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  • Unreported Judgment

HPC Urban Design & Planning Pty Ltd v Ipswich City Council

 

[2019] QPEC 56

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

HPC Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors [2019] QPEC 56

PARTIES:

HPC URBAN DESIGN & PLANNING PTY LTD (ACN 095 337 661) AND BIO-RECYCLE AUSTRALIA PTY LTD (ACN 062 888 082)

(appellants)

v

IPSWICH CITY COUNCIL

(respondent)

and

CHIEF EXECUTIVE, DEPARTMENT OF INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING

(co-respondent)

and

QUEENSLAND ELECTRICITY TRANSMISSION CORPORATION LIMITED TRADING AS POWERLINK QUEENSLAND

(second co-respondent by election)

FILE NO:

473 of 2018

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal against refusal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

13 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

25, 27 - 29 March 2019; 1 and 4 April 2019; further written submissions delivered on 23 and 27 May 2019 and 18 and 19 June 2019.

JUDGE:

Williamson QC DCJ

ORDER:

Orders made in accordance with paragraph [268].

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where existing use of land for the disposal of non–putrescible waste in a former mining void – where appeal against refusal of a development application seeking approval to materially increase the scale and intensity of the existing use – whether proposed increase in scale and intensity will compromise the rehabilitation and future use of the land – whether the increase in scale and intensity will have an unacceptable visual amenity impact – whether the increase in scale and intensity complies with the respondent’s planning scheme – whether there is a planning, community and economic need for the proposed increase in scale and intensity – weight to be given to Temporary Local Planning Instrument No. 1 of 2018 (Waste Activity Regulation) – whether the development application should be approved or refused in the exercise of the planning discretion.

LEGISLATION:

Planning Act 2016 (Qld), ss.3, 4, 5, 25, 45 and 60.

Planning Regulation 2017 (Qld), s.30.

Planning & Environment Court Act 2016 (Qld), ss.43 and 45.

CASES:

Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16

Broad v Brisbane City Council & Anor [1986] 2 Qd R 317

Cut Price Stores Retailers Ltd & Ors v Caboolture Shire Council [1984] QPLR 126

Isgro v Gold Coast City Council & Anor [2003] QPELR 414

Jakel Pty Ltd v Brisbane City Council [2018] QPELR 763

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46

Walker v Noosa Shire Council [1983] 2 Qd R 86

Williams McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33

COUNSEL:

Mr D Gore QC with Mr M Batty for the appellant

Mr C Hughes QC and Mr J Lyons for the respondent

SOLICITORS:

Thomson Geer for the appellant

McInnes Wilson for the respondent

Index

Introduction3
The disputed issues4
The planning scheme5
Would an approval be inconsistent with expressed planning principles?13
Will the proposed expansion rehabilitate the land for future open space purposes?18
Will an approval give rise to unacceptable visual amenity impacts?27
Will an approval give rise to unacceptable general amenity impacts?28
Is there a planning, community and economic need for the development?29
Discretionary considerations favouring approval (other than need)38
The TLPI41
Exercise of the planning discretion46
Conclusion48

Introduction

  1. [1]
    Bio-recycle Australia Pty Ltd (Bio-recycle) operates a landfill facility situated in the Swanbank/New Chum Industrial area. It is located at 30 Memorial Drive, Swanbank (the land). The use involves filling a former mining void with non-putrescible waste, in particular, construction and demolition waste[1].
  1. [2]
    The ongoing use of the land for a landfill facility is to occur in accordance with an extant development approval[2], and an environmental authority[3]. Conditions of the approval and environmental authority cap the rate of filling to 200,000 tonnes per annum[4]. A maximum filling height is also prescribed at 75m AHD[5], which is to include capping of the landfill[6]. The resulting landform is to have a shallow grade from 75m AHD down to existing ground levels on the edge of the mining void[7].
  1. [3]
    Bio-recycle has not taken up all of the rights conferred by the extant development approval. The approval authorises the making of a material change of use, which involves the filling of two former mining voids with waste. The existing use has involved filling only one of those voids, namely the void located in the northern part of the land. It is estimated that the filling of this void will be completed in early 2020.
  1. [4]
    In June 2017, a development application was made on behalf of Bio-recycle to Council for a new development approval. The application was impact assessable and sought approval to increase the intensity and scale of the existing landfill facility. The proposed increase to the intensity and scale of the use involves three elements[8]: (1) expanding the footprint of the landfill from 6.08ha to 7.5ha; (2) increasing the maximum filling height for the northern void from 75m AHD to 99m AHD[9]; and (3) increasing the rate of intake of waste from 200,000 tonnes per annum, to 450,000 tonnes per annum[10].
  1. [5]
    The proposed increase to the height of the landfill was a contentious matter during the development application process, and in this appeal. This is because the application, if approved, would permit a mound of construction and demolition waste with a clay cap, which is equivalent to the height of a 9 storey building, to be placed on the land. The height of the mound and cap would reduce over time to about 8 storeys[11], due to settlement of the fill. This would occur over a 3 to 5 year period after the deposition of fill has ceased. The rehabilitation experts agreed the landfill cap is to be landscaped with a grass sward providing 90 to 100% vegetative cover[12].
  1. [6]
    The resulting grassed mound of fill will be visible from existing, and future, residential development located in the Ripley Valley Priority Development Area (RVPDA)[13]. As Council’s written submissions correctly pointed out[14], this is in circumstances where the existing approval has ‘a very limited visual catchment’ beyond the Swanbank/New Chum industrial area[15].
  1. [7]
    In January 2018, Council refused Bio-recycle’s development application. This decision was communicated to Bio-recycle by way of decision notice dated 18 January 2018[16].
  1. [8]
    This is an appeal against Council’s refusal[17], which is a hearing anew[18].
  1. [9]
    It is for Bio-recycle to establish the appeal should be upheld[19].

The disputed issues

  1. [10]
    The central issue to be determined is whether, in the exercise of the planning discretion[20], Bio-recycle’s development application should be approved, or refused[21]. It is common ground, albeit for different reasons, the applicable statutory assessment and decision making framework to determine this issue is prescribed by the PA[22].
  1. [11]
    Consistent with its earlier decision, Council maintains the development application should be refused and the appeal dismissed. The reasons for refusal relied upon by Council are articulated in Exhibit 25A. To assist the Court, Council’s written submissions[23] articulated the reasons as six themes, with relevant planning provisions addressed by reference to each of these themes. Helpfully, during the hearing, Council provided a list of ‘focal planning provisions[24]. These provisions were described as the ‘key provisions’ that lie ‘at the heart of this case[25].
  1. [12]
    Having regard to Exhibit 25A, and the six themes identified in Council’s written submissions, the following issues are raised for consideration in this appeal:
  1. (a)
    whether an approval would be consistent with expressed planning principles promoting ecological sustainability and the reduction of landfill;
  1. (b)
    whether an approval would compromise the future use of the land for purposes intended and promoted by Council’s planning scheme;
  1. (c)
    whether it has been demonstrated an approval would result in an acceptable visual outcome;
  1. (d)
    whether it has been demonstrated an approval would result in an acceptable general amenity outcome;
  1. (e)
    whether there is a planning, community and economic need for the development; and
  1. (f)
    whether there are ‘relevant matters’ (other than need) that are supportive of approval.
  1. [13]
    A list of ‘remaining disputed issues’ was tendered on behalf of Bio-recycle[26] and identifies an issue to be determined over and above the questions posed above. The issue relates to Temporary Local Planning Instrument No.1 of 2018 (Waste Activity Regulation)[27] (the TLPI), which took effect in April 2018, two months after the appeal was commenced. It was amended in August 2018.
  1. [14]
    Council contends the TLPI is relevant to the determination of the appeal having regard to s.45(8) of the PA, or, alternatively, s.45(5)(b). Under both provisions, the TLPI, and any assessment against it, give rise to a question of weight. The parties disagree as to the weight that should be attributed to the TLPI[28]. Bio-recycle contends it would be wrong to refuse the development application based on an assessment against the TLPI[29].
  1. [15]
    It is necessary to set out some planning context before dealing with the disputed issues identified above.

