Acland Pastoral Co. Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112 [2008] QPELR 324

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Acland Pastoral Co. Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112 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 20 -- 2 FILE NO: 3415 of 2006 – Brisbane DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court DELIVERED ON: 12 December 2007 DELIVERED AT: Maroochydore HEARING DATE: 24 – 28 September 2007 at Brisbane JUDGE: K.S. Dodds DCJ ORDER: Appeal allowed for a 5000 SCU feedlot CATCHWORDS: PLANNING – PLANNING LAW – Appeal against refusal of application for 11,000 SCU feedlot – odour – odour modelling – amenity Integrated Planning Act 1997 (Qld) s 1.3.5(1)(b)(iv), s 4.1.50(1), s 4.1.52(1), s 4.1.52(2)(b), Cases cited: Agaric Pty Ltd v Rosalie Shire Council [1992] QPELR 35 Bell & Anor v Noosa Shire Council & Ors [1983] QPLR 311 Broad v Brisbane City Council [1986] 2 Qd R 317 Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 Feldham v Esk Shire Council [1989] QPLR 91 Hart v Jondaryan Shire Council [1992] QPLR 27 McBain v Clifton Shire Council [1994] 1 Qd R 493 Murphy v Beaudesert Shire Council [2003] QPELR 270 Rio Pine Air Gravel Co v Warringah Shire Council (1969) 17 LGRA 153 Simmons v Esk Shire Council [2007] QPELR 107 Singh v Beaudesert Shire Council [2004] QPELR 16 Telstra Corporation Limited v Pine Rivers Shire Council [2001] QPELR 350 Yamauchi v Jondaryan Shire Council & Ors [1998] QPELR 452 -- 2 of 20 -- 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 C 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 C. Vonhoff [1] This is an appeal by an applicant for a development permit for a material change of use for lot feeding of cattle, 11,000 Single Cattle Units (SCU), an environmentally relevant activity, on land, Lots 32 and 33 on RP30978 located near Muldu in the respondent’s local authority area.. [2] The application was made on 21 September 2005 by predecessors in title to the land now owned by the appellant. It proposed a class 1 standard feedlot be established in two stages; stage one, 6600 SCU with the second stage 4400 SCU to be completed one year after stage one. It included an induction centre, holding yards, feedlot pens, feed mill, grain storage facilities, manure stockpiles, effluent ponds and effluent irrigation areas. [3] The appellant has the task of establishing approval should be granted.1 The appeal is by way of hearing anew.2 [4] The land is part of a property known as Balgowan now owned by the appellant. Balgowan consists of a number of separate lots, lots 32 and 33 being two of them. It is bordered on its east by Muldu Plainview Road, a two lane bitumen carriageway carrying a low volume of traffic, by Balgowan Road on its north constructed to a gravel standard where it joins Muldu Plainview Road deteriorating to an unformed track part way along the northern boundary of 1 Integrated Planning Act 1997 section 4.1.50(1). 2 Integrated Planning Act 1997 section 4.1.52(1). -- 3 of 20 -- 4 Balgowan and by Muldu Jondaryan and Muldu Brymaroo Road on its south. The New Acland Coal Mine owned and operated by an entity related to the appellant operates a short distance to its east. Part of its mining development lease extends into Balgowan. Muldu Jondaryan Road, a two lane bitumen carriageway is the haul route for mine trucks transporting coal to a railhead at Jondaryan. Muldu Brymaroo Road is a formed gravel road and carries little traffic. The main access to Balgowan is from Muldu Plainview Road. Bordering Balgowan Road on its northern side is the property of the fourth and fifth co-respondents, Sid and Merilyn Plant. Tanya Plant, the third co- respondent, is their daughter. For convenience I will refer to them collectively as the Plants. The Plant family property is named “Samarai”. [5] Other respondents to the appeal include the Chief Executives under various State legislation and Mr and Mrs Vonhoff. Mr and Mrs Vonhoff’s residence is some four kilometers to the north west. Each Member of the Plant Family took part in the appeal and gave evidence. So did Mr Vonhoff. Tanya Plant took the greater role by far. Each made final submissions to the court. Tanya Plant provided extensive and thorough submissions. [6] The application was made during the currency of the respondent’s 1997 Transitional Planning Scheme although a draft Integrated Planning Act 1997 (IPA) Scheme was in existence, having been publicly exhibited 19 July to 11 October 2006 Consequently considerations discussed in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 may apply. [7] The application was refused by the respondent under direction from the Department of Primary Industries and Fisheries, a concurrence agency to the application. The reason provided was that the application did not comply with the Environmental Protection Act 1994 and the Reference Manual for the Establishment and Operation of Beef Cattle Feedlots in Queensland (the Reference Manual)3 being a policy applied by it and that compliance with the Act and the Reference Manual could not be achieved by imposing conditions. This was said to be because the application had not provided sufficient evidence to support its assertion that there was sufficient separation distance between the feedlot and the settlement of Muldu, a rural residential development and it was not sufficient that the appellant may own both the feedlot site and the settlement at Muldu. [8] The other referral agencies the Chief Executive under the Transport Infrastructure Act 1994 and the Chief Executive under the Vegetation Management Act 1999 (Department of Natural Resources and Mines) did not direct refusal of the application. The Chief Executive under the Vegetation Management Act 1999 directed conditions to be imposed on any approval. [9] Muldu is an old historic subdivision of 61 allotments, 54 of which are owned by the appellant or entities related to the appellant. There are no urban services. It is in the rural zone in the respondent’s transitional planning scheme and the draft scheme. There are five residences three of which are owned by entities related 3 See Exhibit 3. -- 4 of 20 -- 5 to the appellant. No owners of allotments were submitters to the application. Muldu is 1600 metres away from the proposed development. [10] Public notification of the application