Beaudesert Shire Council v Merlin Holdings Pty Ltd [2005] QPEC 71

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Beaudesert Shire Council v Merlin Holdings Pty Ltd [2005] QPEC 071 PARTIES: BEAUDESERT SHIRE COUNCIL Applicant MERLIN HOLDINGS PTY LTD Respondent FILE NO/S: BD 2798/05 DIVISION: Original jurisdiction PROCEEDING: Application for interim relief in proceeding seeking declarations and enforcement orders ORIGINATING COURT: Planning and Environment Court, Brisbane. DELIVERED ON: 12 August 2005 DELIVERED AT: Brisbane HEARING DATE: 3 August 2005 JUDGE: Robin DCJ ORDER: Interim enforcement order under s. 4.3.24 of IPA CATCHWORDS: Integrated Planning Act 1997 s. 4.3.24 – application by Council for interim enforcement orders to end apparent development offences – Respondent poultry farmer had allegedly commenced material changes of use without development approval by (a) increasing poultry numbers by 25% above approved maximum and (b) converting sheds from natural ventilation to tunnel ventilation, exacerbating odour and like emissions – Respondent subsequently sought development approval unsuccessfully and had filed an appeal – whether enforcement proceedings should await appeal’s outcome –interim orders made, subject to partial, time- limited suspension COUNSEL: Hinson SC and Andreatidis for Applicant Haydon for Respondent SOLICITORS: Corrs Chambers Westgarth for Applicant McKays for Respondent -- 1 of 19 -- 2 [1] These are reasons for the making of orders on 3 August 2005 which expand upon those given extempore at the end of the hearing, those are reproduced in an annexure, below. [2] The Council filed its application on 28 July 2005. I determined the next day, after hearing the parties, that it ought to proceed in respect of the claim for interim relief under section 4.3.24 of the Integrated Planning Act 1997 (IPA) on 3 August. There had already been filed in the court the Respondent’s “developer appeal” under section 4.1.27 of the IPA BD2474/05 on 8 July 2005 and its own originating application BD2505/05 on 11 July 2005. That application sought declarations and orders under sections 4.1.21 and 4.1.22, as does the Council’s application now filed, which also invokes section 4.3.22 on the basis of development offences it contends that the Respondent (Merlin) is committing and will continue to commit under section 4.3.1 and/or section 4.3.3. The Council wishes to stop activity which Merlin’s originating application seeks to have protected by the court (at least in the short term). If Merlin’s appeal succeeds, it may obtain all of the planning approvals, consents, permits, authorisations and the like needed to continue its operations on its poultry farm at 257/285 Scott Lane, North Maclean. [3] The three proceedings in the court are clearly closely related. None of the files is bulky yet, but, understandably, there has been some confusion already as to the appropriate file to receive and house particular documents. Perhaps (without prejudicing its just claims to filing fees) the court might consider amalgamating separate files in circumstances such as the present ones in a single file. [4] The development application the subject of the appeal is dated and was received by the Council on 17 November 2003. The Council Decision Notice refusing the application was not forthcoming until 10 June 2005. The parties have not wasted breath on allocating the blame for delay. It might be noted that nearly all of calendar 2004 elapsed while Merlin responded to the Council’s information request. A year was allowed for that purpose. The response included a lengthy “Report - Odour, Noise and Dust (Risk) Assessment” prepared by Pacific Air and Environment Pty Ltd on 17 November 2004. After this, submissions focusing on odour in particular were forthcoming from near neighbours, typically couples. The Council obtained its own “Review of an odour impact assessment report prepared for the Merlin -- 2 of 19 -- 3 Holdings broiler farm expansion” in December 2004 from Katestone Environmental Pty Ltd. [5] The development assessed by the consultants engaged has already occurred without any Council authorisation. The submissions made to the Council under the IPA purport to describe the consequences for the relevant neighbours. More pertinently, half a dozen of them have provided affidavits which are before the court complaining of intermittent, much increased environmental nuisances of a highly unpleasant nature. Suffice it to say that those deponents’ assertions must be taken seriously by the court, although it is no position to pronounce finally that they are valid. There are interesting discrepancies among the