Ebborn v Esk Shire Council & Ors [2007] QPEC 70

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Ebborn v Esk Shire Council & Ors [2007] QPEC 070 PARTIES: DAVID EBBORN Appellant v ESK SHIRE COUNCIL Respondent and STATE OF QUEENSLAND First Co-Respondent by Election and JAMES F BEETHAM Second Co-Respondent by Election and GARRICK JOHN BRYSON Fifth Co-Respondent by Election and KARINA BRYSON Sixth Co-Respondent by Election and RONALD JAMES BRYSON Seventh Co-Respondent by Election and HELEN MARIA BRENNAN Eighth Co-Respondent by Election and JACQUELINE COLLINS Ninth Co-Respondent by Election and KERRY WAYNE DILLON Tenth Co-Respondent by Election and MARILYN GUTTERIDGE Eleventh Co-Respondent by Election and -- 1 of 10 -- 2 SHERYL NISSEN Thirteenth Co-Respondent by Election and WILFRIED NISSEN Fourteenth Co-Respondent By Election and KARENE ANNE SENIOR Seventeenth Co-Respondent By Election and LISA TAYLOR Nineteenth Co-Respondent By Election and THEODORA (TERRIE) TEMPLETON Twenty-first Co-Respondent By Election FILE NO/S: BD 4703/2005 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 20 August 2007 DELIVERED AT: Planning and Environment Court, Southport HEARING DATE: 22 June 2007 (last submission received 10 July 2007) JUDGE: Kingham DCJ ORDER: Appeal allowed in part and adjourned to enable preparation of consolidated conditions of approval. CATCHWORDS: Integrated Planning Act 1997 – Developer appeal against deemed refusal of application for material change of use for a poultry farm – mediated agreement for approval of smaller operation subject to conditions to be determined – noise, odour and amenity impacts – appropriate conditions determined Water Act 2000 (Qld)) Murphey v Beaudesert Shire Council [2002] QDC 292 Simmons v Esk Shire Council [2006] QPEC 101 Walker v Noosa Shire Council [1983] Qd R 86 COUNSEL: Mr J. Haydon for the Appellant Mr S.M. Ure for the Respondent -- 2 of 10 -- 3 Mr G.B. Wilshier for the First Co-Respondent by Election Ms T. Templeton for the Eighth, Thirteenth, Fourteenth and Twenty-first Co-Respondents by Election Ms K. Senior for the Seventeenth Co-Respondent by Election Mr R.J. Bryson for the Fifth, Sixth and Seventh Co- Respondents by Election Ms J. Collins for the Second, Eleventh and Nineteenth Co- Respondents by Election No appearance for the Tenth Co-Respondent by Election SOLICITORS: Stubbs Barbeler Lawyers for the Appellant King and Co for the Respondent Crown Law for the First Co-Respondent by Election [1] Mr Ebborn proposes to operate a poultry farm near Mountt Helen in the Esk Shire. The site chosen is a 260 ha block surrounded by allotments varying in size. The smallest are 16 ha but others are much larger than that. The area is rural. After initial opposition to the scale of the proposal (16 sheds and 640,000 birds), the parties have agreed a significantly smaller operation (five sheds and 200,000 birds) should be approved, subject to conditions determined by this Court to deal with, amongst other matters, the impacts of the operation on the amenity of the area. [2] At mediation, the issues between the Council, the State and Mr Ebborn were resolved. The other co-respondents, adverse submitters who are residents in the vicinity of the site, agreed to the smaller scale development, subject to conditions to be determined by the Court. At mediation, the parties reached agreement on many conditions. During the hearing, further amendments to a set of draft conditions were agreed and those are recorded in the transcript. Those conditions which remain in contention relate to noise, odour, water and fauna. After some evidence was led, the hearing was adjourned to allow written submissions to be provided by all parties. Noise [3] The most contentious issue is whether the noise conditions agreed between Mr Ebborn and the Council will adequately deal with the potential impact from the operation and associated activities. There are two noise sources of concern. The first is noise from ventilation fans, which are vital to maintain a constant temperature inside the sheds. The second is noise associated with night time catch- outs of the birds which occur at three stages of the growth cycle of each batch of birds. This includes the noise generated by gathering and loading the chickens onto trays which are then loaded by forklift onto trailers. It also includes the noise generated by transporting the trailers to and from the property by prime mover. [4] The noise conditions proposed by Mr Ebborn and the Council: • require the operation to be carried out by such practicable means necessary to prevent environmental nuisance by noise emissions (cond. 64); • prohibit deliveries between 10pm and 7am, except in emergencies or for catchout of birds, loading and unloading of poultry (cond. 65); -- 3 of 10 -- 4 • impose a speed limit of 30km/hr along the access road between 10pm and 7am (cond. 65); • require ventilation fans to be position at the western end of the sheds (cond. 66); • where it is not practicable to comply with cond. 64, impose a noise limit at a noise sensitive place of 5 dB (A) above the background noise levels (measured at LA 90 ) from 7 am to 10 pm and +3 dB (A) above background from 10 pm to 7 am (cond. 67); • require monitoring in accordance with the EPA Noise Measurement Manual in response to a valid complaint or at the request of the Council. [5] The conditions in contention are the noise limits operating at noise sensitive places and those applying to night time catchouts. It