Chuwar Recycling and Land Filling Pty Ltd v Ipswich City Council & Ors [2007] QPEC 102 [2008] QPELR 256

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Chuwar Recycling and Land Filling Pty Ltd v Ipswich City Council & others [2007] QPEC 102 PARTIES: CHUWAR RECYCLING AND LAND FILLING PTY LTD Appellant and IPSWICH CITY COUNCIL Respondent and THE CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENTAL PROTECTION AGENCY First Co-Respondent by Election and THE CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994 Second Co-Respondent by Election and THE MINISTER FOR LOCAL GOVERNMENT AND PLANNING Third Co-Respondent by Election FILE NO/S: 274/2006 DIVISION: Planning & Environment Court PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 23 November 2007 DELIVERED AT: Brisbane -- 1 of 37 -- 2 HEARING DATE: 23 and 24 April and 1 May 2007 with further written submissions received on 15 and 17 May 2007 JUDGE: Rackemann DCJ ORDER: Appeal Dismissed. CATCHWORDS: COUNSEL: Mr D.R. Gore QC and Mr B.D. Job for the Appellant Mr R.G. Bain QC and Mr M. Williamson for the Respondent Mr E.J. Morzone for the First Co-Respondent Mr M. Hinson SC and Ms J. Brien for the Second and Third Co-Respondents SOLICITORS: Templeton Smith for the Appellant Brian Bartley & Associates for the Respondent EPA Law for the First Co-Respondent Crown Law for the Second and Third Respondents Introduction [1] This Appeal is against the Respondent’s refusal of an application for a development permit for a material change of use and for an environmentally relevant activity (ERA75) to facilitate the development of a substantial landfill operation, for the disposal of between 100,000 and 150,000 tonnes per annum1 of non-hazardous, non putrescible waste including construction/ demolition and dry commercial and industrial waste2, on land situated at Francis Street, Chuwar. The subject site is relatively large (some 48.8 hectares) and comprises a number of rural sized allotments. It fronts both Francis Street and part of Holdsworth Road, the latter of which provides access to the Warrego Highway. It is one of 2 similar proposals on nearby sites. The other proposal is referred to as the “Parcel One” proposal and is also subject to an appeal. The judgments in each of the matters are being delivered contemporaneously. [2] The locality of Chuwar lies generally between the Warrego Highway and the Brisbane River to the north. Much of the area remains in rural use, while the area also contains rural residential lots of varying sizes. Immediately south east of the subject site is an electricity substation on Holdsworth Road, while further to the 1 Ex 2 pg 12 para 2.2. 2 Ex 2 pg 11. -- 2 of 37 -- 3 north east, across Sandy Creek on Robin Street, is the Tivoli Motorcycle Raceway. Land to the north of the site is generally in larger acreage or rural allotments, while to the west, across Francis Street, there are a number of rural residential lots, ranging between approximately 1 to 3 hectares, many of which have been improved with dwellings3. [3] The subject site itself is roughly triangular in shape and mostly consists of undeveloped bushland, from which timber has been selectively removed. It has been the subject of underground and open cut mining, with the latter resulting in the creation of a void, of about 3 hectares in area, located at the north eastern end of the site. The void, which is presently filled with water, is proposed to be the subject of the landfill. [4] The site is presently still in the hands of the collier, New Hope Coal (Australia) Pty Ltd (New Hope), which is subject to an outstanding requirement to carry out rehabilitation works. Mining activities ceased in 1986. Thereafter an Environmental Management Overview Strategy (EMOS)4, dated July 1993 was prepared, but the works have not yet been carried out. The filling and rehabilitation proposed as part of the landfill operation would, in effect, supersede the rehabilitation envisaged by the EMOS. [5] The Appellant was established as a project-specific company to conduct the landfill at Chuwar in the event of approval. It is a subsidiary of Whelan Kartaway Pty Ltd (“Kartaway”). Kartaway is an experienced and successful participant in the national waste management industry. Its core business is the supply of various sized open topped bins for the collection of non-hazardous, solid, inert waste. The majority of waste deposited in the bins is from commercial operators such as builders, renovators and tradespeople. It also operates a network of recycling facilities, to maximise diversion of recyclable material from the waste stream5. It is proposed that, consistently with Kartaway’s existing operations, waste which is collected in its bins would be transported to one of its transfer stations for sorting. Non- recyclable material would then be used as landfill. There would be approximately 46 trucks per day entering the landfill.6 [6] The vast majority of material delivered to the landfill would be pre-sorted waste from Kartaway’s transfer stations. The balance would be material which has been collected in the local area or from other commercial contractors, by prior arrangement. That material would be sorted on site to recover recyclable items, 3 Ex 6 pg 2. 4 Ex 34. 5 Ex 2 pg 12. 6 T136, Ex 8 para 26 (b). -- 3 of 37 -- 4 which would be transported off site to be treated, rather than used as landfill. Save for sorting, storing and transporting, the recycling process itself would not be carried out on the site7. [7] The life of the landfill is uncertain but it is presently estimated to have an active life of up to approximately twenty years, with a ten year post closure monitoring period, once land filling and rehabilitation is complete. Market or other changes could potentially alter the active life of the landfill. Mr Whelan’s estimate of up to 20 years was said to be8: “based upon my recognition that it is impossible to be certain about filling rates in the future taking into account the types of variables which might arise associated with Kartaway’s business, market fluctuations, and changes in technology associated with recycling which might enable a reduction in the percentage of material going to landfill sites. Those are matters which effect all those in the waste management industry”. [8] The development application was subject to public notification, which attracted 56 submissions. The submitters raised a number of areas of concern. The development application was the subject of a comprehensive report and recommendation by planners within the employ of the Council9. Consistently with their recommendation, the application was refused on grounds which included alleged conflict with the superseded and the IPA planning schemes and the likely environmental and amenity impacts of the proposal. [9] In accordance with the Court’s usual practice, the parties’ respective expert witnesses were required to meet in advance of preparing reports or giving evidence. As is often the case, this ultimately led to substantial agreement on matters of technical expertise. In the process, various changes were made to the proposal and its proposed management and more detail was provided in respect of it. The changes of particular note involve the raising of the fill level in the void (after de- watering) to satisfy ground water concerns, and the de-watering process itself (which is now intended to be carried out first, rather than in the first few stages of the use.) No issue was taken by any party to the effect that those changes were not minor for the purposes of s 4.1.52 of the IPA. That is unsurprising, particularly given this Court’s decision in Parcel One Pty Ltd v Ipswich City Council [2007] QPEC 33, involving a similar proposal on nearby land. The changes made to the proposal in this case are operational. I am satisfied that they are minor. 7 T134, line 1 8 T134, line 55. 9 Ex 3 pp70-118. -- 4 of 37 -- 5 [10] Given the agreements which were reached by the experts in the disciplines of visual amenity, noise, air quality, traffic, ground water, water quality and rehabilitation, none of them was called to give oral evidence in the Appeal. Their joint reports were before the Court. Further, each of the Co-Respondents indicated that they did not oppose approval of the application, subject to appropriate conditions. The Council remained opposed to the landfill on grounds which may be summarised as:- 1. The likelihood of some amenity impacts (notwithstanding the level of agreement among the experts); 2. Conflict with the transitional and IPA planning schemes; 3. The absence of sufficient grounds to warrant approval. Amenity [11] The Council contended that the landfill was likely to have an adverse impact upon amenity because:- 1. In order to operate acceptably, the proposal relies upon compliance with extensive controls. Impacts can be expected if they are not complied with at all times. 2. Heavy vehicles are likely to depart from the nominated haul route to inappropriately use that part of Holdsworth Road which is a residential street. 3. The very existence of the use will have an adverse impact, particularly on perceptions of the character and amenity of the locality. (i) Non-compliance with controls generally [12] I accept that the proposed landfill has the potential to cause a range of specific amenity impacts such as noise, dust and other specific impacts. The potential for those impacts has been considered, with some rigour, by qualified and experienced people engaged by the parties. It is proposed that the conditions of any approval of the application would require the use to be managed in accordance with a site based environmental management plan. A draft of that plan has been prepared10 and reviewed by the experts. Each has accepted that the proposal can operate appropriately, subject to conditions of approval, including compliance with such a management plan. As in all fields of human endeavour, it is possible that procedures might not, at all times, be properly followed, that mistakes may be made and some impacts occasioned, at least until correction. That potential is relevant, but does not, of itself, lead to a finding that the proposal would have an unacceptable impact upon amenity. [13] The imposition of conditions requiring development to be controlled, including by documents such as a site based environmental management plan, is common place. 