witnesses, as to whether problems are worse in hot or cold conditions, for example. Merlin has contended that those complaining may be unreliable, that data relating to winds etc, recorded by its weather station are inconsistent with entries in “odour logs” kept by a couple of the deponents. [6] Just as it cannot finally resolve issues adverted to immediately above, even while persuaded there is a case for interim enforcement orders, the court is in no position at present to adjudicate between the odour consultants. It has the benefit of a very recent report prepared by Mr Welchman of Katestone Environmental. It is persuasive that conversion of Merlin’s 5 poultry sheds from natural ventilation to “tunnel ventilation” may increase emissions by some 240% and that the concomitant increase of capacity from the 121,000 birds presently approved by the Council to 152,000 (acceptable under section 15 of the Animals Care and Protection Regulation 2002) would increase that 240% to 300%. The observations of the Council’s deponents offer some support for Mr Welchman’s views. The Pacific Air and Environment report reviewed by his firm took the line that the “expansion” produces odour outcomes which are acceptable and within relevelant standards or guidelines; no attempt was made to compare “after” with “before”, which, presumably, was even less problematic in that consultant’s view. [7] The Council circularised poultry farm operators in its local government area, including Merlin, on 23 July 2002: -- 3 of 19 -- 4 “ CIRCULAR POULTRY FARM IMPROVEMENTS (Tunnel Ventilation) Dear Sir or Madam, With the commencement of the Environmental Protection Act in 1994, existing poultry farms in operation at the time were classified as a “Deemed Approval” in recognition of the existence of the farm prior to the enactment of the legislation. Subsequently, the Integrated Planning Act was passed in 1997. The purpose of this Act is to seek to achieve ecological sustainability by:- a) coordinating and integrating planning at the local, regional and state levels; b) managing the process by which development occurs; and c) managing the effects of development on the environment (including managing the use of premises) The above Acts together with Council Town Planning Laws manage the issues relating to the establishment of new poultry farms and the upgrading of existing poultry farms. This includes the conversion to “tunnel ventilation” systems. Legal advice to Council indicates that conversion of a poultry farm to tunnel ventilation requires a Development Approval and to implement such works without an approval may constitute an offence. It should be noted that should a Development Application for the conversion of sheds be lodged and approved, in respect to a farm with “deemed approval”, it will lose this status under the Environmental Protection Act and become subject to a new approval and legally binding performance conditions attached to it. This information is provided to help you appreciate the impacts of contemporary laws upon your business activities. If you require any further clarification about these matters or if you wish to lodge a Development Application, please contact Council as referenced above. Yours faithfully, A Braithwaite MANAGER ENVIONMENTAL ACTIVITIES” -- 4 of 19 -- 5 [8] On 13 May 2003 a communication specific to its situation was sent to Merlin by the Council: “Merlin Holdings Pty Ltd C/- Mr Ted Deane 3 Kandra Street CURRUMBIN QLD 4223 Dear Mr Deane, RE: Complaints of excessive odour from poultry farm located at Lot 1 on RP163499, 257 Scott Lane, North MacLean and clarification of legal opinion regarding the conversion of poultry sheds to tunnel ventilation Council has received additional odour log sheets detailing complaints of excessive odour emissions from the above poultry farm for the period 9 April to 15 April 2003. Please find enclosed a copy of the log sheets for your information and action. Further to previous correspondence dated 23 July 2002 and 20 March 2003, clarification has been obtained that the conversion of a poultry farm to tunnel ventilation requires Development Approval in accordance with the Integrated Planning Act 1997 It is understood that the above poultry farm has recently converted some production sheds to tunnel ventilation and is currently in the process of converting additional sheds. A search of Council’s records indicates that Development Approval has not been issued for the conversion. Accordingly, a meeting of company representatives and Council officers is requested within 14 days hereof at Council’s Administration Centre in Beaudesert to reconcile the issues of nuisance