Cullen & Cooper Pty Ltd v Fraser Coast Regional Council [2011] QPEC 41

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Cullen & Cooper Pty Ltd v Fraser Coast Regional Council [2011] QPEC 41 PARTIES: CULLEN & COOPER PTY LTD (AS AGENT FOR SUSANNAH HUERTA) (Appellant) V FRASER COAST REGIONAL COUNCIL (Respondent) FILE NO/S: 2237/09 PROCEEDING: Hearing of an appeal ORIGINATING COURT: Planning and Environment Court of Queensland at Brisbane DELIVERED ON: 17 March 2011 DELIVERED AT: Brisbane HEARING DATES: 15 and 16 November 2010 and 9 February 2011 JUDGE: R Jones DCJ ORDERS: 1. The appeal is allowed. 2. The appeal is otherwise adjourned for notification of conditions. 3. The appeal be listed (if required) for review on a date to be fixed. CATCHWORDS: PLANNING LAW – Proposed Residential Subdivision at Hervey Bay – development within designated buffer area associated with waste water treatment plant – minor change of development – conflict with Strategic Plan – planning grounds sufficient to justify approval despite such conflict – impact on amenity Integrated Planning Act 1997 Local Government (Planning and Environment) Act 1990 Cases: Arpedco Pty Ltd v Beaudesert SC (1980) Qd R 88 Barns v Maroochy Shire Council (2010) 176 LGERA 239 Broad v Brisbane City Council (1986) 2 Qd R 317 -- 1 of 21 -- 2 Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193 Gray v Caboolture Shire Council (No. 2) (1985) QPLR 432 Grosser v Council of the City of Gold Coast (2001) QCA 423 Isgro v Gold Coast CC (2003) QPELR 414 Lewiac Pty Ltd v Gold Coast City Council (1996) 2 Qd R 266 Maher v Hervey Bay CC (2008) QPEC 123 Prime Group Properties Ltd v Caloundra CC & Anor (1995) QPLR 147 Rio Pioneer Gravel Co Ltd v Warringha SC (1969) 17 LGRA 153 Weightman v Gold Coast City Council (2003) 2 Qd R 441 Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 Qd R 273 COUNSEL: Mr J. Haydon for the appellant Mr M. Williamson for the respondent SOLICITORS: H.W.S. Lawyers for the appellant Connor O’Meara Solicitors for the respondent [1] These proceedings are concerned with an appeal against the respondent’s refusal of a development application to reconfigure a parcel of land into four large residential lots. The land and the proposal [2] The subject land is described as Lot 64 on Registered Plan 180345 situated at Walkers Road, Urangan. The land comprises an area of 1.2 hectares and has three road frontages, one to Walkers Road and two to Senor Avenue. Improvements on the land comprise of a residential dwelling and associated improvements. [3] To the north-east of the land, between Walkers Road and Booral Road, is the Pulgul Waste Water Treatment Plant (WWTP). At present the land is separated from the WWTP site by Walkers Road and from the plant itself by a buffer of bushland.1 Expansion of the existing WWTP is expected. Generally speaking, the land is 1 See e.g. Fig 1 of Exhibit 10. -- 2 of 21 -- 3 located in an area comprised of a mixed style of good quality rural residential type development. [4] The appellant initially intended to subdivide the land into six lots.2 The proposed development before the court, however, is limited to four lots, ranging in area from 2,000 square metres to 4,061 square metres. The existing improvements are located on the largest lot (Lot 1) and a building envelope of 400 square metres is designated in the south-western corner of the second largest lot which comprises an area of 3,989 square metres (Lot 4). The current proposal, including the location of the proposed building envelope on Lot 4, is designed to ensure that all dwellings are located as far as practicable from the WWTP.3 [5] The proposal involves a Development Application (superseded Planning Scheme). The superseded Planning Scheme in issue is the respondent’s Transitional Planning Scheme which was gazetted in March 1996 under the Local Government (Planning and Environment) Act 1990 (PEA). Under the superseded Planning Scheme the subject land was included in the Rural Zone and the Park Residential Preferred Dominant Land Use Area. The proposal therefore involved, using past terminology, rezoning the land from Rural to Park Residential and an application to subdivide the land. Under the planning regime, the proposal was impact assessable. [6] On 26 June 2008 the appellant lodged a Development Application with the respondent seeking approval for a Material Change of Use of the land to reconfigure the parent parcel into six lots (retaining the existing dwelling) and for a material change of use from the Rural Zone to Park Residential. On 21 July 2009 the application was refused. The reasons for refusal were: “1. The applicant has not adequately demonstrated that the proposed lots would enjoy a reasonable level of amenity commensurate with that expected in the Park Residential Zone or that the proposed lots will not be unreasonably impacted upon by odour originating from the Pulgul waste water treatment plant; 2. The proposal is inconsistent with s 1.2.15.1 of the Strategic Plan in that the proposal would result in the intensification of odour sensitive land uses within 1,000 metres of the Pulgul waste water treatment plant; 3. The proposal is inconsistent with s 1.2.16.1 of the Strategic Plan in that the proposal would result in conflict between incompatible land uses; 4. The proposal is inconsistent with s 1.2.16.2 of the Strategic Plan by not providing sufficient separation of incompatible land uses; 2 See Exhibit 2A p 31. 3 See Exhibit 1 p 5. -- 3 of 21 -- 4 5. There are insufficient planning grounds to support the proposal despite the conflicts with the Hervey Bay City Transitional Planning Scheme 1996.” 