The planning scheme

  1. [16]
    Council’s planning scheme took effect on 23 January 2006[30]. It was prepared under the Integrated Planning Act 1997 as a framework for managing development in a way that advances the purpose of that Act[31].
  1. [17]
    The planning scheme divides the Local Government Area into 9 localities[32], which are then divided into zones and, in some instances, Sub Areas and Precincts[33]. The land is included in the Regionally Significant Business Enterprise Industry Areas locality (RSBEA locality). This locality is divided into six zones[34]. The land is included in the Regional Business and Industry Investigation Zone (Investigation Zone), save for a small portion adjoining the western boundary (at its southern end). This part of the land is included in the Regional Business and Industry Buffer Zone[35].
  1. [18]
    The planning scheme context relevant to the determination of this appeal is principally derived from the provisions dealing with the RSBEA locality and Investigation Zone.
  1. [19]
    As the name conveys, the RSBEA locality provides for the creation and maintenance of business and industry areas of ‘regional significance[36]. The significance of Swanbank and New Chum is recognised in ss.6.7(4)(a)(i)(B) and (C), which respectively state[37]:

Swanbank New Chum is a major contributor to employment and economic development within Ipswich City, South East Queensland and the State as a whole.

And:

Swanbank New Chum is a centre of excellence for a range of industries and is renown for research and technology development.

  1. [20]
    Part 6 of the planning scheme applies to the RSBEA locality. The Overall Outcomes for the locality are stated in s.6.6[38].
  1. [21]
    Four planning themes can be discerned from the Overall Outcomes for the RSBEA locality, namely: (1) the progressive rehabilitation of degraded sites, including former mining sites, is encouraged to facilitate future uses; (2) the locality is to be maintained, or developed, with a greenspace setting, including recreation uses; (3) buffers between incompatible land uses are provided to ensure ‘no discernible’ amenity impacts on adjacent sensitive uses; and (4) the land use pattern created for each area provides, inter alia, buffer areas on the periphery to separate incompatible or sensitive uses. These themes emerge from the following Overall Outcomes, which state:

Degraded or contaminated sites (including former mining sites and overburden stock piles) are rehabilitated and used in an appropriate manner.” (Overall Outcome (2)(g))

And:

Where possible, the areas maintain or develop an overall greenspace setting, inclusive of active and passive recreation uses and pedestrian and cycle trails.” (Overall Outcome (2)(e))

And:

Buffers are created between incompatible uses to ensure that there are no discernible amenity or environmental impacts which affect adjacent sensitive land uses.” (Overall Outcome (2)(i))

And:

A land use pattern is created for each area where there is a transition from lower impact uses on the edge to higher impact activities towards the centre, with buffer areas on the periphery to separate incompatible or sensitive uses.” (Overall Outcome (2)(d))

  1. [22]
    The four Overall Outcomes set out above are repeated in s.6.14 of the planning scheme, which states the Overall Outcomes for the Investigation Zone[39]. More particularly: (1) Overall Outcome (2)(g) is repeated in s.6.14(2)(j)[40]; (2) Overall Outcome (2)(e) is repeated in s.6.14(2)(h)[41]; (3) Overall Outcome (2)(i) is repeated in s.6.14(2)(k)[42]; and (4) Overall Outcome (2)(d) is repeated in s.6.14(2)(d)[43].
  1. [23]
    The Specific Outcomes for the RSBEA locality are stated in s.6.7 of the planning scheme.
  1. [24]
    Section 6.7(4) is a statement of the ‘Preferred Development Outcomes’ for Swanbank New Chum[44]. Whilst this provision forms part of the Specific Outcomes for the RSBEA locality, subsection (4)(a) is described as the Overall Outcomes for Swanbank New Chum[45]. The Overall Outcomes for this area include a stated ‘Overall Vision[46], which describes the location as being a ‘flagship example' and ‘major contributor to employment and economic development’. The Overall Vision statement also provides that Swanbank New Chum is ‘integrated into the surrounding emerging communities of Ipswich City’.
  1. [25]
    Two of the four planning themes[47] discerned from the Overall Outcomes for the RSBEA locality, and discussed in paragraph [21] above, are reflected in s.6.7(4)(a)(i)(G) of the planning scheme[48], which states:

Development will progressively lead to the rehabilitation of areas degraded by past mining activities and the integration of these areas within a network of green spaces.

  1. [26]
    The above provision speaks of ‘integration of these areas’ within a ‘network of green spaces’.
  1. [27]
    The ‘areas’ captured by this provision include those identified in s.6.7(4)(a)(vi)(D)(VII), which contains one of a number of ‘guiding principles’ for ‘Integrated Green Spaces’. In relation to the Swanbank New Chum area, the provision states that ‘areas indicated for rehabilitation are transformed into green space areas’. The land is included in such an area. As will be seen shortly, it is included in one of three areas in the Swanbank New Chum Land Use Concept Master Plan designated ‘Waste Recycling/Future Rehabilitation Area[49].
  1. [28]
    The ‘network of green spaces’ is described in s.6.7(4)(a)(i)(I) as follows[50]:

The Swanbank New Chum green space network is a regional resource, linking with the green spaces of surrounding communities and offering a wide range of recreational and environmental opportunities.

  1. [29]
    The meaning of ‘green spaces’ is informed by s.6.7(4)(a)(i)(H)[51], which states:

Green spaces include environmental buffers and corridors as well as active and passive recreation areas.