emissions and matters related to Development Approval. To organise this meeting, please contact Nicholas Rossmann on 07 5540 5258. If you require clarification regarding any of these matters, please contact Council as referenced above, Yours faithfully, M Myerson MANAGER COMMUNITY HEALTH & COMPLIANCE” [9] Various meetings occurred, leading to Merlin’s lodging its material change of use application with the request (refused by the Council on 8 December 2003) that the application be assessed against the provision of the superseded planning scheme. -- 5 of 19 -- 6 The court has no information as to whether Merlin was led to believe (as “developers” in analogous situations undoubtedly often are) that its application was a formality to get matters regularised. It would not matter, I suppose, if it had been led to believe that. It embarked on a process which invited submissions from the public which the Council was obliged to consider. Its conclusion is unsurprising. It remains to be seen whether the court’s conclusion will be similar. Merlin advised the Council that tunnel ventilation of its sheds commenced on 22 November 2001, 15 July 2002, 31 May 2003 and (in respect of the remaining two) 15 August 2003. [10] Mr Haydon, for Merlin, has made complaint regarding the allegedly precipitate manner in which the Council is now proceeding, suggesting that (as doubtless often occurs) any change in the status quo ought to await final determination of his client’s appeal. On that basis, Merlin has little incentive to prosecute its own proceedings. Their coming to a conclusion would not enhance its ability to operate as it wishes, but might well curtail that ability. In the meantime, the distress of the Council’s lay deponents (which there is no reason to regard as other than genuine, on present evidence, and coming from people well used to and accepting of rural pursuits) would continue, unrelieved. I thought it was incumbent on the court to entertain the Council’s application. [11] If the Council was pressing for final relief, which I think is doubtful, that would not necessarily be appropriate. Its solicitors have striven to keep Merlin and its solicitors advised of the Council’s intentions, and given what, from some standpoints, looks like reasonable notice and reasonable opportunity to Merlin to take steps to avoid having to face the Council’s application. It does not necessarily follow that Merlin has had sufficient opportunity, as a practical matter, to prepare its defence. As it happens, its principal deponent, Mr Marshall, is out of Brisbane (although by no means incommunicado) until the end of September. It does not appear what (if any) difficulties Merlin’s odour consultants might have in responding to Mr Welchman: there has been no time for their doing so yet. Mr Marshall and the others behind Merlin (who appear to live at some remove from the poultry farm and are unaffected by its emissions) ought to have a fair opportunity to prepare for the ultimate battle in the court. They have not had enough time so far. On the other hand, if, as is prima facie the case, offences under the IPA are being committed that are not of a mere technical nature but are blighting the amenity of -- 6 of 19 -- 7 innocent neighbours, then the court should be vigilant to ensure that the ultimate battle is fought and determined expeditiously, and that preliminaries are not allowed to drag on with the problematic status quo continuing. I’ve communicated to the parties that court time will be available in the first week of October and that I will be available (if necessary) to deal with interlocutory matters for the intervening 2 months. [12] The Council wish to restrain by interim order under section 4.3.24 of the IPA any excess over 121,000 (as permitted by it as a maximum in the relevant town planning permit number 846 of 9 September 1991 in condition (r)), once the current complement of birds are taken away for processing – and also to restrain the continued use of tunnel ventilation. [13] I see no justification whatever for permitting the 121,000 limit to be exceeded by Merlin, regardless of its possessing the commercial opportunity to profit from doing so. Mr Welchman is persuasive that odour and like nuisances increase with the number of birds. In the present circumstances, I have little doubt that an increase marginally in excess of 25% amounts on its own to a material change of use for purposes of the IPA. It might be noted that poultry farming is an environmentally relevant activity (ERA) level 2, for purposes of the Environmental Protection Act 1994 (Poultry Farming – 1000 to 200,000 birds (item 4 in schedule 1 