commenced on 20 May 2006 and continued until 3 July 2006. On 29 June 2006 a building application was made by the Plants to construct a dwelling house on Lot 1 RP58565 resulting in plumbing and building approval. Samarai consists of a number of lots. Lots 1, 2 and 3 thereof on RP58565 abut Balgowan Road. They have high ground near Balgowan Road. The existing homestead is some kilometres further to the north. Much of Samarai is floodplain country unsuitable for siting a dwelling home. On the following day, 30 June 2006, the Plants lodged submissions with the respondent objecting to the application. Two locations for the dwelling house appear from the building application material, one, 120 metres from Balgowan Road and the other 20 metres from Balgowan Road. At the hearing of the appeal the 20 metre location was said to be where it was intended to build the dwelling. [11] There are a number of potential house sites on the high ground on Lots 1, 2, & 3. Whilst I appreciate opinions may differ there appears to be a superior house site to the west near the junction of Lots 2 and 3 near where a previous house once existed. Its disadvantage is that Balgowan Road deteriorates the further it is distant from its intersection with Muldu-Plainview Road. Providing reticulated power would be more expensive and all weather access, absent expensive upgrading of Balgowan Road, would be problematical. The suggested site 20 metres from Balgowan Road is probably the nearest dwelling house site on Samarai to the proposed feedlot site. It is also the closest to Muldu Plainview Road. [12] The proposed feedlot pens at the hearing of the appeal had been relocated 200 metres to the west and 50 metres to the south of the proposed location in the application made to the respondent. This alteration may be regarded as a minor change for the purpose of section 4.1.52(2)(b) of the Integrated Planning Act 1997 (IPA). [13] There were a number of grounds of appeal. Essentially, two matters were raised: ƒ the proper characterisation of Muldu, a rural residential area, or a rural area; and ƒ odour modelling demonstrated there was sufficient separation distance between the proposed site and Muldu so that the proposal would operate in accordance with the requirements of the Environmental Protection Act 1994 with the imposition of appropriate conditions. [14] By the time of hearing the appeal matters in issue had been added to and refined and may conveniently be listed as odour and separation distances, noise and dust, waste disposal, effluent reuse and groundwater, traffic and town planning. -- 5 of 20 -- 6 [15] Evidence from a number of experts in relevant fields was given at the hearing of the appeal. The evidence took account of the Plants proposed dwelling on Lot 1 RP58565. For the most part, the experts in particular fields were in agreement. Traffic, Noise and Dust [16] Issues such as traffic, noise and dust may be put to one side. Uncontradicted evidence from suitably qualified experts in these fields established that what was proposed, properly managed would not lead to these issues requiring its refusal. Groundwater [17] This was the subject of investigation by Mr Smith, a hydrogeologist engaged by the appellant, Mr Iain Hair, a hydrogeologist for the respondent Council and Mr Alan Skerman, a senior environmental engineer, for the Department of Primary Industries and Fisheries. After extensive groundwater investigation, all agreed there was sufficient water to support the proposed facility by pumping from both the Balgowan Mine void and Hutton Sandstone aquifers under all climatic conditions. There would be no adverse impacts on the water levels on neighbouring properties. Effluent and Waste Disposal [18] The experts in this field were Dr Stephen Catchpoole for the appellant, Mr Justin Galloway for the respondent Council and Mr Alan Skerman for the Department of Primary Industries and Fisheries. Modelling of the proposed feedlot effluent irrigation for what was proposed, an 11,000 SCU feedlot, was undertaken. It was agreed that the feedlot design should incorporate an 80 ML holding pond and an 80 hectare effluent irrigation area comprising both a 50 hectare and a 30 hectare centre pivot irrigation area to be planted to a summer forage sorghum crop and a winter pasture. Areas of the property overlay basalt aquifers and these areas were unsuitable for effluent irrigation due to the risk of contamination of groundwater. The proposed 50 hectare irrigation area was located over walloon coal measures covered by relatively thick permeability clays and clayey soils. However the two alternative proposed areas for the 30 hectare irrigation area were over mid-range volcanics and risked contamination of the basaltic aquifer. Further investigation was required to locate an alternate area on the property not located over mid range volcanic outcrop or sub outcrop areas. Town Planning [19] Two persons with expertise in town planning; Mr Ryter for the respondent and Mr Challoner for the appellant gave evidence. Separate reports from each incorporating a joint report became evidence on the appeal. They agreed that: -- 6 of 20 -- 7 ƒ The protection of amenity was an important and fundamental town planning principle. ƒ If amenity and environmental impacts were unacceptable, then the proposal conflicted with the planning scheme provisions and the application should be refused. ƒ Conversely, if amenity and environmental impacts were acceptable, then the proposal was consistent with the planning documents and should be approved. [20] Under both the transitional planning scheme and the draft scheme, the land is zoned rural. In the transitional scheme “lot feeding” is “intensive animal husbandry”. It is a permissible (impact assessable) use in the rural zone. In the draft scheme lot feeding is an “intensive animal industry”. It is impact assessable. The “Rural Zone provides the opportunity for a range of activities that may not be able to be accommodated or particularly suited to the town areas. Developments requiring code or impact assessment will be required to demonstrate that there will be no prejudicial impacts on adjoining rural activities and that there are no unacceptable, environmental, amenity or infrastructure impacts”.4 Transitional Scheme Provisions [21] “A use or development shall not be commenced, extended or modified where such use or development will have an adverse impact on the surrounding area by reason of excessive noise, traffic, emission of smoke, dust, fumes, odours, ash, chemicals, suspended solids or other potential contaminants or radiant heat or light or the like”.5 “Council shall have due regard to the environmental impact of any use or development and shall only approve an application where it can be shown that no adverse environmental effect will be caused by the use or development”.6 [22] Standards applying to a use such as is proposed are included in section 5.5. Separation distance between lot feeding and dwellings is to be in accordance with licensing requirements of DPI. Draft Scheme [23] The draft scheme includes an intensive animal industry code.7 It requires inter alia that development such as is proposed be located and sited such that: 4 At paragraph 5.7.1. 