  1. [30]
    How does development integrate within a network of green spaces?
  1. [31]
    This question is answered by ss.6.7(4)(a)(vi)(A), (B) and (C)[52]. They collectively form part of an Overall Outcome for the Swanbank New Chum area titled ‘Integrated Green spaces’. They encourage integration in one of three ways: (1) by natural features that shape the area integrating with, and complementing, green spaces in adjoining areas; (2) by development protecting areas of environmental significance and creating new habitat through the rehabilitation of land; and (3) by development making provision for active and passive recreation areas. Item (3) is of relevance to this appeal.
  1. [32]
    A final matter to note with respect to the ‘Preferred Development Outcomes’ for Swanbank New Chum is articulated in s.6.7(4)(a). This provision contains a number of guiding principles with respect to visual amenity, landscape character and place making. The provision speaks of development enhancing the existing and future green space environment[53]. It also states the following ‘guiding principle’, namely development[54]:

provides a visually appealing backdrop to the Ripley Valley Urban Core, Ripley Valley Secondary Urban Centre East, Redbank Plains residential areas and all other interfaces with surrounding residential areas to eliminate negative amenity impacts (e.g. noise, odour etc.);” …

  1. [33]
    Section 6.7(5) contains further Specific Outcomes relevant to the RSBEA locality, and deals with the ‘Preferred Pattern of Development’ for the Swanbank New Chum area[55]. It is this section of the planning scheme that is supported by the Swanbank New Chum Land Use Concept Master Plan[56].
  1. [34]
    A Note to s.6.7(5) states the Land Use Concept Master Plan provides for an indicative ‘footprint’ for future development[57]. As I have already said, the footprint for future development includes the land in the Waste Recycling/Future Rehabilitation Area designation. The adjoining land to the east is included in the same designation. The land adjoining to the north and south is designated General Business and Industry (Medium Impact). The adjoining land to the west is designated Buffer/Greenspace.
  1. [35]
    Section 6.7(5)(a) is titled ‘Development Concepts’. Subsection (i) of this provision states a number of Specific Outcomes. It provides that the Master Plan area will accommodate works, and uses, for waste recycling and future rehabilitation areas, environmental buffers and recreation areas. It also provides that works, and uses, will be located, and relate to each other, in a way that[58]: (1) ‘provides high levels of accessibility’ to, inter alia, ‘open space and recreational opportunities’; and (2) ‘create(s) a sense of place through’, inter alia, ‘landscaping’.
  1. [36]
    Provisions of the planning scheme examined above have reflected, inter alia, an intention for development in the RSBEA locality, and the Swanbank New Chum area, to protect amenity and achieve a green space setting. This intention is repeated in s.6.7(5). In particular, two Specific Outcomes for the area, namely ss.6.7(5)(a)(i)(H)(ii)(C) and (D), respectively state:

achieve a high standard of amenity with particular regard to minimising environmental and amenity impacts on existing and proposed residential areas and promoting overall visual attractiveness.”

And:

…develop an overall greenspace setting through the protection of remnant native vegetation and supplementary planting on the visually prominent hill sides, ridgelines and creeklines;” …

  1. [37]
    The Specific Outcomes for the Waste Recycling/Future Rehabilitation Area are stated in s.6.7(5)(f)[59] of the planning scheme. These provisions are consistent with, and advance, the four planning themes identified in paragraph [21].
  1. [38]
    With respect to the progressive rehabilitation of degraded land[60], s.6.7(5)(f)(vii) states that ‘degraded lands are rehabilitated or repaired’. The rehabilitation and repair envisaged by this provision, in my view, is that articulated in s.6.7(4)(a)(vi)(D)(VII) of the planning scheme, which requires degraded land to be transformed into green space areas.
  1. [39]
    Section 6.7(5)(f)(ix) provides specific guidance for the rehabilitation of former mining voids in the Waste Recycling/Future Rehabilitation Area. The provision states:

Voids may be used for the disposal or recycling of waste products and the generation of soil conditioners and commercial gases provided it can be demonstrated with a high degree of certainty that such activities will not cause adverse environmental impacts or significantly affect the amenity of nearby residential areas, either existing or proposed.

  1. [40]
    The above provision encourages the rehabilitation of former mining voids through the disposal of waste products. This encouragement is qualified in two ways. First, by the provision itself, which requires it to be demonstrated, with a high degree of certainty, that such an activity will not have adverse environmental impacts, or significantly affect the amenity of nearby residential areas. Second, it is qualified by s.6.7(5)(f)(viii), which states[61]:

Land fill operations do not compromise the future rehabilitation and repair of the site for open space uses.

  1. [41]
    The phrase ‘open space uses’ is not defined in the planning scheme.
  1. [42]
    The desire to achieve a ‘greenspace setting[62] in the Waste Recycling/Future Rehabilitation Area of Swanbank New Chum is clear from s.6.7(5)(f)(i), which states:

Sites maintain a broad acre, greenspace setting with the retention where possible, of remnant native vegetation together with supplementary planting to enhance visual amenity.

  1. [43]
    The desire to protect and buffer surrounding sensitive residential uses[63] from activities in the Waste Recycling/Future Rehabilitation Area of Swanbank New Chum is reflected in s.6.7(5)(f)(iii). This provision does not, like s.6.6(2)(i), speak of a buffer between incompatible uses. Rather, the provision, which is area specific, requires plant, equipment and storage areas be located, and screened, such that materials and products are not visible from, inter alia, nearby residential areas. Further, the provision requires amenity impacts from these features of the development to be contained within the designated business and industry area.
  1. [44]
    All of the planning scheme provisions set out above apply to the RSBEA locality. There are provisions applicable to the Investigation Zone that also provide relevant context, and guidance, for this appeal.
  1. [45]
    Part 6, Division 2 of the planning scheme applies to the Investigation Zone. Section 6.4 of that Division identifies the criteria for determining when a use is consistent, or inconsistent, with the outcomes sought for a zone[64]. Relevantly, subsections 6.4(1) and (2) state:

(1)In accordance with section…6.17…as applicable, a defined use, use class or other development that is inconsistent with the outcomes sought for a zone is noted in column 1 of table…6.4…as applicable to that zone.

(2)If a defined use, use class or other development is not noted as inconsistent in column 1 of the applicable table, it is a consistent or potentially consistent use, use class or other development in accordance with section…6.17…, as applicable.

  1. [46]
    The development application seeks approval to make a material change of use for ‘Special Industry’. This is a defined use in the planning scheme[65], and means the use of premises for ‘Waste recycling, reprocessing and disposal’, including ‘operating a facility for…disposing of regulated waste[66]. The defined use is included in the Commercial/Industrial use class[67].
  1. [47]
    Section 6.4(1) does not apply to the application the subject of this appeal because ‘'Special industry', whilst a defined use, is not noted in column 1 of Table 6.4 as inconsistent. Subsection (2) of the provision is therefore engaged. It provides that development will be consistent, or potentially consistent, where in accordance with s.6.17.
  1. [48]
    Section 6.17(2)[68] provides:

(2) The following uses, use classes and other development categories are consistent with the outcomes sought for the Regional Business and Industry Investigation Zone if of a type and scale appropriate for the prevailing nature of the area and the particular circumstances of the site and its surrounds –

(t)special industry;…

  1. [49]
    Table 6.4, read with s.6.17(2), contemplates that the following uses may be consistent in the Investigation Zone if of a type and scale appropriate for the prevailing nature of the area, and the particular circumstances of the site and its surrounds: (1) night court, (2) park; (3) entertainment use; and (3) recreation uses. Each of these uses are defined in the planning scheme and fall within the Recreation/Entertainment use class. Two use definitions of interest are ‘park’ and ‘recreation uses’.
  1. [50]
    Park’ is defined in the planning scheme, in part, as follows[69]:

(1) “Park” means any premises which is owned, held in trust, or controlled by the local government and which is normally open to the public without charge which -

(a)has been ornamentally laid out or prepared; or

(b)is maintained so as to conserve or enhance its beauty, biodiversity of flora and fauna and geological or topographical features; or

(c)is used, or is capable of use for open air recreation or sport.