4 [7] Section 4.4(5A) and 5.1(6A) of the PEA provide:5 “The Local Government must refuse to approve the application if— (a) the application conflicts with any relevant strategic plan or development control plan; and (b) there are not sufficient planning grounds to justify approving the application despite the conflict.” With respect to s 4.4(5A) of the PEA, White J (as she then was) observed in Grosser v Council of the City of Gold Coast:6 “Section 4.4(5A) is a simple two stage process which first requires the identification of conflict with the Strategic Plan, then, if conflict is present, the application must be refused if there are not sufficient planning grounds to justify approving the application despite the conflict.” [8] Any conflict must be able to be plainly identified and there must be some real variance or disagreement.7 If such conflict exists, it is necessary then to consider whether that or those negatives are sufficiently outweighed by other relevant and objective grounds of justification. In Weightman v Gold Coast City Council8 Atkinson J said: “In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s 4.4(5A) of the P&E Act, the decision maker should: 1. examine the nature and extent of the conflict; 2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds; 3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.” [9] In the more recent decision of Woolworths Ltd v Maryborough City Council (No. 2)9 Fryberg J, in considering the provisions of s 3.5.14 of IPA (not its predecessor the Local Government (Planning and Environment) Act 1990), expressed the view that in resolving a contest between conflict and grounds of justification, it may not be necessary for the decision maker to formally identify and 4 Exhibit 2A p 121. 5 Sections 4.4(5A) and 5.1(6A) of the PEA are relevant in the circumstances of this appeal by virtue of the operation of ss 6.1.29 and 6.1.30 of IPA. 6 (2001) QCA 423 at [49]. 7 Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 Qd R 273. 8 (2003) 2 Qd R 441 at para [36]. 9 At para [55]. -- 4 of 21 -- 5 set out each area of conflict and that “… the purely mechanical application of the Weightman dictum should be avoided …”. While I respectfully accept what his Honour said about the judgment of Atkinson J in Weightman, I consider the observations of her Honour still provide useful guidance. Issues in dispute [10] The substantive issues in dispute in this appeal are: (i) Is the change from a six lot subdivision to a four lot subdivision a minor change? (ii) Whether the proposal is in conflict with the Strategic Plan of the respondent. (iii) In the event that the proposal is in conflict with the Strategic Plan are there sufficient grounds to warrant approval despite that conflict? Whether or not there is conflict with the Strategic Plan largely centres around issues of amenity. In Mr Williamson’s written submissions these issues were characterized as follows:10 • Whether the proposed lots will suffer unacceptable impacts by reason of their proximities to the WWTP; • Whether the proposed development will enjoy a lower level of amenity than that which is to be reasonably expected under the Planning Scheme. [11] Essentially the respondent’s position is that to approve the development would permit a use on three lots (the three new lots presently not improved) which would have lower amenity than is generally enjoyed by Park Residential development elsewhere within the respondent’s local government area11 and that the subdivision would, contrary to sound town planning, introduce further or additional constraints on the inevitable expansion of the WWTP. [12] The appellant’s primary position is that when reasonably interpreted there is no real conflict with the Strategic Plan and, in particular, with s 1.2.15.1 of the Plan.12 Alternatively, if there is conflict, sufficient grounds exist to justify approval despite the conflict. In Mr Haydon’s written submissions, under the heading “Conclusions and Why?” the following submissions are advanced:13 “116. The area around the subject land currently has a pleasant amenity. The current amenity is best described as high. The subdivision of the subject land to add 3 additional lots to the existing are is consistent with and will complement the existing amenity of the surrounding area. 117. The proposed subdivision will: 10 At paragraph 33. 11 Ibid para 14. 12 Appellant’s written submissions at para 76. 13 Counsel for the appellant, at paras 116-119. -- 5 of 21 -- 6 (a) Add to the choice of those wishing to live on a larger residential lot. (b) Provide a convenient location for this future housing. (c) Be close to schools and shops. (d) Be protected by the current and likely future distance between the houses and the WWTP. 118. The appeal should be allowed and the reconfiguration of a lot development application approved because of the matters set out in these submissions especially those in paragraph 3. 119. The proper planning approach does not require no odour at all at the subject land before the reconfiguration is allowed.” (emphasis added) Paragraph 3 of the written submissions state: “An approval of the amended layout: (a) Will result in less people residing in the area than originally proposed and be complementary to the existing high amenity of the surrounding area. (b) Will be compliant with 600 m buffer from the existing WWTP. (c) Will locate the additional houses outside a reasonable distance from the WWTP if expanded within the existing fenced area on the WWTP land.” (emphasis added) [13] The 600 m referred to is reference to the position or policy adopted by Wide Bay Water (WBW). In correspondence dated 5 May 2009, the position or policy of WBW was stated in these terms concerning the subject land: 14 “Have attached a copy of previous comments to Paul Rice from Keith Disher regarding the development of this site. These comments were dated 7 April 2008, and remain applicable to this site (previously described as 49 Walkers Road, and now described as 5 Senor Avenue): ‘WBWC’s position is that it will not support any development within 600 m of its WWTPs. In this case at least 75% of this property lies within 600 m of the sludge lagoons which is the major source of odour complaints received in relation to the Pulgul WWTP. Please also note that this buffer was historically 1,000 metres. 