of the Environmental Protection Regulation 1998) and that the Environmental Protection Agency’s Operational Policy – Development Approvals – Section 75 Environmental Protection Act 1994 section 1.3.5 Integrated Planning Act 1997 (Exhibit 7) suggests that there is a “material change” where (among other cases) there is “10% change in number of animals.” or “10% change in design capacity…” or “20% change in annual throughput” or “10% change in number of events.” What might be seen as a legislative endorsement of a benchmark of 10% may be found in the Environmental Protection Act 1994 section 428: “428 New approval required for certain activities if significant change (1) This section applies if – (a) a person who holds a level 2 approval proposes to carry out works for the construction or alteration of a building or structure, or for the installation or alteration of plant or -- 7 of 19 -- 8 equipment, for carrying out the environmentally relevant activity concerned; and (b) the construction, alteration or installation will result in an increase of 10% or more in the release of contaminant into the environment under the approval. (2) The person must not carry out the works without a level 2 approval to carry out the activity on the basis of the increased quantity of contaminant to be released into the environment. Maximum penalty for subsection (2) – 100 penalty units.” – a provision which ceased to have effect on 1 January 2005. The repeal does not indicate that a 10% benchmark is inappropriate. [14] Mr Haydon suggests that a document such as Exhibit 7 would influence the court no more than (say) a town planner’s interpretation of a planning scheme provision. That may be so, although the Operational Policy seems to me to have a status that a single “expert” view might lack. Here, thanks to tunnel ventilation, Merlin has increased its carrying capacity by 25% or more. That is comfortably a material change of use, it seems to me. It’s convenient to record Mr Hinson’s written submissions in that regard: “34. Existing use rights are dealt with in Part 4 of IPA. Under the provisions of s1.4.1(1) the protection of existing use rights now only applies where there has been “no material change of use” 36 35. Accordingly, under the IPA, the use of the premises as a poultry farm remained a lawful use so long as use as a poultry farm was to the same extent (section 1.4.1). 36. However, Merlin will have to obtain approval pursuant to the Integrated Planning Act 1997 if: a) There is a material change of use of premises by Merlin; and/ or b) If Merlin undertakes building work to the premises; and /or c) If Merlin undertakes operational works to the premises. 37 36 Section3.1.4(1) IPA provides that a development approval is necessary for assessable development; Herston Kelvin Grove Residents Action Group Inc v BCC [2001] QPELR 382 at 394-395 37 Section 1.3.2 IPA. A development permit is necessary for all assessable development (section 3.1.4 IPA). Assessable development is a development specified in schedule 8, part 1 (definition of assessable development in schedule 10). -- 8 of 19 -- 9 37. “Use” is defined in schedule 10 IPA to include “any use incidental to and necessarily associated with the use of the premises.” 38. “Development” is defined in section 1.3.2 of the Integrated Planning Act 1997 to include making a material change of use of premises and carrying out building work and carrying out of operation works. 39. “Material change of use” is defined in section 1.3.5 of the Integrated Planning Act 1997 to mean, relevantly: a. a material change in the intensity or scale of the use of premises; or b. for environmentally relevant activities under the Environmental Protection Act 1994, a material change in the intensity or scale of an environmentally relevant activity on the premises. 40. “Operational work” is defined in section 1.3.5 to mean, relevantly, undertaking work in the premise that materially affects the premises of the use. 41. Building work” is defined in section 1.3.5 to mean building, repairing or altering a building or other structure. 42. If Merlin has undertaken “assessable development”38 , without the necessary permit, then an offence has been committed by Merlin39 and the Court’s jurisdiction to make the restraining orders being sought by the Council is enlivened. Material change of use – the greater number of poultry 43. Condition (r) of Town Planning Consent No 846 limited the capacity of the poultry farm on the premises to 121,000 birds. 44. From in or about October 2001, Merlin has been able to stock poultry in a number that exceeds the permitted 121,000, by reason of the installation of the tunnel ventilation. The number it says it can now stock as a consequence of the tunnel ventilation is 152,000. 