issue including a policy position. In most cases the changes strengthen the notified planning position. … The number of submissions and the subject matter indicates there is no matter of widespread public interest in the planning scheme. The proposed changes will not be likely to generate widespread public submissions. The changes to the levels of assessment were minor and unlikely to generate widespread public submissions. The proposed planning scheme will look different from that notified however this is largely as a result of changes to QPP v 3 and the re-writing of the Strategic framework. The policy position has not changed as a result of these changes to the structure of the plan.”(emphasis added) [88] From that last extract from Council‟s letter to the Minister it is clear that the Council was asserting that no change of policy was reflected in any of the changes including, relevantly, the site containment provisions. That is contrary to the submissions made by Council to the Court. Its argument has been that the change provides for the containment of odour in site boundaries in relation to poultry farms are a significant change of policy so that each of them results in a head on clash with the scheme. I think the better view is that the Council adhered to its policy of protecting the amenity from offensive odours and, as a variation to that policy as reflected in the publicly notified scheme it added the containment provisions in relation to poultry farms. Those provisions do not relate to cattle or sheep feed lots or piggeries. Consistent with what the Council advised the Minister, it did not constitute a new policy but rather twigging of the existing one. -- 60 of 70 -- 61 Appellant’s asserted Scheme Interpretation and application difficulties resulting from Site Containment provisions [89] The Appellant made detailed submissions according to what it perceived as inconsistencies within the 2012 scheme resulting from the non notified amendments to the scheme. It also detailed what it sees as interpretation difficulties in the application of those provisions. However, given the view I have arrived at in relation to the weight to be attached to the 2012 scheme there is no need for me to deal with those submissions in detail. I should say however that I consider they are not without merit and may be something the Council might wish to address to avoid future difficulties . [90] Having said that, it is not for the Court to involve itself in a commentary on the drafting standards of Scheme amendments. The reality is that the 2012 Scheme in its present form was adopted by the Council and no attack has been made on its legitimacy. Weight to be given to the 2012 scheme [91] In all the circumstances I am not persuaded that the site containment provisions requiring odour to be contained within the subject site should be given decisive weight in the consideration of this application. As I have said, and consistent with what was advised by the Council to the Minister, no change of policy is involved but rather the Council has refined its existing policy by adding provisions for the containment of odour to the sites in relation to applications made under the 2012 scheme. -- 61 of 70 -- 62 Conclusion [92] The application should be approved as to 28 sheds on Pads 1, 4 and 5. Before making the final order I need to consider condition 4 relating to amalgamation. Condition 4 amalgamation of Lots [93] Of the conditions attached to the Council approval of 26 January 2011 approving 28 sheds on Pads 1, 4 and 5 was a condition that the Appellant amalgamated its lots. The condition is in these terms127:- “Reconfiguration of a Lot Figure 4 Council requires the Lots to be amalgamated due to the proposed operating procedures under conditions imposed. There will be conflicts on environmental impacts if the pads are operated independently, which may happen if the Lots are not amalgamated. The existing allotments, including Lot 82 ML 307, are to amalgamated into one allotment and a new Certificate of Title issued to cover the newly created allotment prior to the use of the site commencing. ALTERNATIVELY, a statutory covenant is to be provided over Lots 1 and 2 RP 36824, Lot 1238 M 34534, Lot 1 SP 314513, Lot 1 RP 17537, Lot 1, SP 167953 and Lot 82 ML 307 to retain these lots in the same ownership until such time as the use of the land for appropriate farm ceases…” [94] Section 345(1) of SPA relevantly provides: “1. A condition must: (a) Be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or 127 Exhibit 22, p 55 -- 62 of 70 -- 63 (b) Be reasonably required in relation to the development or use of premises as a consequence of the development.” It can be seen that sub-paragraphs are to be read disjunctively. Council’s argument in support of amalgamation [95] The Council says that the amalgamation (that term is to be read as including the alternative of a covenant) is an orthodox course to ensure that buffering around a proposal to manage its impacts are secured for the long term. It says the subject land contains both developable area and vacant land which function as a buffer and that those buffers should be maintained for the life of the poultry farm. As far as the Council is concerned the condition is necessary to ensure that areas that fall within the 2.580 unit consular will not be developed with a sensitive land use. In the absence of amalgamation that cannot be guaranteed. Accordingly the amalgamation is an entirely proportionate town planning response having regard to the fact that it is unacceptable for land within that 2.580 unit consular line to be developed with sensitive land use, any proposal approved cannot operate in a way consistent with its environmental obligation without the provision of a buffer and both the 1999 and 2012 schemes contemplate the use of amalgamation to achieve appropriate environmental outcomes. Appellant’s response [96] Mr Lockefeer, an experienced financial analyst in mergers and acquisitions and corporate finance within the banking industry, together with experience in the poultry industry gave evidence to the effect that amalgamation of the lots would -- 63 of 70 -- 64 lead to a considerable reduction in the land value, and corresponding negative effects on any fund raising by the Appellant using the site lots as security. The Council in response says that such matters of private economics are irrelevant. [97] Putting aside the financial impact on borrowing which any amalgamation would have, the facts are that Mr Carr, the principle of the Appellant has been involved in the poultry industry since the age of 14 and currently runs a successful poultry farm operation at Caboolture. There is not a scintilla of evidence to suggest that he would not run his operation on this site as responsible citizen. Ms Doherty herself said128that her concern was that, within the site area, there could be a later use unassociated with the poultry farm which would then be impacted upon by the poultry farm. She agreed that a condition to the effect that certain identified areas of the site not be used for a purpose not associated with the poultry farm address that concern.” Conclusion re amalgamation [98] I am satisfied on the evidence that the Appellant satisfies both legs of SPA s 345(1) in that amalgamation would be an unreasonable imposition on the development and is not reasonably required in relation to the relevant development. [99] Overall conclusions 1. The application is approved in relation to 28 sheds over Pads 1, 4 and 5; 2. Condition 4 requiring amalgamation/restrictive covenant is an unreasonable condition; 128 T6.4.18-35. -- 64 of 70 -- 65 3. The appeal is adjourned to allow the parties to resolve outstanding conditions. -- 65 of 70 -- -- 66 of 70 -- -- 67 of 70 -- -- 68 of 70 -- -- 69 of 70 -- -- 70 of 70 --