Bassingthwaighte v Roma Town Council & Ors [2010] QPEC 91 [2011] 1 QPELR 63

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bassingthwaighte v Roma Town Council & Ors [2010] QPEC 91 PARTIES: DAVID AND SUZANNE BASSINGTHWAIGHTE (Appellants) AND ROMA TOWN COUNCIL (Respondent) AND DEPARTMENT OF MAIN ROADS (First Co-respondent) AND OSWALD BEHREND, STEVEN AND CATHERINE DUFF, JOCK DOUGLAS, SONIA HARLAND, RANALD FERRIER, VICTOR RONOSCH, BRETT AND TERRI MILLER, DIANE FITZGERGALD, LAWRENCE FITZGERALD, RUSSELL GRULKE AND MARISSA GRULKE (Second to Twelfth Co-respondents) FILE NO: 3664/07 DIVISION: Planning and Environment PROCEEDING: Hearing of an appeal ORIGINATING COURT: Planning and Environment Court of Queensland, Brisbane DELIVERED ON: 15 September 2010 DELIVERED AT: Brisbane HEARING DATE: 10-20 May, 3, 4 June 2010 JUDGE: R Jones DCJ ORDER: Appeal dismissed. CATCHWORDS: PLANNING LAW – Burden of Proof – proposed large cattle saleyards in environs of provincial town – refusal by council – significant number of submissions by local residents – town planning concerns about odour, traffic, noise and other amenity issues – conflicts with town plan – where revenue from existing saleyards used for general benefit of town Integrated Planning Act 1997 -- 1 of 46 -- 2 Sustainable Planning Act 2009 Cases considered or referred to: Arksmead Pty Ltd v Gold Coast City Council [2000] QCA 60; (2001) 1 Qd R 347 Aria Property Group Ltd v Maroochy Shire Council [2008] QCA 169 Arpedco Pty Ltd v Beaudesert Shire Council (1989) Qd R 88 Australian Capital Holdings Pty Ltd v Mackay City Council [2007] QPEC 100; (2008) QPELR 224 Baglow v Livingstone Shire Council (1983) QPLR 352 Benchmark Developments Pty Ltd v Cairns City Council [2007] QPEC 91 Brown v Brisbane City Council [2005] QPEC 26; (2005) QPELR 629 Brown v Moreton Shire Council (1972) 26 LGRA 3 10 Celledoni v Johnson Shire Council & Ors [2008] QPEC 104; (2009) QPELR 256 Grosser v G.C.C.C [2001] QCA 423 Isgro v Gold Coast City Council [2003] QPEC 002; (2003) QPELR 414 Jeteled Pty Ltd v Toowoomba City Council (1997) QPELR 213 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPEC 29; (2005) QPELR 648 Prime Group Properties Ltd v Caloundra City Council & Ors (1995) QPELR 147 Tully Sugar Ltd v Cassowary Coast Regional Council (2010) QPEC 41 Weightman v Gold Coast City Council [2002] QCA 234; (2003) 2 Qd R 441 (C/A) Walker v Wilson (1991) 172 CLR 195 Watts and Hughes Properties Pty Ltd v Brisbane City Council(1998) QPELR 273 WBQH Developments Pty Ltd v Gold Coast City Council [2010] QCA 126 Webster v Caboolture Shire Council [2008] QPEC 82; (2009) QPELR 455 Westfield Management Ltd v Pine Rivers Shire Council & Anor [2004] QPEC 14; (2004) QPELR 337 Woolworths Ltd v Maryborough City Council (No 2) [2005] QCA 262; (2006) 1 Qd R 273 (C/A) COUNSEL: Mr D. Gore QC and Mr B. Job for the appellants Mr C. Hughes SC and Mr M. Williamson for the respondent Mr S. Ure for the second to twelfth co-respondents -- 2 of 46 -- 3 No appearance for the first co-respondent SOLICITORS: Anderssen Lawyers for the appellants McInnes Wilson Lawyers for the respondent King and Co. Solicitors for the second to twelfth respondents First respondent not represented [1] This is an appeal against the decision of the Roma Town Council to refuse the approval of cattle saleyards on the outskirts of the town of Roma. The appeal is by D. and S. Bassingthwaite (as applicants) against that refusal. As the relevant development application was made during the currency of the Integrated Planning Act 1997 (IPA) and the appeal was also commenced during the currency of that Act, pursuant to the transitional provisions of the Sustainable Planning Act 2009 (SPA), the appeal is to proceed as though SPA had not commenced. Pursuant to s 4.1.50(1) of IPA, the appellants carry the onus of establishing that the appeal should be upheld. Roma [2] Roma is a Queensland provincial town strategically located for the Queensland cattle industry. It has a population of about 7000 and boasts the largest cattle saleyards in Australia, if not in the southern hemisphere, being able to accommodate in the order of 12,500 head of cattle during auction. More will be said about the existing cattle saleyards below. [3] The local government area for Roma became part of the amalgamated Maranoa Regional Council area in 2008. Under the Roma Planning Scheme 2006 (the Scheme), the town of Roma is broken up into two areas, a “rural” area and a “town” area. Within the town area various zonings are identified, including residential, industry, recreation, commercial, rural residential and special use. Under the rural -- 3 of 46 -- 4 area there is only a rural zoning. 1 In addition to the usual services and amenities one would expect in a provincial town, the residents of Roma enjoy access to a hospital, golf course, showgrounds and horseracing track, and an airport. The existing saleyards are located on or just off the Warrego Highway to the east of the town within industry zoned land. The Proposal [4] The proposal is located on the Warrego Highway approximately 3.5 kilometres west of Roma. The land that would accommodate the proposal is approximately 35 hectares, and lies within the “rural” area of the Scheme. The land is vacant and predominantly cleared of vegetation. In the past, the land had been used for grazing purposes and occasional cropping. Generally speaking, the site is flat. [5] The proposal is located in an area which could be broadly characterised as a mix of rural, rural residential and industrial uses.2 To the north, across the Warrego Highway, is a rural residential development known as the Timeleah Estate. This subdivision is approximately 400 metres from the proposal site and 500 metres from the nearest structure on the site at its closest point. Further to the north are a number of larger rural residential blocks. To the south lie a number of rural residential blocks ranging from about 4 hectares to 8 hectares in area. Other larger rural residential type parcels of in the order of 20-plus hectares are located to the south and southeast of the proposal. To the northeast are more closely settled residential areas, including those known as the Roma Heights Estate and the Karolee Court and Rosedale Close developments. Immediately to the east is an area of land owned by Department of Primary Industries (DPI), which is used as an 1 See Exhibit 1 at p.8. 2 Town Planners Joint Report, Exhibit 3, para 8. -- 4 of 46 -- 5 experimental cropping site. Approximately one kilometre to the east and 850 metres to the northeast lie significant areas of land zoned for industry. To the west, the land is dominated by rural uses. Most of the rural residential blocks are undeveloped and unoccupied. [6] Of significance is that the site of the proposal is identified as good quality agricultural land (GQAL). However, within this general designation, the site is broken up into two areas divided by a watercourse. To the east of the watercourse, the land is identified for limited purposes such as marginal cropping. To the west is land identified as high quality pastureland. More will be said about this issue below. However, at this stage it is worth noting that the existing yards are also located on land identified as being GQAL and, in respect of the proposal, the structural works will be, if not entirely, then predominantly located on the poorer quality land to the east of the watercourse. [7] The proposed cattle yards, described as a livestock exchange, is designed to cater for up to 11,000 head of cattle. Unlike the existing yards, the entire selling area will be under cover. Facilities will include modern offices, a cafeteria, a truck wash-down area, a machinery shed and effluent control system. Unlike the public truck wash-down area at the existing yards, that proposed is limited to only those trucks associated with the business of the saleyards. [8] Features of the proposal, which was described as a modern state-of-the-art facility (to be compared or contrasted with the existing saleyards), include: • that the entire sales area will be under cover • the physical separation of man and cattle • a design system for the yards which allows for the linear flow of cattle from one end of the yards to the other • soft floors in the yards and pens where the cattle will be kept • a sophisticated drafting method. -- 5 of 46 -- 6 [9] There were in the order of 600 adverse submissions (objections) made concerning the proposal. 3 Generally speaking they fell into 5 pro forma categories and raised concerns about amenity/ environmental matters including noise, odour, visual amenity and water supply. Loss of “community” income from the existing yards was also a concern of some significance. 4 While there is no direct evidence about this, it seems unlikely that many of the submitters would be directly affected by the amenity concerns raised. [10] It was contended by the appellants that most of these concerns were addressed by their own management plan for the proposal and/or by the relevant experts relied on by the parties. [11] That there was so many objections, nearly 9% of the population of Roma, is relevant and must be given weight but it is not decisive. Of some significance is the fact that notwithstanding that many of the submissions were of a pro forma character, the matters and concerns identified therein were, as Mr Schomburgk 5 acknowledged, legitimate. They were not, as was the case in Baglow v Livingstone Shire Council6, largely based on misconceptions and irrelevancies. Also, while accepting the appellants submissions that many of the concerns raised in the objections were dealt with by the experts, it does not follow in a town planning context that those concerns are nullified. 7 For reasons given below I have concluded that the evidence of the experts would not, in a number of areas, reasonably dispel the concerns raised about the proposal’s impacts on amenity. Issues in the appeal 3 There was conflicting evidence about this however the likely range was between 577-631. 4 See Ex 49. 5 The town planner relied on by the appellants at T6-29 l 5. 