14 Exhibit 2A at p 103. See also at p 139. -- 6 of 21 -- 7 Whilst the HBCC structure plan shows the 30 OU contour around Pulgul from the 1997 PAE Report, WBWC’s position has been and will remain that WBWC will not support development within 600 metres of the WWTP even if this extends beyond the 30 OU contour. It is worthy to note from the 1997 Report the following statement: “All residents within the 30 OU contour (shaded red) are highly likely to have justifiable reason for complaint and many residents within the 10 OU contour (shaded yellow) are also likely to have cause for complaint depending on their sensitivity.” The structure plan maps only the 30 OU contour suggesting that the impact of the odours disappears when you step over the 30 OU contour. This is clearly not the case.’” (emphasis added) The Strategic Plan [14] Section 1.1.4.2 of the Strategic Plan15 relevantly provides: “Park residential areas are intended to accommodate people who prefer to reside on larger sized urban allotments but who desire accessibility to urban goods and services. Park residential development shall be limited to those areas so designated on the Strategic Plan. … The inclusion of a property or areas within this designation does not imply that Council will automatically approve a rezoning application for park residential purposes as and when such application is made. Considerations of housing need and the economic availability of services will be foremost in the determination of rezoning applications. ….” [15] Of more direct relevance to the reasons for refusal s 1.2.15.1 of the Strategic Plan provides: 16 “To protect existing and proposed waste treatment and disposable facilities from encroachment by land uses sensitive to possible odour and other amenity impacts. Implementation (1) The establishment or intensification of uses which may be sensitive to possible odour impacts from sewerage treatment 15 Exhibit 15A p 1. 16 Exhibit 15A p 24. -- 7 of 21 -- 8 plants not be permitted where possible within an area of 1,000 metres of a sewerage treatment plant …” [16] Sections 1.1.4.15 and 1.1.4.16 of the Strategic Plan respectively provide: “It is intended that the designated sewerage treatment plants and solid waste disposal sites be protected from encroachment by land uses sensitive to possible odour and other impacts to provide for their efficient operation for as long as they are required into the future.” And “… . Other parts of the preferred dominant land use areas include lands subject to flooding and areas unsuitable for the preferred dominant land use because of required separation distances from incompatible development or open space areas. The latter areas will only be permitted to develop for open space or other purposes compatible with the preferred dominant land use and the incompatible use and/or provide an appropriate relationship to the open space area as required in the circumstances …”17 [17] The general objective described under s 1.2.16.1 of the Strategic Plan is: “To ensure that at the interface between preferred dominant land use areas, development takes place in such way that the achievement of objectives relating to each area is not compromised by the proximity of the other.” And under s 1.2.16.2: “To provide for the separation of incompatible land uses and activities through the implementation of the pattern of development promoted under the Strategic Plan”.18 [18] Under the Strategic Plan it is tolerably clear that in respect of park residential development a high level of residential amenity is envisaged.19 Although, not insignificant areas of Park Residential land are affected to varying degrees, not only by the WWTP but also by air traffic noise. [19] The subject Strategic Plan was formulated under the PEA. Sections 1.4 and 2.4 of that Act provided: “‘Strategic plan’ means a plan that specifies in general terms the future preferred dominant land uses for the planning scheme area for the progressive development of lands within that area, that conforms with section 2.4 and is approved by the Governor in Council.” 17 Exhibit 15A p 4. 18 At p 24. 19 Exhibit 15A p 77; s 3.2.3.1. -- 8 of 21 -- 9 And “Strategic plan A strategic plan is to include— (a) a map or series of maps depicting preferred dominant land uses for the area; (b) a statement of objectives in respect of each of the preferred dominant land uses together with other criteria for determining the type, scale or distribution of other uses required as an integral component to service each preferred dominant land use; (c) criteria for the implementation of the plan.” [20] In Barns v Maroochy Shire Council20 Judge Searles said: “[72] The High Court in Kettering accepted the comments by Davies JA in the Court of Appeal to the effect that a Development Control Plan merely indicates the intentions for the future development of the area covered by a Planning Scheme and is not a statement of intention, nor a declaration or prescription of uses or prohibitions or restrictions upon them. As was said in Zieta No 59 Pty Ltd v Gold Coast City Council 71 by Connolly and McPherson JJ as to the effect of a Strategic Plan:— ‘The effect of a Strategic Plan was considered by Kneipp J in Curtis v Beaudesert Shire Council [1983] 1 Qd R 201/213 [(1982) 48 LGRA 8 at 19]. His Honour there observed that he was unable to see that the effect of the legislation was to elevate the provisions of the Strategic Plan from expressions of policy to mandatory provisions. His Honour went on:— “The plan quite plainly says that it relates to policies. The only way in which it and the Scheme properly could be read together sensibly is to regard the plan as to relating to policies only, mandatory requirements being dealt with by the proper scheme.”’” [21] However, there is nothing to prevent a strategic plan incorporating a degree of particularity. 21 The Strategic Plan is to be construed as a whole and in a practical and common sense way which best achieves its identifiable purposes and objectives.22 Minor change issue 20 (2010) 176 LGERA 239 at 275-276. 21 Lewiac Pty Ltd v Gold Coast City Council (1996) 2 Qd R 266 at 273 per Thomas J. 22 Arpedco Pty Ltd v Beaudesert SC (1980) Qd R 88 at 94: Maher v Hervey Bay CC (2008) QPEC 123 at para [20]. -- 9 of 21 -- 10 [22] The court must not consider a change to an application on which the decision being appealed was made unless the change is only a minor one.23 [23] The original proposal comprised of a six-lot subdivision. The areas of the lots ranged from 2,000 square metres to 2,024 square metres. The existing improvements were located on Lot 1 comprising an area of 2,024 square metres. Four lots fronted Senor Avenue (Lots 1, 4, 5 and 6), one lot fronted Walkers Road (Lot 2) and one lot had frontage to both Walkers Road and Senor Avenue (Lot 3). Lots 2, 3 and 4 were subject to covenants which prevented the construction of any habitable dwelling within a 40 metre set back of Walkers Road. [24] The proposal now before the court is a four-lot subdivision. The area of Lot 1 has been effectively doubled, and now has access to Senor Avenue to the west and Walkers Road to the east. The existing improvements are located towards Senor Avenue. Lots 2 and 3 are essentially the same area as the