was not suggested the noise limits proposed by Mr Ebborn and the Council were inappropriate. Rather the concern was they would be exceeded by the proposed activities. As to night time catchouts, the submitter co-respondents sought a curfew on catchouts during nights, on weekends and during public holidays. [6] Mr Kamst, an expert in environmental acoustics, prepared a report for Mr Ebborn. He gave evidence about the existing background noise levels measured close to the western boundary where the access road exits the property. The report refers to data he collected at other poultry farms and includes his predictions about noise emissions from the proposed operation based on data modelling. Mr Kamst’s expertise was not challenged, and, whilst he was cross-examined about his conclusions, no error was revealed in the data he gathered or the methodology he employed. During cross-examination he considered alternative scenarios to the assumptions he applied in his modelling. He remained convinced the noise conditions could be complied with. No contrary evidence was led. [7] He was questioned about a high noise level recorded on one night during the monitoring period. He had assumed this was caused by storm activity and excluded it from his calculation of the existing background noise level. Had he included it, the calculation would have produced a higher background noise level. It was put to him there was no storm that night. Regardless of its cause, Mr Kamst considered the noise event was out of the ordinary and should be excluded. He described the location as very quiet in the absence of significant noise sources. His somewhat conservative approach to the unusually large reading he recorded favours potentially affected residences by assuming a lower starting point for the regulation of noise impacts. I am satisfied that Mr Kamst’s evidence provides a reliable foundation to formulate appropriate conditions for this operation. [8] The ventilation fans will be installed on the western side of the sheds which are located on the south eastern quadrant of the property. The potentially affected residences are more than a kilometre away to the north, west or south of the sheds, some considerably further than that. Based on his modelling, Mr Kamst predicts noise from the ventilation fans will not result in noise levels above the limit at any of the potentially affected residences. [9] His modelling applied three alternative scenarios, a hot summer’s day, a night and his “worst case scenario”, a cold winter’s night with temperature inversion. During -- 4 of 10 -- 5 this meteorological condition the sound waves bend towards the earth’s surface rather than away, resulting in enhanced noise levels. He applied the same scenarios to noise associated with the gathering and loading of chickens onto trailers during catchouts. Particularly, he factored in the noise generated by forklifts whether accelerating, decelerating or stationary, based on data gathered at other poultry operations. Mr Kamst is confident that neither the ventilation fans nor gathering and loading chickens during catchouts will result in noise levels above the proposed limits at any noise sensitive place, day or night. [10] The remaining issue is noise generated by truck movements along the access road during night time catchouts. Each batch of chickens is at the poultry farm for a cycle of approximately eight weeks. They are progressively removed from the farm at three stages known as the “thin out” at 35 days, the “mid pick-up” at about 42 days and the “end-of-batch catchout” at about 55 days. Noise limits for continuous noise sources may not adequately deal with disturbance to sleep caused by short duration noise sources during the night such as passing heavy vehicles. [11] In assessing the potential impact of truck movements, Mr Kamst adopted the World Health Organisation (WHO) recommendation that “for a good sleep, it is believed that indoor sound pressure levels should not exceed approximately 45 dB Lamax more than 10-15 times per night…Noise events exceeding 45 dBA should therefore be limited if possible.” That level measures sound pressure within an affected residence with a window partially open. The WHO level refers to nightly events. The catch-out activities do not occur on every night during the eight week cycle. How many times night catchouts occur will depend on a number of factors, including the number of birds taken at each stage, the number of trailers and prime movers employed to undertake the catchout, and whether catchouts occur by day as well as by night. [12] In Mr Kamst’s report, he made assumptions based on information provided by Mr Ebborn, that there would be somewhere between four and 10 truck movements during a night time catchout with only one prime mover being employed. It was not disputed that each trailer takes some 50 minutes to one hour to load. Evidence was led by the co-respondents that it is the chicken processor rather than the poultry farmer who controls how and when catch-outs occur and that more than one, and up to four, prime movers could be used in a shuttle fashion, in particular, during the final catchout. That could result in more truck movements than Mr Kamst had assumed. [13] Whilst Mr Kamst proceeded on information he had been given that industry practice is to undertake catchouts at nights to reduce the stress to birds caused by high daytime temperatures, the co-respondents led evidence that other poultry farms conduct