5 Transitional Planning Scheme 1997 section 5.2.1. 6 Transitional Planning Scheme 1997 section 5.2.4. 7 Section 6.10 -- 7 of 20 -- 8 Performance Criteria – P1 ƒ Odour and noise levels are acceptable in rural residential and other urban land use areas; ƒ The quality of ground and surface water is maintained; ƒ Natural flood and drainage processes and/or patterns are maintainte; ƒ The development’s effluent management can demonstrate sustainable disposal to the soil and landscape by ensuring that these activities do not cause: deep drainage beyond the hydrological balance of that location: waterlogging, salinity, leeching of nutrients and/or pesticide into surfacewater, groundwater or areas offsite that may be at risk, particularly areas down slope; ƒ The development is able to implement an adequate land use buffer as set out in the Planning Guidelines Separating Agricultural and Residential Land Use; Performance Criteria – P2 ƒ That adequate water supply is available for the proposed use; Performance Criteria – P4 ƒ That noise and dust impacts--- related to the development are minimised. [24] Regarding new houses in the rural zone, Performance Criteria P7 of the House Code requires that the location of a new house not prejudice the operation of an existing or approved operation for intensive animal husbandry. An acceptable solution provided for this Performance Criteria is that the new house be not located within 1000 metres of an existing or approved intensive animal industry on another property. [25] These provisions set out above are examples of town planning seeking to balance and reconcile potentially conflicting land uses. [26] The town planners did not agree about the way Muldu should be characterised. Mr Challoner considered the few houses in Muldu should be characterised as rural farmhouses. Mr Ryter considered they should be treated as residential or at least rural residential houses. -- 8 of 20 -- 9 [27] Mr Challoner’s characterisation of Muldu was coloured by the ownership of the great majority of the allotments and of three of the five houses, that the appellant was seeking to acquire the remaining properties, that there was no reticulated water or sewerage, and that amenity was already compromised by the proximity of the coal mine and the haul route for coal trucks. [28] Mr Ryter’s characterisation was coloured by: ƒ Under the transitional planning scheme, a dwelling house was an as of right use in the rural zone; 61 dwellings potentially could be built at Muldu; ƒ Allotment sizes in Muldu were compatible with lot sizes in a residential zone and inconsistent with lot sizes in the rural zone resulting in Muldu presenting as a residential area. He acknowledged that under the draft scheme there was specific provision regarding old historic subdivisions such as Muldu and it was provided that “These locations are not considered appropriate for closer settlement due to their isolation and the subsequent costs associated with service provision. The construction of a new house in these areas will be on the basis of impact assessment and require the applicant to demonstrate that the land has adequate access to physical and social services”. [29] Mr Ryter’s analysis of Muldu is, I think, strictly correct. The area is akin to a residential area. However when regard is had to the reality of the location of the lots vis a vis the mine, the extent of development, the tenure of lots and the few houses built and the intent expressed in the draft scheme, it would not be unreasonable to take these matters into account in considering whether and to what extent a strict application of the standards of development may be modified. Odour [30] In the latter part of the 1980’s a feedlot was established on Balgowan some distance to the south-west of the proposed site (the old feedlot). It was licensed for 5600 SCU. The evidence establishes that it was a class 3 or 4 feedlot and appears not to have been well run. An application to enlarge it to 11,000 SCU to be run as a class 1 feedlot was refused by the respondent in 1991 but on appeal to the court – Agaric Pty Ltd v Rosalie Shire Council [1992] QPELR 35 – the proposal was approved subject to conditions. There were a relatively large number of objectors to the proposal to enlarge and a number gave evidence on the appeal. Their evidence was accepted. Significant odour problems was the focus of their evidence. In the event the expansion never occurred and in about 1995/1996 the feedlot closed. [31] The principal author of the Reference Manual, exhibit 3, is Alan Skerman, Senior Environmental Engineer, Department of Primary Industries and Fisheries, Queensland. The aim of the Reference Manual is to promote the development and operation of cattle feedlots throughout Queensland in accordance with the -- 9 of 20 -- 10 principles of “ecologically sustainable development” as defined in the Environmental Protection Act 1994. Amongst other things it provides that feedlots should be sited so as not to cause unreasonable interference with the comfortable enjoyment of life and property off site “---The intensity of odour generation is--- a function of the climatic conditions, feedlot capacity, stocking density and design construction and management practices”.8 “---feedlots should be separated from sensitive receptors by a sufficient distance to limit any adverse effects resulting from odour, dust, noise or aesthetic considerations to an acceptable level.