45. The definition of “material change” requires that there not be merely an intensification or scale of the use. Any such intensification or change in scale must be material. 38 Sections 3.1.2 IPA and 4.3.24 IPA 39 Section 4.3.1 IPA. -- 9 of 19 -- 10 46. Whether a change involves a “material change in the intensity or scale of the use of the premises” is a question of fact and degree, depending on the circumstances of each case.” I opined that an increase by a quarter in the rate which one’s income is taxed would presumably be seen as a “material change” by most of us. Recourse to such examples is probably not helpful. I think the Council’s case here is unanswerable. However, it remains open to Merlin to obtain approval to grow more birds, or to establish in the court that it needs no approval to go above 121,000. Little will be lost if it is restricted to that number in the short term. [15] The Council’s case is more complicated in respect of the installation of tunnel ventilation: “Material change of use – installation of tunnel ventilation in all 5 sheds. 48. To determine whether there has been a material change of use requires a comparison to be made of the installation and operation of tunnel ventilation in all 5 sheds on the poultry farm. 49. It is significant to note that: a. the poultry farm has been in operation since the 1960s; b. complaints about offensive odour from the poultry farm by local residents from the 1960s until the installation of tunnel ventilation in all 5 sheds, were irregular and sporadic; c. at least 3 of the complainants come from a background involving animals/farms and are not people who would ordinarily be considered to be overly sensitive to animal odour; d. almost immediately upon the installation and operation of tunnel ventilation systems in all 5 sheds, complaints from residents about offensive odours have become regular. 50. The Council’s odour expert concludes, relevantly, that: a) “…the conversion of the five poultry sheds… from natural ventilation to tunnel ventilation… results in a significant increase in the magnitude of odour impacts and odour emissions.”. b) “… there is likely to be a material increase in the odour impact associated with the farm due to the conversion of the sheds. The -- 10 of 19 -- 11 increase in odour impact is due to the tunnel-ventilation sheds [holding 121,000 birds] at the Merlin poultry farm are likely to be up to 240% higher than naturally-ventilated sheds holding [121,000 birds].” c) “… the odour emission rate from the tunnel-ventilated sheds at the Merlin poultry farm operating with 152,000 birds is likely to be up to 300% higher than for the farm with naturally-ventilated sheds holding 121,000 birds.” d) “This report supports the observations of the nearest residents to the east and west of the sheds that the odour impact due to the Merlin farm has increased significantly since the sheds were retrofitted with tunnel-ventilation.” 51. Further, the Council’s expert concludes that there is also likely to be an increase in the emission rate of dust from the sheds due to both the conversion and the increase stock numbers. 52. It is submitted that on the basis of the matters set out above, the installation of tunnel ventilation in all 5 sheds constitutes a material change. Building works 53. It is submitted that the appropriate finding is that the extensive conversion of the sheds from air-ventilated sheds to tunnel ventilation constituted “building work” 54. Two limbs of the definition of “building work” support this submission. 55. Firstly, “Building work” means, relevantly “building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure”. (emphasis added). 56. Giving the words in the definition of “building work” their natural and ordinary meaning, the conversion of 5 sheds from air-ventilated to tunnel-ventilated sheds amounts to “altering” a building or other structure.” 57. An insight into the extent of the building works can be seen from: a) the photographs that appear in exhibit NHR-7 to the affidavit of Mr Rossmann, especially the pages 31,34,35 and 36; and b) comparing how the sheds look now and how the sheds looked before the conversion. 58. The building has therefore been altered by: a) Removing the adjustable side shutter walls; b) Enclosing the walls; -- 11 of 19 -- 12 c) Enclosing the open ventilation shafts that were on the roof of each of the sheds; d) Removing part of the structure of the sheds to install 6-8 1.35m diameter extractor fans that are used as part of the tunnel ventilation system; e) Installing cooler pads; f) Installing internal curtains; g) Installing vents to allow air circulation. 