10 Ex 2. -- 5 of 37 -- 6 The joint statements of the various experts do not establish that requiring or achieving compliance with such controls is likely to be attended with undue difficulty or impracticality in this case. (ii) The route for heavy vehicles [14] In addition to that general concern about non-compliance with appropriate controls, the Council raised a specific concern in relation to the potential for heavy vehicles to depart from the nominated route. The traffic engineers agreed that the proposed access route should be via the Pine Mountain Road interchange with the Warrego Highway. That is situated along the Highway west of the site. Trucks travelling to the site from the east, for example, would therefore have to travel past the site, perform a U-turn at the remote interchange and return, before accessing the site. That is acceptable from a traffic engineering and amenity perspective, but the concern is whether that would be adhered to in practice. [15] For trucks travelling east along the Highway, the use of the Pine Mountain Road interchange route requires rejection of an alternative route, via a signed exit, to that part of Holdsworth Road which lies to the south of the Highway. That alternative appears first and would be the significantly shorter route. Its relative attraction is obvious. The use of that route would be inappropriate, because it would involve heavy vehicle movements, associated with the landfill, using a residential street, with likely adverse impact. [16] Possible means for ensuring compliance with the designated haul route were discussed in the joint report of the traffic engineers and in the evidence, particularly of Mr Whelan, the managing director of Kartaway. Mr Eppell, the traffic engineer engaged by the Council, suggested a condition whereby the development approval would be automatically revoked in the event of non-compliance11. I do not consider that to be an appropriate, even if available12, solution. The better approach is for the Court to consider the likelihood of non-compliance and the resulting impact. [17] An extensive range of measures was suggested otherwise, including measures to communicate the requirement to drivers under Kartaway’s control13 and to others, the keeping of records, measures to discipline Kartaway drivers, the refusal of site access to others whose drivers do not comply, conducting random checks, the establishment of a complaints regime and co-operation with the Council in complaint investigations. The Council contended that reliance on such measures would be neither appropriate nor effective. It contended that such conditions would 11 Ex 1 pg 33. 12 s 3.5.21 of IPA governs the lapsing of approvals, while requests for cancellation are governed by s 3.5.26. 13 estimated to be 85-90% - T 134 line 40. -- 6 of 37 -- 7 require ongoing diligence in respect of continuing obligations set against the natural inclination of drivers otherwise to take the shorter route. Policing and enforcement would, it was contended, necessarily be reactive and, in reality, all loads could be expected to be accepted at the site until a particular offender is identified after investigation. [18] There have been cases where the Court has rejected reliance on conditions which require ongoing supervision and enforcement14. The designation of a route for heavy vehicles however, is not unique to this case. It is relatively common. In this case however, the obvious attraction of the first and significantly shorter route represents a particular risk of non-compliance. A combination of measures could appropriately be applied to materially reduce that risk, but I accept that there is likely to be a level of non-compliance, at least at times, with some impact. That is relevant although not, in my view, determinative of and in itself. (iii) Perceptions [19] It was also contended, for the Council, that the very existence of the proposed land fill would likely have an adverse impact on the perception of the character and amenity of the locality. The Court was reminded of the often cited passage from Broad v Brisbane City Council15 “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 the place on the senses, but also the resident’s subjective perception of his locality. Knowing the use to which a particular site is, or maybe, put may affect ones perception of amenity.” [20] Similarly, knowing the use to which a site is put, particularly if it is a significant operation on a substantial site, may affect a person’s perception of the nature or character of their area. For example, a person whose residence is adjacent to substantial industrial land uses is likely to perceive the nature and character of their area as at least somewhat industrial, even if those uses are screened from view and their direct impacts managed and mitigated. [21] It should also be noted that de Jersey J (as he then was) said, in Broad, that “very often, of course, the evidence of such (a subjective) a view would be accorded little, if any, weight” and that, in forming a view a Judge would “ordinarily prefer views from residents which find justification in specific, concrete likely effects of the proposed development.”16 14 See e.g. Westfield Management Ltd v Pine Rivers Shire Council & Anor [2005] QPELR 534. 15 [1986] 2 QdR 317 at 326. 16 Ibid, at 325. -- 7 of 37 -- 8 [22] In support of its case the Council referred to the number of submissions provoked by public notification and tendered statements from some residents in the locality (who were not required for cross examination). These included statements from some who referred to perceptions, amongst other things17. [23] It was pointed out, on behalf of the appellant, that the landfill would be screened from view and that trucks accessing the site would not travel through the locality (access to the void being internal to the site and then, via a short section of Holdsworth Road, to the Warrego Highway), so that there would be little physical reminder of the use. It is however, unlikely that the existence and nature of the use would be a secret. It was also pointed out that, given other matters, such as the existing Raceway, other potential land uses, the Warrego Highway, and the future Kholo hard rock access route, the locality was not and was not likely to be perceived as, one of unblemished amenity. Mr Vann also pointed out that, in the Brisbane suburb of Rochedale, substantial housing occurs in close proximity to a large landfill for putrescible waste. The existence of that landfill has however, had an impact, in the past, on planning for residential development in close proximity18. [24] On the other hand, as Professor Brannock attested and Mr Vann acknowledged, landfills, of their nature, tend to be productive of particular concern. As Mr Vann said in his oral evidence19: “Facilities of this nature almost always in my experience attract a deal of public opposition. This type of facility, which (sic) is essential to the function of our society, but no-one likes them anywhere near them. It is the nature of the proposal.” and in his report20: “uses of this nature are difficult to locate primarily due to perceptions of unacceptability in any local area” [25] Professor Brannock, in his oral evidence21 referred to the “stigma” attached to a “dump area”. In his report, he opined that the locality would “no longer be viewed as a quiet rural residential area but instead as a dump area”22. 17 See Speyers Ex 30 paras 8, 9; Black Ex 31 para 9; Hayley Ex 32 para 5; Lewis Ex 33 paras 5,6. 18 Norris Clarke & O’Brien Pty Ltd v Brisbane City Council [1996] QPELR 262, Southtip Pty Ltd v Brisbane City Council [2003] QPELR 292. 19 T 95 20 Pg 15. 21 T195. 22 Ex 9 pg 24. -- 8 of 37 -- 9 [26] It is understandable that residents would not welcome what they may perceive to be a commercial “dump” (albeit not for putrescible waste) in their locality and the potential for amenity impacts (albeit that they are proposed to be managed and mitigated) and the perceptions about the nature, amenity and character of the locality which attend such a facility. While the locality is not one which is free from other intrusions, I accept that a substantial land fill operation is a type of use which, by its nature, is likely to have some detrimental effect on perceptions of the nature, character and amenity of this locality. That is a matter to which some weight should be afforded in the overall assessment. (iv) Other matters [27] There is a further potential amenity impact which was identified in the joint report of the visual amenity experts. While they agreed that there would be no views of the proposed landfill from existing residential properties, it was recognised that the currently vacant area to the immediate north, between the subject site and Robin Street, would provide views of the landfill, if that land were developed for residential purposes prior to the completion of the landfill23. That land is also currently under the control of New Hope. The appellant proposes to obviate that potential adverse impact by submitting to a condition to the effect that land be held free from residential development for the life of the landfill. [28] It is also appropriate to note, in the context of amenity that, as the visual amenity experts also agreed, the existing void makes no positive contribution to existing residential amenity in the area of the subject site and, indeed, provides a danger especially to any trespassing children24. The proposed landfill would ultimately improve the condition of the site by filling the void and leaving it in a state which is potentially useable as an open space/recreation area. That does not however, obviate the need to consider the potential impacts over the significant period of the landfill’s operational life. 23 Ex 1 pg 7, 8. 24 Ex 1 pg 7. -- 9 of 37 -- 10 Town Planning (i) Introduction [29] The application was made during the life of the transitional planning scheme and the appeal is to be decided by reference to that scheme, while giving the current IPA Scheme (which commenced in 2004 and was updated in 2006) such weight as is considered appropriate25. The planning strategy, as it relates to the subject site and its locality, does not substantially differ between the two schemes. [30] While the application was made and processed under the IPA, the relevant matters in s 6.1.29 apply and the relevant provisions of the now repealed Local Government (Planning and Environment) Act 1990 (P & E Act), referred to in s 6.1.30 of the IPA, apply in deciding the application. There was debate about whether, in the context of the P & E Act, the application would have been one for rezoning or for consent. For the reasons discussed later, that is not determinative in this case. In either event, if there is conflict with a Strategic Plan or a Development Control Plan, the application must be refused, unless there are sufficient planning grounds to justify approval of the application notwithstanding the conflict26. Mr Gore QC, for the appellant conceded, in oral argument, that there is some level of conflict27. [31] A consideration of whether there are sufficient grounds requires a consideration of the nature and extent of the conflict; any planning grounds relevant to that part of the application which is in conflict, and which justifies approval; and whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approval notwithstanding the conflict28. That exercise is not required to be carried out in a mechanical way29. [32] The proper approach of the Court to matters of planning policy has long been recognised as one of restraint30. 25 s 4.1.52 Integrated Planning Act 1997. 26 s 4.4 (5A), s 4.13 (5A) of the P&E Act. 27 T285 line 45. 28 Weightman v Gold Coast City Council & Anor (2002) 121 LGERA 161. 29 Woolworths Ltd v Maryborough City Council [2005] QCA 262. 