--- Because odour has been identified as the principal community amenity concern in relation to feedlot developments separation distance requirement are generally determined on the basis of limiting odour nuisance to an acceptable level”.9 Section 4.3 introduces and describes scientific methods to determine separation distances between feedlots and receptors. [32] Exhibit 29 is a guideline document entitled Odour Impact Assessment from Development published by the Environmental Protection Agency. It provides guidelines for determining odour annoyance threshold (concentrations) for comparison inter alia with modelled odour concentration; for ground level sources and washed down plumes from short stacks- 2.5 Odour Units (OU) 1- hour average 99.5th percentile, i.e. 2.5OU for more than 99.5% of the hourly meteorological conditions in a year; the 0.5% allowance being a “statistical parameter to filter the extreme values generated by modelling”. It cautions that the guideline values should not be “used as ‘pass’ or ‘fail’ test as there are a number of limitations in modelling” and indicates what they may be. “However if the modelled odour concentrations at the most exposed existing or likely future offsite sensitive receptors are less than the guideline values then adverse chronic odour impacts are not likely in most cases.”10 [33] Three air quality experts were engaged to consider the impact of odour on potential receptors. Dr Holmes was retained by the appellant, Mr Welchman was retained by the respondent and Mr Omerod was retained by the co- respondent, the Chief Executive under the Environmental Protection Act 1994. They achieved agreement and a number of joint statements of evidence were produced.11 Investigation was by site specific odour dispersion modelling.12 The guideline document Odour Impact Assessment from Development13 was considered an appropriate basis for assessing the acceptability of the proposal in conjunction with the modelling. The most affected residential locations in the vicinity of the proposed feedlot were Muldu and the proposed future residence of the Plants. An 11,000 SCU feedlot would not comply with the guideline. It had a high risk of causing adverse odour impacts. In the joint odour reports in Exhibit 2 there were depictions of the odour contours predicted by the modelling at source and radiating outward from the source. Figure 6 displays the contour for a predicted 99.5th percentile odour level from an 11,000 SCU feedlot assuming a fixed odour emission rate of 5 OU.m²/m³/s. It shows the 2.5 OU level extending to an unknown but plainly significant extent to the north, east and west of the land. It shows the Plants’ potential house and Muldu at a level 8 Section 3.2.7. 9 Section 4.1.1 10 At 7 and 8. 11 Exhibit 2. 12 Reference Manual section 4.5. 13 Exhibit 29. -- 10 of 20 -- 11 between 5 and 7 OU. 5000 SCU was the maximum capacity that would comply given the existing or likely locations of these most sensitive receptors and a very high standard of management would be essential to ensure minimal odour omission. I accept Mr Omerod’s evidence that strict adherence to the detailed requirements of a Class 1 feedlot as set out in the State government’s reference manual was required. Given that, the modelling indicated a 5000 SCU feedlot could be accommodated in the new proposed location on the land with a low risk of causing adverse odour impacts. [34] All three members of the Plant family gave evidence both by way of written statement and orally. They gave evidence about their history on their land, their life and their plans, the experience of the old feedlot, about odour and dust from the old feedlot and its effect on health, particularly of Mrs Plant and their expectation of similar experience and effects if the proposal is approved. There seems little doubt Mrs Plant became ill during the period the old feedlot operated and recovered to a significant extent after its closure. [35] Mr Vonhoff’s principal concern was with the impact of the dust from the feedlot and its effect on air quality. His concern was sourced in what he described as the substantial dust problem with the old feedlot. He described its effects. His daughter suffered asthma attacks which he considered were due to emanations from the feedlot. He produced medical records relating to her. He produced a statement from another person, a Mr Folker who lives near a feedlot describing that person’s perceptions of the adverse effects of living near a feedlot. He produced photographs of dust palls which he said were due to feedlots. He spoke of dust and the smell from the Kerwee feedlot when the court inspected it during the site inspection. [36] The court was provided with evidence from well-qualified persons about airborne contaminants feedlots may generate and effects on health. Dr Tovey14 and Professor Wilson.15 An article entitled “The impact of odours on feedlot neighbours” by Walsh, Lunney and Casey16 provided additional information. I accept this evidence. [37] Evidence from Dr Loblay, a physician, Dr Rowan a General Practitioner treating Mrs Plant, Dr Berg a physician and Dr Burke an occupational physician together with some of Mrs Plant’s more recent medical records was also before the court as relevant to causation of Mrs Plant’s illness during the period of operation of the old feedlot and to the effect the proposed feedlot may have on her health. [38] Other evidence in the form of letters and statements came from people who knew the Plants and/or were familiar with the malodorous experience of the Plants resulting from the old feedlot. Mrs Plant’s sister Ms Scheuringer, a physiotherapist, gave evidence both in writing and orally speaking of this and also of Mrs Plant’s health status during and since childhood. Mr Saal, an agricultural consultant who had known the Plants for in excess of 20 years gave 14 Exhibit 22. 15 Exhibit 23. 