Edgarange Pty Ltd v Redland Shire Council [2001] QPEC 1

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Edgarange Pty Ltd v. Redland Shire Council [2001] QPE 001 PARTIES: EDGARANGE PTY LTD Appellant And REDLAND SHIRE COUNCIL Respondent FILE NO/S: No 343 of 2000 DIVISION: Appeal PROCEEDING: ORIGINATING COURT: Planning and Environment Court DELIVERED ON: 10 January 2001 DELIVERED AT: Brisbane HEARING DATE: 13-16 November 2000 JUDGE: Skoien SJDC ORDER: Appeal dismissed CATCHWORDS: Planning principles; noise; odour; greenspace; flooding COUNSEL: Mr C Hughes for the appellant Mr S. Ure for the respondent SOLICITORS: McCarthy Durie Ryan Neil for the appellant Hopgood Ganim for the respondent [1] This is an appeal by Edgarange against the deemed refusal of the Council to approve an application for rezoning and staged subdivision of land at Victoria Point. [2] Notwithstanding the repeal of the Local Government (Planning and Environment) Act 1990 by the Integrated Planning Act 1997, because the application was made before the date of that repeal the provisions of the Planning and Environment Act apply (see Integrated Planning Act s.6.1.23). That is why this appeal concerns a combined application for re-zoning and staged subdivision. -- 1 of 18 -- 2 The site [3] The site lies on the outbound (south-eastern) alignment of Bunker Road, Capalaba, about 1 km west of its intersection with the Clevelend-Redland Bay Road. It is made up of six adjoining lots which together make up an area of 31.28ha and which have a road frontage of 630 metres. Each of the current individual allotments has a single detached dwelling together with associated outbuildings. [4] The site slopes down from its higher front north-western and rear south-eastern boundaries toward a central drainage line that traverses the site and represents a major physical characteristic of the property. The natural hydrology of this channel has been modified in the past by the creation of five dams contained on various of the individual properties. In wet seasons this channel forms a creek which flows to the east, ultimately connecting with the Eprapah Creek system. While parts of the site have been cleared, dense vegetation cover exists in the southern and central eastern parts of the property and in the form of a riparian corridor in and surrounding the main drainage channel. Surrounding Land Use [5] Land surrounding the site to the west, south and east is largely occupied by rural and rural residential forms of development, (largely zoned Special Rural) many of which are located on allotments of a similar size and configuration to the allotments comprising the site. Non-residential land uses in the area include kennels, some small businesses (eg. produce store, saddlery, motor repairs, slashing, etc) and hobby farms. There are numbers of poultry farms in the area to the south and east -- 2 of 18 -- 3 of the site. Two operating poultry farms, in particular, are located in close proximity to the site, one with sheds situated approximately 300 metres to the south-west of the site (the Lobegeiger farm) and the other with sheds approximately 600 metres to the south (the Augustakis farm). [6] Land to the north in and around Bunker Road and the Cleveland-Redland Bay Road has been developed for and is continuing to be developed for suburban housing and for major district shopping and commercial centres (Koala Park and Victoria Point Central). Immediately adjoining the site to the north-east is a large, heavily vegetated parcel which has a long-standing development approval for the establishment of a retirement village. To the south of this area is an existing aged people home and park residential estate. Zoning [7] The site is contained in the Special Rural zone, which zoning designation generally prevails in the areas surrounding to the west, south and east. To the north, the residential subdivision is contained in the Residential Low Density zone. There is a mixture of Rural Non-Urban, Special Facilities and Park Residential zonings in the area to the west of Cleveland-Redland Bay Road. The Koala Park shopping centre is zoned Shopping. The proposal [8] The proposal is to re-zone the site to residential A to permit the creation, ultimately, of 232 lots of areas ranging from about 450 m² up to about 1200 m², but mostly -- 3 of 18 -- 4 about 800 m². The first stage, at the north east of the site, is to comprise 76 allotments. Not all of the land which was originally the subject of the application is the subject now of the appeal. An area to the south-west has been excised so that the site proper lies outside a radius of 300m from the Lobegeiger poultry sheds. The drainage channel, with the string of dams in it, is to be dedicated as park as is a 10 metre wide strip of land at the eastern boundary of the site, to join the drainage channel up with vegetated land to the south. No adverse comment was made to the proposed access system of roads to the site as