Acland Pastoral Co. Pty Ltd v Rosalie Shire Council & Ors (No 2) [2010] QPEC 30

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Acland Pastoral Co. Pty Ltd v Rosalie Shire Council & Ors (No. 2) [2010] QPEC 30 PARTIES: ACLAND PASTORAL CO. PTY LTD Appellant v ROSALIE SHIRE COUNCIL Respondent and THE CHIEF EXECUTIVE UNDER THE ENVIRONMENTAL PROTECTION ACT 1994 Co-Respondent and THE CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994 First Co-Respondent by Election and THE CHIEF EXECUTIVE UNDER THE VEGETATION MANAGEMENT ACT 1999 Second Co-Respondent by Election and TANYA PLANT Third Co-Respondent by Election and MERILYN PLANT Fourth Co-Respondent by Election and SID PLANT Fifth Co-Respondent by Election and DAVID & CHERYL VONHOFF Sixth Co-Respondent by Election -- 1 of 6 -- 2 FILE NO: 3145 of 2006 – Brisbane DIVISION: Planning and Environment Court, Maroochydore PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 1 April 2010 DELIVERED AT: Maroochydore HEARING DATE: 19 March 2010 JUDGE: K.S. Dodds DCJ ORDER: 1. On or before 7 May the respondent and each co- respondent notify each other party of conditions that party has previously advised were required to be attached to the approval, which the party seeks to have attached to the approval. 2. On or before 7 May 2010 the respondent and each co- respondent provide to all other parties amended and/or additional conditions which they seek to have attached to the approval. 3. On or before 7 June 2010 any party must notify all other parties of any conditions notified in accordance with paragraphs 1 and 2 which they dispute and the grounds of the dispute. 4. On or before 28 June 2010 the appellant is to prepare a schedule representing conditions about which all parties are in agreement, conditions about which some and which parties are in agreement, conditions which a party contends for about which no other party agrees to. 5. The issues in dispute will be the conditions and grounds so notified in accordance with paragraphs 1 and 2 and identified in accordance with paragraph 3. 6. On or before 26 July 2010 the parties are to exchange copies of all reports, statements and affidavits they intend to rely upon at the hearing. 7. Evidence in chief at the hearing touching on conditions is to be by written report, statement in writing or affidavit. Any additional evidence in chief will only be permitted with the leave of the court. 8. Authors of reports or statements and deponents of affidavits are to be available for cross-examination unless all parties advise the person is not required for cross- examination. 9. The appeal is set down for hearing in the Planning and Environment Court at Maroochydore for 2 days -- 2 of 6 -- 3 commencing 10 August 2010. 10. The appeal be reviewed on 2 August 2010 at 9.30am. CATCHWORDS: PLANNING – PLANNING LAW – where further hearing required to settle conditions COUNSEL: M Connor (sol) for the appellant P Chadwick (sol) for the respondent J Brien for the co-respondent, first co-respondent and second co-respondent The third co-respondent appeared on her own behalf The fourth co-respondent appeared on her own behalf The fifth co-respondent appeared on his own behalf D Vonhoff appeared on his own behalf and on behalf of D Vonhoff SOLICITORS: Connor O’Meara Solicitors for the appellant King & Company Solicitors for the respondent Crown Law for the co-respondent, first co-respondent and second co-respondent The third co-respondent appeared on her own behalf The fourth co-respondent appeared on her own behalf The fifth co-respondent appeared on his own behalf D Vonhoff appeared on his own behalf and on behalf of D Vonhoff [1] On 12 March 2010 this matter was adjourned until 19 March 2010 for mention. The purpose of the mention was to set the appeal down for further evidence (if necessary) and submissions regarding conditions to be attached to an approval of a development permit for a material change of use resulting from the appeal. [2] All parties agree about the need for a further hearing. They are not in agreement about the way forward. [3] Subsequent to the decision of the court on 12 December 2007 allowing the appeal, the appellant had proceeded to make some changes to aspects of the development in question. Conditions proposed by other parties to the appeal were formulated on the basis of the proposed changed scenario. The appellant has informed the Court that it has abandoned those alterations. It proposes now to proceed with “the design that was before the court”. In the words of the appellant’s legal representative at the most recent mention “we are running with the proposal that your Honour considered before the Court, so all elements- the hard stand is gone, the feed mill is back where it always was, other elements are where they are”. He identified plans which were exhibited to an affidavit of Maxwell Francis Winders sworn 22 September 2009, filed 23 September 2009 as representing the feedlot and its elements that were before the court on the -- 3 of 6 -- 4 hearing of the appeal. As will appear below, that may not be entirely correct. Those plans are not in accordance with Dr Holmes’ relocation of the feedlot footprint and ponds, 50 metres to the south and 200 metres to the west from where represented on the plans referred to by Mr Winders. [4] As appears from the reasons of the court handed down on 12 December 2007, the matters in issue on the appeal were odour and separation distances, noise and dust, waste disposal, effluent reuse and ground water, traffic and town planning. In the light of the evidence before the court, odour and separation distances were the most critical issue. [5] The feedlot footprint before the court on the hearing of the appeal and the plan upon which the court’s decision was based regarding odour modelling