original Lots 5 and 6, but their orientation is now in an east to west direction rather than a north to south direction. The original Lots 3 and 4 are now effectively replaced by the current Lot 4. As has been already mentioned, the building envelope over Lot 4 is located in the south-western corner of that lot to ensure, as was the case with the original proposed covenants, that any dwelling located on the lot is as far away from the WWTP as practicable. [25] Having regard to the differences between the two proposals, I am satisfied that the change is only minor. As much was conceded by Mr Williamson, counsel for the respondent. The waste water treatment plant and the land [26] The existing plant, generally speaking, lies in the north-eastern corner of the site. So the subject land is also separated from the existing plant by a large tract of bushland. Apart from various buildings associated with it, significant features of the WWTP include a wet weather storage lagoon area, oxidation ditches, an aerobic digester, an intermittently decanted extended aeration tank and a Bathurst Box (septic and grease trap waste receival and treatment).24 [27] The plant operates 24 hours a day, seven days a week and treats both domestic and trade waste. Domestic waste water, including sewerage, is treated separately from trade and commercial waste which is more likely to contain substances that could corrode or block the domestic sewerage treatment process. Trade and commercial waste, which might include grease, oils and more solid material, is transported to the plant by tanker and discharged at the inlet to the Bathurst Box. Essentially the Bathurst Box is an open septic tank in which trade waste is aerated and held for up to 10 days.25 [28] In 2005 the plant was upgraded to a service approximately 10,000 “equivalent dwellings”. The plant is presently operating at near capacity and a report commissioned by WBW concluded that by 2019 capacity for an additional 10,000 equivalent dwellings needs to be catered for. The report also considered whether 23 Integrated Planning Act 1997 s 4.1.52. 24 See Exhibit 12 p 11 and Exhibit 13. 25 The treatment process is described in some detail in the statement of Mr Care, Exhibit 12, paras 16- 17. -- 10 of 21 -- 11 the upgrade could be undertaken by two 5,000 equivalent dwelling increments in 2013 and 2019, or a single 10,000 equivalent dwelling augmentation in 2013- 2014.26 The plant has approval to cater for up to approximately 24,300 equivalent dwellings. [29] It is anticipated that the upgrade will provide suitable treatment and effluent disposal capacity until about 2031, depending on future population growth rates. Planning beyond 2031 has not commenced. Mr Care27 gave evidence to the effect that there was a strong preference to, wherever practicable, expand existing WWTPs rather than establish new facilities. [30] Future expansion would be likely to extend the footprint of the WWTP in a southerly direction. However, according to Mr Care, the planned expansion (up to 2031) could largely be accommodated in the current cleared and fenced plant footprint.28 [31] An unavoidable impact of the WWTP is odour emission. The extent of odour impact is dependent upon the nature and extent of the activity carried on within the plant itself and of course on prevailing weather conditions, particularly wind direction. In his statement, Mr Care said as follows:29 “37. Given the obvious potential for the Pugal Creek WWTP to impact on its neighbours, WBW does its best to ensure that the potential odour impacts of the facility are managed, as much as is reasonably possible, to contain odour emissions within the boundary site. That said, even doing our very best there is always a risk that (even with the best intentions) ameliorative measures will not successfully manage potential odour impacts. For example, a third party may deposit trade waste in the Bathurst Box which has a significant impact on the biological processes relied upon to treat that waste. If the waste impacts upon the production of bacteria in the treatment process, there is a very real potential for out of the ordinary odour emissions which may not return to normal levels for a number of days. 38. There is no way to decommission the treatment plant during periods of significant operational difficulties such as that identified above. The effluent simply continues to flow to the treatment plant. 39. It is for these reasons that WBW prefers to plan, in terms of mitigating its impacts, for scenarios where there are significant operational difficulties where odour impacts are outside ordinary operational conditions.” 26 Exhibit 12 para 28. 27 WBW’s director of Engineering Consultancy Services. 28 Ibid para 29. 29 Exhibit 12 paras 37-39. -- 11 of 21 -- 12 [32] As I understand the evidence, those “third party” waste deposits are referred to as “shock loads”. [33] Further expansion of the WWTP beyond its current footprint may lead to an increase in odour impact, but the potential for any increase in such impact is currently unknown.30 [34] Against this background, I was referred to by Mr Williams to the comments of his Honour Senior Judge Skoien in Gray v Caboolture Shire Council (No. 2): 31 “The sole ground ultimately argued on the appeal, stated compendiously, is that it would be contrary to sound planning principles to permit the establishment of rural residential allotments because of the proximity of the sewerage treatment plant. … It was submitted to me that, assuming that smells undoubtedly occur, it is proper to leave that fact to the market place; people will buy with their eyes open and their noses unblocked; they will be cautious; they will weigh up the disadvantages from the plant against the other advantages of the site. I am unable to accept that. Logically extended to its extreme, the argument would prevail in all “reverse amenity” cases, that is, cases where it is sought to establish a new zone or use near some use which is unpleasant, for example, a residential use near a quarry industrial zone, etc. I consider that a responsible planning authority should not abdicate its responsibility in that field, it being important to prevent a use being established which will have a lower amenity than is generally enjoyed by such a use. … There are, indeed practical as well as aesthetic reasons for that. In this case, for example, a buyer of a rural residential lot might not appreciate the problem or might not appreciate the magnitude of the problem. Once he did, he might well complain regularly and vehemently to the council, placing the council resources under severe strain.” [35] While I, with respect, generally agree with his Honour’s observations concerning the extent of the role of market forces, it needs to be kept in mind that each appeal must turn on its own facts. There are a number of material differences between the facts in this appeal and that in Gray. In Gray, the subdivision had the potential to create 62 new lots, and improvements on those lots would have been materially closer to the plant.32 In Gray, plant overloads could occur (and cause odour problems) up to 30 days a year. 33 30 T1-41 L5 to T1-42 L6. 