30 Grosser v Gold Coast City Council (2001) 117 LGERA 153. -- 10 of 37 -- 11 (ii) The Transitional Planning Scheme [33] The site was included in the Particular Development zone under the transitional planning scheme. The objectives of that zone include:- “To facilitate development in specific areas in a comprehensive and co-ordinated manner in accordance with the principles, policies, strategies and implementation criteria outlined in the Strategic Plan and Structure Plans and through the development guidelines applicable to development for land the subject of a Structure Plan. In this regard, the Planning Scheme provides (refer to cl 13) that a Structure Plan has precedence over the Planning Scheme Provisions where an inconsistency arises.” [34] Under the Strategic Plan the site was included in the “Urban Development areas”, the intent for which is: “The Urban Development Areas represent those parts of the City where it is proposed that urban development will occur or substantially progress during the period up to 2011. For the purpose of the Strategic Plan ‘Urban Development’ means the array of land uses usually associated with urban areas including residential (including park residential), commercial, commerce and trade, education and light and service type industrial development together with park, recreation and sporting type areas and public utility services. The term excludes major industrial development which is to occur in the Major Industrial Areas. The most common form of development in the Urban Development Areas will be residential development. However, subject to detailed development siting requirements, other forms of urban development will be encouraged in appropriate locations…” The expression “Urban Development Area” is also defined, in part 2 of the scheme, in a way which refers to residential development, business and employment centres and other supporting urban land uses. [35] There was a debate about whether the landfill meets the description of an industrial use for the purposes of the transitional planning scheme. That is discussed later. It is a use which, in my view, is at least akin to a major industrial use. It was pointed out, for the appellant, that a major public utility undertaking by a government or statutory authority for the purpose of refuse disposal or processing would be a ‘public utility’ and so form part of the “array of land uses” said to be usually associated with urban areas. The proposed landfill however, is not of this kind. It is to be a private commercial facility for the disposal of particular kinds of waste -- 11 of 37 -- 12 collected by Kartaway and other contractors by prior arrangement. I am not satisfied that the proposed landfill is a use “usually associated with urban areas” (or a supporting urban land use). This is relevant, but is not, in my view, the determinative issue in the case. The subject site falls within that part of the Urban Development Area covered by a Structure Plan. It is the Structure Plan, discussed later, which provides more detailed guidance with respect to the intended use of land in this locality. [36] The objectives for the Urban Development Area Strategy seek, amongst other things, the promotion of a high standard of amenity in areas allocated to residential development (objective 3) and the prevention of development which would compromise the establishment of the urban area (objective 4). By letter dated 21 June 2006 the solicitors for the appellant appeared to acknowledge some conflict with those objectives31, although Mr Vann, at trial, thought there was no conflict32. [37] The potential impact of the landfill on the establishment of the urban area is discussed later. I am satisfied that the proposal has some potential, during its active life at least, to compromise the future establishment of an urban development pattern, of the kind envisaged by the transitional planning scheme, in the area of its influence. [38] Objective 3 seeks a high standard of amenity “particularly by enhancing the qualities of quietness, safety, visual attractiveness and privacy”. It also seeks to protect allocated residential areas from the intrusion of incompatible land uses. [39] The landfill has potential adverse impacts. Mr Bain QC, for the Council, pointed out that, in general, the operation and proposed management of the landfill would be with a view to the minimisation of the range of potential adverse impacts, rather than with a view to promotion of a high standard of amenity by enhancement of anything. That is generally true, at least for the period of its active life, although the landfill would likely improve safety, by more effectively discouraging potential trespassers from the area of the void and would also ultimately improve the area of the void, once the landfill and rehabilitation is complete. [40] It should be noted that the implementation criteria for objective 3 call for a consideration not just of whether there are potential adverse impacts, but also the “likely effectiveness of measures... that are proposed to eliminate or reduce detrimental effects.” This appears to contemplate impact minimisation. Mr Bain 31 Ex 3 pg 10. 32 T122-123. -- 12 of 37 -- 13 QC submitted that this did not qualify the reference to “enhancing” in the objective itself. [41] For the reasons already discussed, I accept that the landfill would likely have some adverse amenity impact, at least in terms of perceptions33. I also accept that the landfill has the potential to result in some more tangible impacts, from time to time. That potential is, for the most part, to be managed and ameliorated to acceptable limits, but a level of non-compliance, particularly with respect to the designated haul route, can be expected. There is some conflict with the objective, but the conflict is not as severe as would have been the case had the same level of management and mitigation of specific amenity impacts not been proposed. [42] In 2001 the Ipswich Northern and Inner Western Corridor Structure Plan (the Structure Plan) was included in the transitional planning scheme. It covers a wide area, including Chuwar. It was at this time that the subject site was included in the Particular Development zone. [43] The definition of a Structure Plan34 states that “ …For the purposes of this planning scheme a Structure Plan shall be approved by the Governor in Council and have force and effect as if it were a Development Control Plan made pursuant to the Act.” The reference to “the Act” should, in these circumstances, be read as a reference to the P&E Act. In light of this and the relevant definition of a Development Control Plan in the P & E Act35, Mr Gore QC rightly conceded that the Structure Plan is a Development Control Plan36 and hence is a type of document which engages the provisions requiring refusal of an application in the event of conflict, unless there are sufficient planning grounds to justify approval notwithstanding. [44] The subject site and the locality are included in the “Large Lot Residential Area” in the Preferred Future Urban Form figure37. The Structure Plan further allocates land into various precincts. The subject site and locality is included in the “Large Lot Residential Investigation Area”, the intent for which is as follows (in my underlining)38:- “Land use investigations have shown that land within this designation would generally be suitable for large lot residential development were it not affected by future planning for the Kholo hard rock resource haul route and the impacts of the Tivoli Raceway. 33 although that is a matter not specifically referred to in the implementation criteria. 34 pg 90. 35 s 2.5 of the P&E Act. 36 T271. 37 Figure 2.1. 38 s 3.2.2 at pg 35 of Ex 4. -- 13 of 37 -- 14 Development of this area for large lot residential purposes is also dependent on the intended sequencing of the provisions of water infrastructure. Further development of these areas for residential purposes in the interim may prejudice the haul route options or the existing Raceway use and should not be allowed. Accordingly, it is intended to protect these lands in their current non-urban/rural state until such time as rational and orderly conversion to larger lot residential development can occur in accordance with the intent of a large lot residential precincts as outlined in s 3.2.1. Following cessation of the Tivoli Raceway and resolution of the haul route, further detailed investigation of the provision of water infrastructure will need to be undertaken, to determine timing of development. Any such development is to occur in accordance with the overall development sequence included in the Ipswich Benchmark Development Sequencing Plan. Further, consideration will be given by Council to amending the Benchmark Development Sequencing Plan and upon inclusion of the precinct as “in sequence” land within the Benchmark Development Sequencing Plan, the provisions relating to the large lot residential precinct shall apply. Development for non-residential purposes is generally discouraged. Any interim non-residential development shall be compatible with the future intended use of the area for predominately large lot residential purposes. At the time of development, a buffer area should be maintained along the southern margins of the area in order to separate any dwellings from the Warrego Highway including the incorporation of a landscape buffer generally 30 metres in width to maintain visual quality. Such a buffer should be designed with sufficient width to maintain residential amenity whilst having regard to likely visual, noise, odour and dust impact. A further buffer (generally 100 metres either side of the sealed pavement or other distance in accordance with the findings of the environmental impact assessment), should be maintained between the Kholo Hard Rock Resource Haul Route and the adjacent residential development.” [45] The Structure Plan also designates a Tivoli Raceway buffer area, which affects part of the site. Until such time as the Tivoli Raceway ceases operation, development of the land in the buffer area for residential purposes (including large lot residential) is not encouraged39. 