catchouts by day as well as by night. [14] On a farm with a capacity of 200,000 birds, taking into account the number likely to be taken at each stage and the number of trailer loads that would entail (neither of which was in dispute), if only one prime-mover was working: the thin out would involve 13 semi-trailer loads or 26 truck movements; the mid pickup would involve three to four semi-trailer loads or six to eight truck movements; and the end-of- batch catchout would require 32 semi-trailer loads or 62 truck movements. On the basis that there could be no more than 16 truck movements in one night if only one prime mover is used and assuming all catchouts occurred during the night: the thin -- 5 of 10 -- 6 out would span two nights; the mid pickup one night; and the end-of-batch catchout four nights. Sixteen truck movements in one night only marginally exceed the WHO recommendation and only on seven nights spread over the latter part of an eight week period. [15] Some evidence was led by the co-respondents that on other poultry farms up to four prime-movers work on a shuttle basis to clear the final catch-out. If that were adopted on this farm, the end-of-batch catchout would take only one night, although the WHO guideline would be exceeded more than fourfold. There is insufficient evidence to persuade me that scenario is a probable outcome for this farm and I consider it more likely the catchout will occur over a number of nights at a lower intensity. [16] It should also be noted that the industry justification for night time catch outs involves temperature and that, for the purposes of regulating noise on this operation, the night time period commences at 10pm. It is likely that catchouts would occur in the evening hours before 10pm as well. Further, the evidence as to day time catchouts must be considered. One of the co-respondent’s witnesses (Mrs Keenan) went so far as to suggest that there was a trend towards day-time catchouts. Taking the potential for daytime catchouts and the likelihood of evening catchouts into account, the most probable scenario is that the largest of the three catchouts, the end-of-batch catchout, could be expected to involve two or possibly three nights. [17] In deciding whether the curfew urged by the co-respondents is appropriate, it is necessary to consider who is most likely to be affected by the truck movements, the extent to which they might be affected and any measures that will or may be taken to ameliorate the impact upon them. [18] The trucks will leave the site via an access road that passes residences A and B as marked on the map in Mr Kamst’s report. Neither owner is a co-respondent. Given the distance of the respective houses from the access road, Mr Kamst considers the WHO guidelines will not be exceeded at Residence B. He does, however, consider it will be exceeded at Residence A by some 5 dB (A). [19] On a worst case scenario of four prime-movers working in a shuttle to clear the end- of-batch catch-out in one night (that is 62 truck movements), the WHO guidelines would be exceeded on that one night by a factor of more than four. I have already indicated I consider that is not a probable scenario. I consider it more reasonable, on the basis of the evidence before me, to work on the assumption adopted by Mr Kamst during his evidence of a maximum of 16 truck movements between 10 pm and 7 am. That just exceeds the WHO guidelines. It must be remembered, however, that this will not be exceeded on every night. [20] A number of measures have been proposed by the appellant to ameliorate any impact upon residences A and B. Firstly, the appellant has agreed to install at his expense, prior to the operations commencing, noise attenuation measures which may include air-conditioning should the owners desire that. [21] The appellant also proposes a 30 kilometre per hour speed limit on trucks using the access road. Mr Kamst considers 30 kilometres to be the optimum speed to minimise the noise generated by trucks and the time it takes them to pass the residences. The co-respondents proposed a 10 kilometre per hour limit, partly to -- 6 of 10 -- 7 avoid the possibility that a truck driver would need to use exhaust or jack brakes at the end of the access road. Mr Kamst opined that a lower speed limit would result in a worse noise outcome because the trucks would most likely operate in a lower gear and at a higher revolution, generating higher noise emissions. Mr Kamst said there was no reason for exhaust or jack brakes to be used if trucks do not exceed 30 km per hour. During the hearing, the Council proposed a prohibition on trucks using the access road from using exhaust or jack brakes. [22] Finally, one of the co-respondents, Helen Brennan, submitted the issue of noise from the movements of trucks along truck routes other than the access road has not been considered. The Department of Main Roads was a concurrence agency for this application and the conditions required by that agency will be included in the final approval. There is no evidence before me to indicate that there is any particular issue created by the movement of trucks to and from this site except for the potential impact upon the owners of residences A and B or that the concurrence agency conditions are inadequate to deal with any impacts. [23] I do not consider the curfew urged upon me by the co-respondents is either appropriate or necessary. However, in addition to the matters already provided for by the draft