6 1983) QPLR 352 at 354-355. -- 6 of 46 -- 7 [12] Broadly speaking, the issues raised in this appeal fall under the following headings: (i) the characterisation of the proposal; (ii) amenity (including visibility, odour, noise and lighting); (iii) traffic; (iv) ground water and surface water; (v) GQAL; (vi) otherwise, how the proposal sits within the planning scheme of Roma (including the future urban expansion of the town and public expectations); (vii) need. [13] The subject land, as do the rural residential lots surrounding it, lie within a designated rural area. Significantly, the overall outcomes for rural areas include maintaining rural amenity by not compromising community wellbeing through the development of intensive animal industries (especially its impacts upon noise levels, traffic volume, lighting levels and local amenity) and ensuring that development is located, designed and operated in a manner that protects and enhances the predominant rural scale, intensity, form and character of the area. 8 The characterisation of the proposal [14] Under the Scheme two definitions are particularly relevant to this appeal. “Undefined use”, which is defined to mean “any use not otherwise defined under the Scheme”, and “Intensive Animal Industry”, which is defined as: “Intensive Animal Industry means the use of premises including buildings, structures, pens, storage areas, and effluent treatment areas for commercial or other non-domestic activities involving the breeding, keeping or depasturing of animals or animals where the animals: (a) … (b) are temporarily held pending transportation or marketing. 7 Jeteld Pty Ltd v Toowoomba City Council (1997) QPELR 213 AT 215 citing with approval Edmonstone and Assoicates v Emerad Shire Council (1999) QPLR 123 at 126.l 8 Exhibit 6, p 31. -- 7 of 46 -- 8 This term does not include those premises known as Bassett Park, Northern Road, Roma and Roma Saleyards Complex, Warrego Highway, Roma. The term includes the use of premises for purposes such as: • agriculture • dairy • commercial livestock dep • cattle feedlot • piggery • stable • cattery • kennel • commercial stockyard.” [15] The appellants contend that the proposal ought to be characterised as an undefined rural use. On behalf of the respondent and co-respondents, it is contended that the proposal should be characterised as intensive animal industry. [16] The characterisation of the proposal is relevant because if the proposal is properly characterised as intensive animal industry, under the rural area code of the Scheme, the minimum separation between it and sensitive land uses is 700m. 9 Some residences lie within 700m of the proposal. 10 The level of assessment of the proposal (impact assessable) is not affected by the resolution of the characterisation issue. [17] The Site-Based Management Plan and Procedure Manual (SBMP) for the proposal describes it in the following terms: “The saleyards development, known as the Roma Livestock Exchange can accommodate up to 11,000 head of cattle. This capacity is achieved using the selling pens as well as having additional pens to hold cattle before and after sales, and during loading and unloading operations.”11 9 Exhibit 6. p.36-AS27.2 and schedule 10. 10 See Exhibit 1, p.25. 11 Exhibit 8 at p 12. -- 8 of 46 -- 9 The various structures and facilities making up the entire proposal are set out diagrammatically in Figure 6 of the SBMP and at page 22 are described to include, in addition to the various cattle pens and yards: “— an office building, amenities and cafeteria — truck wash facilities — car parking areas — a small machinery shed — three trafficable solids traps — a clean water dam to capture rainfall from the roof of the covered pens — an effluent treatment pond to treat the liquid component of truck wash effluent — a stormwater pond to capture rainfall from the uncovered pens and other areas.” The proposal is almost entirely under roof, having dimensions in the order of 240 m x 170 m x 16 m. [18] The three town planners called on behalf of the parties agreed that the definition of intensive animal industry is the closest land use definition for the proposal under the Scheme. But it was noted that it is “relevant” that this land use definition expressly excludes the existing cattle saleyards. [19] While either expressly or impliedly accepting that the proposal involves: “… the use of premises including buildings, structures, pens, storage areas and effluent treatment areas for commercial … activities involving the … keeping … of animals where the animals: (a) …or (b) are temporarily held pending transportation or marketing …” 12 It was argued on behalf of the appellants that the proposal should be characterised as an undefined use for the purposes of the Scheme for reasons including: 12 Appellant’s written submissions, para 54(b). -- 9 of 46 -- 10 (i) Given that the definition excludes the existing saleyards it would be illogical for the drafters of the Scheme to intend that the same use under the same Scheme should be characterised differently. (ii) Had the drafters of the Scheme intended that outcome the use of saleyards could have still been included in the list of specific uses identified under the relevant definition. (iii) The definition contemplates the more long-term keeping of animals on site or some other continuing process as opposed to the usual temporary keeping of cattle for sales purposes. (iv) A cattle saleyard is not an “industry” or “intensive animal industry” according to ordinary terminology nor by reference to the definition given to the terms “industrial activities” and “industry” under the Scheme. (v) The Scheme specifically contemplates that some land uses would not be expressly identified or defined. [20] Town planning documents must be construed as a whole and in a broad, practical and commonsense way which best achieves the apparent purpose and objects of the documents. 13 [21] Prima facie the proposal, it seems to me, ought to fall within the definition of intensive animal industry without too much difficulty. However, while “Intensive Animal Industry” is an inclusory definition, cattle saleyards are not included within the list of identified purposes. A somewhat surprising omission given the importance of the cattle industry in the Roma area and, as already identified, the existing cattle yards have been expressly excluded from the definition. [22] While I consider there to be some real weight behind the submissions made on behalf of the appellants on this issue, I have nonetheless decided that the appropriate classification for the proposal for the purposes of this Scheme is intensive animal industry. 13 Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337 at p.343 per Britton SC DCJ; Arpedco Pty Ltd v Beaudesert Shire Council (1980) Qd R 88 at 94 per Dunn J. -- 10 of 46 -- 11 [23] There is no doubt that the proposal predominantly, if not almost exclusively, involves the use of buildings and structures including pens for the temporary holding of animals pending marketing or transportation. It is more likely than not that the existing saleyards have been expressly excluded from the definition, not so much because cattle saleyards were not intended to be caught thereby but because the Council wanted to protect and ensure as much flexibility as it could for the future operation of the existing yards. As counsel for the appellants pointed out, if this was the intention, it was clumsy and perhaps even an extraordinarily self- serving step. However, it was a reason or purpose not lost on Mr Schomburgk.14 [24] Further, while it is true that cattle saleyards operations do not fit entirely comfortably within the meaning of “industry” and “industrial activities” as defined by the Scheme, when regard is had to the scale and intensiveness of the structures and activities to be conducted on the land, it is more akin to industrial activity rather than rural use or activity. The meanings given to the terms “industry” and “industrial activities” do not, when construed in a broad, practical and commonsense way, expressly or by reasonable implication, rule out assigning the proposal an industrial use characterisation rather than a rural use or other land use characterisation. [25] I accept that notwithstanding that the existing saleyards were expressly excluded from the definition of intensive animal industry, it would have otherwise been a straightforward exercise to catch other such facilities by simply including them in the included uses identified under that definition. However, in the circumstances of this appeal I do not find this argument particularly persuasive. First, because it would not have been unreasonable for the Council to believe they had already 14 T6-39 L25-40 L25 -- 11 of 46 -- 12 caught cattle saleyards within the definition of intensive animal industry. Second, because of the size, success and longevity of the existing yards, one could not readily discount the prospect that the Council simply did not contemplate the prospect of another set of yards being constructed in or near Roma. Conflicts with the Scheme and DEOs [26] As this application required impact assessment, pursuant to s 3.5.14 (2) of IPA, the decision of the assessment officer must not compromise the achievement of the desired environmental outcomes (DEOs) of the planning scheme or conflict with the planning scheme unless there are sufficient grounds to justify the approval despite the conflict. [27] An application may still be approved despite there being conflict with the planning scheme. In Webster v Caboolture Shire Council 15, it was held that if an application compromises a DEO of the planning scheme area it must be rejected. Compromise in the context of s 3.5.14(2) (a) would require there to be exposure to a real threat, risk, danger or peril. 