39 pg 36. -- 14 of 37 -- 15 [46] In so far as the “rational and orderly” conversion of the locality to large lot residential development, while the Strategic Plan allocated the site to the Urban Development Area and listed Chuwar as a priority growth area for the period up to 201140, the Benchmark Development Sequencing Plan designates the area as “beyond 2013”41. That is a more accurate reflection of the time frame for its likely conversion. It is not coloured on the “Housing Opportunities and Urban Growth” Map in the IPA Planning Scheme42. The area is unlikely to be converted to its ultimate land use within the 8 year ordinary life of the current planning scheme43. [47] Section 4.3 of the Structure Plan sets out requirements and guidelines for the residential precincts. They apply to the Large Lot Residential Investigation Area, amongst others. Development in these precincts is to be assessed having regard to, amongst other things, the design guidelines44. Section 4.3.4 provides as follows in relation to the Large Lot Residential Investigation Area (my underlining):- “(i) Following resolution of the Kholo Creek Hard Rock Resource Haul Route alignment and cessation of the operation of the Tivoli Raceway, Council will consider reviewing and amending the Benchmark Development Sequencing Plan to indicate lands within the precinct as “in sequence”. Should the haul route alignment be determined but the Tivoli Raceway continue to operate, Council, at its discretion, may consider inclusion of the land not affected by the Tivoli Raceway as depicted in Figure 3.3 as “in sequence” within the Benchmark Development Sequencing Plan. Should the Tivoli Raceway cease operation but the haul route alignment not be determined, Council will not consider inclusion of land within the precinct as “in sequence” within the Benchmark Development Sequencing Plan until such time as the haul route alignment is determined. Upon inclusion of all the land, or part of the land within the precinct as “in sequence” land within the Benchmark Development Sequencing Plan, development of the land indicated as “in sequence” will be subject to the provisions of the Large Lot Residential Precinct. (ii) Prior to determination of all those matters set out in (i) above, subdivision of allotments within the Large Lot Residential Investigation Area precinct shall comply with the requirements for rural subdivision pursuant to Council’s subdivision code. 40 pg 21. 41 Figure 4.2. 42 Map 2. 43 Planning schemes must be reviewed every 8 years – s 2.2.1 IPA. The IPA Scheme would be due for review in 2012 or 2014 depending on whether the 8 years is taken from 2004 or 2006. 44 s 4.3.1 (a), (b). -- 15 of 37 -- 16 (iii) In considering an application for non-residential development prior to determination of those matters set out in (i) above, Council will have regard to the future intended use of the area for predominantly large lot residential purposes. The provisions of Part 4.3.6 of the Plan apply. (iv) Development within the large lot residential investigation area precinct shall comply with Part 3.2.2 of this Plan.” [48] Part 4.3.6 provides that non-residential development in residential precincts shall demonstrate fulfilment of the intent for the relevant precinct or sub-area and “perform favourably” against the following criteria: “(i) satisfying a demonstrated community need; (ii) being highly accessible but with minimal traffic generated on residential streets; (iii) not imposing an unacceptable load on public utility services; (iv) where appropriate, co-locating facilities within designated neighbourhoods/district centres, or with similar non-residential uses; (v) noise and emissions are not incompatible in a residential area or occur at a time of day when residents are not likely to be disturbed; (vi) the scale and form of development is low key, unintrusive and domestic in character with adequate buffering to nearby residential areas (both existing and proposed); (vii) not creating or contributing to undesirable commercial urban developments; (viii) non-residential buildings and other structures designed, sited, constructed, finished and landscaped to provide adequate buffering and/or screening from adjoining residential development and to maintain a style and appearance in keeping with the residential amenity and character of locality; (ix) compliance with the relevant requirements and guidelines contained in Council’s Commercial and Industrial Development Code and Residential Development Code.” as is noted later, the IPA scheme has narrowed the relevant need to a local need. [49] The planning strategy for the Large Lot Residential Investigation Area may be summarised as: • To protect the lands in their current non-urban/rural state until such time as rational and orderly conversion to large lot residential development can occur. -- 16 of 37 -- 17 • Development for non-residential purposes is not excluded, but is generally discouraged. • Any “interim” non-residential development is to be compatible with the future intended use of the area for predominately large lot residential purposes and “perform favourably” against the criteria in s 4.3.6. [50] The proposal appears discordant with that planning strategy, at least to some extent. In that regard: (i) The landfill would not protect the land in its current non- urban/rural state. It would not prejudice either the haul route or the raceway45 and much of the site would not be altered but, part (including the void and the internal haul route) would be put to a relatively intense land use for some two decades. (ii) The landfill would represent development for non- residential purposes, which is generally discouraged. (iii) The landfill would have a life which carries the substantial risk of it operating beyond the interim period, pending the conversion of the area to predominately large lot residential development. It is not compatible with such development and, for the term of its active life at least, it would isolate the site, and the land to the immediate north, from any emergent development of that kind. (iv) The proposal does not “perform favourably” against some of the criteria in s 4.3.6. It would not satisfy a demonstrated community need (a matter discussed later). It is not of a scale and form which answers the description “low key, unintrusive and domestic in character”, although it would be visually screened (save from the area to the immediate north) and managed to minimise specific amenity impacts. Noise and emissions associated with the landfill would not be compatible in a residential area, but are intended to be controlled. The residual risk of amenity impacts has been discussed earlier. The appellant referred to criteria (ii), which relates to development being “highly accessible but with minimal traffic generated on residential streets”. While the proposal “performs well” in this regard for the area north of the Warrego Highway46, that is qualified by my findings with respect to the residual risk of trucks deviating from the 45 being the potential consequences, referred to, of allowing further development for residential purposes in the interim. 46 see Ex 12. -- 17 of 37 -- 18 nominated route, to use that part of Holdsworth Rd to the south. [51] The subject proposal was treated, in the course of the application as a “special industry (waste disposal)”. A special industry is defined in the planning scheme to mean any premises used for an “industry” that has certain attributes which render them unsuitable to be classified as a general industry. The landfill has one or more of those attributes. [52] The table of development for the residential precincts provides that a Special Industry is a form of development which requires a type “B” assessment. Type “B” is described, in the planning scheme47, as comprising development which is:- “Undesirable and inconsistent with the intent and objectives of the zone and is unlikely to be approved. Exceptional circumstances would need to be demonstrated (including consistency with the Strategic Plan) before an application for type B may be approved.” [53] At trial the respondent contended that the proposal also included another “type B” form of development, namely “recycling premises”, which is defined, in the planning scheme, as follows:- “Means any premises used for the collection, dismantling, storage, salvaging or sale of automobiles, other vehicles or machinery, scrap metals, scrap timber, waste paper, rags, bottles or other scrap materials or scrap woods.” [54] The proposal is a landfill. As part of that, measures are to be taken to ensure that recyclable material is not used as landfill. Most deliveries to the site would be of pre-sorted material. On site sorting is proposed for loads which arrive with material which has not been sorted, but that is expected to be only a minority of loads. Following sorting, recyclables are removed from the site rather than used as landfill48. [55] In my view, the on site sorting out of recyclable material and its storage, pending removal is properly characterised as simply part of the landfill operation (however that is defined) and not as a “recycling premises” use. Further, the planning scheme provides, in Part 249, that where any premises are used for more than one purpose they should be taken to be used for each of the purposes unless, in the opinion of the Council, one or more are considered to be “ancillary” uses. The term “ancillary 47 pg 93. 48 T133 line 30. 49 pg 91, para 6. -- 18 of 37 -- 19 use” is defined50 to mean a use which is “incidental to and associated with” a lawful use. This is a less restrictive formulation than “necessarily associated”, which appears in the inclusive definition of ‘use’ in the IPA and its predecessor51. In the event that the on site activities were considered to be a recycling premises use, I would conclude that it is an ancillary use for the purposes of the transitional planning scheme. [56] It was submitted, for the appellant, that the landfill was not a “special industry” but an undefined use requiring a “type A” assessment. Type “A” impact assessment is described as comprising:- “Development which may or may not be suitable for a site, depending upon on the individual circumstances of the proposal, but which is potentially consistent with the intent and objections of the zone.” [57] That would be a somewhat surprising result. A landfill would appear to more naturally fall within type B, given the intent for the area and the treatment of other uses in the table of development generally52. It is a result which would apply by default. [58] The appellant argued that the landfill could not be a special industry because it is not an “industry” as defined. The corresponding definition in the IPA planning scheme is not expressly linked to the definition of industry. The definitions in the transitional planning scheme fall into two groups, namely development definitions (which appear in bold and italics) and explanatory definitions (which appear as normal type)53. The expression “industry” appears in bold in the definition of Special Industry, but is in normal type where it is separately defined. The definition is as follows: “Industry means: (i) Any of the following:- (a) any manufacturing process whether or not such process results in the production of a finished article; (b) the breaking up or dismantling of any good or any article for trade, sale or gain, or ancillary to any business; 50 pg 72. 51 See Schedule 10 to IPA and e.g. Boral Resources (Land) Pty Ltd v Cairns City Council (1996) 91 LGERA 323 – note also pg 91 of the planning scheme which provides that where a term is defined in the planning scheme and in the Act then the term has, for the purposes of the planning scheme, the meaning defined in the planning scheme. 52 public utility is type A, but that was discussed earlier in these reasons. 