16 Exhibit 30. -- 11 of 20 -- 12 evidence about the character of the Plants and their longstanding intention to build another house on their property. [39] I accept that the old feedlot inflicted foul odours on neighbours and unreasonably interfered with amenity. I find that Mrs Plant from childhood has been an asthma sufferer, although I do not think it is shown as particularly severe. All of the specialist medical evidence suggests it was not and is not. I find that emanations from the old feedlot had an adverse effect upon her health which was to a large extent peculiar to her over and above the stink which everybody endured. I think Dr Burke’s comments probably best describe Mrs Plant’s condition17 “there is little doubt Mrs Plant represents one of the more susceptible or vulnerable members of the community. This relates to her asthma, her possible allergic disposition (unconfirmed) and her propensity to develop a wide range of symptoms in association with malodorous exposures. Although one could not assert that the development and operation of a neighbouring feedlot will result in objective decrements in her lung function or other physical health parameters it is probable there will be an increase in her general symptoms and a significant deterioration in her health. This is most likely to be mediated through psycho-physiologic mechanisms, however their remains a distinct possibility that airborne exposures could have some impact on her lung function”. [40] A person’s right to put their land to any lawful use they wish is in these more enlightened times, tempered by town planning considerations, one of which is amenity. Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness. Bell v Noosa Shire Council [1983] QPLR 311; Feldham v Esk Shire Council [1989] QPLR 91. Proposed development will often affect existing amenity. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landholders in the vicinity given the sorts of uses permitted under current town planning controls.18 While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered “according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not effected by some special sensitivity or eccentricity”.19 The weight to be accorded to subjective views can only be judged in the light of all the evidence about the subject. The views may be supported by other evidence or other independent evidence may show that in an objective sense they are overblown as in Telstra Corporation Limited v Pine Rivers Shire Council [2001] QPELR 350. 17 See Exhibit 21. 18 Bell v Noosa Shire Council [1983 ] 311 at 313. 19 Rio Pine Air Gravel Co v Warringah Shire Council (1969) 17 LGRA 153 at 168 adopted by Thomas J in Broad v Brisbane City Council [1986] 2 Qd R 317 at 319. -- 12 of 20 -- 13 [41] All of the scientific evidence supports a view, despite the reservations of those who experienced the old feed lot, that a class 1 feedlot with best practice management will be very different from the old feedlot. This evidence supports a view that a 5000 SCU class 1 feedlot properly managed will comply with the guideline values in Exhibit 29. The Proposed Tiered Approval [42] By letter of 14 September 2007 solicitors for the appellant wrote to the other parties indicating an alternative proposal, namely, that at the hearing of the appeal the appellant would propose a tiered development20: “Tier 1 – the feedlot should be limited to 5000 SCU unless or until the preconditions for Tier 2 or 3 are satisfied; Tier 2 – 11,000 SCU provided: (a) that the proposed Plant house is not built and occupied within 24 months of our client’s development permit taking effect; and (b) an agreement is reached with the owners (other than the applicant or entities related to the applicant) of land at Muldu that the applicant (or a company related to the applicant) will acquire the owner’s allotment and if the transfer is not immediate, that in the meantime the owner signifies its willingness to continue to occupy until the transfer is settle; Tier 3 – greater than 5000 SCU but not greater than 11,000 SCU subject to the preparation of a report demonstrating to the satisfaction of the assessment manager that an expanded development meet the performance based requirements for protocol prepared by Holmes Air Sciences.” Tier 2 and 3 are alternatives [43] The air quality experts considered this proposal not within their area of expertise and experience because the ultimate stage of development contemplated therein was “expected to extend odour impacts well beyond currently known constraints in contrast to other cases within our experience where the ultimate stage is designed to fit within currently known constraints”. They agreed that from an odour impact assessment perspective stages beyond a 5000 SCU feedlot could not at this point in time be shown to comply with the guideline using the agreed assessment methodology. To support an application to proceed beyond a 5000 SCU feedlot, the level of assessment would be equivalent regardless of whether 20 Exhibit 15. -- 13 of 20 -- 14 approval for it were given now subject to conditions or was based on a fresh application in the future.21 [44] Both Dr Holmes and Mr Omerod also gave evidence orally and by way of separate reports.22 Each took up the issue of staged development to 11,000 SCU. [45] Dr Holmes pointed out that the methodology used in their expert assessment was generally conservative with inherent uncertainties and it was possible a feedlot larger than 5000 SCU could be accommodated even with the two constraining receptors mentioned above. Before this could occur a stringent monitoring plan for the 5000 SCU feedlot would need to be developed and proof of performance would need to be demonstrated before any further expansion could occur. She outlined a program of monitoring she had in mind. It appears to be a thorough program. [46] Mr Omerod who is a very experienced in this field drew a distinction between a staged development where the ultimate stage of development is predicted to fit in with the constraints imposed by existing or likely future sensitive receptors but there was significant uncertainty associated with the prediction and this case, where the proposed ultimate stage according to the evidence would have an impact footprint well beyond the current constraints imposed by existing or likely future sensitive receptors. [47] Dr Doyle considered the two situations distinguished by Mr Omerod not significantly different. Mr Omerod considered the difference more fundamental. He opposed a staged development approved now with conditions on principle. His opposition he said was informed by experience with many odour cases. The additional pressure a latent 11,000 SCU feedlot may have on neighbours who had a demonstrably negative attitude to the feedlot shaped by past experience was a matter of concern. [48] In issue then is whether the appellant has shown on the evidence that an 11,000 SCU feedlot conditioned according to the proposed (or some variation thereof) tiered arrangement should be approved. The appellant, as may be expected, submitted it should. The other parties, who took an active role in the appeal other than the Plants and Mr Vonhoff who remained opposed to even a 5000 SCU feedlot, submitted it should not. [49] The appellant submitted: ƒ That Tier 2 recognised and fairly addressed the odour constraints to an 11,000 SCU feedlot posed by Muldu and the Plants’ potential dwelling development: 21 See the Joint Statement of the Air Quality Experts of 29 September 2007 (Exhibit 2). 