a whole or to the individual proposed lots. The Issues [9] The issues can be summarized under the heading of planning principles, noise, odour, greenspace and flooding. Planning Principles [10] No particular help is obtained from a discussion of the land uses defined as permitted and permissible for the Special Rural Zone in the Planning Scheme (which vary greatly in any event) as the application, being to rezone, necessarily involves the proposition that the proposed use is not one of those. Rather, the starting point is the Strategic Plan, most recently amended in 1998, and in particular the designation given by that Strategic Plan to the area which includes the site. That designation is called Specific Planning Intent No. 5. That designation clearly supplants the provisions of the Shire’s Development Control Plan 1 (which dates from 1988). I did not understand anyone to maintain a contrary view. -- 4 of 18 -- 5 [11] Specific Planning Intent No 5 is: “Specific Planning Intent No 5 located south of and adjoining Bunker Road is considered to be suitable for urban residential purposes. Areas to be retained for conservation, public open space, buffers for existing poultry farms and drainage purposes are to be determined at the time a development application is received.” [12] That provision lays down the simple proposition that the site is generally suitable for re-zoning and subdivision for urban residential purposes but that the issues identified by the parties and set out in para [9] above are to be considered in deciding the application. On this appeal it was not suggested by Mr Ure, for the Council, that some sort of re-zoning for urban residential use should not occur. Rather the discussion was about the buffer from (relevantly) the Lobegeiger farm, the sufficiency of the central open space area to act as an environmental corridor and habitat, the related question whether the density of subdivision is contrary to proper environmental planning and finally whether the subdivision offends proper flooding and drainage constraints. [13] The greenspace map which is part of the Strategic Plan is obviously indicative rather than cadastrally based but is probably reproduced, reasonably accurately, from aerial photos. The designated greenspace area is partly contiguous with the proposed open space/conservation area/drainage channel which is to run centrally through the site. [14] The provisions of s.5.2.2 of the Strategic Plan are expressed to apply where a site which is designated Specific Planning Intent (as this is) is in or adjoins a designated -- 5 of 18 -- 6 greenspace area. It lays down in subsection (b) that the use of the site for its preferred dominant land use (which is urban residential) shall be conducted so as to minimise any potential detrimental effect on the environmental values of greenspace habitat. Similar aims are contained in Chapter 3 of the Strategic Plan. Examination of these principles can be deferred to the issue “Greenspace”. [15] The importance of the poultry industry to the Shire is emphasised in the Strategic Plan in the intent set out in s.3.4, at paragraph (j) as follows: “(j) Protecting the poultry industry by restricting urban encroachment into poultry farming areas in the southern half of the Shire through: • Designating the main areas of poultry farming located in the southern part of the Shire as Rural Non Urban in the Strategic Plan and excluding urban development from this area; • Recognising the location of, and the necessity to provide adequate buffers around, existing poultry farms in the determination of development applications within the Rural Non Urban area”. [16] The intent for the Rural Non Urban designation has this at para. 4.5.1:- “The Rural Non Urban area contains most of the Shire’s poultry industry establishments, a viable high value industry which can be compatible with the environmental values of this area. The major areas of poultry farming activity are identified by the term ‘POULTRY INDUSTRY’ on the face of the Preferred Dominant Land Use Map. It is intended to protect this industry in these areas by restricting development surrounding these properties to uses compatible with their operation. In this respect, the Council will have regard to any environmental management guidelines prepared by the State Government to support the Environmental Protection Act. Subject to these guidelines, subdivision for residential purposes, development that is sensitive to odours and noise or development that would increase the risk of transmission of disease to poultry will generally not be supported within five hundred (500) metres of existing poultry farms in the identified areas”. -- 6 of 18 -- 7 [17] The area in which the Lobegeiger and Augustakis farms lie is within an area marked “Poultry Industry” on the Preferred Dominant Land Use Map. Discussion of this subject will be taken up under the headings of “Noise” and “Odour”. Noise [18] Expert evidence on