31 (1985) QPLR 432 at 433-434. 32 At 433 LLE-F. 33 L.G. -- 12 of 21 -- 13 The scientific evidence [36] As identified in paragraph 13 above, s 1.2.15.1 of the Strategic Plan established a 1,000 metre zone purportedly to prevent (where possible) the establishment or intensification of uses which may be sensitive to possible odour impacts from the WWTP. The subject land lies well within this 1,000 metre zone. [37] The plan of the proposal shown in Exhibit 1 at p 5 identifies two distances, being 600 metres to the nearest large pond edge and 600 metres to the nearest small pond edge. Both the existing dwelling and the building envelope on Lot 4 are clear of the former but approximately 50% of the building envelope on Lot 4 falls within the latter. The existing dwelling on Lot 1 and dwellings on Lots 2 and 3 could be constructed clear of both. The “small pond” and “large pond” referred to are identified in Exhibit 1 at p 6 and are the Bathurst Box and I.D.E.A. Lagoon referred to by Mr Care and identified in Exhibit 13. [38] As a part of its ongoing management regime, WBW commissioned a report addressing odour impacts from the WWTP. A copy of that report is attached to Mr Care’s statement.34 Figure 5.2 of that report identifies the 99.5 percentile odour concentration (odour unit) contours around the WWTP. The report identified an area shown in red within which residents would have reason for complaint about odour. The report relevantly states: “All residents within the 30 OU contour (shaded red) are highly likely to have justifiable reason for complaint and many residents within the 10 OU contour (shaded yellow) are also likely to have cause for complaint depending on their sensitivity.” (emphasis added) [39] As a consequence of that report, the then Hervey Bay City Council issued its Transitional Planning Scheme Policy No. 25 (TPSP 25). 35 Attachment 2 to the policy identifies the area within which the council would not favour intensification of residential development beyond that which was allowable without impact assessment. The area so identified in Attachment 2 to the planning policy is to all intents and purposes identical to that area identified in red in the report commissioned by WBW and referred to above. The policy was adopted by the then Hervey Bay Council on 5 August 1998. The subject land falls outside that area identified in TPSP 25. 36 [40] It was submitted to the effect that TPSP 25 was largely irrelevant in the circumstances of this appeal.37 I disagree. The policy was introduced after the Strategic Plan came into operation and following scientific investigation to “… establish a basis for the exercise of Council discretion in relation to development applications (which were impact assessable) in the vicinity of the Pulgul Creek and Eli Creek (WWTP).” The current policy of WBW referred to in paragraph 13 above is also broadly consistent with this policy. It is a relevant policy document. I note the town planners agree.38 34 Exhibit 12; see also Exhibit 17. 35 Exhibit 15B. 36 See, for example, Exhibit 26. 37 Written submissions of respondent at para [56]. 38 Exhibit 2B, p 306, para 4.1.5. -- 13 of 21 -- 14 [41] A condition of the development permit for the WWTP requires that the release of noxious or offensive odours resulting from any activity must not cause a nuisance at any nuisance sensitive or commercial place.39 However, it is recognised that even with the best of intentions and utilisation of management best practices, odour emission levels could exceed the ERA approval requirements for up to 12 days a year on average. There have been some complaints by nearby residents concerning odours from the WWTP. It would be fair to say that the occupants of one particular residence on the corner of Senorita Parade and Walkers Road are responsible for a significant proportion of those complaints. A survey was carried out by Mr Cullen, the town planner retained by the appellant, some time prior to July 2008. One of the purposes of this survey was to identify the impact of odour emissions from the WWTP in the vicinity of the subject land. In his report Mr Cullen states: “Fifty-five per cent of those surveyed have never noticed odour from the treatment plant. Some of these residents have lived here for 18 years. The averages response to rate the intensity of any odour from zero to 10 was 1.1 out of 10. This is hardly a real threat to residential amenity and supports the council’s current odour policy plan that shows this area (is) clear of adverse impact from the treatment plant.”40 [42] Both parties relied on the advice of experts regarding odour emissions. The appellant relied on Mr King, and the respondent Mr Galvin. Both experts agreed that while the report prepared for WBW in 1997 was reliable at the time, significant advances have been made since then, particularly in the areas of emissions measurement, estimation and modelling.41 Accordingly, both experts considered it appropriate to carry out further investigations using more up to date modelling and measuring techniques. The more recent modelling also took into account future expansion of the site. As a result of this work, further emission “contour” plans were produced, showing average and maximum emissions for the existing facility42 and average and maximum emissions for the expanded facility.43 The experts also agreed that in respect of sensitive uses, the appropriate odour criteria would be the Queensland Odour Guideline Value of C99.51H5 =2.5 ou. 44 [43] By reference to Exhibits 4 and 5, the subject land lies beyond the 2.5 ou contour for average emissions in respect of the existing and expanded WWTP facility. Under maximum conditions for the existing facility, the north-eastern corner of the subject land falls within the 2.5 ou contour45 and in maximum conditions for the expanded facility the whole of the subject land lies within that contour.46 [44] Under the present lot layout, the existing dwelling and all future dwellings could be located beyond the maximum emission 2.5 ou contour for the existing WWTP. The same situation would apply for the average expanded scenario, but all dwellings would lie within the 2.5 ou contour for the maximum expanded scenario. 