Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2010] QPEC 21 (2010) QPELR 537

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Acland Pastoral Co. Pty Ltd v Rosalie Shire Council & Ors [2010] QPEC 21 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 INFRASTUCTURE 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 7 -- 2 FILE NO: 3145 of 2006 – Brisbane DIVISION: Planning and Environment Court, Maroochydore PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 12 March 2010 DELIVERED AT: Maroochydore HEARING DATE: 8 February 2010 JUDGE: K.S. Dodds DCJ ORDER: Appeal adjourned for determination of conditions to be attached to a development permit the subject of the appeal CATCHWORDS: PLANNING – PLANNING LAW – where appeal allowed and adjourned for parties to attempt to agree upon conditions to attach to a development permit – where after the Court allowed the appeal, the appellant proposed changes to the proposed development before the Court at the time of the appeal hearing – whether changes were minor changes in terms of section 4.1.52(b) of the Integrated Planning Act 1997 and section 350 of the Sustainable Planning Act 2009 – whether appellant is entitled or should be allowed to change the proposed development Integrated Planning Act 1997 s 4.1.52(2)(b) Sustainable Planning Act 2009 s 350, s 821(2)(b) Cases cited: Acland Pastoral Co. Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112 Australian Capital Holdings Pty Ltd v Mackay City Council & Ors [2008] QCA 101 Barakat Properties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGRA 90 Cambridge Credit Corporation Ltd v Parkes Development Pty Ltd (1974) 2 NSWLR 590; 33 LGRA 196 Maroochy Shire Council v Barnes [2001] QCA 273 Multidevelopment Corporation v Coffs Harbour Shire Council (1976) 33 LGRA 419 -- 2 of 7 -- 3 COUNSEL: D Gore QC with B Job for the appellant S Ure for the respondent M Hinson SC with 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] Having heard this appeal over 5 days, on 12 December 2007 in Court I said “The appeal is allowed but only to the extent of a 5000 SCU feedlot. The appeal is adjourned for parties to formulate conditions attached to the approval. I publish my reasons.”1 The same words appear in the final paragraph of my reasons. Since then the matter has returned to the court on six occasions. Orders have been made to move the matter to a conclusion. [2] The most recent orders made on 23 November 2009 included an order that the “following issue be determined as a preliminary issue: Whether the appellant is entitled to or should be allowed to change the proposed development the subject of the hearing of this appeal and decision dated 12 December 2007; Whether the changes proposed to the said development by the appellant are or are not minor changes in terms of section 4.1.52(2)(b) of the Integrated Planning Act 1997 (Qld).” [3] This preliminary issue is the subject of these reasons. [4] Before the court on the hearing of the appeal were plans of the proposed development, an 11,000 SCU feedlot. The plans, or versions of them, showed the footprint of that feedlot on the appellant’s land and the location of a sedimentation pond, an effluent pond, a manure stockpile, a carcass burial site, feed mill and grain storage and effluent irrigation areas, together with, where 1 Uniform Civil Procedure Rules rule 660. -- 3 of 7 -- 4 relevant, their size and volume. Plans also showed the footprint and location of what became the appellant’s fallback position, for a 5000 SCU feedlot. The location of the 5000 SCU feedlot was on the southern part of the 11,000 SCU feedlot footprint. [5] In the period since 12 December 2007 changes have emerged. The part of the 11,000 SCU feedlot footprint to the north of the 5000 SCU feedlot is proposed to be a hardstand area. The manure stockpile and carcass disposal by composting have been moved to this hardstand area (the hardstand). Feed storage and perhaps the feed mill is proposed for the hardstand area. The size of the sedimentation and effluent ponds have been reduced and the size of an effluent irrigation area in the north east of the appellant’s land, nearest to the property of the 3 rd , 4th and 5th correspondents (the Plants) has been increased from 40 hectares to 60 hectares. [6] The Plants and the 6 th correspondents (the Vonhoffs) oppose changes. [7] Issues of concern at the appeal hearing are set out in the reasons for judgment. They included amenity effects due to dust and odour. These concerns were overcome by the appellant. With particular reference to odour the evidence before the court appeared to show that a sensitive receptor, a dwelling now occupied by the third correspondent, adjacent to the southern boundary of the property immediately to the north of the appellant’s property was just outside the modelled odour contour for 2.5 OU one hour average 99.5th percentile, so long as the feedlot was well managed as a class one feedlot. In that case, odour effect on amenity did not prevent establishment of the feedlot. The modelling I have mentioned was based upon a 5000 SCU feedlot configured as it then was. [8] Senior Counsel for the appellant submitted the changes were minor changes in terms of section 350 of the Sustainable Planning Act 2009 (SPA). That section applied because of section 821(2)(b) of SPA. The changes should be addressed in the determination of conditions to be attached to the approval. [9] The appellant’s approach to