16 In Brown v Brisbane City Council17 Skoien SJDC said: “… For a development proposal to compromise the achievement of a DEO, it must be of such a nature it will clearly threaten, imperil or endanger the planning outcome that is sought. … Further, as a consideration of the existence of sufficient planning grounds is not afforded … it is obvious that the provision contemplates a threat to the DEO which is so serious that no regard to ameliorating planning grounds can be had.” [28] I respectfully consider the observations of Skoien SJDC to be correct. To refuse an application in circumstances where the perceived threat or risk to a particular DEO is so significantly outweighed by the benefits of the proposal and/or are capable of 15 (2009) QPELR 455 at para [101]. 16 Webster at para [103]. 17 (2005) QPELR 629 at para [9]. -- 12 of 46 -- 13 being otherwise ameliorated could lead to absurd results. In this appeal the scheme itself recognises that the achievement of one DEO might cause tensions if not conflict with the objectives of one or more other DEOs. [29] If the achievement of a DEO is not compromised, the next step is to consider the operation of s 3.5.14(2)(b). For there to be conflict with the Scheme, there must be some real and identifiable variance or disagreement with it. 18 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 Council19 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)(b) 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.” [30] In the more recent decision of Woolworths Ltd v Maryborough City Council (No.2)20 Fryberg J, in considering the provisions of s 3.5.14 of IPA (and 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 set out each area of conflict and that “… the purely mechanical application of the Weightman dictum should be avoided …”. While I respectfully accept what 18 Webster at para [110] citing with approval Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 Qd R 273. 19 (2003) 2 Qd R 441 (C/A) at para [36]. 20 (2006) 1 Qd R 273 (C/A) at para [55]. -- 13 of 46 -- 14 his Honour said about the judgment of Atkinson J in Weightman, I consider the observations of her Honour to provide useful guidance. As has already been addressed above, when construing town planning scheme documents, they should be read as a whole and in a commonsense and not pedantic way. [31] A number of common issues are raised by the respondent and co-respondents. Character and visual amenity (the nature and scale of the proposal), noise and light emissions. The co-respondents also raise the issue of odour and, to a lesser extent, dust emissions. The respondent also raises a number of traffic planning issues, including crash costs and highway access, water supply and ground water contamination issues, and the impact on GQAL. The respondent and the co-respondents also argue that to allow the proposal would compromise the planned future residential growth of Roma. [32] The Scheme at page 31 identifies the respondents’ intended outcomes for rural areas. Broadly speaking, their purpose is to ensure that development within that area achieves identified outcomes or does not prejudice or compromise those outcomes. On behalf of the respondent and/or the co-respondents, it is said that the proposal conflicts with the following (although not necessarily in this order) outcomes: 1. That the development is located, designed and operated in a manner that protects and enhances the predominant rural scale, intensity, form and character. 2. Otherwise maintains the rural amenity of the area -- 14 of 46 -- 15 3. Community wellbeing is not otherwise compromised through the development of intensive animal industries, especially its impacts upon noise levels, traffic volume, lighting levels and local amenity. 4. The protection of GQAL from fragmentation, alienation or encroachment in accordance with State Planning Policy 1/92 – Development and Conservation of Agricultural Land. [33] Before turning to each of these matters, it is perhaps convenient to state some further general principles. When considering whether or not sufficient “grounds” exist to override any conflict with the Scheme, regard should be had to the definition of “grounds” in Schedule 10 of IPA: “Grounds, for ss 3.5.13 and 3.5.14— 1. Grounds means matters of public interest. 2. Grounds does not include the personal circumstances of an applicant, owner or interested party.” [34] Notwithstanding the importance of the evidence of experts in cases such as this, the concept of amenity is a wide and flexible one not necessarily determinable by reference to the evidence of experts alone. In Prime Group Properties Ltd v Caloundra City Council & Ors21 Skoien SJDC said: “I have decided that, as separate components, no unreasonable adverse impact on the nearby residents in the form of noise, light or unpleasant odours would be caused by this development. But the concept of amenity is far broader than that. In Broad v Brisbane City Council & Anor (1986) 2 Qd R 317 at 326 De Jersey J said: ‘There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses but also the residents’ subjective perception of his locality. Knowing the use to which a particular site is or may be put may affect one’s perception of amenity.’ 21 (1995) QPLR 147 at 150-151. -- 15 of 46 -- 16 … The resident/objectors gave evidence of their actual perception and the fears they held of the effect of the development. Their fears were, I thought, sometimes overstated, even unlikely. However I accept that the actual perception which the residents claimed to have is genuinely held. That perception is one of residential amenity. Provided that perception can be seen to be reasonably held in an objective sense, it should be given considerable weight. … In deciding what are the reasonable perceptions of amenity of the residents I am conscious that I must apply ‘the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notions not affected by some special sensitivity or eccentricity.” [35] When considering the impacts of the proposal, it needs to be borne in mind that Roma is very much a rural regional town where primary industry and, in particular, cattle grazing plays a particularly important role in the success and sustainability of the town. The residents could be expected to have, within the bounds of reasonableness, a higher tolerance to adverse amenity impacts linked with rural activity or activities than their urban counterparts. That is not, of course, to say that the residents of Roma and its environs will be more robust and tolerant in respect of all negative amenity impacts than their urban counterparts. They may be less disturbed by the odours and noise associated with cattle than their urban counterparts, but more sensitive to traffic noise and light emission. In its surrounding environment though the proposal is not a use which involves an obvious negative quality. This is not a case involving intangible amenity impacts or the consideration of perceptions of a purely subjective character.22 [36] In this context, on behalf of the appellants, it is reinforced that while the proposal is located within an area identified as rural, its general location is characterised by a -- 16 of 46 -- 17 mixture of rural, rural residential and industrial uses. To the east and north east, closer to the town, is a significant area of land zoned for industry. This land is also closer to the residents of Mr and Mrs Duff, two of the co-respondents in this appeal. [37] The residents of Roma could reasonably expect on industrial land those impacts on amenity usually associated with industrial use including, by way of examples, noise and structures of significant scale. During cross-examination, Mr Vann conceded that if the proposal was able to be located in the industry-zoned area many of his concerns about the proposal would be satisfied, including the GQAL issue, concerns about the potential for future urban expansion and in general terms his concerns about amenity.23 Also, as Mr Ryter acknowledged, notwithstanding the fact that people may reside in a rural area, some industrial development of a significant scale would nonetheless be within their reasonable expectations.24 Odours and dust [38] At pages 35 and 36 of the Scheme, the following relevant Performance Criteria and Acceptable Solutions are identified: “PC27 Separation of incompatible land uses Separation distances are provided to ensure: (a) the future of surrounding uses; (b) …; (c) an appropriate standard of amenity and public safety; and (d) conflict arising for incompatible uses is minimised.” “AS27.2 For sensitive land uses: Minimum separation distances to Intensive Animal Industries are as stated in Schedule 10 “Separation Distances for Intensive Animal Industries.’” 22 For example the introduction into a community of a brothel (Dixon v Burwood Council (2002) 123 LGERA 253) or adult night club (Bad Girls Maroochy Pty Ltd v Chief Executive (2004) 2 Qd R 352. 23 T8-32 to T8-34- Town Planner for the respondent. 24 T8-73 ll 15-52- Town Planner for the co-respondents. -- 17 of 46 -- 18 [39] Schedule 10 of the Scheme 25 identifies the relevant separation distances as being a thousand metres from the town area, 70 metres from public roads and 700 metres from sensitive land uses other than the town area. The proposal is located about 40 to 50 metres from Corfe Road and, to the north, a number of residences lie within 700 metres of the proposal. 26 It is submitted on behalf of the co-respondents that the proposal lies within a thousand metres of the town of Roma. The evidence on this point is not particularly precise but it does appear that some of the western industrial land might lie within 1000m. [40] In respect of odour it is submitted on behalf of the appellants to the effect that the level of non-compliance with the specified acceptable solutions is “academic” because: first, it is well recognised that non-compliance with an acceptable solution does not necessarily create conflict with a planning scheme; 27 and second, because “the air quality experts have assessed that adequacy of this particular proposal in its particular setting”. 28 [41] There is no evidence to suggest that the proximity of the proposal to Corfe Road or the town of Roma is an issue of relevance. I also accept that notwithstanding some existing residences may be subject to some level of adverse impacts from time to time as result of odours emanating from the proposal, the expert evidence supports the conclusion that the impact would not be so unacceptable as to warrant refusing approval. [42] However, that is not the end of the matter. As has already been alluded to, to the south of the proposal in particular, there are a number of separate parcels of land 25 At pp 82-83. 