22 Exhibits 9 and 19 respectively. -- 14 of 20 -- 15 ƒ That tier 3 was appropriate as its implementation was dependant upon demonstration to the satisfaction of the respondent that any expansion in stocking capacity meet performance standards i.e. o Performance requirements of a protocol prepared by Holmes Air Sciences (the appellant’s air quality expert). The protocol was contained in Dr Holmes’ evidence to the court. [50] The respondents (other than the Plants and Mr Vonhoff) submitted that any expansion of the feedlot capacity should be the subject of a further development application which would be impact assessable. Community submissions could be made, a full evaluation of past performance could occur, the then settlement pattern in the locality could be considered, the then relevant planning standards could be applied, odour impact assessment methods which were evolving could be applied, the process would be transparent and provide a full opportunity for community input. Dr Holmes had expressed the view that it was important to have community input into any decision whether the feedlot should expand (when she made that statement, she was referring to ongoing sampling of community input in the protocol she was then discussing). [51] I was referred to a number of decisions of this court and the Court of Appeal. In Hart v Jondaryan Shire Council [1992] QPLR 27 (the Kerwee feedlot which was visited when the court inspected the land) an existing feedlot licensed for 2000 SCU had sought approval for expansion to 11,100 SCU. Expansion could not occur unless the Chief Inspector of Stock would grant a license for that number of SCU. During the hearing of the appeal, the Chief Inspector advised that such a license would be granted subject to nominated conditions. The evidence about odour satisfied the court that the conditions would provide “adequate control in relation to odour emissions and the effects thereof and would significantly reduce any likely adverse impact at various receptor points23 and there was no evidence the appellant’s would be unable to comply with the conditions”. In those circumstances the court rejected a submission from the respondent that a condition limiting the capacity to 5300 SCU and then to require the appellant to make a further application if they wished to expand to 11,100 SCU. The judgement pointed out that the application before the court was for 11,100 head. That was what had been advertised, the public had had the opportunity to consider it and object if they wished. [52] Hart differs from this case because there it was accepted the odour evidence showed adverse effect on amenity from the 11,100 SCU for which approval had been sought was not unacceptable. Here the evidence was to the contrary. [53] Singh v Beaudesert Shire Council [2004] QPELR 16 was concerned with refusal of an application for a poultry farm, an environmentally relevant activity. By the time of hearing of the appeal the proposal had been modified and approval for a staged development was sought with the first stages (four sheds) and the following stage not commencing until it was demonstrated that stage one could operate satisfactorily with an acceptable level of impact on the environment. 23 At 32. -- 15 of 20 -- 16 The major issue was odour. The two experienced environmental engineers, Mr Winders for the respondent Council and Mr Omerod for the appellant considered the idea of a first stage for the development and agreed on a draft protocol for odour performance criteria. The court considered the protocol a “solution which is appropriate in a scientifically based sense”.24 The appeal was allowed, the court saying “acceptable procedures for the demonstration of satisfactory performance of stage one will need to be put in place”.25 [54] In McBain v Clifton Shire Council [1994] 1 QR 493 the local authority had approved an application for a piggery. The consent permitted a maximum resident pig population of 8000 sows and their progeny, total population not to exceed 80,000 at any one time with a 5% exceedable margin. Stocking at the piggery was to occur in staged increments beginning with a maximum of 20,000 pigs (2000 sows and their progeny) and increasing in increments of 20,000 pigs up to the maximum number allowed. The first and each subsequent incremental increase was only to occur upon the written approval of the local authority which would act upon “advice of the monitoring review committee that the current and proposed stock numbers represent an environmentally sustainable operation---”. Prior to commencement of any use or development, the applicant was to “facilitate the establishment of a monitoring committee” whose task would be to deal with “issues concerning the sustainable operation of the piggery” and report to the local authority “on a six monthly basis on the compliance of the operation with required standards, the identification of adverse effects and the actions taken to rectify these---”. The composition of the committee was nominated. The appellant’s were objectors, who had sought a declaration in the Planning and Environment Court that the respondent Council’s decision approving the application was void. The Planning and Environment Court had dismissed that application and the appellant’s appealed to the Court of Appeal. The Court of Appeal held that the form of approval offended the finality principle. The eventual size of the piggery (above 20,000 pigs) depended upon decisions on environmental sustainability which had been deferred into the future. There was no certainty that the respondent Council (or the monitoring committee) would