conditions, the noise conditions should: (a) provide, at the owner’s election, for the supply and installation at the appellant’s expense, of noise attenuation measures in residences A and B; (b) impose a 30 kilometre per hour speed limit on the access road during the night; and (c) prohibit the use of exhaust or jack brakes on the access road during the night. Odour [24] The other issue in contention is odour from the operations. The draft conditions impose odour measurement criteria which are not in dispute. What is in dispute is the point at which those criteria should apply. The draft condition fixes the measurement point as an existing or proposed future “sensitive place”. The proposed conditions define an “odour sensitive place” to include dwellings or other residential premises. This is consistent with the “Guideline for Odour Impact Assessment from Developments” issued by the Environmental Protection Agency and relied upon by the co-respondents. Nevertheless, they argue odour emissions should be measured at the boundary of the property; else a de-facto buffer is created over their land which will restrict their use and enjoyment of it and, potentially, their ability to develop it. [25] The relevant conditions are: “(40) The criterion for assessment of emissions from the poultry farm operations is 2.5 odour units (OU) calculated at 99.5th percentile of 1-hour averages over a year. This criterion applies to existing and proposed future sensitive places. (41) The sheds and environmental controls of the poultry farm must be designed not to exceed odour exposure criteria of C99.5 1-hour = 2.5 ou odour annoyance threshold (EPA criterion) at any sensitive place. -- 7 of 10 -- 8 (42) If, during the operation of the poultry farm, odour exceeds C99.5 1-hour = 2.5 ou as stated in 41 above, appropriate corrective actions: (i) Must be implemented immediately and; (ii) Must be taken to reduce odour emissions to the odour exposure designed criteria of C99.5 1-hour = 2.5 ou.” [26] Draft condition 40 does not place any restriction upon the future use or development of those properties. All it does is to fix the point at which odour is to be assessed. It seems that the co-respondent’s argument rests on an assertion that, if odour is not to be measured at a future sensitive place, not now proposed, that this will deter owners from further developing their properties. However, the planning scheme for the Shire of Esk presents a far greater impediment to development of the surrounding properties because of the limits prescribed for subdivision in the rural A and rural B zone (Part 11 – subdivision of land the planning scheme for the Shire of Esk 25/10/96). [27] The measurement of odour at the location of sensitive receptors is orthodox. No scientific or persuasive policy basis has been advanced to fix the point of measurement at the boundary. The affected properties are located in a rural, not a residential or a rural residential area. This is not a noxious industry. It is a use consistent with a rural area. Residents in a rural area can not expect an entirely odour free environment (Murphey v Beaudesert Shire Council at [33] to [35]). [28] Other issues raised by the co-respondents in relation to odour concern odour sampling and the management of litter from the sheds. [29] The co-respondents urge amendments to the odour sampling requirements imposed by condition 43. The samples are to be used as a point of comparison with the odour emission concentrations adopted in the air dispersion modelling completed and submitted as part of the development application. Presumably, if those samples reveal that assumptions made in the air dispersion modelling are erroneous, that will prompt a review of the environmental controls adopted to ensure odour emissions do not exceed the approved level. If that is the purpose of the sampling, then it would be unreasonable to impose the requirement, asked for by the co-respondents, that the samples are collected on an annual basis. [30] Condition 43 requires a minimum of four samples for each batch, collected at times representative of worst case odour emissions, including the last four weeks of a batch cycle and where litter in the sheds has been used once previously. The co- respondents proposed two summer batch odour samples. Taking into account the average 55 day period for each batch, I accept that it would not be possible to have two summer batches that met all the sampling requirements. The appellant will engage an independent consultant to collect the samples and it would be an onerous imposition on the Council to require it to supervise sampling, as the co-respondents have requested. Further, it would be unreasonable to require sample results to be provided within one week of sampling given independent consultants will undertake their analysis. [31] Whilst relating to dust nuisance rather than odour, it is convenient to deal here with similar amendments proposed to the sampling requirement for particulate -- 8 of 10 -- 9 monitoring in condition 53. I consider the proposed amendments are similarly unnecessary and inappropriate. [32] Returning to odour conditions, the co-respondents submitted that condition 37 should be amended in a number of respects. Firstly, to limit the use of litter to only one batch of poultry, not two as provided in the draft conditions. In my view, the performance based odour condition provides adequate protection if the use of one batch of litter for more than one batch