the preliminary issue took as its starting point that the court had not given a judgment on 12 December 2007, rather it had published reasons why the appeal would be allowed to the extent of a 5000 SCU feedlot and then adjourned the appeal for conditions to be attached to an approval to be determined. Maroochy Shire Council v Barnes [2001] QCA 273 was an example. [10] In Barnes the reasons published by the Planning and Environment Court concluded with “the outcome will be that an appropriate restraining order and/or remediation order will be made. It has been suggested that if that is the outcome, the parties may be able to settle an order. I will adjourn the matter for further submissions”. The Court of Appeal concluded that “no order had been settled or made. Strictly speaking the only order that has been made is an order for adjournment”. [11] Senior Counsel for the Chief Executive correspondents by election and Counsel for the respondent submitted that because section 4.1.52(2)(b) of IPA had no application once the court had allowed the appeal, section 821 of SPA and therefore section 350 of SPA could have no application. The decision of the Court of Appeal in Australian Capital Holdings Pty Ltd v Mackay City Council & Ors [2008] QCA 101 was relevant. A Judge of this Court had allowed an -- 4 of 7 -- 5 appeal against refusal of a development application for a shopping centre “in the expectation that suitable conditions to protect the legitimate amenity impact on the development’s immediate neighbours can be formulated”. Later His Honour made orders for the purpose of a hearing to resolve issues in dispute as to the effect of the development on the amenity of the neighbouring properties. In making those orders he said “there remains an issue whether my express expectation that suitable conditions to provide appropriate protection for the neighbours amenity could be incorporated in a conditions package can be fulfilled--- it remains unknown whether my confidence that the amenity issues can be resolved will prove unfounded”. Holmes JA with the concurrence of Fraser JA and Chesterman J (as he then was) concluded that the allowing of the appeal meant that the local authority’s decision refusing approval of the development application was wrong and was set aside. Having allowed the appeal, the Court could not consistently with its decision, have refused the development application. Once the court had allowed the appeal, it had “exhausted” its “jurisdiction to consider whether the impact on amenity was such that the development application should not be granted”.2 It was submitted the occasion for the use of section 4.1.52(2)(b) of IPA has been overtaken by the Court allowing the appeal. Under the section the Court only had jurisdiction to consider whether a change to the application on which the decision under appeal was made amounted to no more than a minor change. That was the application before the local authority. The changes in issue were changes made after an appeal hearing and the appeal being allowed with a conditions package to be finalised. The first question may be answered by considering whether what is now proposed is a materially different proposal. In Barakat Properties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGRA 90, a case where the relevant statutory provision was section 4.15 of the Local Government (Planning and Environment) Act 1990, the Queensland Court of Appeal dealing with a local authorities power to require or approve modification of a development application said at 102 that “a local authority’s power to impose conditions on an approval does not entitle it to impose a condition that an application be modified in a manner which the local authority could not approve if an application seeking modification had been made”. It went on to say “if justification for this view be needed it can be found in the doctrine that an application, in this case a combined application for rezoning and subdivisional approval, cannot be approved subject to conditions which would result in a materially different proposal”. See for example: Cambridge Credit Corporation Ltd v Parkes Development Pty Ltd (1974) 2 NSWLR 590; 33 LGRA 196; Multidevelopment Corporation v Coffs Harbour Shire Council (1976) 33 LGRA 419 at 426-428. Section 4.15 indicates what is a material difference”. 3 It was submitted that the changes referred to were matters to be addressed by conditions attached to an approval. [12] A typical practice of the Court in appeals against refusal of a development application, when an appeal is to be allowed, is to indicate that in reasons for judgment and adjourn the appeal for the parties to attempt to agree on conditions to attach. If they agree or if the court ultimately has to resolve them, the Court will then formally pronounce judgment making appropriate orders. In this case the Court has allowed the appeal and adjourned it for conditions to be resolved. 2 At paragraph 23. 