39 Exhibit 2A p 195. 40 Exhibit 2A p 59. 41 Exhibit 2B p 286. 42 Exhibits 4 and 6. 43 Exhibits 5 and 7. 44 Exhibit 2B p 292. 45 Exhibit 6. 46 Exhibit 7. -- 14 of 21 -- 15 [45] Modelling was based on the proposed expansion to cater for 24,000 to 25,000 equivalent dwellings up to 2031. The experts also agreed that the “maximum” emission scenario is a “worst case” more applicable to a poorly managed WWTP. 47 The complaint data and the evidence of Mr Care is more consistent with the Pulgul WWTP being a well-managed facility rather than a poorly managed one. [46] Both experts agreed that the proposed subdivision would not necessarily be a primary constraint to any future expansion of the WWTP as there are a number of receptors (sensitive uses) significantly closer to the WWTP and therefore more likely to be impacted depending on location and nature/extent of expansion. 48 The experts also investigated complaint data and reported: “The complaint data indicates a number of complaints over the last five-six years. In total, 11 complaints have been received from three complainants. Of these, nine are from a single complainant (Receptor E in Figure 1). The location of the complainant is consistent with the prevailing winds in that they are generally from the south-east (see Figure 6 below on p 12). Mr King and Mr Galvin both agree that given the population density around the WWTP, the actual level of complaint was low and did not indicate ongoing odour nuisance associated with the normal operation of the Pugal WWTP.”49 [47] Mr Cullen, in support of his argument that the 1,000 metre “buffer” created under s 1.2.15.1 of the Strategic Plan was arbitrary and inappropriate, pointed to the fact that the respondent (in its present and/or former guise) has approved subdivision within the 1,000 metre “buffer” after the adoption of TPSP 25 on 5 August 1998. 50 From my interpretation of the area identified in TPSP 25, most if not all the residential development (some of it to a more intensive scale than proposed here), while within the 1,000 metre “buffer”, lies outside the area designated in that policy. Industrial subdivision has been permitted within that area, but that is not a relevant consideration here. That such apparent departures by the Council of its planning scheme exist is a relevant consideration,51 but not decisive. [48] Based on the modelling carried out by him and Mr King, and after having regard to the location of the subject site and meteorological data, Mr Galvin was of the opinion that the proposed development will not be impacted by the existing WWTP. And, in the event of future expansion, as odour mitigation would be required to meet odour nuisance criteria as set by the Department of Environment and Resource Management, he also considered it unlikely that the proposed development would be impacted by the WWTP, at least up to a 25,000 ED capacity. However, he did acknowledge that what was still not able to be determined at this stage was the impact of any further expansion beyond that currently being considered. [49] Mr King, on the other hand, considered that the development, even limited to only three additional households, would increase residential population density and therefore would be likely to present a constraint on its ability to expand. Mr King 47 Exhibit 2B p 290. 48 Exhibit 2B p 292. 49 Exhibit 2B p 293. 50 Exhibit 2B at p 318. 51 Grosser v Council of the City of Gold Coast [2001] QCA 423 at para [44]. -- 15 of 21 -- 16 considered that the development would result in an adverse amenity situation, both in respect of the future residents of the subdivision and the WWTP itself; the former being affected by odour, the latter by constraints on future expansion. [50] The primary purpose of the relevant sections of the Strategic Plan is to ensure an appropriate separation of sensitive uses and incompatible uses. The question is: Is there any justification for the 1,000 metre separation prescribed in s 1.2.15.1 of the Plan? I do not consider there is. I agree with Mr Cullen’s assessment that the 1,000 metres is an arbitrary figure. There is no underlying scientific (or other) evidence which can be pointed to as objectively justifying that degree of separation. [51] Neither Mr King nor Mr Galvin gave evidence which could be said to substantiate a separation of 1,000 metres form the WWTP. It is also inconsistent with the operator’s own policy, based on scientific advice. I should note here that the WBW reference to the 1,000 metre separation as being “historical” is probably a reference to the fact that it was superseded by TPSP 25 and/or by the Odour Impact Overlay Code under the respondent’s current town plan, which is more consistent with TPSP 25 than it is with the second limb of s 1.2.15.1 of the 1996 Strategic Plan.52 Also, as Exhibits 4, 5, 6 and 7 show, in all but the “extreme/expanded” scenario the 2.5ou contour broadly speaking is also well inside the 1,000 metre separation distance. In this context it is also relevant that the “extreme/expanded” scenario is a worst case scenario more consistent with a less rigorous degree of management than appears to be the case at the subject WWTP. [52] For the reasons given, I do not consider the 1,000 metre separation has any scientific basis. Also, I do not consider that the proposal would compromise in any realistic sense the expansion of the WWTP into the foreseeable future. The results of the scientific research reflected in Exhibits 4, 5, 6 and 7 has already been referred to. And, as recognised by Messrs King and Galvin, there are a number of existing sensitive uses more likely to be a constraint on expansion closer to the WWTP than the subject land. 53 Amenity and conflict with the town plan [53] In the written submissions of Mr Williamson, the conflicts between the proposal and the Strategic Plan are particularised as follows:54 (i) it seeks approval to intensify residential development, a sensitive use, in (an) area the Strategic Plan discourages for such intensification – relevantly the land has frontage to Walkers Road, as distinct from being located at the periphery of the thousand metre identified in s 1.2.15.1 of the Strategic Plan and WBW policy; (ii) it seeks approval to intensify residential development in an area where it would be reasonable to expect (such development) would be materially impacted upon by odour emissions from the WWTP;55 52 See Exhibits 25 and 26. 