53 pg 71 of the planning scheme. -- 19 of 37 -- 20 (c) the extraction of sand, gravel, turf, soil, rock, stone or similar substances from land, but not including earthworks is herein defined by works involved with the subdivision of land in accordance with an approved plan of subdivision; (d) the repairing and servicing of articles including vehicles, machinery, buildings or other structures, laundering of articles, but including on site work on buildings, other structures or land; (e) any operation connected with the installation of equipment and services and the examination of pests, but not including on site work on buildings, other structures or land; (f) the dismantling of motor vehicles, whether the dismantling is carried on by one operation or a series of operations; (ii) when carried out on land upon which any of the above operations are performed:- (a) the storage of goods used in connection with or resulting from any of the above operations; (b) the provision of amenities for persons engaged in such operations; (c) the sale of goods resulting from such operations; (d) any work of administration or accounting in connection with such operation; and (iii) without limiting the generality of the foregoing, any industry or class of industry, particularly described or defined in the planning scheme, but does not include a home occupation or home industry as herein defined.” an ‘industrial use’ is defined54 to mean the use of any premises for an extractive industry, extractive industry – minor, general industry, home industry, light industry or special industry. [59] The appellant submitted that a landfill is not an industry as defined, because it does not involve one of the specific processes listed in sub par (i) of the definition. Mr Bain QC, for the Council, submitted, correctly I think, that the ordinary meaning of the term is broad enough to encompass the landfill, but the bolding of the term in the definition of special industry suggests it is intended to have a defined meaning55. Further, he contended that sub par (iii) broadened the definition of industry to include those elsewhere defined (including special industry), even where one of the nominated processes is not involved. This involves some circularity, 54 pg 81 of the planning scheme. 55 albeit that the expression is not bolded where it is separately defined. -- 20 of 37 -- 21 because it relies on the fact that “Special Industry” is elsewhere defined to contend that the landfill falls within the definition of “industry”, as that expression is then used in the definition of Special Industry. On the other hand, the expression “industry” is used in the definition of all other industrial uses56 and the appellant’s approach would leave little work for that part of sub par (iii) which extends the definition to industries particularly described or defined. [60] It is unnecessary for me to reach a concluded view on this matter. On either view, the application is subject to impact assessment. That assessment will be undertaken in the context of the planning scheme, particularly the Structure Plan. While the planning scheme is less equivocal about the suitability or unsuitability of type B uses, the extent to which the proposed landfill conflicts with and/or cuts across the Structure Plan will depend more upon an examination of the proposal and the planning strategy embodied in the Structure Plan, read as a whole. [61] That the landfill might arguably fall, by default, into type “A” would not take the matter very far for the appellant. As a substantial non-residential use, it is generally discouraged, in the Large Lot Residential Investigation Area, by the terms of the Structure Plan otherwise. I am conscious that the planning scheme says that “exceptional” circumstances must be demonstrated for the approval of a type B (rather than type A) development, but given Mr Gore QC’s acknowledgement of a degree of conflict, the appellant must, in any event, demonstrate sufficient reasons to justify excepting the proposal from the statutory requirement that the application be refused on that account. The definitional debate is not determinative of the outcome of this case. [62] While acknowledging a level of conflict, Senior Counsel for the appellant contended, consistently with the opinion of Mr Vann, that the nature and extent of conflict is minor and at the level of detail and that the landfill meets the “general planning intentions” with respect to the long term planning for the area and the interim nature of non-residential uses. In that regard, it was said:- (i) The landfill has a limited operational life, which will come to an end once the capacity of the void is used up. It will also improve the quality of the site. (ii) The future timing of large lot residential development in the area is uncertain, but beyond 2013. (iii)Not all land in the locality will necessarily convert to large lot residential development. The subject site is significantly constrained and undesirably located for large lot residential use in any event. 56 all industrial uses, save for a home industry, are defined in a way which suggests they must be industries. A home industry is an occupation, business, profession, trade ‘or’ industry which otherwise complies with the definition. -- 21 of 37 -- 22 (iv) By managing and mitigating its potential impacts, the land fill can operate without adversely affecting existing amenity or the conversion of other land in the locality to large lot residential development. [63] It is true that the landfill would be “interim” in the sense that its operational life would one day come to an end, leaving it in a state where it could then be put to another use. The question of whether it would function as an interim use in the context of the Structure Plan however, is directed largely towards the intention for the future rational and orderly conversion of the area to predominately large lot residential development. [64] Some uses, such as some rural uses, while not necessarily having a finite life in the way of a landfill, may function as interim uses because they are of a kind or intensity which are unlikely to be an impediment to the orderly and timely conversion of land to the ultimate intended use. A landfill is different. It will continue until it is completed, rendering the land which it affects unavailable for conversion during its operational life and causing any emerging development pattern to be planned around the land isolated by that use and taking account of that use. [65] It is possible that the operational life of the landfill could be concluded prior to the advent of the future intended land use for the locality, but that is far from certain. There are, as the strategic plan recognises, constraints to the realisation of large lot residential development in this area, principally the choice of route for the Kholo Creek Hard Rock haul route (which has now occurred), the raceway and the provision of water infrastructure. This confirms the appropriateness of Council’s designation of this area as “beyond 2013”. The life of the proposed landfill is itself the subject of some uncertainty. Changes in market conditions or other changes might affect the rate at which the capacity of the void is used up, resulting, possibly, in an elongation of the life of the landfill. Even on current estimates however, it is anticipated to have an operating life of up to some 20 years, followed by a decade of monitoring. There is at least a substantial risk that the landfill would operate beyond the time when on an orderly conversion of land use might otherwise occur. [66] Recognising the potential for overlap, the appellant relied not so much on the use operating only in the interim period, but more on a contention that the area of its influence would not likely be converted to large lot residential development in any event. It was pointed out that land within the designation would be “generally” suitable for large lot residential development, but for the constraints referred to, and the future intended use of the area is for “predominantly” large lot residential development. Not all of the land within the Large Lot Residential Investigation Area will necessarily be suitable for large lot residential development. It was -- 22 of 37 -- 23 submitted that the subject site (and the site to the north) are exceptions to the general suitability of the area. It was contended that they are heavily constrained and undesirable, in any event, for incorporation into a large lot residential development and that the landfill will not prevent more suitable land, in the broader area, from being developed during the operational phase of the landfill. These issues are discussed later in the context of the IPA Planning Scheme overlays. [67] I accept that the potential for the landfill site (and the land to the immediate north) to be converted to large lot residential development, or integrated with such development, is constrained, but I am left short of being persuaded that it has no such potential or that it would be wholly undesirable for such development in any event. Further there appears little encouragement in the planning scheme, for converting land in the locality which is unsuitable for large lot residential development to a relatively intense non-residential use, such as the proposed landfill, particularly where it would have some impact on perceived amenity and character for the term of its significant life and is not required to satisfy a demonstrated community need. (iii) The IPA Planning Scheme [68] The IPA Planning Scheme is a matter of weight only. Conflict does not trigger the provisions requiring refusal in the absence of sufficient grounds. It is however, entitled to significant weight in my view. It first came into effect in 2004, the year following the making of the application but more than a year prior to the Council decision. It was updated in 2006. It has been in force now for some time and represents the most contemporary expression of the future planning for the area. [69] Under the IPA Planning Scheme the site falls within the Urban Areas and, in particular, the Future Urban Zone. More specifically, it is within sub-area FU3- Chuwar. [70] The overall outcomes for the Future Urban Zone57 include:- (b) The Future Urban Zone caters primarily for low density, sewered, urban residential uses and works. (c) Development occurs in accordance with comprehensive area planning and detailed site planning which – (i) achieves an orderly, integrated and co-ordinated settlement pattern; and (ii) resolves any physical land constraints 57 s 4.8.2 (2) at pg 4-53. -- 23 of 37 -- 24 (d) Non-residential uses are appropriately located and designed and serve the day to day needs of the local community, or form part of a designated commerce or business centre. (f) Interim uses and works maintain the current low intensity rural nature and setting. (i) Interim uses and works do not compromise the future urban land use potential or pattern of development by – (iii) continuing to operate after urban use is commenced, if they are likely to adversely impact on future residential amenity (e.g.: through intensive animal husbandry or significant industrial activities.) (m) Uses and works are located, designed and managed to – (i) maintain residential amenity. [71] Interim uses are defined as:- (i) “Interim uses” means those uses which occur before the establishment of an urban settlement pattern. (ii) Such uses are generally low intensity and rural in nature. The definition of interim uses refers to such uses being “generally” low intensity and rural in nature. The overall and specific outcomes for the Future Urban Zone58 and the specific outcomes for the FU3 sub-precinct speak59, in less equivocal terms, of interim uses maintaining the existing low intensity/non-urban/rural nature of the area. [72] Specific outcomes which apply generally throughout the Future Urban Zone are set out in s 4.8.360. They include: • as to density: “(2)(a) interim uses and works maintain the current low intensity/rural nature of land within the zone” • as to non-residential uses: “(4) Each non-residential use – (a) fulfils a local community need in the immediate neighbourhood or is situated within a designated business or commercial centre; and (b) is accessible to the population it serves; and …… 58 overall outcome (f), specific outcome 2 (a). 