was represented in figure 1 of Exhibit 9, a report of Dr Holmes, an odour expert. Other odour experts agreed with the conclusions in Dr Holmes’ report. Figure 1 of Exhibit 9 showed feedlot pens for a 5000 SCU feedlot superimposed over part of the footprint of an 11,000 SCU feedlot at its south-western extremity. The footprint of the 11,000 feedlot appeared on plans associated with the application to the respondent: see for instance response by Max Winders and Associates of 16 May 2006 to information requests; drawing number 05-107-08RFI 16 May 2006. The figure 1 also showed the effluent and sedimentation ponds moved in a south westerly direction from their location in the plans associated with the application to the respondent. The distances involved with the relocation I have mentioned were the subject of evidence of Dr Holmes and Mr King, the expert witness who gave evidence about dust nuisance. As Dr Holmes put it, referring to a joint report from a meeting of air quality experts on 21 September 2007; see Exhibit 2, tab 7 referring to the new configuration of the feedlot that was in part outside of the footprint of the feedlot pens that were proposed for the 11,000 SCU feedlot which had been considered in previous joint reports of odour experts, “the south east corner of the pens of the new configuration of the Balgowlan Feedlot is a further 50 metres to the south and 200 metres to the west compared with that considered previously”. She also said in answer to a question about a geographical representation of the spatial relationship of the feedlot and its elements used as inputs into the modelling she undertook, that it was shown in figure 1 of exhibit 9. Figure 1 shows in addition to those elements already mentioned, the manure stockpile to the west of the feedlots pens, the carcass burial site to the North of the manure stockpile, a 40 hectare effluent irrigation area to the east and a little to the north of the sedimentation and effluent ponds and a feed mill and grain storage site where it has historically existed adjacent to Balgowlan Road. No mass burial site was shown. That was shown on plans subsequent to 12 December 2007, to the east of the pens. [6] Stocking density upon which Dr Holmes’ modelling was performed was 15m² per head. [7] It follows from what I have set out above that the following may be accepted as the basis upon which to proceed: ƒ the location of the pens; ƒ the location of the sedimentation and effluent ponds; ƒ the location of at least one effluent irrigation area; -- 4 of 6 -- 5 ƒ the location of the manure stockpile; ƒ the location of the carcass disposal area; ƒ the location of the feed mill and grain storage areas; and ƒ the stocking density of the feedlot. [8] I am aware that since 12 December 2007 work has been done on pen design, pen surface, feeding and watering points, drainage design, cattle handling yards, roadways, size and design of ponds, size of effluent irrigation area to the north west of the pens. See for instance plans prepared by MWA Environmental dated 27/11/09 drawing number 05-107B-06B regarding solids utilisation area, number 07-107B-04 regarding typical pen details, number 07-107B-05A regarding feedlot drainage, number 07-107B-03A regarding feedlot layout, number 07-107B-01B regarding site plan showing lot boundaries. Some locations shown on some of those plans will no longer be relevant because as advised by the appellant’s solicitor, locations will revert to where they were when the appeal was heard. Additionally those plans do not seem to show the 5000 SCU feedlot footprint where Dr Holmes had it in her evidence before the Court on the hearing of the appeal. See paragraph 5 above. Conditions contended for have been circulated. Much of this work will remain relevant. Drainage from the manure stockpile area to the west of the pens may need to be addressed afresh. Volume of ponds may need to be revisited in the absence of the hardstand area. So may the size of effluent irrigation area/s. [9] I order as follows: 1. On or before 7 May the respondent and each co-respondent notify each other party of conditions that party has previously advised were required to be attached to the approval, which the party seeks to have attached to the approval. 2. On or before 7 May 2010 the respondent and each co-respondent provide to all other parties amended and/or additional conditions which they seek to have attached to the approval. 3. On or before 7 June 2010 any party must notify all other parties of any conditions notified in accordance with paragraphs 1 and 2 which they dispute and the grounds of the dispute. 4. On or before 28 June 2010 the appellant is to prepare a schedule representing conditions about which all parties are in agreement, conditions about which some and which parties are in agreement, conditions which a party contends for about which no other party agrees to. 5. The issues in dispute will be the conditions and grounds so notified in accordance with paragraphs 1 and 2 and identified in accordance with paragraph 3. 6. On or before 26 July 2010 the parties are to exchange copies of all reports, statements and affidavits they intend to rely upon at the hearing. -- 5 of 6 -- 6 7. Evidence in chief at the hearing touching on conditions is to be by written report, statement in writing or affidavit. Any additional evidence in chief will only be permitted with the leave of the court. 8. Authors of reports or statements and deponents of affidavits are to be available for cross-examination unless all parties advise the person is not required for cross-examination. 9. The appeal is set down for hearing in the Planning and Environment Court at Maroochydore for 2 days commencing 10 August 2010. 10. The appeal be reviewed on 2 August 2010 at 9.30am. -- 6 of 6 --