53 Exhibit 28 at p 292. 54 At para 79. See also at para 48. 55 Reference is made to the evidence of Mr Galvin at T1-42 L 17-21. -- 16 of 21 -- 17 (iii) the intensification of the residential use will not be without consequence, it has the potential to further constrain the operations of the WWTP both now and into the foreseeable future.56 [54] I have dealt with the issue of expansion into the foreseeable or forecasted future. [55] In paragraph 48 of Mr Williams’ written submissions it is also asserted that: “With respect to the application of this provision of the Strategic Plan to the present case, there is no doubt that: (a) the proposed development seeks to intensify residential development; (b) residential development is sensitive to, at the very least, possible odour impacts from the WWTP; and (c) the proposed development is well within an area of 1,000 metres of the WWTP – only a sixty metre road reserve separates the subject land and the land on which the WWTP is located.” [56] In respect of subparagraph (c) I cannot, with respect, accept that the complaint as formulated is strictly relevant. It is true that the subject land is separated from the WWTP site by the road reserve. However, as the respondent itself acknowledges, the 1,000 metre separation incorporated into s 1.2.15.1 of the Strategic Plan is from the plant, not site boundaries. As identified, depending from which point measurements are taken, houses erected on the land when subdivided would be in the order of 600 metres removed from the plant, even in its expanded form, at least until 2031 or thereabouts. [57] When dealing with the question of amenity, it was also submitted on behalf of the respondent to the effect that while the primary focus quite properly should be directed to the issue of odour emissions, the impact of amenity should not necessarily be limited to tangible effects, and the negative effect or impact on amenity by virtue of simply being located close to such a facility should not be ignored. In support of this submission, reference is made to the decision of de Jersey J (as he then was) in Broad v Brisbane City Council.57 On behalf of the respondent it is submitted that “no one wants to live near a WWTP as its very existence is incompatible with residential development and, quite frankly, is an undesirable feature of the character of an area.” [58] To the west, and particularly to the south and south-west, the existing facility is separated from Walkers Road by a significant tract of bushland. That situation is likely to remain even after the planned expansion for 2035 or thereabouts. It is unlikely that even if there was further expansion after 2035 or thereabouts an effective visual screening of the facilities would not be retained between it and the residential development west of Walkers Road. [59] On balance I consider that the only relevant potential conflicts with the town plan are concerned with the issues related to odour emissions. In cross-examination Ms Roughan identified odour impacts as the “primary issue” but was not really able 56 In this regard, reference is made to the evidence of Mr King at T1-60 L50 to T1-61 L2 and to Ms Roughan at T2-50 L2-10 and T2-18 L38-51 per Mr Cullen. 57 (1986) 2 Qd R 317 at 325. -- 17 of 21 -- 18 to articulate in any meaningful way any other amenity issues associated with proximity to the WWTP. 58 [60] In deciding issues involving expectations on perceptions of amenity, the test is one of reasonableness. “The standards of comfort and enjoyment which are to be expected by ordinary people … not affected by some special sensitivity or eccentricity.” 59 While this case is not one concerned with disappointing or destroying the expectations of existing residents, the likely level of odour impacts have to be considered in a reasonable and not overly sensitive or precious way. [61] In assessing the likely impacts on amenity caused by odour, Ms Roughan really deferred to the evidence of Messrs King and Galvin.60 It would also seem that, at least in part, Ms Roughan considered that development ought be refused within 1,000 metres of the WWTP because that distance “was not too dissimilar to the maximum emissions of an extended plant”. This is of course a reference to the 2.5ou contour produced by Messrs King and Galvin in Exhibit 7.61 At transcript p 2-65, Ms Roughan gave the following evidence: “Now the – your approach to the one kilometre is that it’s fixed in stone, as it were, to absolute?-- No, I wouldn’t say that that’s my approach to it. I look to the strategic plan intentions taken as a whole which are clearly trying to protect important community assets such as the waste treatment plants from encroachment by users that a [sic] potentially sensitive to odour and other amenity impacts; that it wants to do that not only in terms of the existing facility but its long term needs. Now, the implementation criteria in the strategic plan points to a desirability to not intensify or establish a new development within an area of 1000 metres of the plant, and that’s in my view a reasonable area of influence in which it is certainly appropriate to have a close look at, what the likely affects might be, both now and into the future. And is there any scientific basis for the one kilometre?-- Look, I couldn’t answer that definitively in that I wasn’t part of the drafting of that planning scheme, so I’m uncertain of the original source of the 1000 square (sic) metres. It’s my expectation that in drafting that provision that the council had some professional advice. It [sic] note when you look at the odour experts’ joint report that the one kilometre area isn’t too dissimilar to the maximum emissions of an extended treatment plant, so it seems not an unreasonable area to look at in terms of assessing the desirability or otherwise of a development proposal. We haven’t seen any documents by way of disclosure which show any scientific basis for the one kilometre, whenever it was thought 58 T2-56 – T2-58. 