be satisfied of the “environmental sustainability of the current and proposed operation of the piggery when each stage of its expansion from 20,000 to 80,000 pigs is proposed”. The Court held a declaration should be made that the approval was invalid insofar as it provided for the expansion of the piggery to more that 20,000 pigs (2000 sows and their progeny). [55] In Yamauchi v Jondaryan Shire Council & Ors [1998] QPELR 452 the court was concerned with the proposal to establish an intensive piggery. Odour was a critical issue. The evidence left the court in considerable doubt about any reasonable certainty of the accuracy of a scientific odour assessment criteria. Application of the precautionary principle was called for. The appeal was dismissed. [56] Simmons v Esk Shire Council [2007] QPELR 107 was an appeal against refusal of an application to develop a large poultry farm on a 49 hectare rural block. In the rural zone the planning scheme required the local authority’s consent to such 24 At 18. 25 At 20. -- 16 of 20 -- 17 a use and provided that in the zone amenity and character of rural uses be maintained and observed. The appeal was dismissed. One of the reasons contributing to dismissal was that the appellant failed to show that the odour impacts of the proposed development were acceptable or would comply with EPA guidelines. Robin QC DCJ remarked that “There are also concerns about unknown risks from particulate emissions that might be ingested in breathing. A proper regard for people’s amenity required a cautious approach to odour issues as well”.26 [57] Murphy v Beaudesert Shire Council [2003] QPELR 270 was an appeal against a decision of the local authority to issue an Environmental Protection Order to the appellant who conducted a broiler chicken farm on land in the rural zone. Under the respondent’s town planning scheme a poultry farm was an as of right use. The appellant’s had received an environmental authority from the respondent which was conditional, inter alia, prohibiting the release of unauthorised contaminants. The decision involved consideration of provisions of the Environmental Protection Act 1996 and the Environmental Protection (Air) Policy 1997 and balancing the requirements of those provisions with the realities of rural life and the economic value to the community of an economically successful farm. [58] An expansion from 5000 to 11,000 SCU is a material change of use.27 In the normal course of events such a material change of use would be impact assessable. The tier 2 proposal avoids the statutory scheme for impact assessment at the point in time when the expansion is sought by placing a time limit on the Plants as of right use on a portion of their land; either the Plants’ establish their as of right use within a limited period of time or the appellant be permitted to establish its material change of use. [59] The evidence showed that the science of odour modelling is a developing one. There are uncertainties.28 The methodology is developing and refining. Meat and Livestock Australia has been engaged in a lengthy process of development of odour performance criteria for the Australian feedlot industry29 with a view to providing an industry-wide database and methodology to be used by practitioners. At the present time it is still in the review stage. [60] The evidence plainly shows an 11,000 SCU feedlot will have an unacceptable odour impact. It seems to me that having been unable to show that an 11,000 SCU feedlot would not have an unacceptable impact on potential receptors on neighbouring land thus failing to obtain approval for an 11,000 SCU feedlot, it is not appropriate that a conditional approval should nevertheless be granted to operate some time in the future. In my view in this case approval for an 11,000 SCU feedlot some years in the future, should only occur in the light of current scientific knowledge and in the light of all the circumstances then existing. There should be an application for a material change of use which may or may not be be supported in the then current state of knowledge about odour 26 At 118. 27 Integrated Planning Act 1997 section 1.3.5(1)(b)(iv). 28 See the attachment to the Joint Report of the odour experts of 10 September 2007, Exhibit 2. 29 Exhibit 31. -- 17 of 20 -- 18 modelling and which undergoes the statutory course for such an application. I reject the tier 2 proposal. [61] As to the tier 3 proposal it seems to me to take what is a presently unacceptable proposal assessed according to the statutory process provided for assessment of such a proposal and place its acceptability some time in the future on a protocol developed by a nominated expert. It seems to me what is proposed is similar to what was impermissible in McBain. Despite that 11,000 SCU is not approvable, it denies that decision finality. It wants an approval for 11,000 SCU now despite its inability to show the proposal should be approved to be implemented at some time in the future on the assessment manager being satisfied 11,000 SCU meets performance based requirements for a protocol developed by the nominated person. I reject the tier 3 proposal. Decision [62] The evidence shows that feedlots with their concentration of a large number of cattle in pens, consequently large amounts of manure, the special feed used which the evidence suggests, worsens the smell from the manure, effluent ponds and disposal areas, carcass disposal etc are capable of producing very significant odour and airborne particulate matter both of which may be very unpleasant and may be deleterious to health. These are capable of being significant environmental issues and of having a significant adverse effect on amenity. [63] I have already mentioned in a general sense that odour modelling is a developing science and there are inherent uncertainties. Practitioners undertaking modelling accordingly adopt a conservative approach. [64] The Reference Manual provides another method for assessing acceptable separation of source and sensitive receptors (the S factor method) which the expert witnesses agreed was an appropriate “generally conservative approach which experience indicates leads to acceptable levels of impacts. If the project meets the S factor derived separation distances it can be approved. If the project does not meet the S factor derived separation