26 See Exhibit 1, p 25. 27 Aria Property Group Ltd v Maroochy Shire Council [2008] QCA 169 at para [63]. 28 Appellant’s written submissions at para 59. -- 18 of 46 -- 19 ranging from about four hectares to 20 hectares in area. It would be reasonable to expect that over time some of these parcels would be developed for rural residential purposes. However, the evidence concerning population growth and what has occurred historically in the area would suggest that the rate of such development would be of a low order. [43] As the relevant experts identified, at the predicted outcomes generated by dispersion modelling, it would be necessary for the Council to ensure that land uses sensitive to odour are not placed close to the near boundary of the proposal. 29 The guidelines relevant to the studies of the relevant experts identify, among other uses, sensitive uses to include residential premises and places known or likely to become sensitive places in the future. A not insignificant number of the rural residential lots to the south of the proposal would lie within 700 metres of it. [44] As is the case in respect of existing residential development, the evidence concerning the impact of odours on future residential development would not of itself be a reason to refuse the application, but the impacts are not irrelevant and need to be considered in light of or together with any other material impacts on amenity. [45] There is no probative evidence in my opinion which would suggest that any dust issues associated with the proposal would cause unacceptable impacts. Visual amenity [46] The dimensions of the proposal and its makeup and components have already been referred to. 30 Apart from the existing saleyards, the proposal would be out of scale 29 Exhibit 3 – air quality – at pp 1 and 9. 30 Refer to paragraphs 7, 8 and 17 herein. -- 19 of 46 -- 20 with any other building or structure in Roma or the Roma district including the existing silos on the western side of town. A significant difference between the proposal and the existing yards is that the proposal will be covered by a roof in the order of four hectares in area at a height of about 16 metres. There is no doubt that without appropriate landscaping the proposal would dominate, in a non-complimentary way, what is essentially flat and sparsely vegetated land having the general characteristics of grazing land. It could be reasonably described as being both out of scale and character, having regard to not only the structures that exist in the reasonably immediate vicinity, but also within the town of Roma itself. [47] I accept the evidence of Dr Hassel to the effect that the visual impact of the proposal could be substantially ameliorated by appropriate landscaping. I also accept his evidence that, over time, the landscaping proposed by him would achieve that outcome. However, even with that landscaping in place, parts of the structure, particularly the roof, will be visible from some existing residences. Further, in the context of the physical characteristics of the land surrounding the proposal, the landscaping itself will be out of character. Whether that landscaping might be perceived to be a positive or negative largely involves matters of subjectivity. Regardless of that though, there can be no doubt that quite intensive landscaping of the type proposed by Dr Hassel would be out of character. Further, as was effectively conceded by Dr Hassel, even with landscaping in place, the proposal would still tend to visually dominate the surrounding landscape. 31 [48] To an extent, the visual impact of the proposal would be exacerbated at night when lighting would tend to illuminate not only the visible parts of the structures themselves but also the surrounding landscaping. To adopt the words used by 31 T4-12 l 25-30. -- 20 of 46 -- 21 Mr Ure, counsel for the co-respondents, at night when under lights the proposal would “stand out as an island of light in a sea of darkness”. A consequence acknowledged by Dr Hassel 32 and Mr Vann.33 [49] In this context I also accept as relevant the concerns about the proposal expressed by the local residents Mr Ranosch 34 and Ms Duff.35 Although they might in some respects tend to be overstated, they are nonetheless concerns which are not unreasonable and are genuinely held. [50] On balance, as was the case concerning odour emissions, I have reached the conclusion that the visibility of the site, including at night when under lights, would not of itself be sufficient grounds to refuse the application. That said, it is nonetheless a relevant factor to be brought into account in determining this appeal. Its impact in this context is not one involving only intangible amenity or subjective perceptions. Noise [51] It was obvious to the appellants that noise emanating from the proposal was a major issue. Two distinct sources of noise are of particular relevance here. Traffic noise from cattle trucks and cattle bellowing. [52] As to the first of these matters, all of the relevant experts agreed that as a part of imposing adequate controls over noise emission, approval of the proposal should include a condition which would effectively limit (save where necessitated by reasons of safety, vehicle breakdown and/or driver rest requirements) all delivery 32 T4-15 ll 40-55. 33 T8-7 L50-60: Also Mr Ryter Exhibit 3- town planners second report at para 4(i).. 34 Statement Exhibit 16. 35 Statement Exhibit 17. -- 21 of 46 -- 22 movements to between 5 am and 8 pm. 36 A further condition was that truck drivers would be instructed to limit their use of exhaust breaks between 6 pm and 6 am. 37 It was also recommended that cattle loading and unloading at the site be limited to the hours between 5 am and 8 pm wherever feasible. 38 All stockmen were required to be instructed to limit the extent to which cattle are drafted after 10 pm and to ensure wherever feasible that any drafting that occurred after 10 pm took place at the southern end of the site. 39 [53] In the appellants’ SBMP40 it is said at p 100: “Noise generation will be controlled by limited traffic movements and work hours to 7 am to 6 pm as much as is practical. The delivery and dispatch of livestock will be limited to after 5 am and before 8 pm … wherever possible. While it is recognised that some deliveries may need to be made after 8 pm due to matters of safety, driver rest requirements, vehicle breakdowns, etc, every attempt will be made to ensure that the number of any such late arrivals is minimised as far as possible and that there are no deliveries after 10 pm unless necessitated by emergency situations.” This passage largely mirrors what the noise experts said in their joint report at paragraph 21(ii). [54] Notwithstanding the conditions prescribed by the relevant experts, the evidence indicates that on not infrequent occasions the realities of saleyard operations would make them unachievable. As much is acknowledged by the report accompanying the development application, 41 where the following passage appears: “As much as is practical, heavy traffic movement will be confined to 6 am to 9 pm. Some heavy transport movements will occur outside normal operating hours, e.g. in summer, it is desirable to transport cattle either at night or in the early hours of the morning for animal 36 Exhibit 3: Joint Noise Expert Report at para [28]. 37 Ibid para [29]. 38 Ibid para [23]. 39 Ibid para [31]. 40 Exhibit 8. 41 Exhibit 4, Tab 1 at p 38. -- 22 of 46 -- 23 welfare reasons. Furthermore, cattle that must travel large distances may arrive at the saleyards outside of normal working hours, therefore the approval issued for the saleyard must have the flexibility to allow the movement of trucks to and from the facility on a 24-hour, 7-days-a-week basis.” (emphasis added) [55] The difficulties in complying with the transport conditions recommended by the experts were acknowledged by Mr Bassingthwaighte himself.42 His evidence is broadly consistent with the evidence of Mr Hyland, operations manager of the existing Roma saleyards,43 and of Mr Douglas. 44 [56] Despite all the towns planners agreeing that matters of dust, lighting, odour and noise are capable of being resolved by appropriate conditions,45 the evidence on this issue leads me to conclude that on not infrequent occasions conditions 2 and quite possibly 3 recommended by the relevant experts concerning cattle truck noise would not be able to be satisfied, thereby resulting in a material negative impact on amenity. Cattle bellowing [57] Investigations at the existing saleyards demonstrated that noise from cattle bellowing decreased over time in the early evening through to 7 pm to 11 pm at night, but that a level of bellowing may continue throughout the night depending upon the activities being carried out at the time.46 This evidence is consistent with that of Mr Hyland.47 [58] While the experts identified that cattle bellowing noise would not exceed appropriate sleep disturbance criteria at surrounding residences, they went on to say: 42 T3-42 ll 20-40. 43 T7-67 ll 18-40. 44 T19-22 ll 18-45. 45 Exhibit 3- townsplanners 2 nd joint report, para 4(i). 46 Exhibit 3 – Noise Expert tab 1 at para 24(i). 47 T7-73 ll 20-50. -- 23 of 46 -- 24 “Numerical assessment of cattle bellowing noise demonstrated that the level of noise which would likely result at surrounding residential areas may be such that the noise is quite audible, albeit below levels which would be likely to cause exceedance of any reasonable regulatory noise limit if it were appropriate to apply a limit to such noise source. Notwithstanding, it is the opinion of the experts that several management measures may be appropriate to lessen the potential noise from large numbers of cattle bellowing at the proposed saleyards facility. These management measures include minimising human activities during the night time period, concentrating any necessary human activities in the evening and night time periods to the pen areas at the southern end of the proposed new facility (i.e. those areas removed from the elevated receptor residences to the north) and extinguishing or dimming lights in areas where cattle are penned are not being drafted.” 