59. Secondly, paragraph 1(b) of the definition provides that “building work” also means work regulated under the Standard Building Regulation 1993: 60. By section 4(1) of the Standard Building Regulation 1993: “the carrying out of all building work is assessable against this regulation.” 61. The exceptions to section 4(1) are set out in sections 4(2) and 4(3) to mean those matters set out in schedule 5 of the Standard Building Regulation 1993. None of the matters set out in schedule 5 apply. 62. The work undertaken by Merlin accordingly comes within the ambit of the definition of “building work” in paragraph 1(b) of the definition. 63. By schedule 8, part 1, table 1, the building work is assessable by virtue of the work coming within the ambit of the Standard Building Regulation 1993. 64. Furthermore, the conversions offend conditions (c) and (o) of the Town Planning Consent No 846. These conditions clearly restrict any changes to the farm that impact adversely on the surrounding area and people. The conversion was therefore assessable. 65. Further and alternatively: a) The Council’s scheme provides, relevantly, that: “Subject to the provisions of Parts III and IV of this town planning scheme, no person shall: (1)without the consent of the Council, erect or use any… structure or use the land in any zone for a purpose set forth in Column IV…” b) the conversion (for the reasons set out above) comes within the ambit of the planning scheme; and c) the conversion was therefore assessable under the planning scheme. -- 12 of 19 -- 13 Operational work 66. It is only necessary to consider whether the conversion is “operational work” if it is found that the conversion did not constitute “building work. 67. By virtue of the matters set out above the conversion is “work” that “materially affects premises or their use” and therefore constitutes “operational work”. However, for the reasons set out above, the conversion is “building work”.” [16] Mr Haydon did not answer those arguments. However, the way in which the hearing took place would make it unfair for the court to pronounce more than provisional views about them, strong as is my inclination to accept Mr Hinson’s arguments in the absence of contrary submissions, as things stand. In relation to use of tunnel ventilation, Merlin should be given an opportunity to move quickly to obtain a development approval to authorise it, or to show that no such approval is necessary as a matter of law. [17] I am not impressed by Mr Marshall’s reliance on what he says is the effect of contractual arrangements Merlin has voluntarily undertaken which may be compromised if Merlin is not allowed to continue operating as it presently does. Given the opportunity to be more specific about these matters, Merlin may perhaps improve its argument. It does not appear to be a large scale employer, although the court notes Mr Haydon’s eloquent plea in the interests of the couple of gentlemen apparently employed. What motivates me to grant an indulgence in the form of a staged suspension of the interim order which should be made to the end the use of tunnel ventilation is the waste of resources involved if work that has been done to enclose the sheds and install the ventilation has to be expensively undone and then more expensively done again if Merlin should become entitled and wishes to return to its operating methods of the last couple of years (which it is asserted is demanded by the industry). It seems clear that there is a move to tunnel ventilation - which is not to say that people like the Council’s deponents will be required to put up with the consequences. (It is not necessary for the moment to assess the reliability of -- 13 of 19 -- 14 questions tendered by Mr Haydon, or the necessity for all of the work included. That substantial cost would be incurred if work has to be done is clear.) [18] The leading case in relation to restraining orders and similar relief in planning matters is Warringah Shire Council v Sedevcic [1987] 10 NSWLR 335. The eight “guidelines” and other considerations set out by Kirby P at 339ff have been influential, being approved in Queensland at appellate level in NRMCA (Qld) Ltd v Andrew [1993] 2 Queensland Reports 706 and frequently applied in this court. My own first occasion for doing so was Queensland Cement Limited v United Global Cement Pty Ltd [1999] QPELR 167; in last year’s reports, the principles were applied in Livingstone Shire Council v Brian Hooper & M3 Architecture [2004] QPELR 308, Westfield Management Ltd v Pine Rivers Shire