distances detailed dispersion modelling of odour omissions can be undertaken using site specific data to provide a further refinement of the scale of impact”. Regarding odour dispersion modelling the reference manual says “this model would generally use realistic odour emission, data and site specific real time climatic data to determine the probability of a design odour objective being exceeded at nearby receptors”.30 [65] It is axiomatic that the modelling result depends upon inputs into the model. Climatic conditions, wind speed and direction throughout the day and night and variations thereof, rainfall, atmospheric conditions, inputted into the model have an effect upon the outcome. Manure wetted by rain may produce a much stronger, more pungent odour. Odour emission rates from various components of the feedlot development were assumed. Sensitivity testing can be and was 30 Paragraph 4.5. -- 18 of 20 -- 19 applied to the result. But unless the model is ground-truthed over a range of seasons and climatic conditions, it remains a theoretical model. [66] The proposed Plant residence is located at about 1000 meters from the proposed feedlot pens. The effluent pond and the 50 hectare effluent irrigation area proposed locations are closer than the feedlot pens although according to the air quality experts these components emit less odour. [67] The odour contours for the predicted 99.5th percentile odour levels for a 5000 SCU feedlot indicate that the proposed Plant dwelling is just outside the 2.5 OU contour. It was because of the perceived need to achieve this that the proposed feedlot location was moved to the south and west a short distance. [68] The guideline document Odour Impact Assessment from Developments31 makes the point at page 5 under the heading “Approaches to Odour Impact Assessment” that “it is not yet possible to derive odour impact assessment criteria based on air dispersion modelling that take account of the large number of complex human, social and economic factors involved in odour nuisance. There is general agreement that frequency, intensity, duration, offensiveness and location (FIDOL) are factors which ought to be considered when attempting to judge the likelihood of odour nuisance. The so-called FIDOL factors are not easy to quantify individually, let alone when they interact. It is therefore not possible to develop criteria that set a “pass” or “fail” bench mark for air dispersion model odour estimates, rather guidance can be derived from the estimates on likely impacts which can then be further refined through consideration of such things as the observed impacts of similar facilities, the sensitivity of the receiving community and “offensiveness” of the odours likely to be emitted. --- odour dispersion modelling provides a framework to estimate potential odour impacts --- it is noted that odour impact assessment using dispersion modelling rarely goes beyond simply quantifying odour concentrations, estimating the duration of time for which these concentrations are exceeded over a period of a year and comparing them to impact assessment guideline written in similar format. [69] If a dwelling is to be placed on Lots 1, 2 or 3 of RP58565 (as is the owner’s right) then it must be at the Balgowan Road end of the lots. Because of the proximity of the proposed feedlot to Balgowan Road, the separation distance between any dwelling erected in the future and the proposed feedlot is less than it would be if a dwelling were able to be established on the lots further removed from Balgowan Road potentially inhibiting establishment of a dwelling, or at least a dwelling, the amenity of which may not adversely impacted by odour over and above the odours to be expected from farming and grazing on rural land, absent a feedlot. [70] The appellant sought development approval for an 11,000 SCU feedlot. The application was refused. The appellant appealed. It has failed to show an 11,000 SCU feedlot should be approved. It has adopted a fallback position 31 Exhibit 29. -- 19 of 20 -- 20 based upon approval in this appeal of a 5000 SCU feedlot located on Balgowan in a revised position. [71] The fact that the guideline is achieved at sensitive receptors does not mean there will be no odour effect experienced at that location, even from a well-run class 1 feedlot. The modelling guidelines do not exclude experience of foul odours. The modelling is carried our for one hour time steps whereas, as the guideline recognises, human perception of odours occurs over much shorter time scales. A short period of foul odour will not effect the model unless it is such as to bring the hourly emission above the 2.5 OU standard. The proposed Plant residence is just outside the 2.5 OU odour contour. There is very little tolerance if a high standard of management is not achieved, or to allow for uncertainties in the modelling. [72] The use of dispersion modelling here was adopted because of the actual distance to sensitive receptors. All the experts agreed on the methodology to be used. All agreed that the modelling indicated a 5000 SCU feedlot would have a low risk of causing adverse odour impacts. A caveat to that was that it would need to be very well managed, that substantially higher odour impacts would occur if that was not achieved. [73] All these matters must be weighed in the court’s decision. In the final analysis it is necessary to do justice to all the parties according to the evidence. The court must consider prospective environmental harm and adverse effect upon amenity according to the evidence. The evidence was that there is an accepted scientific methodology and accepted guideline limit for assessing whether there will be unacceptable odour impacts. Three air quality experts, each engaged by separate parties in the appeal, agreed on the methodology used to model odour effects of the proposed feedlot, agreed with the results of that modelling and that a 5000 SCU class 1 feedlot in the proposed location, properly managed, had a low risk of odour impact at the two most sensitive receptors. Accordingly the respondent Council and the Environmental Protection Agency did not oppose a 5000 SCU feedlot. [74] The appeal is allowed but only to the extent of a 5000 SCU feedlot. The appeal is adjourned for the parties to formulate conditions to be attached to the approval. -- 20 of 20 --