59 s 4.8.5B 60 pg 4-54. -- 24 of 37 -- 25 (d) does not have a significant detrimental impact on the amenity of nearby residents including through… (e) maintains a scale and appearance in keeping with the residential amenity and character of the locality with adequate buffering or screening to nearby residential uses (both existing and proposed)” [73] Specific provisions relating to the sub-area FU3 are contained in s 4.8.5B61. Specific outcomes include that: “interim uses maintain the existing non-urban/rural nature of the area.” [74] The notes to that section include the following (my underlining): “(1) Land use investigations have shown that land within this sub-area would generally be suitable for large lot residential uses and works, were it not effected by the Kholo hard rock resource haul route, and the impacts of the Tivoli Raceway. (2) Use of the land for large lot residential purposes is intended to occur only after cessation of the Tivoli Raceway and upon finalisation of the Kholo hard rock resource haul route. (5) The layout for future residential lots in the sub-area is to include buffering of the Warrego Highway, and the Kholo hard rock resource haul route. (6) Non-residential uses and works are generally inappropriate, however some “corner store” type premises or veterinary practices may be appropriate, where serving the specific needs of the immediate neighbourhood, and where compatible with the ultimate large lot residential character of the area. (7) Proposals for retail/commercial uses and works will be required to establish an identified need prior to any approval and should not detract from the viability of the identified hierarchy of centres.” [75] Relevantly to note (6), the landfill is a non-residential use which is not akin to one of the nominated examples. While some of the waste may originate from the local area, I do not accept that it is properly characterised as a facility which would serve the specific needs of the immediate neighbourhood. While being visually screened and generally capable of containing its direct amenity impacts to acceptable levels, it is not of a large lot residential character and, for the term of its operating life, is likely to be incompatible with the perception of the area as having such a character in the future. 61 pg 4-71. -- 25 of 37 -- 26 [76] The proposed landfill is, at least to some extent, discordant with the planning strategy evident in those provisions, when they are read together, in the context of the planning scheme. In that regard: • Being non-residential, it is a form of development which is considered generally inappropriate; • It would have a life which carries a substantial risk that it will operate for more than the interim period, pending the arrival of the large lot residential settlement pattern and would, for its operational life at least, isolate the subject land (and the land to the immediate north) from incorporation into any emerging large lot residential pattern of development, which would have to occur taking account of the landfill; • It is not a kind of non-residential use which is designed to fulfil a local community need in the immediate neighbourhood or serve the day to day needs of the local community; • The landfill would not be low intensity and rural in nature. It would be visually screened from areas beyond the subject site62 and the land to the immediate north, but the location of a significant commercial landfill operation on a substantial site in this locality is likely to have some effect on the assessment of the nature of the locality and, more specifically, have some detrimental effect on the maintenance of the “current low intensity/ rural nature” or “existing non- urban/ rural nature” of the area; • The landfill, is not of a scale in keeping with residential amenity and character, although it will be screened. • The landfill would have some impact on character and amenity, for the reasons discussed earlier. [77] It was pointed out that s 4.8.2 (2)(i)(iii) contemplates the prospect of interim uses continuing, subject to not adversely impacting on future residential amenity. I have already discussed the potential for some amenity impact. Further, this provision does not permit the other provisions concerning non-residential and interim uses to be ignored. 62 itself not an insignificant area. -- 26 of 37 -- 27 [78] With respect to the characterisation of the landfill, there are also difficulties with the definitions in the IPA Planning Scheme. The landfill appears capable of falling within two definitions namely “major utility” and “special industry” which are defined as follows:- “ “Major Utility” means the use of premises for a major utility relating to refuse disposable processing for the provision of water supply, sewerage, electricity, gas, telecommunications, transport, drainage or other like services, and which does not comprise a “minor utility” as herein defined. “Special Industry” means a use of premises for – …. (f) waste recycling, reprocessing and disposal, including – (v) operating a facility for disposing of only general waste or limited regulated waste if the facility receives waste at the rate of 50 tonnes or more a year.” [79] A major utility requires code assessment only where, as here, it does not involve the treatment or disposal of putrescible waste. A Special Industry however, falls within the “inconsistent use class” of uses described as:- “Inconsistent with the outcome sought and are not located within the future urban zone; and constitute undesirable development which is unlikely to be approved.” [80] While there is still a definition for “industry”, as an administrative term63, it will be noted that the Special Industry definition is no longer linked to the definition of an industry64. There is no definition of a “utility” for the purposes of a “major utility”. The expression is ordinarily used in connection with the provision of an essential service to the general community often, but not necessarily, by a government, semi- government or statutory body. The facility, in this case, is not to be open to the community at large. It would be a private commercial facility for disposal of waste of a particular kind by Kartaway and other contractors by prior arrangement. That part of the definition of Special Industry extracted above accurately65 and more specifically describes the proposed landfill. The landfill also more naturally falls within the inconsistent use class, given the intent for land within the Future Urban Zone and sub-area FU3. Of the two definitions, Special Industry would appear to be the one of “best fit”66 but, the IPA planning scheme is a matter of weight only and for that reason, and for reasons similar to those previously discussed, I do not regard the definitional debate as determinative in this case. 63 Schedule 1-16 – note para (iii) has not been carried forward. 64 Which is defined, in the IPA Planning Scheme, in terms which refer to the same processes as those referred to in the definition under the Transitional Planning Scheme. 65 T303. 66 See e.g. Livingstone Shire Council v Brian Hooper & M3 Architecture [2004] QPELR 308. -- 27 of 37 -- 28 [81] It has already been observed that the appellant characterises the level of conflict as minor and as at the level of detail. Central to that is a contention that the landfill will not adversely affect the existing character or amenity of the area, or its potential for conversion to predominately large lot residential development in the future, because the impacts of the proposal are contained to the subject site and the land immediately to the north (a proposition discussed earlier), which are heavily constrained and undesirable for future large lot residential development in any event. [82] In this regard, Mr Vann drew attention to the constraints mapping in the IPA Planning Scheme and the vegetation mapping under the Vegetation Management Act. The IPA Planning Scheme contains a number of overlays recognising various development constraints. The mapped constraints affecting various parts of the subject site and the land to the north are as follows67:- (i) High voltage electricity transmission lines traversing part of the subject site. (ii) A gas pipeline buffer area traversing part of the subject site. (iii)The Kholo hard rock resource haul route, traversing part of the subject site and part of the land to the immediate north. (iv) Stormwater drainage lines traversing part of the subject site. (v) Areas disturbed by previous mining, particularly the void. (vi) A buffer to the Warrego Highway, adjacent to the southern boundary of the subject site. [83] Those constraints would have to be taken into account in any future residential development and may lead to at least parts of the site being excluded from development68, but do not necessarily create an absolute bar to such development on the subject site (or land to the north)69. The existing void is not suitable for residential use (and would remain unsuitable even if filled) but could, subject to some rehabilitation, potentially fulfil an open space purpose in conjunction with future large lot residential development. [84] While the above factors represent constraints to future large lot residential development, the evidence does not go so far as to demonstrate that the subject land (and the land to the north) has, by reason of those constraints, no potential to form part of the future large lot residential development pattern. Mr Vann conceded that 67 Ex 6 pg 8 and Figures 9 (a) and 9 (b). 68 particularly the Kholo Creek hard rock haul route, for example. 