59 Rio Pioneer Gravel Co Ltd v Warringha SC (1969) 17 LGRA 153 at 168: applied by Skoien SJDC in Prime Group Properties Ltd v Caloundra CC & Anor (1995) QPLR 147 at 151 A-B. 60 T2-58 L10-L32. 61 This might have been a retrospective assessment by Ms Roughan, as I am uncertain that she had access to Exhibit 7 when she produced her report. -- 18 of 21 -- 19 of, studied, or anything. Have you been given anything of that nature-----?-- No, I haven’t.” [62] Ms Roughan is of course correct in not seeing the 1,000 metres separation prescribed in s 1.2.15.1 of the Strategic Plan as an inflexible absolute. The primary objective of sections of the Plan, such as ss 1.2.15.1, 1.2.16.1 and 1.2.16.2, is to ensure appropriate and acceptable interaction between necessary but incompatible urban uses. However, in my view it would be wrong to set criteria based on a worst case scenario. Such criteria might be appropriate when planning to take account of bushfires, flooding or other such potentially disastrous events. But to adopt such a test for odour would, in my view, be to adopt an overly sensitive approach. Ms Roughan also ignores (at least in this passage of her evidence) the previous development approvals within 1,000 m of the WWTP but consistent with TPSP 25. [63] On the evidence before me, the amenity of residents and the future expansion of the WWTP would be adequately protected and catered for by compliance with TPSP 25. Development in accordance with that policy will not impact in a significant way on amenity. As I have said already, there appears to be no scientific (or other) basis for the 1,000 m separation. That strategy or policy was overtaken by events, being the scientific study undertaken by WBW and the subsequent TPSP 25. [64] In reaching this conclusion I have found the following evidence to be particularly persuasive. First, the evidence concerning the modelling results produced by Messrs King and Galvin.62 Second, the science underpinning TPSP 25. Third, the broadly consistent application of that policy as evidenced by the current policy adopted by WBW, 63 the current odour guidelines of the respondent64 and the apparent application of TPSP 25 by the respondent in allowing other residential development within 1,000 metre of the WWTP. 65 In respect of the last matter, I do not consider the evidence concerning commercial development to be of much relevance. The relatively low level of complaints concerning the WWTP at its present level of capacity is also a matter I have taken into account.66 [65] For the above reasons I have concluded that the proposal is not in conflict with the Strategic Plan and the appellant has discharged its onus. The appeal will be allowed and the application approved subject to conditions including conditions concerning the location of the building sites on Lots 2 and 4. Sufficient grounds [66] However, before making final orders, I consider it appropriate to deal with the appellant’s alternative argument that, if the proposal is in conflict with the Strategic Plan, then there are sufficient grounds to justify approval despite the conflict. The alternative argument is essentially one based on town planning and/or community 62 Exhibits 4, 5, 6 and 7. 63 At Exhibit 2A pp 103 and 130. 64 Exhibits 25 and 26. (The difference between the (XX) in Exhibit 25 and Exhibit 26 is explained at T2-40). 65 Summarised by Mr Cullen in Exhibit 2B at p 309 para 5.1.3. 66 Refer to paras [41] and [46] above. -- 19 of 21 -- 20 “need”. Positive consequences of the development are pointed to. Choice and the desirability of the location, having regard to amenities such as schools and shops. 67 [67] Need for a use in a town planning sense does not require a pressing need or even a widespread desire.68 In considering the question of “sufficient planning grounds” under s 4.4(5A) of the PEA, Skoien SJDC said in Bunnings Building Supplies Pty Ltd v Redland Shire Council:69 “Need, in planning terms is widely interpreted as indicating a facility with will improve the ease, comfort, convenience and efficient lifestyle of the community. See for example Fitzgibbon Hotels Pty Ltd v Logan City Council (1997) QPELR 208 at 213. So to provide competition and choice where there is none in existence could be the filling of a need. In this case Bunnings has a virtually identical warehouse at Cannon Hill, a short drive away from the site. Capalaba itself has a 9600 square metre BBC major hardware store. Hardware is also available in Capalaba on a substantial basis from a Big W and a K-Mart. On all of this evidence I remain unsatisfied that need has been established. I am mindful of the statement of Carter DCJ in William McEwans Pty Ltd v Brisbane City Council (1982) 2 APA 165 at 170 in these terms: ‘It should not, in my opinion, be thought that a rezoning can be justified by merely contriving a need which is, essentially, nothing more than exercise in entrepreneurial skill, the effect of which is to give the applicant some commercial advantage. Nor will land be rezoned in favour of the entrepreneur who seeks to create the need by the use of his land in the manner he desires. The basis assumption must be that there is an existence at the time of the application a latent unsatisfied demand on the part of the persons affected by the Planning Scheme which is not being met at all, nor being adequately met by the Scheme in its present form.’” [68] The evidence does not reveal any lack of supply of park residential lots suitably located in respect of services and amenities. Also, it could not be said that the potential market for park residential lots is, to any material extent, deprived of opportunity of choice. [69] Accordingly, in the event that there was a real conflict with the Strategic Plan, I would not consider there to be sufficient planning grounds to justify approving the application despite the conflict. [70] I order that: 1. The appeal is allowed. 67 Mr Haydon’s written submissions at paras 9-12 and 117. 68 Isgro v Gold Coast CC (2003) QPELR 414 at 418. 69 (2000) QPELR 193 at para 21(e). -- 20 of 21 -- 21 2. The appeal is otherwise adjourned for notification of conditions. 3. The appeal be listed (if required) for review on a date to be fixed. -- 21 of 21 --