48 (emphasis added) [59] The evidence is that while cattle bellowing may not exceed recognised sleep disturbance criteria, it will nonetheless be “quite audible” at a number of existing residences. The evidence concerning cattle delivery time, holding and departure times at auction dates also leads me conclude that on not infrequent occasions, despite appropriate conditions being put in place, the noise of bellowing cattle would result in a not insignificant negative impact on rural amenity. [60] As indicated earlier, those residing on rural residential lots at Roma might be expected to have a degree of tolerance to noises such as cattle bellowing, but the degree of cattle bellowing expected from usual grazing activities would be quite different to that which could be expected from the more intense use of a cattle saleyard at auction time. As much is recognised by the experts. [61] The appellants’ written submissions, after making the submission which I accept that residents in rural areas cannot be expected to be entirely free of negative influences, including that of odours, noise and dust, go on to make the following assertion: -- 24 of 46 -- 25 “Secondly, it is significant that there is no expert evidence from any of the technical fields relating to amenity to the effect that there is an amenity impact which is unacceptable. On the contrary, the expert evidence is all one-way that the proposal can be appropriately conditioned so as to adequately control impacts upon amenity with respect to odour, noise, dust, light or visual impact. There was again an inclination on the part of the opposition parties not to accept the true position …” [62] That submission, whilst carrying some weight, fails to adequately recognise in my opinion, the principles enunciated in cases such as Prime Group Properties Ltd, Mooloolah Commercial and Australian Capital Holdings Pty Ltd and in particular, fails to adequately recognise the likely difficulties in being able to, in a material way, meet the proposed conditions to limit truck movements after 8pm. [63] While the evidence of appropriate experts must of course be respected and given due weight, the court is not obliged to fall in with their assessment of what impacts other people ought find acceptable. 49 Reasonable and genuine concerns about impacts on amenity must be given weight notwithstanding contradictory conclusions that might be expressed by expert witnesses. 50 Traffic engineering issues [64] The respondent contends that there are two traffic-engineering issues that would warrant refusal of the application. The potential for increased “crash costs” and that a second access point to the Warrego Highway is required so as to ensure, as far as is practicable, separation of light and heavy vehicle movements. A number of other traffic issues are identified that the respondent submits, while not warranting refusal, militate against approval. 51 Some of these issues overlap with others. For 48 Exhibit 3 – Noise Expert tab 1 at paras 24(ii), (iii), and (iv). 49 Australian Capital Holdings Pty Ltd v Mackay City Council (2008) QPELR 224 at para [51]; . 50 Mooloolah Commercial Pty Ltd v Caloundra City Council (2005) QPELR 648 at [61] and [92]. . 51 Para 99 of the co-respondent’s written submissions. -- 25 of 46 -- 26 example, the issue of the internal intersection relates to the access point issue and traffic movement overlaps with the issue of noise. Crash costs [65] It is submitted on behalf of the respondents that traffic movements associated with the proposal could increase crash costs to the community by $296,000 over 10 years. Bringing that sum back to present value terms equates to a figure of less than $29,000 per annum. As the respondent itself accepts, this figure “may seem to some as modest”. 52 I agree with that assessment. [66] Also this submission, it seems to me, fails to take into account the evidence to the effect that it would be likely that at some time within that 10 years the existing saleyards would cease to operate. Whilst I acknowledge that the evidence on this is extremely limited, it seems unlikely that the closure of existing yards would not have some offsetting impact on crash costs. Further, I am concerned that Mr Pecol’s evidence on this matter might be based on erroneous figures, thereby resulting in inflated estimates. It is also of some significance that the Department of Transport and Main Roads, a concurrence agency in this application, did not raise, as far as I am aware, any concerns regarding crash costs. If this was a matter of real significance, one might have expected it to have been raised by that authority. [67] I am not convinced that there would be any basis for refusing this application because of its impact on crash costs. Access points 52 Respondent’s written submissions as para 103. -- 26 of 46 -- 27 [68] Again, it is significant that the Department of Transport and Main Roads did not require a second access point. It is not as though this might have been an oversight of some sort. The proposal has only ever included one access (at the same location). That is what the department approved subject to a specific condition requiring the installation of a barrier to prevent other highway access. There is some evidence to suggest that a second access point might in fact be unacceptable to the department for reasons of traffic efficiency and road safety.53 As was acknowledged by Mr Pecol, the department is the entity with jurisdiction over the Warrego Highway being a part of the State-controlled road network. [69] The evidence on this issue leads me to conclude that the proposal could not be reasonably refused on the basis that a further access point is required. I do not consider any of the other issues raised by the respondent concerning road traffic would warrant refusal, either separately or combined. Future urban expansion [70] It was submitted on behalf of the respondent and the co-respondents that a ground for refusing the proposal is that it would materially compromise future residential growth options for Roma. It was submitted that recent residential and rural residential growth in Roma has tended towards the western side of the town in the vicinity of the subject land. This submission, while being accurate in some respects, is not entirely accurate. Fairly recent residential development has occurred towards the south of the town in the vicinity of the golf course and to the north-west towards the location of the hospital. Further, by reference to town map “P6”, the residential zoned land includes land as much to the north and south of Roma as to the west. Rural residential zoned land lies predominantly to the south and north of the town. 53 Evidence of Mr Harris, traffic engineer T4-64 ll 5-15. -- 27 of 46 -- 28 As has already been referred to, between the proposal and the nearest residential zoned land west of the town is a significant area of land in the industry zone and the large parcel of land owned or controlled by the Department of Primary Industries. [71] It is immediately apparent that the proposal would restrict residential growth in the area. By reference to the evidence of the relevant experts broadly consistent with AS 27.2 of the Scheme, no intensive residential development should occur within several hundred metres of the proposal. However, that is not the end of the matter. [72] Mr Schomburgk identified to the north and south of Roma land suitable for residential development. His preferred options being to the north in the general vicinity of the hospital. While I accept that there are a number of constraints associated with developing the options identified by Mr Schomburgk (including the airport, land of habitat and biodiversity value, proximity to industrial land and the town’s sewerage treatment plant), it was not suggested, as far as I am aware, that these options were not feasible and capable of accommodating the population of Roma into the foreseeable future. Rather, the argument is advanced in the following terms: “… the appellants’ town planner, sought to meet this argument by identifying areas within the town which could not only accommodate growth but accommodate growth for the foreseeable future. This misses the point. The point is not whether there is land suitable for urban residential expansion, but whether a decision to approve the application will cut off or impede a future planning option. … The reality is that in planning terms this is a proposal which … will inhibit future residential development in the area … . Decisions of this kind ought not be taken lightly, particularly given the purpose of the Act which seeks to strike a balance between decision making for both present and future generations and particularly if there is no planning need for the decision. -- 28 of 46 -- 29 In the circumstances, where the proposal has a potential to inhibit future development options, coupled with an absence of need, this represents a strong ground militating against approval.”54 [73] On balance, while I accept that planning for urban growth is an important and relevant consideration, the impact this proposal would have is not a strong ground militating against approval. Other suitable and viable alternatives exist. [74] An alternate submission was advanced on behalf of the appellants. It was to the effect that there was no legal basis for refusing the application on the basis of it compromising future urban growth in circumstances where there was “not a single council document” identifying either the need or intention to earmark land in the vicinity of the proposal for urban development. While I consider there is some merit in this submission, it is not necessary for me to determine it having regard to my findings of fact on the issue. Desired environmental outcomes (DEOs) [75] The language used in s 3.5.14(2) of IPA makes it clear that the legislature attaches significant importance to the achievement and maintenance of DEOs. If reinforcement of the wording of the section were needed, it can be found in the explanatory note, which relevantly states: “The desired environmental outcomes may be regarded as the essence or core of a planning scheme, and this clause makes it clear that the impact assessment decision must not threaten their achievement.” 