3 At page 102. -- 5 of 7 -- 6 [13] The feedlot as it now appears in plans under discussion comprises feedlot pens for 5000 SCU with appropriate drainage, lanes, entry and exit points. The sedimentation pond and effluent pond are necessary and were part of the proposal for the 11,000 SCU feedlot although volumes have been refined. Effluent irrigation likewise was a part of the original proposal for an 11,000 SCU feedlot. Change to the latter has reduced the total area for effluent irrigation but resulted in an increase in size to an area in the north east of the appellant’s land, resulting from abandonment of two of three previous areas for effluent irrigation. Manure stockpile, carcass burial, mass burial site, were part of the proposal for the 11,000 SCU feedlot, but the original locations are now changed. Feed mill and grain storage in plans for the 11,000 SCU feedlot were located in an area where they presently exist, close to the eastern boundary of the appellant’s land adjacent to Muldu Plainview Road. The hardstand is now proposed for them. [14] The hardstand on that part of the footprint of the originally proposed 11,000 SCU feedlot to the north of the 5000 SCU feedlot is an entirely new aspect. Use of this area as a hardstand associated with the operation of a 5000 SCU feedlot has not been a part of the appellant’s proposal until after the Court’s decision on 12 December 2007 [15] A feedlot plainly consists of more than just pens in which cattle are fed, watered and fattened. Other components referred to earlier are essential to its operation. With respect to some of them, such as manure stockpile, effluent and sedimentation ponds, effluent reuse areas, the correct size or volume is important. Location may be dependent upon topography, soil and drainage. Location of other features may be operationally desirable such as location of feed, feed mill, a hardstand. [16] The New Shorter Oxford English Dictionary relevantly defines “material” as serious, significant, important, of consequence, influential, especially to the extent of affecting a judgment. [17] A development includes all the component parts of it. Altering a component or components may result in a materially different development. For example, a unit development in an urban environment, proposed to be set in attractive landscaped surroundings may be materially different to the same development, proposed to be set in a large, barren expanse of concrete. [18] I have been concerned about the progress of the appeal. Reasons for judgment were published in December 2007. Before the hardstand was introduced, other components of the feedlot were located elsewhere. The proposal of the hardstand on the northern aspect of the 11,000 SCU footprint appears to have coincided with proposing to relocate other components to the hardstand. Changes proposed may be economically and operationally expedient to the appellant. Since its introduction the hardstand appears to have been regarded as a fait accompli by all parties, except the Plants and the Vonhoffs, as if all that was needed was further favourable odour modelling. [19] It should not be forgotten that impact on amenity was a close run thing in the appeal. To achieve a low risk of causing adverse odour impacts, a very high standard of management was required. Strict adherence to the detailed requirements of a Class 1 feedlot was required. Nor should it be forgotten that odour modelling, as the reasons published by the court on 12 December 2007 -- 6 of 7 -- 7 noted, has its limitations and that odour guideline values do no more than indicate what is likely. It may be accepted that the appellant’s odour expert adopted a conservative approach. But as the Court said “the proposed Plant residence is just outside the 2.5OU odour standard. There is very little tolerance if a high standard of management is not achieved or to allow for uncertainties in the modelling”. 4 [20] I have come to the view that the second question posed by the application should be answered no because it seems to me section 4.1.52 is concerned with what the court must or must not do during hearing of an appeal. Section 4.1.52(2)(b) does not deal with the question of changes to a proposed development after the court has allowed an appeal against refusal of a development application. The changes proposed to the development are not changes to which section 4.1.52(2)(b) of IPA can apply. [21] As to the first question, the answer is no, if the change or changes result in a materially different proposed development. Once an appeal is allowed, there is no application for a provision such as section 4.1.52(2)(b) of IPA or section 495 (2)(b) of SPA. The Court’s decision is made upon the proposal before it. Where, as frequently happens in this jurisdiction, the appeal is adjourned for conditions to attach to the approval to be formulated, conditions can ensure that what is approved is the proposed development which was before it during the appeal. [22] I propose to adjourn the appeal for a further hearing to determine what conditions should be applied to the approval. It is clear all parties will not be able to agree upon conditions. The matter will be adjourned to 19 March 2010 for the purpose of a directions mention. At that mention I intend to set the matter down for the required number of days to resolve conditions to be attached to the approval. Suitable dates will need to be identified. Appropriate directions may be given regarding the conduct of the hearing. They may include directions requiring the parties to provide the Court with conditions all parties agree to, conditions some and which of the parties agree to and conditions a party contends for that no other party agrees to. This may require parties to meet and agree upon a tabular representation of these conditions for easy reference. 4 Acland Pastoral Co. Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112 at paragraph 71. -- 7 of 7 --