the effect of noise produced by the Lobegeiger farm (the farm closest to the site) was given in a report by Pacific Air and Environment and orally by Mr Ormerod from that organisation on behalf of Edgarange and by Mr. Rumble on behalf of the Council. Unusually, the conclusions reached by Pacific Air were more pessimistic than those of Mr. Rumble and the likely reason for that was that Pacific Air was able to carry out more testing than was Mr. Rumble. I am inclined therefore to adopt the Pacific Air conclusions. [19] The potential noise nuisance to residents on the site relates to vehicles which deliver feed to the Lobegeiger farm, such deliveries occurring, generally, after 6.00 a.m. although some can be as early as 5.30 a.m. Two types of vehicles are used, the more noisy being a 27 tonne truck which unloads the feed by means of a blower mounted on the truck. Deliveries can be fortnightly during the early stages of the birds growth, increasing to possibly three per week in their later growing stages. The Pacific Air report (exhibit 19) at para 8.4 reached this conclusion on the likely production of noise nuisance:- “The noise of the blower on the 27 tonne truck will cause relatively high noise levels over a large proportion of the proposed development. Noise levels up to approximately 67 dB(A) would be expected during calm weather conditions and even higher (over 70 dBA) with the wind blowing towards the development. As the background noise is 45.7 dB(A) during the daytime and lower at other times of day, the noise from feed deliveries would be audible -- 7 of 18 -- 8 over much of the proposed development. The noise from grain delivery would also be likely to exceed the standards applied by the Noise EPP over approximately half of the proposed development during the day and over most of the development during the evening and night.” [20] Pacific Air suggested ways of ameliorating this potential noise nuisance but all of them involved imposing some sort of regulation on the way in which the Lobegeiger farm is operated. To my mind that is not a reasonable or practicable solution to a problem created by a proposed development. Furthermore it is quite contrary to the provisions of the Strategic Plan set out in para [15] and [16] above. [21] However it is important that the likely noise nuisance will be infrequent, will seldom occur before 6.00 a.m., and would be of relatively short duration. It is also important that the future residents would be coming to this slight noise nuisance the existence of which would be very likely to be evident to them. In those circumstances I doubt it would prove to be a substantial nuisance to future residents of reasonably tolerant dispositions. I would not be disposed to dismiss this appeal were the question of noise the sole issue. Odour [22] The Lobegeiger farm obviously produces odours caused by the concentrated raising of chickens. At present the farm raises 75,000 birds in three sheds but there are some prospects of that increasing to 90,000 without the need to build another shed or make any application to the Council for permission. Mrs. Lobegeiger is concerned that residents on the site would be annoyed by the odour, no doubt thinking that annoyance could lead to complaints. She was also concerned that the -- 8 of 18 -- 9 arrival of residents and their pet animals could adversely affect her farming activities but there was no real evidence to justify that concern. [23] The effect of an odour is a subjective one. Some people are more tolerant, others more sensitive. I expect most people have some concept of the smell produced by the raising of chickens. Mr. Andrews, who lives about 300 metres from the sheds, is aware of the smell which he described as “a cross between a wheaty corn smell and manure”, and which occurs some twelve to twenty times a year, two or three times close together and then “a long period of weeks and weeks with no smell at all” and more prevalent in cool damp conditions. He said that he would rather be without it, but it is not really a great problem. [24] Pacific Air interviewed people living in fifteen houses in the vicinity of the Lobegeiger farm and the Augustakis farm. Only two reported unfavourably on the effect, each living about 300 metres from the sheds. The Pacific Air report, exhibit 4, did not identify them nor could Mr. Ormerod of Pacific Air in his oral evidence. Their comments are set out in Table 5 of exhibit 4. The evidence is silent on the distance and direction of the other thirteen residences from the sheds. One of the two unfavourable commentators (resident 2) was clearly very offended and regularly offended by the smell. It may be that resident 2 overstated the effect, but the important feature is that resident 2 found the smell unpleasant on frequent occasions. Resident 1 was less offended, but still rated the smell as unpleasant, noticed occasionally. [25] There is, in relation to resident 2, the puzzling fact that