Council at 377, Feyer v Jones Caboolture Shire Council at 533, Woolworths Ltd v Caboolture Shire Council & The Warehouse Group (Australia) Pty Ltd at 550 and a matter similarly entitled at 634. A case for relief is clearly made out by the Council in respect of poultry numbers. The views provisionally reached have a similar effect in respect of the tunnel ventilation. I’m not persuaded that the discretion to withhold relief should be exercised here. However, balance of convenience factors - in particular avoiding wastage of resources or money expended - point to a suspension being appropriate, one which may be reviewed according to whether Merlin diligently pursues its own proceedings, which offer the prospect of its obtaining the approvals it needs. [19] I did not take Mr Haydon to be seeking an undertaking as to damages from the Council as envisaged in s4.3.24 (2) of the IPA. Given the limited effect of the orders made I would not be inclined to require one at present. A useful explanation of the care a court should take in requiring an undertaking in circumstances like the present is Baroondara City v Optus Networks Pty Ltd, Vic Sup Ct, 21.12.95, Beach J, No 8644/95 at 20-22. [20] The order made on 3 August 2005 was: Interim order under s 4.3.24 of IPA pending determination of this proceeding BD2798/05 that the Respondent unless it shall obtain a relevant development approval be restrained from: (a) using tunnel ventilation in the 5 poultry sheds at the premises of 257-285 Scott Lane North Maclean -- 14 of 19 -- 15 (b) stocking the poultry farm at the premises with more than 121,000 birds. The order in (a) is suspended as follows: for 3 months in respect of 5 sheds for 4 months in respect of 4 sheds for 5 months in respect of 3 sheds The order in (b) does not prevent the Respondent’s growing to maturity the poultry presently at the premises. Liberty to apply. Order that this application be heard with the Respondent’s proceedings BD2474/05 and BD2505/05.) ANNEXURE PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Application No BD2798 of 2005 BEAUDESERT SHIRE COUNCIL Applicant and MERLIN HOLDINGS PTY LTD ACN 010 048 245 Respondent BRISBANE ..DATE 03/08/2005 ORDER REVISED COPIES ISSUED State Reporting Bureau Date: 12 August, 2005 -- 15 of 19 -- 16 CATCHWORDS: Integrated Planning Act 1997 s 4.3.24 - interim enforcement order forbidding respondent poultry grower's exceeding maximum poultry numbers fixed by a permit condition or using tunnel ventilation (which on available evidence exacerbated odour impacts on neighbours) without appropriate development approval - order qualified and partly suspended HIS HONOUR: There should be an interim order under section 4.3.24 of the IPA that the respondent, unless it shall obtain a relevant development approval, be restrained from: (a) using tunnel ventilation in the five poultry sheds at its premises at 257-285 Scott Lane, North Maclean; (b) stocking the poultry farm at the premises with more than 121,000 birds. The order in (a) is suspended as follows: (1) for three months in respect of five sheds; (2) for four months in respect of four sheds; (3) for five months in respect of three sheds. Liberty to apply. Is it necessary to define the duration of that by reference to some proceeding in the Court or does the Act make it clear? What does 4.3.24 say? "Pending a decision". So the interim order under section 4.3.24 IPA operates pending determination of, what's your number----- MR HINSON: 2798----- HIS HONOUR: -----of this proceeding. 2798 of 2005. All right. Now you haven't had a chance to say anything about this, Mr ? MR : For (b) there's no suspension. -- 16 of 19 -- 17 HIS HONOUR: No, that's right. MR : That should be until the end of the current batch. HIS HONOUR: Yes. MR : There's more than a 121,000 there now. HIS HONOUR: The order in (b) does not prevent the respondents' growing to maturity the poultry presently at the premises. MR : Thank you, your Honour. The only other point of discussion is the pending a determination in this application; my draft order also contemplated that the - this originating application be heard with the other two proceedings. HIS HONOUR: Yes, that's fair enough. So I order that this application be heard with the respondents' applications. Can you tell me the numbers of those? MR : The appeal is 2474 of 2005. HIS HONOUR: 2474 of '05. MR : And the originating application of Merlin is 2505. HIS HONOUR: I am not undertaking to publish detailed reasons for this but it is likely that I shall do so. I consider that the considerations that appear from Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 strongly favour the