(2)The term includes –

(a)the use of premises for –

(iv)bicycle tracks, including mountain bikes;

(vi)walking tracks or environmental trails;…

  1. [51]
    Recreation use’ is defined in the planning scheme, in part, as follows[70]:

(1)“Recreation Use” means the use of premises for recreation purposes, including the following –

(a)equestrian and coursing sports;

(b)indoor recreation;

(c)motor sports; or

(d)outdoor recreation[71].

(3)The term does not include the use of premises for a “Park”.

  1. [52]
    Section 6.15(15)[72] of the planning scheme is relevant to the Investigation Zone, and contains Specific Outcomes with respect to ‘Integrated Planning, Uses and Works’. Subsection (d) of this provision confirms that uses and works in the zone are to occur in a way that provides for the rehabilitation, repair and reuse of former mining sites. As I have already said, it is expressly anticipated that rehabilitated land will be transformed into, and integrated within a network of, green spaces[73]. These areas include environmental buffers, corridors and active and passive recreation areas[74].
  1. [53]
    As to the intended reuse of former mining sites in the Investigation Zone, ss.6.15(15)(g) and (h) provide guidance. The provisions state:

Uses and works within Regional Business and Industry Investigation Areas occur within a comprehensive planning framework that –

(g)provides for open space and recreation linkages –

(i)within the Plan area;

(ii)to adjoining buffer areas; and

(iii)to the external open space network, including local and district elements;

(h)provides for both passive and active recreational opportunities, which may include –

(i)sports fields and courts;

(ii)golf courses and driving ranges;

(iii)walking and cycling trails;

(iv)picnicking areas and playgrounds;

(v)adventure sports;

(vi)motorsports;

(vii)equestrian sports;

(viii)water sports; and

(ix)festivals and events…”

  1. [54]
    In the context of a stated planning intent to achieve a greenspace setting, the final planning scheme provision of note is s.6.15(15)(i). The provision speaks of works and uses occurring within a planning framework that ‘provide(s) appropriate visual treatment, landscaping, buffering and separations’ for, inter alia, existing residences and planned future residential areas. The term landscaping is a defined administrative term in the planning scheme. It states, in part[75]:

Landscaping means the treatment of land for the purpose of enhancing or protecting the amenity of a site and the locality in which it is situated by any one or more of the following –

(a)screening by fences, walls, vegetation or other means;

(b)planting of vegetation (e.g. trees, hedges, shrubs, ground cover or grass);

(c)formation of banks, terraces or other earthworks;

(g)other amenity features.

  1. [55]
    I will now deal with each of the disputed issues in turn.

Would an approval be inconsistent with expressed planning principles?

  1. [56]
    For the following reasons, I am satisfied this question is resolved favourably to the development.
  1. [57]
    Council’s first reason for refusal[76] asserts the development application should be refused because:

Approval of the development application is inconsistent with expressed planning principles that promote ecological sustainability and seek to reduce the need for landfill and maximise recycling…

  1. [58]
    The reason for refusal alleges an approval would be inconsistent with ‘expressed planning principles’. The principles relied upon were particularised as: (1) ‘Desired Regional Outcome 10.7’ of the South East Queensland Regional Plan 2009-2031 (2009 Regional Plan); and (2) Theme 4 of the South East Queensland Regional Plan 2017 (2017 Regional Plan).
  1. [59]
    Council submits s.10.7 of the 2009 Regional Plan is an assessment benchmark against which the application must be assessed[77]. I accept this submission. It is consistent with s.45(5)(a)(ii) of the PA, s.30(2)(a) of the Planning Regulation 2017 and Part A of the 2009 Regional Plan[78]. The combination of these statutory provisions require an application to be assessed against a regional plan to the extent it is not appropriately reflected in a planning scheme. That is the case here. The preamble to the planning scheme identifies particular planning documents promulgated by the State of Queensland, which the relevant Minister was satisfied had been ‘appropriately reflected’ therein. No reference is made to the 2009 Regional Plan in the preamble to the planning scheme[79].
  1. [60]
    The written submissions prepared on behalf of Council emphasise only one aspect of s.10.7 of the 2009 Regional Plan. Paragraph 51 of Council’s written submissions state:

“51.Desired Regional Outcome 10.7 of the South-East Queensland Regional Plan 2009-2031 provides:

“Reduce the need for (sic) landfill sites by minimising waste and associated environmental impacts and maximising re-use and recycling.”

  1. [61]
    There are two difficulties with Council’s written submissions about s.10.7 of the 2009 Regional Plan.
  1. [62]
    First, s.10.7, as it appears in Council’s submissions, omits the word ‘new’, which follows ‘for’ and precedes ‘landfill’. As will become clear, this omission is significant. The word ‘new’ causes the provision to have a materially different complexion.
  1. [63]
    Second, contrary to Council’s particulars[80], and written submissions[81], s.10.7 is not a Desired regional outcome. It is one of eight principles identified to achieve Desired regional outcome 10, which states:

Plan, coordinate and deliver regional infrastructure and services in a timely manner to support the regional settlement pattern and desired community outcomes.

  1. [64]
    Desired regional outcome 10 is directed towards the timely planning, coordination and delivery of regional infrastructure and services. Section 10.7 contains a principle that supports this outcome. It is titled ‘Waste’, and states:

Principle

Reduce the need for new landfill sites by minimising waste and associated environmental impacts and maximising re-use and recycling.” (emphasis added)

  1. [65]
    The language of s.10.7 is clear enough. It espouses a ‘principle’ that seeks to reduce the need for ‘new landfill’ sites. To extend this principle to discourage the expansion of existing landfill facilities sits uncomfortably with the plain words of the provision. Further, it sits uncomfortably with the explanatory text to Desired regional outcome 10, and s.10.3. The former identifies a key challenge for infrastructure as including ‘maximising the use of existing infrastructure by managing it efficiently and effectively[82]. The latter is one of the eight principles identified to achieve Desired regional outcome 10, and is titled ‘Managing demand’. Section 10.3 states the following ‘principle[83]:

Manage demand and influence consumer behaviour to maximise the use and benefits of existing infrastructure, and minimise the need for additional infrastructure and services.” (emphasis added)