while the responses recorded in exhibit 4 obviously describe long-term exposure to the odours, it is -- 9 of 18 -- 10 recorded that the resident had lived there only for three weeks. The most likely explanation is that the “three weeks” is an error, perhaps for three years. In any event, the value I place upon this aspect of the evidence on odour is that two residents living 300 metres from poultry sheds experienced unpleasant odours emanating from them, at the very least, occasionally. That accords with Mr. Andrews’oral evidence (and it may be that he was resident 1). [26] As well as Mr. Ormerod, Dr. Bofinger, called by the Council, gave expert evidence on this issue of odour. What emerged is that expert minds can differ on the criterion to be adopted as the point at which an odour is deemed to be offensive to reasonably sensitive people. Arriving at this criterion involves an evaluation of the frequency, intensity, duration, offensiveness and location of the odour. Indeed there is often also disagreement about such things as the method of measurement of the prevailing winds and the effect of those winds on the odour dispersal or of the local topography upon odour dispersal. [27] The object of all of this is to arrive at a suitable buffer distance between the odour source and the receptors, that is, the residents. There are at present no standard Queensland odour assessment criteria. The two experts therefore looked at the various standards used elsewhere in Australia, which are expressed in terms of odour units (in lay terms the amount of smell) on a set percentile (usually 99.5) hourly average, that is odour units which are exceeded 44 hours in a year. Mr. Ormerod settled on a figure of 10 odour units as appropriate and from that, based on his modelling of the site, regarded a 300-350 metre buffer distance as adequate. -- 10 of 18 -- 11 [28] Dr. Bofinger did not himself take measurements or model the site but commented critically on two aspects of Mr. Ormerod’s work. He was not satisfied that the 10 odour unit contour is appropriate and he was doubtful of the accuracy of the model used by Pacific Air. [29] Dr. Bofinger was of the opinion that reliance on the 10 odour units contour was not conservative enough and was out of step with the better scientific assessments. He preferred a level of 5 odour units and, adapting that to the contour maps produced by Mr. Ormerod, that would suggest a buffer of 500 metres from the Lobegeiger farm. The Augustakis farm is well outside that range from the site. [30] Mr. Hughes, for Edgarange, was critical of Dr. Bofinger’s lack of actual experience of poultry sheds, the fact that he did not himself conduct any modelling and the fact that he advanced the suggestion of a 500 metre buffer “off the cuff” when I asked him for his recommendation. However it seems to me that the fact that an expert does not actually perform the basic functions does not prevent him advancing a proper opinion, provided his approach is scientific and accurate. As Dr. Johnson said, one does not have to lay the egg to know if it is good or not. I thought Dr. Bofinger’s approach was scientific and accurate. His opinion is consistent with the modern guidelines used elsewhere for buffer distances between poultry sheds and urban residential zones (West Australia – 1000 metres; New South Wales – 500 metres; South Australia – 500 metres; Victoria (recommendation by investigating committee) – 1000 metres). [31] The Strategic Plan (see para [16] above) itself lays down that a buffer distance of less than 500 metres from poultry farms to residential subdivisions, for reasons -- 11 of 18 -- 12 which include the detection of odours, will “generally not be supported”. That obviously permits relaxation in appropriate circumstances, but the wording of the provision suggests that the onus will lie on the person seeking the relaxation. [32] Dr. Bofinger thought that the cautionary approach was appropriate in cases involving odour effects. That is a well recognised approach to planning (see for example s.1.2.3(1)(a)(iii) of the Integrated Planning Act) and its adoption is particularly apt when matters of potential nuisance are at stake. While I have decided that the potential for noise nuisance of a substantial nature is slight in this case (largely because of the time of day at which it would occur and its relatively brief duration) the potential odour nuisance here is much more serious. Within a 500 metre radius of the Lobegeiger sheds, on dates and at times which would be quite unpredictable and conceivably for quite lengthy periods, a smell is likely to be detected by ordinary folk, a smell which reasonable people would find to be offensive. In my view, a person who is offended by this unpleasant smell is unlikely to be mollified by the legalistic argument that he came to the nuisance. [33] Odour is a notorious source of social unrest in the form of complaints. This is why the standards referred to