granting of interim relief. It appears that, for some years, with knowledge of the limitation to 121,000 birds in condition (r) of the relevant consent of the Council, the respondent has taken advantage of the opportunity which conversion of five poultry sheds to tunnel ventilation gave it to increase the stocking considerably above that level. -- 17 of 19 -- 18 Further, since the 23rd of July 2002, the respondent has been on notice of the Council's position that conversion of its five poultry sheds previously naturally ventilated represented a material change of use. At that date only two sheds had been converted. The Council has very recently added to its contentions that the conversion was building work for which a permit ought to have been obtained and it is also an operational work for the purposes of the IPA calling for an approval. It may be that the respondent was lulled into an inappropriate sense of security by the Council's invitation and its acceptance thereof to lodge a development application late in 2003 to regularise matters. It does not seem, on the limited information presently available, that the Council made known to the respondent that the development application designed to regularise matters might, as ultimately was its fate, be rejected. It took more than 18 months for that to happen, the bulk of which is explicable in terms of the respondent taking close to the 12 months allowed to respond to an information request. Throughout this process and, indeed, for some months before there have been concerns about odour emissions. The Council, through Mr Welchman, a consultant expert in odours and like emissions presents a persuasive case that aggravation of the situation from the point of view of some half a dozen near neighbours is attributable to the change to tunnel ventilation. That's a change which may be seen as promoted by the Animal Care and Protection Regulation 2002. Once it rejected the application in June this year the Council moved quickly (although not without giving the respondent what it and its legal representatives thought was adequate notice) to approach the court. Mr Marshall's affidavit, prepared under the difficulties of his having joined the grey nomads and committed himself to being at distant places for a considerable period, does not present a particularly compelling case of prejudice if the relief sought by the Council on an interim basis under section 4.3.24 is granted, except for the obvious proposition, that -- 18 of 19 -- 19 it will be extremely costly to reverse the conversion of five poultry sheds to tunnel ventilation. That is correct, notwithstanding that the respondent effected most of that conversion with knowledge of the Council's attitude and without seeking any development approval. I think there is force in Mr Hinson's observation that Mr Marshall is somewhat coy about things and may be taking inconsistent positions in at once predicting the collapse of the respondent and pointing to the huge demand for all a product of which it is among the largest producers. Much has been said about commercial arrangements, the exact terms of which have not been made available to the Court. I accept the urging of Mr not to determine any matters finally today. My provisional views are that the Council's position in relation to the necessity for development approvals and permits, both in relation to stocking of the poultry farm to the extent of 25 per cent or slightly more over the approved number and to the tunnel ventilation, is well founded. The apparent strength of the Council's arguments supplies one of the considerations in Sedevcic. The order that has been formulated and discussed with counsel is of immediate effect in respect of the permitted poultry capacity once the current batch have finished their time on the site. It is suspended to a varying extent for the next period of months with a view to giving the respondent an opportunity to be spared the necessity to undo useful work which might have to be done again if its appeal against the Council's refusal of its development application which is before the court succeeds. There is a strong prospect of time being available in the court in the week of the 3rd of October to deal with an appeal and I am able to make myself available if no other Judge of the court is listed in the meantime to consider interlocutory matters that might arise in this application or in the appeal or in the respondent's cross-application which, in essence, seeks determinations of the legal questions opposite to those contended for by the Council. Liberty to apply has been granted to keep the situation flexible. -- 19 of 19 --