  1. [66]
    As the preamble to Council’s reasons for refusal states[84], the application seeks approval to expand an existing landfill facility. The expansion was described by Mr Duane, Bio-recycle’s economist, as ‘a sensible economic outcome[85]. In his oral evidence, Mr Duane expanded upon this in the following exchange with Mr Gore QC:

And in terms of public interest consideration, where’s the public interest in continuing to use existing infrastructure?This area has …been identified and is in operation for a number of land fills or waste recycling facilities. So first of all you’ve got an area that’s been identified for this use. You’ve got an existing facility that has existing customers and existing road networks, existing understanding of the market that will continue to be used. I also know – and this is from the waste industry joint report…but it summarises at paragraphs 51 to 53 issues around maximising footprints and using existing infrastructure to the same degree for sustainable outcomes, increasing the height in the slope and how that leads to surface water, and also talk about reducing the cost of compliance by reducing efficiency. So there’s a range of economic impacts that all play into that discussion. So all those things benefit to the public by, as I say, maximising existing facility as much as possible, when we know that at least in the short term landfill will still be required, and we know in the long term it will still be required to some degree, albeit smaller rates – that maximising an existing asset makes economic sense.“

  1. [67]
    I accept Mr Duane’s evidence establishes what might be regarded as trite in economic terms: the expansion of Bio-recycle’s landfill facility would maximise the use of existing infrastructure, and, in turn, be an outcome that is preferable to creating a new landfill facility. As a general proposition, I did not take Council’s witnesses to be suggesting to the contrary[86]. This was unsurprising given provisions such as s.6.6(2)(j) of the planning scheme. This provision is an Overall Outcome for the RSBEA locality in which the land is included, and states[87]:

Uses and works support the efficient provision or extension of infrastructure, including both physical infrastructure and human services and facilities.”

  1. [68]
    Compliance with the above provision of the planning scheme may fairly be said to advance the application in a positive way. The extent to which it does so in the exercise of the discretion is, however, a different matter. In my view, it is a positive factor, but not as important as the resolution of this question: Is the maximisation of the use appropriate from a town planning perspective?
  1. [69]
    This question is not resolved by ss.10.3 and 10.7 of the 2009 Regional Plan. Rather, it is the planning scheme that has the most work to do in this regard. Unlike the broad motherhood statements of the 2009 Regional Plan, the planning scheme contains fine grained planning, which applies to the land and surrounding locality.
  1. [70]
    Having regard to the above, I am satisfied the proposed development will not cut across Desired regional outcome 10 or s.10.7 of the 2009 Regional Plan. In general terms, the development will be consistent with the proposition articulated in the explanatory text supporting Desired regional outcome 10, namely it proposes to ‘maximise the use of existing infrastructure’. Further, and contrary to Council’s first reason for refusal, I am satisfied that s.10.7 does not express a principle which promotes ‘ecological sustainability’ and seeks ‘to reduce the need for landfill and maximise recycling’ in a way that is applicable to the application the subject of this appeal.
  1. [71]
    Having regard to s.45(5)(b) of the PA, or alternatively, ss.45(8), the 2017 Regional Plan is a document that ‘may’ inform the assessment of the application. The extent to which it does so is a matter of weight.
  1. [72]
    Chapter 2 of the 2017 Regional Plan identifies the 50 year vision for South East Queensland. The vision is said to ‘set out our aspirations for SEQ in 2067’ and ‘informs what actions we need to take today to make our vision a reality[88]. Five themes underpin the 50 year vision[89]. The themes are said to ‘provide further dimension and greater clarity about what we are seeking to achieve in SEQ’. Council relies upon Theme 4, which is titled ‘Theme 4 – Sustain’.
  1. [73]
    Theme 4 of the 2017 Regional Plan states it is directed to promoting ecological and social sustainability[90]. Eight paragraphs describe the theme. They express broad aspirational statements about a diverse range of topics, each having application to the entirety of South East Queensland. The diversity of the theme is reflected in the text, which discusses water catchments, biodiversity, koalas, greenhouse gases, inter-urban breaks, healthy and sustainable communities and cultural resources.
  1. [74]
    Council’s written submissions emphasised part of one sentence in the text supporting Theme 4[91]. In the context of reducing greenhouse gases and becoming more resilient to climate change, Council emphasised this statement: “SEQ will… have zero net waste”. The expression ‘zero net waste’ is not defined in the 2017 Regional Plan.
  1. [75]
    Council submitted the meaning of the expression ‘zero net waste’ is sensibly explained in Exhibit 33[92]. This is a Draft Waste Management and Resource Strategy promulgated by the Queensland government[93]. The Strategy states the ‘vision’ is for Queensland to become a zero-waste society[94]. A relevant note to the vision states:

What does zero-waste mean? The only waste that goes to landfill is waste for which there is no alternative environmentally, socially or economically viable solution.”

  1. [76]
    Ms Manning said the expression ‘zero-waste’ was commonly used throughout the waste industry[95]. It refers to zero avoidable waste, recognising that zero waste to landfill is unrealistic[96]. This was expanded upon by Ms Manning in her oral evidence where, in reference to landfill diversion rates stated in the draft Strategy document, she said[97]:

…and there is an acceptance within the strategy and within the JER …that there are certain waste types that are unavoidable to landfill, and myself and Ms Taft recognise those wastes …are reflected therefore within …the targets. And there’s also acceptance that certain advanced waste treatments and technologies produce residual waste such as energy from waste that has a requirement to be landfill, and they are also embedded into the rates that are built into the strategy.

  1. [77]
    I am satisfied it is appropriate to proceed on the footing that the phrase ‘zero net waste’ conveys a concept akin to the meaning of ‘zero-waste’. As Ms Manning explained, the terms are well understood in the waste industry. Implicit to both terms is an acceptance the community will have an ongoing requirement for landfill facilities into the future. The ‘future’ for the 2017 Regional Plan is a significant period. It is a fifty year horizon.
  1. [78]
    With this in mind, Council’s reasons for refusal invites consideration of this question: would an approval be inconsistent with the achievement of a zero-waste, or zero net waste, outcome, as that term is understood having regard to Ms Manning’s evidence?
  1. [79]
    This question should be answered in the negative given three things: (1) the meaning of zero net waste admits of the continued requirement for landfill facilities; (2) the proposed development involves the expansion of an existing landfill facility; and (3) the expansion, if approved, will increase the supply of landfill capacity for South East Queensland, but that increase would be fairly characterised as marginal, at best. I am comfortably satisfied item (3) is demonstrated by the evidence.
  1. [80]
    As Council correctly submitted, the approval, if granted, would provide ‘nothing meaningful to the supply space available to the community for landfill[98]. The evidence establishes there is a substantial total volumetric capacity for landfill in South East Queensland. That capacity is in the order of 87 million cubic metres. This equates to 16 years total capacity[99]. It is immediately available, and approved, to receive waste. If the proposed development is approved, the volumetric capacity in South East Queensland would increase by approximately 735,000m3 to 748,000m3, which is less than a 1% increase[100].This increase in supply would provide for less than 2 months of demand in South East Queensland for landfill airspace. The annual demand for landfill airspace in South East Queensland was in the order of 5.96 million cubic metres in the financial year 2017-2018[101].
  1. [81]
    Once it is appreciated the community will, even in a zero net waste scenario, have an ongoing requirement for landfill facilities, and the proposed development would, if approved, provide only a marginal uplift in the capacity of an existing landfill facility, it is not difficult to conclude that Theme 4 of the 2017 Regional Plan provides little, if any, support for Council’s position in this appeal.
  1. [82]
    In the circumstances, I am satisfied Bio-recycle has established that Theme 4 of the 2017 Regional Plan does not warrant refusal of the application.