of poultry proves inadequate. Secondly, to prohibit the use of foggers, except when an authorised animal welfare officer classifies an emergency circumstance. Foggers are used, as I understand it, to cool the birds if the temperature is too high. The draft condition limits their use to emergency circumstances. It is impracticable to require prior classification of an emergency state and, if an authorised animal welfare officer was not available, for example during a weekend, delay might compromise the health of the birds. Another proposed amendment to prohibit stockpiling is agreed. [33] The co-respondents argue condition 38, which prescribes on site operating practices, should include a requirement to install litter moisture monitors throughout the shed to warn of wet litter. The appellant argues this matter is best dealt with by the site based environmental management plan which it must provide for compliance assessment prior to construction. The plan must be reviewed regularly and if a new source of environmental contamination is identified. Conditions 40 to 42 set the standard of performance that the operator must achieve. Condition 32 requires a regularly reviewed plan to implement measures to achieve that standard. I am not persuaded that it is necessary to prescribe by condition the measures that will be adopted to ensure wet litter is identified and dealt with. If the measures adopted by the appellant prove inadequate with resulting odour impacts that will, no doubt, prompt a review of those measures and more suitable ones being identified. Water [34] The co-respondents raised a concern about water being trucked into the site, presumably because that would increase the number of truck movements and, accordingly, the impact on adjoining residents. At the hearing the other parties agreed that an additional condition could be included to allow water to be trucked in to the site only in cases of emergency. That would seem to deal adequately with the co-respondents’ concern. [35] The co-respondents also argued that a water licence should be in place before development approval is granted. The Esk Shire Council IPA Planning Scheme, which came into force in November 2005, contains an Intensive Animal Industry Code which identifies the availability of an adequate water supply as a specific outcome. The Code does not specify a probable solution, although an explanatory note suggests that evidence is provided that an approved water allocation exists from the relevant state agency. That Code does not apply to this application made under the 1996 Esk Shire Council Planning Scheme. It appears there are existing bores on this property. Access to water is governed under a separate regime (the Water Act 2000 (Qld)) and the decision maker is subject to provisions which prescribe how decisions are made and what matters must be considered. It cannot be assumed that the grant of this development approval will overwhelm that decision making process. Where a number of approvals are required, it is not necessary to determine in which order they should be obtained (Walker v Noosa -- 9 of 10 -- 10 Shire Council). The further condition prohibiting water being trucked in except in emergencies adequately protects the co-respondents. Fauna [36] One of the co-respondents raised her concern about the impact the use of rodenticides might have on wild birds. This is a matter that is best dealt with, in my view, by the site based management plan. Other amendments proposed by the co-respondents [37] In relation to a number of conditions, the co-respondents proposed changes to periods specified in which identified actions must occur. The appellant proposed different periods as a compromise between the draft conditions and those requested by the co-respondents. I consider the new periods proposed by the appellant are reasonable for each of those conditions. They are: condition 52 – removal of litter - 72 hours; conditions 73 and 75 – retention of complaint records - five years; condition 78 – further advice following initial notification of emergency - 10 days and condition 79 – notification of results of noise monitoring - seven days. The draft conditions should be amended accordingly. Other poultry farms [38] I was referred to conditions imposed on another poultry operation referred throughout the proceedings as the Phipps Poultry Farm. The co-respondents also referred me to the case of Simmons v Esk Shire Council, in which an appeal from the Council’s refusal of a development application for a smaller poultry operation was dismissed. Whilst there is some guidance that can be obtained from examining the conditions imposed or the circumstances pertaining to other proposals, the assessment of the appropriate conditions for this operation must be influenced primarily by site specific determinations, including expert reports. My decision in this case is so based and it is not necessary for me to further address either Phipps farm or the Simmons proposal. Conclusion [39] The Council’s deemed refusal of the application is set aside and the application is approved in part for a development of five poultry sheds and a maximum of 200,000 birds, subject to those conditions already agreed between the parties (at mediation and during the hearing) and the further conditions that I have indicated in these reasons. The appeal will be allowed, and the matter adjourned to enable preparation of conditions of approval which reflect this decision. -- 10 of 10 --