69 I note that Reference to figures 9(a) and (b) of Mr Vann’s report shows that the high voltage electricity lines and the gas pipe line already traverse other large residential lots to the west. Further, residential development, at suburban densities, exist within the gas pipeline buffer area. The buffer to the Warrego Highway affects only a small part of the site. The Kholo hard rock haul route covers a larger area but still only part of the site. -- 28 of 37 -- 29 he could not say that large lot residential development of the subject site, even taken in isolation, is impossible70. As Mr Bain QC pointed out, the land was included within the Future Urban zone and FU3 sub-area, notwithstanding the constraints, which were then known and mapped. While the scheme acknowledges that constraints may preclude some land from residential development, the potential for the subject site (and land to the north) has not been assessed, in a detailed way, in the context of these proceedings. [85] Mr Vann expressed the opinion that the land would, in any event, be undesirable for future development, including because of the Warrego Highway and Kholo hard rock haul route. Professor Brannock did not accept that71 and neither do I. While those matters are relevant to the relative desirability of the location, I note that both the transitional planning scheme and the IPA Planning Scheme expressly contemplate future large lot residential development proximate to both the Warrego Highway and the haul route, provided appropriate buffers are in place72. [86] Mr Vann placed particular reliance on the vegetation mapping under the Vegetation Management Act. As can be seen from his figure 11, parts of the subject site are mapped as having remnant ‘endangered’ regional ecosystem vegetation and remnant ‘of concern’ regional ecosystem vegetation, while the land to the immediate north is mapped as having remnant ‘of concern’ regional ecosystem vegetation. The vegetation includes that mapped as “essential habitat”. On its face, this appears to be a significant constraint, although as both Professor Brannock73 and Mr Vann74 noted in their evidence, no site studies have yet been conducted to confirm or otherwise the accuracy of the mapping and the true extent of the constraint. [87] While the extent of the constraints and the effects on development potential were not the subject of detail analysis in the hearing, Professor Brannock was prepared to concede that the land was significantly constrained75. Without having done detailed work, he thought that the subject site might have the potential to yield a further ten large residential lots76. That is not a great number, given the site area. As was pointed out on behalf of the respondent however, the prospect of the land playing a 70 T89 line 25. 71 T189. 72 It should be noted that the corridor for the haul route at 200m, is considerably wider than the future sealed pavement. This affords room for buffers/ameliorative measures. 73 T190-191. 74 T88 lines 53-58. 75 T189. 76 He did not proffer an opinion about the potential yield for the land to the north. -- 29 of 37 -- 30 role (including an open space role) in a future development pattern is not necessarily restricted to a determination of the number of lots which could be realised77. [88] While I am not persuaded, on the evidence, that the subject site and the land to the immediate north is bereft of any potential for large lot residential development, or for inclusion in a broader area developed for those purposes, I do accept that the potential is significantly constrained and the extent of potential prejudice to future large lot residential development is reduced. [89] Even if the land were constrained to the point where future large lot residential development were precluded (which I do not accept), it would not follow that it should be put to a substantial landfill operation. Note 4.8.1A of the IPA Planning Scheme states as follows with respect to the Future Urban zone; (my underlining):- “(2) These identified areas are subject to a variety of issues and constraints which will require significant investigation prior to any approval for urban uses or works being given. (3) Detailed investigation of these issues and constraints may or may not preclude some parts of the land from future urban uses. (4) Should future urban uses be precluded, and in the case of interim uses, the existing low intensity rural nature of the identified areas is to be maintained.” [90] Mr Vann considered that, given the constraints and what he saw as the undesirability of the location, future urban development, of the kind contemplated for the area generally, would be precluded and, upon completion of the landfill (or in its absence), the separate rural sized lots comprising the site would likely be sold as rural sized lots78. That low intensity/ rural/ non-urban use may provide a much lower financial return, but would seem consistent with the planning strategy. 77 Mr Vann acknowledged that the site “would be of some assistance” if it were available to be integrated with development of land around about it, although he thought a sensible development layout could be achieved without it: T111. 78 T114. -- 30 of 37 -- 31 (iv) Conclusion on Town Planning [91] The landfill is discordant with the transitional planning scheme (particularly the Strategic Plan and the Structure Plan) and the IPA Planning Scheme, at least to some extent. The gravity of the conflict is not as severe as it would be if the land were not so constrained, the landfill not screened and the other potential specific impacts of the landfill could not be managed to the same extent. The level of conflict however, is more than merely trivial, minor or at the detail level. [92] I have accepted that the proposal will likely have some impact on amenity and character, at least in the sense of perceptions of those matters, and potentially also be reason of a level of non-compliance, particularly with the designated haul route. The appellant has also failed to establish that the proposal does not have at least some potential, during its life, to prejudice future large lot residential development in the area of its influence. Further, both planning schemes seek to give direction about development which might acceptably occur in the interim. The proposal conflicts with elements of that direction. [93] It is now appropriate to turn to a consideration of the matters argued as weighing in favour of approval. Grounds Justifying Approval [94] While acknowledging a level of conflict, the appellant contended that there were positive planning grounds which justified an approval of the application. Those grounds may be summarised as follows: 1. The suitability of the site for a landfill, set against its unsuitability for urban use, including large lot residential use, otherwise; 2. The landfill would meet a broad community need for an essential use; 3. The landfill would rehabilitate the site, while removing public safety and health risks posed by the water filled void; 4. The proposal advances the purpose of the IPA, to seek to achieve ecological sustainability. -- 31 of 37 -- 32 (i) Suitability [95] I accept that the land is physically suitable for use as a landfill, particularly by reason of the existence of the void. I also accept that it has the locational advantage of being proximate to the highway, with access available without the necessity of using residential streets79. That observation is however, subject to the qualification of my finding with respect to the residual risk of a level of non-compliance with the nominated haul route. The level of suitability is relevant, but does not itself justify approval in this case, in my view. [96] The extent to which the site is constrained for urban uses otherwise has already been discussed in the context of determining the nature and extent of the conflict. While I do not accept that the site has no potential for urban development otherwise, that potential is, I accept, significantly constrained. The appellant submitted that this constituted a positive planning ground, because approval of the proposal will enable the land “to be put to good use” notwithstanding its considerable constraints. The evidence however, does not justify a conclusion that, in the absence of the landfill, the site could be put to no good purpose whatsoever. Even if the constraints prove so significant as to preclude urban development (or the inclusion of the land within a broader area developed for those purposes) the various parcels of land which comprise the subject site could potentially, as Mr Vann envisaged, be “sold as large parcels and used for that purpose”80. (ii) Community need [97] Both the transitional and the IPA planning schemes generally discourage non- residential uses in this locality. Where such uses are proposed the transitional planning scheme requires consideration of whether the use would meet a community need while, in the IPA Planning Scheme, that has been expressed as relating to a local need. [98] There are cases in which the Court has recognised that the use of a facility by people from beyond the local area does not disqualify it from being considered as a local level facility81, but I do not consider that the landfill could fairly be described as a local level facility or a facility which meets the specific needs of the immediate neighbourhood. The submissions of the appellant put the need case on the basis of a “broad community need for an essential use”. The evidence of that need primarily came from Mr Leyshon and Mr Whelan. 79 Ex 12. 80 T114. 81 E.g. Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2005] QPELR 85. -- 32 of 37 -- 33 [99] Mr Leyshon’s evidence was that, in the period to 2026, there will be a substantial need, within both the Ipswich local government area and the wider South-East Queensland region, for increased capacity at landfill sites to cater for the projected annual growth in waste material82 and that there will be a significant need for additional land devoted to landfill operations in Ipswich and South-East Queensland, to accommodate the type of waste which is predominantly collected, processed and disposed of by Kartaway83. [100] I accept that evidence, but it does little more than justify a conclusion that there will be a need for more landfills of this kind in the much broader area in the coming decades. While Mr Vann observed that landfills can be difficult to locate, the analysis of need is not supported, in this case, by a detailed analysis of the opportunities for that broad need to be appropriately met elsewhere. Professor Brannock was of the view that there may be other opportunities in more appropriate locations84. The evidence of Mr Leyshon falls well short of satisfying me that there is a public or community need to locate a landfill at Chuwar at this time. [101] The evidence of Mr Whelan is that, in Queensland, Kartaway operates from Gympie to the north, to Ipswich to the west and south to the border. It undertakes collection as far south as Ballina, in New South Wales. Kartaway’s activities in Ipswich are currently described as “relatively minor”, although Mr Whelan anticipated that that may change if the landfill were developed. Kartaway is required to dispose of the material collected over that broad area to existing landfill facilities or establish its own facilities. Commercially, Kartaway would prefer to operate its own facility. It has investigated a number of alternatives without success. That lack of success is attributable to a range of reasons, including, in some cases, because alternative sites were purchased by others or negotiations otherwise failed. The subject site is regarded as the most suitable option to date. I accept that evidence, but it demonstrates little more than Kartaway’s commercial interest in operating its own landfill, rather than disposing of its waste at landfills operated by others, and its interest in the subject site, set against its failure to secure other sites. It falls short of establishing that there is a public or community need, to locate a landfill at Chuwar. [102] I do not consider that the appellant has established any significant public or community need for the proposal. 