in para [30] and laid down by the Strategic Plan are so conservative. Those who have adopted those standards are obviously conscious of the disruptive effect on residents and the local councils of such complaints. Nor should the interests of the Lobegeigers, whose very livelihood involves the production of these odours, be forgotten. That livelihood is, after all, earned from the production of broiler chickens on an established farm in an area designated -- 12 of 18 -- 13 Poultry Industry on the Preferred Dominant Land Use map. Not only would their enjoyment of life be reduced by the receipt of these complaints, but the opportunity for them to expand production could be compromised. The local Council would doubtless be affected in its consideration of an application for the construction of another shed were the existing sheds the subject of complaints. And the company for whom the Lobegeigers produce the chickens could well be similarly deterred from any expansion of its use of the Lobegeiger farm, to the Lobegeigers’ economic disadvantage. These considerations are reflected in the excerpts from the Strategic Plan set out in paras [15] and [16] above. [34] In my opinion the cautionary approach should be applied here and the minimum buffer of 500 metres should be maintained between the Lobegeiger farm sheds and the nearest urban residential allotment. I regard this as so important as to be decisive of the appeal. Greenspace [35] As I said in para [12] this issue concerns the related question of the sufficiency of the central open space area to act as an environmental corridor and habitat and the effect on the environment of the proposed density of the subdivision. [36] Expert evidence on the issue was given on behalf of Edgarange by Mr. Delaney and on behalf of the Council by Mr. McNeilage. It was common ground that the central drainage channel, which is to be dedicated as parkland, comprises the most ecologically important part of the site. The width of the corridor varies from 75 metres to 100 metres. It provides a movement corridor and to some extent a habitat -- 13 of 18 -- 14 for resident animals. There is evidence of the presence of koalas. It also provides them with fresh water. Substantial parts of it are also suitable for use as public open space. All told the area to be dedicated is about 20% of the area of the site which is generously above the 10% maximum which the Council could insist upon (Planning and Environment Act, s.5.6(2)). [37] The evidence of Mr. Delaney is that the central drainage channel contains about 25% of the site’s habitat trees, most of the site’s important paperbark (tea tree) forest, and most of the site’s forest red gum (a noted koala food source). Despite the loss of much useful habitat vegetation which would inevitably occur because of the subdivision of the balance of the site, he considered that, provided a suitable management plan were maintained (for example as set out in his report of July 1998 (exhibit 21) at p.20) the proposed park would be an adequate response to the requirements of the Strategic Plan concerning greenspace and also of the State Planning Policy 1/97 which relates to the conservation of koalas. [38] Mr. McNeilage was critical of that, and argued for a width of up to 120 metres plus, ideally, an extra buffer, which could approximately double that width in places. He was also concerned that the development would remove valuable habitat trees, particularly koala habitat trees and preferred the subdivision to be into allotments of much greater areas than that proposed. [39] Inevitably much of the concentration of the evidence and argument in the appeal was on koalas. The site is within the Koala Coast as designated by the State Koala Policy. However it does not fall within the most important designation of “Koala Conservation Area”, nor the next most important designation of “Other Major -- 14 of 18 -- 15 Habitat”. It falls within the remaining land called the “Koala Coast Balance Area”. The policy recognises such balance areas as being most suited to cater for urban development. [40] That is not to say that urban development of the site should be allowed of a type which is likely to destroy known koala habitat (as this is), or for that matter, the habitat of the other native fauna which Mr. Delaney has identified on site. That is what the provisions of the Strategic Plan to which I referred in para [13] and [14], as well as s.5.2 of the Koala Policy, are designed to prevent. But those provisions speak simply of minimising potential detrimental effect on the environment. There is no suggestion that any part of this site is “significant koala habitat” within the meaning of s.4.7 of the Koala Policy. [41] So the planning documents do not forbid urban residential development of the land in which the site lies (Specific Planning Intent No. 5). To the contrary the Strategic Plan considers it to be suitable for such development despite the fact that