55 [76] Under Part 3 of the Scheme various DEOs are identified. Relevant to this appeal are: 54 Respondent’s written submissions paras 231-233. See also co-respondent’s written submissions paras 104 and 107. 55 See also Webster v Caboolture Shire Council & Ors (supra) at p.466. -- 29 of 46 -- 30 “… (2) Each desired environmental outcome is sought to be achieved to the extent practicable having regard to each of the other desired environmental outcomes. (emphasis added) (3) The desired environmental outcomes for the local government area are as follows: a Environment … (d) Places of historical and indigenous cultural heritage and social significance are protected, maintained and enhanced. b Economic … (e) Industry, business and employment opportunities are improved and appropriately located to service the community and region, and encourage economic activity within the local area. c Community wellbeing and lifestyle … (f) Community wellbeing is not compromised by inappropriate development that impacts upon noise levels, traffic volume, lighting levels, local amenity.”56 [77] The use of the words “… to the extent practicable having regard to each of the other desired environmental outcomes” makes it tolerably clear that proposals desirable for some outcomes (e.g. economic) 57 may cause tension with other desirable outcomes (e.g. environment). Consistent with the proper practice of construing planning schemes as a whole, particular DEOs should not be considered in isolation. [78] Having regard to my findings concerning the amenity issues of noise, lighting, visibility and odour, I conclude that the proposal comes perilously close to compromising DEO 3(c)(f). In this regard I respectfully adopt the reasoning of Judge Brabazon QC in Webster to the effect that, in order for a DE0 to be 56 Exhibit 6 at p.9. -- 30 of 46 -- 31 compromised, it is not necessary for there to be compromise or damage to the vision of the town planning scheme on a shire wide basis. 58 In a local government area as relatively sparsely populated as it is, it is difficult to conceive that those who drafted the Scheme, when dealing with the compromise of “community well being” would not have been particularly concerned with the amenity of Roma and its proximate surrounds. [79] In respect of DEO 3(a)(d), Schedule 9 of the Scheme is significant. It identifies “historic cultural places” for the town of Roma as identified by the respondent Council and/or by the Environmental Protection Agency. This Schedule identifies “historic places”, places “of possible cultural heritage significance”, and “buildings of significance”. Nowhere in Schedule 9 are the existing saleyards identified. [80] Notwithstanding this, all of the town planners called considered the saleyards to be socially significant. Their evidence is relevant but not necessarily decisive. As I understand the arguments advanced on behalf of the respondent and co-respondents, the social significance of the existing saleyards really has two elements. First, as a place where otherwise distant neighbours and friends meet and socialise as well as carry out business. Second, as a source of income subsidising the community facilities at Bassett Park. [81] As to the first, while the proposal will cause some disruption, in the sense of buyers and sellers being divided on competing sales days, social interaction of the kind that now exists at the existing saleyards would otherwise continue. Also, according to the economists, sooner or later the existing saleyards would cease to operate. When 57 As is recognised by DEO 3(b)(e) in particular economic development and opportunities are encouraged provided appropriately located. -- 31 of 46 -- 32 that occurred, the social interaction to the extent that it exists now would be likely to continue at the new saleyards. In any event I do not consider the social significance of the existing yards, as identified by the town planners, to be caught by DEO (a)(d). Being a focal point, even for significant levels of social interaction, is not sufficient in my view. [82] Turning to the second element, the evidence is that income generated from the existing saleyards is used to subsidise or otherwise maintain the Council’s community facility at Bassett Park. There is no probative evidence to suggest that this arrangement would not continue into the foreseeable future at least to some extent, notwithstanding the recent reorganisation of local authorities. That this funding arrangement exists is of course directly linked to the fact that the existing saleyards are owned and operated by the respondent Council. There is no suggestion that such arrangements would be undertaken by the appellants, they of course being private entrepreneurs, albeit with an extensive association with Roma and the cattle industry generally. [83] The extent of this revenue is, at face value, not significant. However, Mr Norling, the economic expert called by the appellants, identified that the loss of this source of revenue would amount to a reduction of about 5% in the total revenue of the Council. Notwithstanding this apparently low figure, Mr Norling agreed that when regard is had to the overall financial circumstances of the Council the loss would be one of significance. 59 58 At para [102] to [107]: But See Koerner and Ors v Maroochy Shire Council (2004) QPELR 211 at 215, and Rosa Walmore Property Pty Ltd v Maroochy Shire Council (2008) QPEC 050 for contrary view. 59 T5-24 ll 8-30. -- 32 of 46 -- 33 [84] I do not, however, consider that such fundamentally economic or financial arrangements were intended to be within the scope of operation of DEO 3(a)(d). Accordingly, I do not consider that the proposal would compromise this DEO. [85] That is not to say, however, that this public, as opposed to private, economic arrangement is an irrelevancy. While matters of private economics are generally irrelevant to the determination of appeals such as this, the potential loss of funds used by the respondent to subsidise or maintain a significant public asset is a relevant community and town planning matter. [86] In respect of DEO 3(b)(e), leaving aside for the moment the question of whether the proposal is “appropriately located”, having regard to all of the relevant evidence and, particularly, that of the economists, this DEO is not compromised by the proposal. Water issues [87] This appeal requires two matters concerning water to be addressed. The securing of sufficient water supply and the risk of water contamination. The quality of the water supply, effluent disposal and storm water management do not present any problems for the proposal. [88] The absence of an appropriate water supply would be fatal. As I understand the argument advanced by the respondent, it is not a question of whether there is adequate supply, but rather whether the appellants are able to legally secure access to that supply. [89] In the joint statement of Mr Sutherland and Dr Watts, it was identified that the appellants were attempting to negotiate the purchase of an appropriate water -- 33 of 46 -- 34 allocation and licence. During the course of proceedings, the appellants tendered a “Call Option Agreement”. 60 Pursuant to Clause 2, the owner of an existing water licence granted to the appellants an option to purchase the right to take ground water being part of that licence. In the light of the option, the only relevant outstanding issues concerning water supply really centred around appropriate approvals from the Department of Environment and Resource Management (DERM).61 On behalf of the respondent, it was submitted to the effect that in the event that the court was otherwise minded to approve the application, evidence of the reallocation of the water licence, as well as confirmation about the currency period for the licence (as approved by DERM), ought to be provided prior to the appellants’ obtaining a permit for building works. [90] Issues concerning water supply ought not to prevent the approval of the proposal. However, I agree with the submissions made on behalf of the respondent concerning evidence proving security of water supply being provided prior to building approval. [91] The second matter really centred around reported salmonella cases in Roma in late 2005. The cause of the salmonella contamination of two bores was not conclusively identified. There is a theory that the contamination may have entered the aquifers by seepage from an abattoir that is no longer in operation or by surface water ingress to the bores. 62 In their joint report, the relevant experts Mr Virtue and Mr Hare (for the respondent and appellants respectively), agreed that the potential for contamination of the ground water beneath the site was low. That that risk is low is not of course a complete answer. The aquifer that would provide water to the 60 Exhibit 25. 61 See Exhibit 57B and respondent’s written submissions at paras 125 and 126. 