82 Ex 7 pg 10. 83 Ex 7, pg 11. 84 T198, Ex 9 pg 25. -- 33 of 37 -- 34 (iii) Rehabilitation [103] The existing mining void presently adds nothing to the amenity of the area and represents a safety risk, particularly to trespassing children. The landfill could be expected to more effectively exclude trespassers from the site and would lead to eventual filling and rehabilitation of the void, to a point where it could potentially be available for open space/recreation purposes. As was pointed out on behalf of the appellant, this is consistent with one of the overall aims of urban areas in the IPA planning scheme which states: “Degraded or contaminated sites are rehabilitated and used in an appropriate manner.” and with objective C6 of the Structure Plan which sought to: “encourage appropriate rehabilitation and use of degraded and contaminated sites.” [104] The proposed landfill is not however, the only potential vehicle for rehabilitation. While Mr Vann was sceptical about a future large lot residential development bearing rehabilitation costs (in the event the landfill had not been otherwise rehabilitated), there is an as yet unsatisfied requirement for rehabilitation which already lies with the land owner, but which would, in effect, be superseded by the landfill. That is not a matter to which Mr Vann gave significant consideration. [105] It was pointed out, on behalf of the appellant, that the existing rehabilitation obligation is well overdue. The EMOS, prepared in July 1993, envisaged rehabilitation being completed by the end of 1997, but that has not occurred. Approval of the landfill would provide an economic incentive for the void to be filled, but I am not persuaded that it is appropriate to grant an approval, to create an economic incentive, simply because the current owner has yet to fulfil its lawful obligations. [106] It was also pointed out, on behalf of the appellant, that the rehabilitation envisaged by the EMOS is less extensive than that which would occur in the context of the landfill. The EMOS covers a number of different mining leases and envisages different forms of rehabilitation for each. The focus of the EMOS is to rehabilitate the areas to a level sufficient to allow relinquishment of the mining leases, prior to further development85. The relevant mining leases were subject to conditions as to rehabilitation. The EMOS states that it has incorporated the commitments upon 85 pg 7 of EMOS (p 32 of Exhibit). -- 34 of 37 -- 35 which the leases were granted, save where variations were sought. The general goals of rehabilitation applying to all classes of land within the leases are86: 1. To realise an agreed land use with land forms which will be sufficiently stable such that a self-sustaining vegetation cover can be maintained; and 2. To maintain downstream and on-site water quality of acceptable standard in the long term. [107] The EMOS asserts that the area is ideally located for residential sub-division. The focus of the EMOS however, is to rehabilitate disturbed areas to timbered grasslands, with the void on the site (and on the nearby Parcel One site) being developed for stock-watering purposes. The EMOS expressly envisages a higher beneficial land use, subject to development approval, and states that “final land form and rehabilitation design will be developed however, to be consistent with the intended ultimate land use”87. [108] The rehabilitation methods envisaged by the EMOS generally are re-contouring to acceptable slopes, appropriate surface preparation and erosion control, re- vegetation, monitoring and maintenance (if necessary)88. As part of that, spoil is to be re-profiled. Insofar as the voids on this site and the Parcel One site are concerned, the EMOS proposes that they remain open, but be developed to satisfy criteria in relation to high wall and low wall bunds and spoil slopes being geotechnically stable, the installation of high wall drains, the protection of public safety by installation of high wall bunding, fencing and signage, and the establishment of an access ramp to the water level. Ramps for safe egress for stock and wildlife are also proposed (unless testing reveals that water quality is inappropriate)89. The EMOS goes on to state90: “The rehabilitation strategy intends that the existing voids on Mining Leases 4659 and 4668 will remain as part of the water management strategy. Discussions will be held with the Queensland Water Resources Commission and Department of Environment and Heritage to determine the licensing conditions, if required, for this strategy. The water monitoring regime will also confirm the suitability of the water remaining in the voids for use as a stock watering source. (In the event that subdivision of the rehabilitated areas ultimately proceeds, compliance with ANZECC “Primary Contact” recreational quality standards will probably be required by the local authority, after the Mining Leases have been relinquished).” 86 Ex 34 pg 3 of the EMOS (pg 28 of the Exhibit marking). 87 pg 7 of EMOS, pg 32 of Exhibit. 88 pg 10 of EMOS, pg 35 of Exhibit. 89 pg 11 of EMOS, pg 36 of Exhibit. 90 pg 17 of EMOS, pg 42 of Exhibit. -- 35 of 37 -- 36 [109] The EMOS refers to a battery of research programmes aimed primarily at establishing rehabilitation criteria and methods and confirming final void hydrology and water quality. The results of that are to be provided to the relevant department. [110] The EMOS rehabilitation would not lead to a filled void, but it would appear to address the existing safety issue and permit the land to be held as rural allotments pending determination of a higher use. That is not inconsistent with the planning strategy. That it would be left with water would not seem to necessarily exclude its potential for incorporation into a wider development (perhaps as a water feature). As the EMOS contemplated, a higher beneficial land use may be pursued after relinquishment and, in that context, the EMOS states that “final land form and rehabilitation design will be developed, however, to be consistent with the intended ultimate land use” and envisages that recreational water quality standards will probably be required. As was pointed out on behalf of Council, the land currently features a number of mullock heaps as a result of the mining operation. The rehabilitation contemplated in conjunction with the EMOS process envisages re- profiling. [111] While the landfill would lead to a filled and rehabilitated void in about 20 years time (subject to further monitoring), compliance by New Hope with its rehabilitation obligations would lead, in a potentially considerably shorter period91, to rehabilitation works (of a more limited kind) to address the existing safety issues with the void, re-profile the land around the void and render the land suitable to be held as rural allotments pending any future higher land use. The community benefit to be gained from the rehabilitation to be carried out in conjunction with the landfill is relevant, but is not as significant as it would be if that were the only vehicle for addressing the safety issues and rehabilitating the land to a point where it can be put to an appropriate use. Mr Gore QC, in the course of oral submissions, said this was not his “number 1” ground92. (iv) Ecological sustainability [112] The extent to which a proposal is consistent with the purpose of the Act in seeking to achieve ecological sustainability is a relevant consideration93. Ecological sustainability is a balance which integrates protection of ecological processes and natural systems at local, regional, State and wider levels; economic development; 91 although it is not possible to make a finding as to when the rehabilitation would now commence, its duration would appear significantly shorter. 92 T285. 93 Chesol Pty Ltd v Logan City Council [2007] QPEC 1 -- 36 of 37 -- 37 and the maintenance of cultural, economic, physical and social wellbeing of people and communities. It was submitted that the landfill was an “outstanding example” of this, because it would meet a community need and contribute to the community’s social wellbeing while protecting ecological processes and natural systems. For the reasons already discussed, I do not consider that a significant community need for the proposal has been demonstrated. I also do not consider that it has been demonstrated that the proposal would contribute in any significantly positive way, to the community’s social wellbeing. I do not consider that the proposal would significantly advance the purpose of the Act. Conclusion [113] The appellant’s enthusiasm for the site, for its purposes, is understandable and the proposal has some appeal at a pragmatic level. On the other hand, the Council’s concern to prevent a substantial private commercial landfill with an operational life of some 2 decades from locating in an area intended to be protected in its non- urban/ rural state pending conversion to large lot residential development is also understandable. [114] The proposed landfill is not without some merit. It would make use of a constrained site and fill and rehabilitate the existing void on the site, whilst largely containing specific amenity impacts to acceptable levels, subject to compliance with applicable controls. On the other hand, it would have some amenity impacts, particularly in terms of perceptions of the amenity, nature and character of the area, is not supported by a demonstrated significant public or community need, is proposed for a site which is already the subject of a rehabilitation obligation and is discordant, to some extent, with the planning strategy evident in the transitional planning scheme (including the strategic plan and the structure plan) and the IPA Planning Scheme. The nature and extent of that conflict is, I accept, not severe, but it is more than trivial or minor. The matters which weigh in favour of approval are, upon examination, not as strong as the appellant contended. [115] Overall, I was left short of being persuaded that the appellant has shown exceptional circumstances warranting approval of a type B use under the transitional planning scheme, or sufficient planning grounds to warrant approval notwithstanding conflict with the Strategic Plan and Structure Plan (whether the use be type A or type B). I was also left short of being satisfied that the balance of relevant matters overall falls in favour of approval. The appellant has not discharged its onus. The appeal is dismissed. -- 37 of 37 --