the drafter of the Strategic Plan must have known of the greenspace values of this site and other land within the designation. Nor has the drafter required, where greenspace land or Koala Coast Balance Area land lies within the designation, that residential allotments must be of a certain minimum area. The drafter has merely laid down that these issues be considered and potential detriment to the environment minimised. [42] Thus a balance has to be struck between the suitability of this site for urban residential development and the preservation of the environment in its important aspects. Those aspects are the provision of a reasonable corridor and habitat along -- 15 of 18 -- 16 the central drainage channel. Although, as Mr. McNeilage said, from the environmental viewpoint more is always better, I consider that the provision made by Edgarange (which must be reinforced by reasonable management conditions) is adequate. I consider that it would be unreasonable to require that the balance 80% of the site be subdivided into allotments of greater areas than are proposed. To do that would be to elevate unjustifiably the environmental status of the site as a whole. [43] In reaching this conclusion I have assumed the accuracy of the Edgarange assessment of the Q100 flood line along the central drainage channel and the propriety of filling a section of the site which is proposed. Flooding [44] This issue was dealt with, in evidence, by Mr. Campbell for Edgarange and Mr. Jones for the Council, both well qualified and experienced engineers. The central issue was the identification of the Q100 flood line. Mr. Hughes advanced against Mr. Jones criticisms similar to those he advanced against Dr. Bofinger, that he had carried an “audit” of Mr. Campbell’s work rather than performing the work himself. Mr. Jones did not have the time nor the base information to permit him to do the work but that is not to say that his opinions lacked validity. Dr. Johnson’s aphorism (see para [30] above) is equally appropriate here. [45] It is important accurately to identify the Q100 flood line. The convenience, even safety, of the proposed residents is linked to it. Further it is good engineering -- 16 of 18 -- 17 practice (adopted as policy by this Council) that filling should generally not occur below that line. [46] It seemed to me Mr. Jones raised two persuasive points in relation to the Edgarange plotting of the Q100 flood line. First the line does not reflect the effect which a road which is proposed to cross the central drainage channel would create. One would expect there to be a damming effect causing an upstream widening of the spaces between the flood lines. Second, given that the central drainage channel is to be very largely maintained as an environmental habitat containing standing trees, fallen limbs and no doubt habitat undergrowth, he was of the view that the “Mannings n” or co-efficient of smoothness of the floodpath adopted on behalf of Edgarange is much too low. On the evidence that criticism would seem to me to be correct. [47] A further point raised by Mr. Jones was he considered the fill proposed by Edgarange to take place on two allotments bordering the central drainage area not to be minor and to be outside the permissible tolerance. Of course the amount of necessary fill would be even greater than what is proposed if Mr. Jones is correct and the Q100 line has been plotted too liberally, but even if it is correct as it stands his evidence gives me reason to doubt that the proposed filling is minor. His calculation is that the filling alone would raise the Q100 flood level by about 100 mm. and his professional view is that such an increase is impermissible by current standards. That calculation by him, done during the course of the appeal, was not put to Mr. Campbell but no application was made by Mr. Hughes to lead evidence in rebuttal. -- 17 of 18 -- 18 [48] Mr. Campbell gave evidence of instances where similar degrees of filling have been permitted by the Council, which has, of course, the power to relax policy requirements. One should be careful in accepting that argument for two reasons. First, it is a “little by little” situation and the danger is that the sum of the little parts will one day amount to a lot. Second, it is really a precedent argument, an argument firmly rejected by planning courts. [49] Edgarange has not satisfied me on this issue. Rather I am of the opinion that the question of flooding ought to be re-assessed. Conclusion [50] On the application as it stands before me I would dismiss this appeal on the grounds of odour and flooding. However before doing that I think it appropriate to allow Edgarange the opportunity to consider whether it can amend its proposal in the light of the concerns I have expressed in a way which satisfies the Council on these issues. Of course any such amendment would have to be such as would not necessitate return to the notification stage. -- 18 of 18 --