62 Exhibit 3 hydrology joint report at p 3. -- 34 of 46 -- 35 proposal also provides some 80% of Roma’s water supply. Also, while the risk of contamination might be low (or even rare), it could not be described as being fanciful. It is a matter of serious concern. [92] However, the evidence confirms in my view that this matter is not one which would require or justify refusal of the proposal. It is more concerned with the imposition of an appropriate conditioning regime. This conclusion is consistent with the last of the matters summarised in the experts’ joint report: “A ground water quality monitoring programme, including monitoring of the proposed supply bore prior to treatment, and monitoring of shallow ground water, should be established prior to the operation of the site.” 63 There was no suggestion in the joint report that the risk of contamination was a reason for refusal. [93] This conclusion is also consistent with the further report provided by Mr Virtue.64 That report at p 2 states: “Consequently, the call option makes it even more important that a stringent regime of containment of contaminated water, leakage detection and ground water monitoring be put in place to reduce the likelihood of contamination reaching the town bores undetected, to as low as is reasonably practical. [sic] Furthermore, given the potential for a time delay between contamination at the surface and impact on the water supply bores, any monitoring and management will need to extend well beyond the life of the saleyards. … Any management plan, which demonstrates how a program of monitoring and management will be achieved, should be prepared, and approve by council, prior to any approval for a development permit for building works.” Good quality agricultural land (GQAL) 63 Ibid, at p.4. 64 Exhibit 57B. -- 35 of 46 -- 36 [94] Map R2 of the Scheme identifies the land accommodating the proposal as GQAL. Under the “Overall Outcomes for Rural Area” in the Scheme,65 in Outcome 2(c) it is identified that intended development: “Protects GQAL from fragmentation, alienation or encroachment of incompatible land uses in accordance with State Planning Policy 1/92 – Development and Conservation of Agricultural Land.” [95] On behalf of the appellants it is submitted that in the circumstances of this appeal regard ought not to be had to State Planning Policy 1/92 (SPP 1/92). That is because s 3.5.5(2)(c)(1) of IPA only contemplates that step if the SPP is “not identified in the planning Scheme as being appropriately reflected in the planning scheme”. At page 1 of the Scheme, SPP 1/92 is expressly identified as being appropriately reflected in the Scheme by the Minister for Local Government and Planning. In Benchmark Developments Pty Ltd v Cairns City Council66 and Celledoni v Johnson Shire Council & Ors67 White DCJ considered that once it is established that the State Planning Policy is appropriately reflected in the planning Scheme, regard should be had to the actual policy for only limited purposes. For example when there is ambiguity in the Scheme. The Scheme itself is the primary document. I respectfully agree with those conclusions. [96] This issue is of some significance because on the one hand the town planners for the respondent and co-respondent contend that the proposal should be refused on the basis that it would alienate GQAL unless it can be shown that there is an overriding need for it. They contend that no such need exists. On behalf of the appellants, it is contended that as a matter of law it is not necessary to establish overriding need. 65 Exhibit 6 at p 31. 66 Unreported decision of Planning and Environment Court (164/07 – August 2007) at para [15]. 67 (2009) QPELR 256 at para [12]. -- 36 of 46 -- 37 An alternate argument based on overriding need is advanced by the appellants in the event that their first argument was not accepted. [97] That I have concluded it is not necessary to have direct regard to SPP 1/92, is not the end of the matter. Outcome (2)(c) of the Overall Outcomes for Rural Area for the Scheme 68 relevantly provides: “The specific outcome sought for the rural area are to ensure development: … protects Good Quality Agricultural (GQAL) from fragmentation, alienation or encroachment of incompatible land uses in accordance with State Planning Policy 1/92 … .” [98] Performance Criteria 28 of the Scheme 69 also repeats the intention to conserve and manage GQAL in such a way that it is protected from development that may lead to its alienation or diminished productivity. No specific acceptable solution is specified. This is to be contrasted with the situation concerning separation of incompatible land uses within the rural area where specific parts of SPP 1/92 are referred to in the Acceptable Solutions.70 [99] It is relevant that the proposal would only alienate approximately 21 hectares (the area of land occupied by structures) of GQAL when, unlike the situation in many other local authority areas, here there is a significant area of such land. Also, as was pointed out on behalf of the appellants, there are already examples of the respondent Council allowing development to occur on such land. 71 [100] The words “in accordance with” SPP 1/92 where used in the Scheme must be considered. In the circumstances of this appeal, the construction of those words that 68 At p 31. 69 P 36. 70 AS 27.1 at p 36. See also footnote to PC 64 concerning “buffers” within the urban areas of the town at p 25. -- 37 of 46 -- 38 I favour is that applications/developments such as this are to be dealt with in a way that reflects conformity or consistency with the philosophy and general objectives contained in the policy.72 [101] It would be consistent with SPP 1/92 for the Council to only approve development on GQAL in circumstances where the benefits of the proposal sufficiently outweigh the negatives associated with the proposal and particularly the alienation of GQAL. In the circumstances of this appeal, whilst it might not be necessary for the appellants to establish an overriding need in the sense of it being an overwhelming, compelling or urgent need (to use the words of White DCJ in Caladoni at para [17]), having regard to the significance attached to GQAL identified in the Scheme itself, the need or, to put it another way, the grounds to justify approval would have to be at the very least in the order of that contemplated under s 3.5.14(2)(b) of IPA. [102] Before turning to the question of need, one further matter needs to be addressed. It is submitted on behalf of the appellants that in any event the proposal should be viewed as being consistent with SPP 1/92 and in conformity with Overall Outcome 2(c) for the rural area and Performance Criteria 28 for the rural area code. That is so, according to the appellants, because of the philosophy of the planning guidelines to the policy. The planning guidelines, 73 among other things, seeks to provide technical advice and guidance on reducing potential for conflict between “farming activities” and residential development. At paragraph 1.3 of the policy, it is identified that the principles contained therein can be applied to situations where conflicts are likely to arise between industrial, tourist, commercial or other urban 71 One example is the rural residential development of the Timeleah Estate. Such apparent inconsistencies maybe a relevant consideration: Grosser v G.C.C.C (2001) QCA 423 at para [44]. 72 Walker v Wilson (1991) 172 CLR 195 at 200, 207-208. -- 38 of 46 -- 39 uses and nearby agricultural uses. At paragraph 1.4 it goes on to note that conflict due to intensive animal industries is not specifically covered in the guidelines. Paragraph 2.29 of the guidelines provides: “Minimising the potential for land use conflict can be achieved by limiting those uses regarded as inappropriate in areas of good quality agricultural land and immediately adjoining areas. The planning scheme should therefore aim to limit development in such areas to agricultural uses and other uses required to support agricultural activities. Such uses may include saleyards, grain growing facilities, animal husbandry services, storage for fresh produce, custom machinery operations.” (emphasis added) The Department of Primary Industries and Department of Housing, Local Government and Planning, Planning Guidelines 74 also provide in Part 4, under the heading “Assessing Planning Applications”: “4.1 State Planning Policy 1/92 applies to all areas of good quality agricultural land, irrespective of whether farming activity is present. When assessing planning applications, the following issues need to be considered to determine what information is required and how the policy should be applied. … 4.6 A development proposal that is ancillary to agricultural uses would be consistent with the policy. Therefore, an agricultural land quality assessment in support of such planning applications would be unnecessary.” [103] While the proposal may not strictly be a use or activity that is “ancillary” to agricultural uses, it involves a use which could be described as one which supports agricultural activities for the purposes of paragraph 2.29 of the planning guidelines referred to above. Not only are saleyards expressly mentioned therein, but the reference to uses such as “custom machinery operators” suggests that those who drafted the document intended a fairly broad construction of what uses might be 73 Exhibit 7 Tab 3. 74 Exhibit 7 Tab 2. -- 39 of 46 -- 40 accepted as supporting agricultural activities. I also consider the evidence of a number of the experts called in this appeal supports this approach. Their evidence was to the effect that cattle saleyards were closely aligned or connected with the rural activity of beef cattle, production and sale. 75 [104] I recognise the submissions made on behalf of the respondent that this planning guideline is, prima facie, concerned with separating agricultural and residential land uses. However, in my view, when regard is had to the wording used throughout the policy, its operation and effect is concerned with matters other than just the separation of those uses. Accordingly, I reject that submission. [105] In all the circumstances, I do not consider that the proposal is one which could reasonably be said to be an incompatible land use in accordance with SPP 1/92 for the purposes of Overall Rural Outcome 2(c). Are there sufficient grounds to justify the proposal? [106] For the reasons set out above, I have concluded that the proposal is materially in conflict with the Scheme in a number of areas. [107] Accordingly, pursuant to s 3.5.14(2)(b) of IPA, the assessment manager’s decision (and this court’s) must not conflict with the planning Scheme unless there are sufficient grounds to justify the decision despite the conflict. [108] What will constitute sufficient grounds will to a significant extent be determined by the extent of conflict with the Scheme. In this case, the areas of conflict in many instances are significant. 75 Ex 3, joint agricultural report, p.2: Mr Ryter T8-70 L29, T8-75L15-20: Mr Vann Exhibit 19 para 5.3.3, T8-42L30-40. -- 40 of 46 -- 41 [109] Need, insofar as it relates to matters of public interest, can constitute a sufficient ground for approval. The need in this context does not have to be an overriding need, but a need which would constitute sufficient grounds to justify approval. In Isgro v Gold Coast City Council76 Wilson SC DCJ, cited with approval what was said by this court in Watts and Hughes Properties Pty Ltd v Brisbane City Council:77 “Need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire. A thing is needed if its provision, taking all things into account, improves the physical wellbeing of the community … . Need does not connote a pressing urgency but relates to the wellbeing of the community. A use would be needed if it would, on balance, improve the services and facilities available in a locality.” (citations removed) [110] His Honour went on to say 78 : “(21) Need, in a planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community … . … (26) This court has been prepared to find that a need exists, despite the presence of similar businesses in the locality. Generally speaking, however, those decisions have been confined to circumstances where the proposals were likely to provide benefit by way of a greater level of convenience to patrons … . At the other end of the spectrum are cases in which such facilities as a new service station, or cinema complex would add to a consumer’s area of choice but not noticeably improve the wellbeing of the community, or improve the services and facilities available in a locality where existing businesses plainly met demand.” [111] In this case, the respondent is not only the relevant planning authority but also a competitor. That the proposal constitutes a threat of competition to the respondent 76 (2003) QPELR 414 at 418. 77 (1998) QPELR 273 at 275. 78 Isgro v Gold Coast City Council (2003) QPELR 414 at 418. -- 41 of 46 -- 42 is not of itself a relevant consideration. The well-known passage from Kentucky Fried Chicken Pty Ltd v Gantidis79 is relevant: “If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to take into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one in the same time also threatened by the new competition afforded by that new development. However, the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse impact upon the extent and adequacy of facilities available to the local community if the development be proceeded with will not be a relevant town planning consideration.” [112] Private economics are not the province of appeals such as this. 80 That accepted, it is still relevant in my view that the proposal would, in due course, lead to the loss of funds now used for the public benefit. This may not be a significant consideration but it is a relevant one. [113] The proposal will no doubt be superior in some respects to the existing yards. To adopt the words used by the appellants, the proposal will be “state-of-the-art”. There is also little doubt that the proposed yards would be a successful and efficient facility. The fact that the economists agree that the proposal would be likely to eventually replace the existing saleyards,81 it seems to me also evidences, at least to an extent, some degree of underlying demand for a newer or more up to date facility. [114] However, the appellants have not shown that the existing saleyards are not adequately meeting the demands of the cattle industry in an acceptably efficient 79 (1979) 140 CLR 675 at 687. 80 Brown v Moreton Shire Council (1972) 26 LGRA 310 at 313: Tully Sugar Ltd v Cassowary Coast Regional Council (2010) QPEC 41 at para [28]. -- 42 of 46 -- 43 manner. In this context, I accept the submissions made on behalf of the respondent to the effect that whilst the existing saleyards are somewhat dated, and going through a process of upgrading they still provide an effective and workable facility with room for expansion. The position of the respondent and the co-respondents is that the existing saleyards are sufficient (and will be into the foreseeable future) to meet the demands of the community. The evidence supports this. [115] Overall, the evidence as to need is unconvincing. The significance of the fact that the proposal will offer modern and, is some aspects, more efficient facilities is greatly diminished in circumstances where the existing saleyards are operating at a standard acceptable to the industry. As Mr Norling acknowledged, the existing yards have a reputation for delivering high prices, high clearance rates, good quality livestock and, as a consequence, attracting high numbers of buyers and sellers.82 [116] The usual indicia of commercial need are not present. For example, it has not been shown that there is industry or public demand for a new facility or that special needs are not being catered for or that the respondent is making super profits by virtue of it maintaining a monopoly. [117] Nor has it been shown that the existing yards have insufficient capacity to meet future demand requirements. On the other hand, as long as the proposal and existing yards operated at the same time, there would clearly be significant surplus saleyard capacity. The average number of head dealt on auction days is between 6000 and 7000. The total capacity of both saleyards would be in the order of 23500 (11000 head at the proposal and 12500 at the existing saleyards). 81 Exhibit 3, economists’ joint report at para [72] and [73]; see also T5-23 ll 32-38 per Mr Norling. 82 T5-18 – T 5-19. -- 43 of 46 -- 44 [118] There is also evidence that the introduction of the proposal would result, at least until the existing yards ceased to operate, in industry negatives. I am not referring here to the sentimental attachment some members of the Roma community might have to the existing saleyards, but to more practical considerations. The evidence that I accept is that the best result for the community is to have at any given cattle sale, as many buyers and sellers as possible at the one place. It is uncontroversial that the proposal will be in direct competition with the existing saleyards on cattle sale days. It must necessarily follow that, no doubt at fluctuating levels from time to time, on sales days buyers, sellers and cattle will be split between the two facilities. In this regard, Mr Dwayne gave evidence that: “Put simply, approval of the proposed development will mean there are two competing saleyards for cattle sales. Rather than consolidating and improving the facilities for the buying and selling of cattle at the existing saleyards, it will inevitably (at least in the short time while the two survive) split the buyers and the sellers and the product (i.e. the cattle) between two venues and the obvious potential to reduce a vendor’s capacity to expose cattle to the full range of potential purchasers. Similarly it will reduce any potential purchaser’s immediate and convenient exposure to a full range of available cattle. In other words, it is more likely to limit than to enhance both choice and efficiency in terms of the marketing of cattle.”83 [119] Animal welfare and patron safety and comfort issues were also raised by the appellants. No convincing evidence exists to show that acceptable standards for animal welfare were not being met at the existing saleyards, nor that animal welfare across the board would be meaningfully improved at the proposal. The existing yard facilities are in a number of areas dated and require further upgrading. But, bearing in mind the function of the facilities and the type and experience of the bulk of attendees at cattle auctions I do not accept that the existing yards do not offer an 83 Exhibit 20, para 1.4(i). -- 44 of 46 -- 45 acceptable standard of attendee comfort. There are however some aspects of safety that apparently need to be addressed. [120] In Arksmead Pty Ltd v Gold Coast City Council84 the Court of Appeal, after referring to a number of decisions of this court, said with apparent approval: “In each of those cases the effect on amenity and need were considered and in each a detrimental effect on amenity together with an absence of need was decisive…...” [121] Arksmead (supra) was concerned with the Local Government (Planning and Environment) Act 1990. However, it is tolerably clear that the Court of Appeal was concerned with concepts sufficiently similar to those arising under s 3.5.14(2)(b) of IPA to be persuasive in this appeal. 85 [122] While it may not be able to be said that there is a total absence of demand 86 , no meaningful level of need has been disclosed by the appellants. The evidence is that the existing saleyards are plainly meeting the needs/demands of the cattle industry and the wider community. [123] On the other hand, evidence shows that the proposal is in serious conflict with a number of important objections and outcomes identified in the Scheme for the rural area. Its location would not protect and enhance the rural scale, intensity, form and character of the area. 87 And would compromise community well being and local amenity by reason of noise, lighting and odour. 88 While individually the adverse impacts on amenity caused by odour, scale and lighting might not constitute sufficient conflict with the scheme, their cumulative affects, together with the 84 (2001) 1 Qd R 347 at para [13]. 85 See by way of reference an example paras 11-13 of Arksmead. 86 The evidence of the economist concerning the eventual closure of the existing yard would tend to contradict this. 87 Rural Outcome 2(d). 88 Rural Outcome 2(m) -- 45 of 46 -- 46 adverse impacts associated with noise, create such an unreasonable level of adverse impacts as to create serious conflict. [124] Of less importance but still of some relevance that the proposal would place in jeopardy income used to subsidise community facilities. [125] In circumstances where the proposal will affect community amenity and expectations in a material way and will not in any material way make good or offset those negative impacts there are no grounds which would justify approval despite the conflicts with the planning scheme. -- 46 of 46 --