Will the proposed expansion rehabilitate the land for future open space purposes?

  1. [83]
    Paragraph 2 of Council’s reasons for refusal states:

Approval of the development application would thwart the expressed planning intention that the land be rehabilitated so that, at some time in the future, the land can be used for purposes anticipated and promoted by the Ipswich Planning Scheme 2006…

  1. [84]
    The reason for refusal stated above is founded on the proposition that the planning scheme expresses an intention for the land to be rehabilitated so that, in the future, it may be used for ‘anticipated and promoted’ purposes. I accept this proposition is grounded in the planning scheme.
  1. [85]
    The planning scheme encourages the progressive rehabilitation of areas the subject of past mining activities. This encouragement is reflected in an Overall Outcome[102], and Specific Outcome[103], for the RSBEA locality. It is also reflected in an Overall Outcome for the Investigation Zone[104]. Each of these provisions of the planning scheme apply to the land. Bio-recycle did not suggest otherwise.
  1. [86]
    The term ‘rehabilitation’ is not defined in the planning scheme. Its ordinary meaning, understood in the context in which it is used, involves notions of restoration and/or regeneration[105]. As section 6.7(4)(a)(i)(G) of the planning scheme makes clear, the ‘areas’ to be restored, or regenerated, include those ‘degraded by past mining activities’.
  1. [87]
    Will the proposed development restore and/or regenerate land which is degraded by past mining activities?
  1. [88]
    I am not satisfied Bio-recycle has demonstrated the proposed development will restore and/or regenerate land degraded by past mining activities.
  1. [89]
    Here, the land has the benefit of an extant development approval that facilitates the rehabilitation of two former mining voids on the land[106]. The proposed development involves creating a grassed mound of waste (with a clay cap) on top of one of those voids, after it has itself been filled. The evidence does not establish that the creation of a mound of waste on top of a filled void restores, or regenerates, the land. Rather, it appears the true position is as submitted on behalf of Bio-recycle. It was submitted[107] the evidence establishes ‘the proposed development will progressively rehabilitate the areas the subject of the proposed landfill’. The ‘areas’ to which this submission refers is the mound of waste created by the proposed development, rather than any particular feature of the land which has been degraded by past mining activities.
  1. [90]
    The above is only one of two, not inconsiderable difficulties, facing Bio-recycle with respect to Council’s second reason for refusal. If it is assumed the proposed development will restore, and/or regenerate, land degraded by past mining activities, the evidence falls short of demonstrating compliance with the rehabilitation requirements identified in the planning scheme.
  1. [91]
    One way in which degraded land may be rehabilitated is stated in a precinct specific Overall Outcome for the Waste Recycling/Future Rehabilitation Area in Swanbank New Chum, namely s.6.7(5)(f)(ix). The provision provides qualified encouragement for the filling of former mining voids with waste products. The proposed development derives little, if any, benefit from the provision because it does not involve filling a mining void. It involves the creation of a grassed mound of waste placed on top of a mining void that has already been filled (in reliance upon an extant development approval).
  1. [92]
    Whilst s.6.7(5)(f)(ix) is directed at filling voids, it nonetheless provides some guidance to a proponent seeking to rehabilitate land affected by past mining activity by way of a landfill facility. The provision encourages the use of voids for waste disposal provided it can be demonstrated, with a ‘high degree of certainty’, that such activities: (1) will not cause adverse environmental impacts; and (2) will not significantly affect the amenity of nearby residential areas, either existing or approved.
  1. [93]
    For the reasons given in paragraphs [241] to [243] below, I am satisfied that compliance with the first of the two requirements noted in s.6.7(5)(f)(ix) of the planning scheme has been demonstrated. The proposed development will not cause adverse environmental impacts. Council does not suggest otherwise.
  1. [94]
    The same cannot be said for the second requirement of s.6.7(5)(f)(ix). Given the case advanced on behalf of Bio-recycle, compliance with this aspect of the provision is largely informed by an assessment of the application against s.6.7(5)(f)(viii).
  1. [95]
    Section 6.7(5)(f)(viii) of the planning scheme is a Specific Outcome applying to the Waste Recycling/Future Rehabilitation Area in Swanbank New Chum, which states:

Land fill operations do not compromise the future rehabilitation and repair of the site for open space uses”.

  1. [96]
    The planning scheme provides, in clear terms, that landfill operations should not compromise the future use of land for ‘open space uses’. The phrase ‘open space uses’ is not defined in the planning scheme. Assistance as to the meaning of the phrase may be derived from: (1) Table 6.4 and s.6.17(2) of the planning scheme, which aid in the identification of consistent Recreation/Entertainment uses in the Investigation Zone[108]; and (2) provisions of the planning scheme requiring land earmarked for rehabilitation in the RSBEA locality and Swanbank New Chum Area to be ‘transformed into’[109], and ‘integrated’[110] within, a network of green spaces. Green spaces’ in the Swanbank New Chum Area include environmental buffers and corridors, as well as active and passive recreation areas[111].
  1. [97]
    Having regard to paragraphs [95] and [96] above, Bio-recycle is required to demonstrate, inter alia, that the proposed development: (1) will not compromise the future rehabilitation, and repair, of the land for open space and recreation purposes; (2) will transform the land into a green space; and (3) progressively lead to the integration of the land within a network of green spaces.
  1. [98]
    Will the proposed development compromise the future rehabilitation and repair of the land for open space uses?
  1. [99]
    Bio-recycle relies upon the evidence of Mr Schomburgk and Mr McGowan to resolve this question in its favour.
  1. [100]
    In paragraph 140 of their joint report[112], Mr Schomburgk and Mr Perkins agreed about the planning issues to be examined in the appeal. One such issue involved ‘site rehabilitation and use for purposes intended by the planning scheme’.
  1. [101]
    I was not referred to, nor could I identify, any part of the town planning joint report, supplementary joint report[113], or further statement of evidence where Mr Schomburgk addressed the above stated issue directly[114]. The first time the matter appears to have been directly addressed by Mr Schomburgk was his evidence-in-chief, where he said[115]:

“…So it seems to me that the more specific provisions are seeking for rehabilitated sites in this particular area to be used as part of a green space network. Having that in mind and using that as my thesis, if you like, I then sought to find out what is meant by the term “green space network”, and there are a number of other provisions throughout the planning scheme that talk about green space. It’s not a defined term in the planning scheme, nor is open space, and the words seem to be used interchangeably in a number of cases, but it seems to me that green space is intended to encompass a number of activitiesor non-activities almost, such as active recreation, passive recreation, environmental corridors and – and linear parks and linkages, and those sorts of things, as part of a – what’s referred to in at least one provision as a integrated network of green space. So it’s – again using that as – as part of the work that I’ve done, the proposal, in my opinion, which ends up with a grassed hill, would satisfy those requirements to end up as a passive recreation area, that is, simply a grassed hill that people can see. It’s – it’s passive. It doesn’t have any activity on it, but in my opinion it would form part of the green space network. Added to that is the provision in the – for the New Chum – the Swanbank/New Chum area that talks about this area providing a buff between low impact areas presumably to the west and the higher impact activities to the east. That is, the – the former power station and the other landfill operations. Once rehabilitated the subject proposal will, in my opinion, provide such a buff. It provides a – a grassed hill area, with a relatively gentle slope. Simply it would fall into part of the – the scenic backdrop, if you like, when viewed from the Ripley Valley area, for example – the scenic backdrop for that area…” (emphasis added)

  1. [102]
    As I understand Mr Schomburgk’s evidence, in his opinion, the proposed development would create a ‘grassed hill’ that would form part of a scenic backdrop viewed from the RVPDA. As part of the backdrop, Mr Schomburgk said the hill would contribute, in a positive way, to local amenity and serve a passive recreation function. Mr Schomburgk did not suggest the land would, as a consequence of the proposed development, be suitable for, or be put to any particular, open space or recreation use of the kind mentioned in paragraphs [49] to [53] above.
  1. [103]
    To buttress his opinion, Mr Schomburgk referred to the ‘grassed hill’ providing a buffer between low impact areas, presumably to the west, and higher impact activities to the east. I accept this aspect of Mr Schomburgk’s evidence, but only to a point. The proposed development, if approved and acted upon, would essentially result in a landform that has the potential to serve as a barrier, or intervening land mass, between industrial uses and residential development. For reasons that will be clear shortly, I do not accept this is necessarily a good planning, or visual amenity, outcome in the circumstances.
  1. [104]
    As I understood Mr McGowan’s evidence, he was in agreement with Mr Schomburgk. He said the grassed mound would appear as another vegetated hill amongst a backdrop of hills[116] and make a positive contribution to the visual amenity of the area[117]. This was said to occur in circumstances where[118]: (1) the proposed development will be located a significant distance from sensitive viewing points; (2) the sensitivity of the viewing points to the proposed development are low given the disturbed nature of the landscape; and (3) the magnitude of the change, as a consequence of the proposed development, will be small when considered in context.
  1. [105]
    Bio-recycle relies upon the evidence of Mr Schomburgk, and Mr McGowan, to demonstrate compliance with ss.6.7(5)(f)(viii) and (ix) of the planning scheme. Prima facie, Mr Schomburgk’s opinion is complemented by Mr McGowan’s evidence. Further, Mr Schomburgk’s evidence finds support in the planning scheme, in particular, ss.6.6(2)(d) and (i); ss.6.7(4)(a)(i)(G) and (H); and s.6.15(2)(c)(iv).
  1. [106]
    That said, it is necessary to observe that Mr Schomburgk’s opinion is founded on three key points: (1) that green space for the purpose of the planning scheme includes the use of land for a passive recreation purpose; (2) a passive recreation purpose can include the aesthetic quality of land alone; and (3) the grassed hill resulting from the proposed development will be a passive recreation use of land, because it will have an aesthetic quality, and be viewed as part of a scenic backdrop.
  1. [107]
    Item (3) above marks the point at which there is overlap in Bio-recycle’s case with respect to asserted compliance with ss.6.7(5)(f)(viii) and (ix) of the planning scheme.
  1. [108]
    Mr Gore QC put each of the above three key points to Mr Perkins[119], who accepted items (1) and (2) as being matters of orthodox planning. Mr Perkins did not, however, accept that the final landform resulting from the proposed development would have aesthetic quality, such as to qualify as a ‘passive recreation use’ of green space.
  1. [109]
    Whether the proposed development has the aesthetic quality ascribed to it by Mr Schomburgk and Mr McGowan is determined having regard to, inter alia, the photomontages before the Court. The photomontages depict a ‘before’ and ‘after’ view of the land and surrounding area. The grassed mound is visible in the ‘after’ images[120], in contrast to the ‘before’ images where the approved development is barely visible.
  1. [110]
    Having regard to the ‘before’ and ‘after’ photomontages, I have difficulty in accepting the grassed mound will have a scenic quality, such as to qualify as green space with a passive recreation purpose. I also have difficulty accepting the grassed mound will make a positive contribution to the visual amenity of the area, in particular, the RVPDA.
  1. [111]
    In my assessment, the landform and landscaping resulting from the proposed development will lack visual complexity and interest. It will, in context, appear like an artificial man-made hill. In this regard, I agree with Mr Curtis.
  1. [112]
    Mr Curtis described the grassed mound as ‘artificial’ and ‘something really quite bland’ in the landscape[121]. This is made good when the resulting landform, and proposed landscaping (as depicted in the photomontages), are compared to other existing landforms and features in the same ‘backdrop’. The surrounding landscaping and landform has, unlike the proposed grassed mound, visual interest and complexity. This is largely the bi-product of the variation in landscape types, changes in topography and landform shape. The existing landscaping comprises a variation of grasses, shrubs and trees. The proposed mound will have no such variation in landscaping. Whilst grass falls within the administrative definition of ‘landscaping[122], in context, the grass will not contribute to the sense of place, nor an overall greenspace setting, as is anticipated by the planning scheme[123].
  1. [113]
    It is also clear from Mr Curtis’ evidence that he considered the landform resulting from the proposed development, when considered in the context of the surrounding locality, would not contribute towards, or exhibit, the desired visual quality of a scenic backdrop[124]. In his opinion, this is a concomitant of the nature of the rehabilitation proposed for the landfill, which was said to be unsuitable. Mr Curtis said the absence of medium height bushes and taller trees as part of the rehabilitation meant the resulting grassed landform would be perceived as a treeless artificial hill.
  1. [114]
    The shortcoming identified by Mr Curtis cannot be cured by conditions of approval requiring the mound to be vegetated with a mix of grasses, shrubs and trees. The rehabilitation requirements agreed between Mr Gray and Mr Sutherland preclude the planting of trees on the mound. This is to preserve the clay cap placed over the landfill.
  1. [115]
    In cross-examination, Mr Curtis was reminded of a number of matters said to be relevant to a visual assessment of the proposed development. The relevant matters can be identified as follows: (1) the locality is fairly characterised as having a ‘significantly disturbed landscape[125]; (2) there is significant variation in vegetation cover in the landscape[126], with patches of trees[127] and open spaces[128]; (3) only a limited proportion of the landfill proposed will achieve a height of 99m AHD[129]; (4) the land sits amongst a number of other existing landfills, including the Lantrak site to the south-east with an approved height of 115m AHD, and the Remondis site to the north-east, with an approved height of 120m AHD[130]; (5) the proposed development will be visible to limited and confined areas of undeveloped land in the RVPDA[131]; and (6) the Lantrak and Redmondis landfill sites will have a more expansive visual catchment than the proposed development[132].
  1. [116]
    It was clear from Mr Curtis’ joint report, further statement of evidence and oral evidence that he was cognisant of the above matters. Collectively, they were taken into account, but did not lead him to conclude the proposed development would contribute, as is intended by the planning scheme, to the sense of place and scenic quality of the locality. I accept this evidence.
  1. [117]
    In my view, Mr Curtis’ evidence is consistent with, and confirmed by, the photomontages. His evidence takes into account the matters referred to in paragraph [115] above. It also takes into account two other relevant matters that I am far from persuaded influenced Mr Schomburgk and Mr McGowan’s opinions, namely: (1) the proposed development, if approved, would be one of the closest industrial uses to the emerging RVPDA; and (2) the proposed development, if approved, would be located in one of the most visible backdrops to the RVPDA[133]. These factors were discussed in Mr Curtis’ oral evidence where, in re-examination, he said:

…Well, that will be one of the most visible backdrops to the…urban and development area. And I’m aware of …the planning scheme requirements. They’re clearly looking for a visually appealing, a visually attractive backdrop to that area, and that would, obviously, as we can see from the photo montages, is …visible, highly visible within that area in my opinion. And, you know, I ask myself a simple question when I look at it with that visually appealing backdrop, so – so called [indistinct] will be better with or without it. And I think clearly it will be better without it.

  1. [118]
    In summary terms, Mr Curtis considered the grassed mound would be prominent within available view corridors, and contrast with other tree-covered hills in the area. He said this visual outcome was inappropriate from a planning perspective because the planning scheme was seeking to achieve a visually appealing backdrop to, inter alia, the Ripley Valley Urban Core[134]. I agree.
  1. [119]
    Mr Perkins’ evidence complemented the opinions expressed by Mr Curtis. He said, and I accept, the grassed mound will have an artificial appearance and limited scenic and green space value.
  1. [120]
    That the grass mound will appear artificial, and have limited scenic and green space value, is confirmed by the photomontages. It is also confirmed by photographs of real world examples of existing landfill facilities in this locality[135]. The photomontages, and real world examples, demonstrate that grass on its own, as a landscaping treatment, is ineffective to disguise the artificial appearance of a landform resulting from landfilling activities. Rather, the grass cover serves to accentuate the shape of the mound beneath, which is the product of earth moving equipment that has shaped and contoured a stockpile of waste that is sealed with a cap. The end result is an artificial man-made hill rather than development that ‘provides a visually appealing backdrop’ to, inter alia, ‘the Ripley Valley Urban Core[136].
  1. [121]
    Whilst I acknowledge the contribution the proposed development will make to the scenic and visual amenity of the locality turns on matters of impression, and the proposed development will not appear visually jarring, to describe the grassed mound as having ‘scenic quality’, and/or making a ‘positive visual contribution to the area’, is to employ exaggeration. This is the difficulty I have with the opinions expressed by Mr Schomburgk, and Mr McGowan. As a consequence, I do not accept their evidence.
  1. [122]
    An examination of the planning scheme, as I have set out in paragraphs [16] to [54] above, reveals it is intended that development in the RSBEA locality and Swanbank New Chum area maintain and develop a green space setting[137], which is intended to include a range of recreational uses. Bound up in this intention is a requirement for development to, inter alia:
  1. (a)
    enhance the existing and future green space environments[138];
  1. (b)
    contribute to the achievement of a wide range, and high levels of accessibility to, recreational and environmental opportunities[139];
  1. (c)
    promote overall visual attractiveness[140];
  1. (d)
    contribute towards the provisions of a visually appealing backdrop to the RVPDA[141];
  1. (e)
    enhance visual amenity[142];
  1. (f)
    develop an overall green space setting through, inter alia, supplementary planting on prominent hillsides[143]; and
  1. (g)
    contribute to the creation of a sense of place[144], through landscaping.
  1. [123]
    The evidence of Mr Curtis and Mr Perkins, which I accept, demonstrates the proposed development, whilst not unattractive or visually jarring, will fail to contribute towards, or achieve, the planning objectives set out in paragraph [122]. As a consequence, it is difficult to describe the proposed development as a ‘consistent use’ for the purposes of s.6.17(2) of the planning scheme. The failure to achieve the visual outcomes sought by the planning scheme means the proposed development is unlikely to be of a type and scale appropriate for the particular circumstances of the site, and surrounding locality[145].
  1. [124]
    I would also add that I was not satisfied the proposed development would integrate within a green space network, as is intended. Mr Perkins expressed the opinion the proposed grassed hill would not integrate with a network of green spaces as intended by the planning scheme because it would be ‘different[146]. More particularly, he said the desired integration would not be achieved because[147]: (1) the resulting landform would be a grassed, rather than a forested hill, which is different to the surrounding context; (2) there is no recreation use proposed for the land; and (3) the land will not, given the prescribed rehabilitation requirements, be suitable for any of the recreation purposes anticipated by the planning scheme. I accept Mr Perkin’s evidence in this regard.
  1. [125]
    The failure to demonstrate the development will integrate within a network of green spaces is a further point of inconsistency with the planning scheme, in particular, s.6.7(4)(a)(i)(G)[148].
  1. [126]
    The case advanced on behalf of Bio-recycle with respect to the reason for refusal presently under consideration was an ‘all or nothing’ case. It contended the issue should be resolved in its favour because the grassed mound would be ‘green’, and perform a passive recreation function by reason of its scenic value. I do not accept this contention.
  1. [127]
    Further, save for an unpersuasive attempt to establish through Mr Perkins that the land could accommodate walking and cycling paths[149], the evidence did not demonstrate the landform resulting from the proposed development would be suitable for any of the anticipated uses mentioned in paragraphs [49] to [53] above.
  1. [128]
    In the circumstances, I am not satisfied the proposed development complies with the planning scheme, in particular, ss.6.7(4)(a)(i)(G), 6.7(5)(f)(i) and (viii), 6.14(2)(h) and (j). Each of these provisions, read in combination, express a clear planning strategy: land degraded by, inter alia, former mining activities is encouraged to be rehabilitated, which may involve a landfill use, provided: (1) the use does not compromise the future rehabilitation and repair of the site for open space uses; and (2) the final land form can be integrated within a network of greenspaces. I am not satisfied it has been demonstrated the proposed development complies with this planning strategy, which forms part and parcel of a planning scheme first promulgated in 2006.
  1. [129]
    Finally in this context, I note Mr Perkins expressed the following opinion at paragraph 151 of the first town planning joint report[150]:

The likelihood that the proposed development, by extending the life of the landfill operation on the northern void, further delays the rehabilitation of the southern mining void on the site is also of concern to me as it further thwarts achievement of the planning outcomes sought for the site.

  1. [130]
    Mr Perkins explained the importance of the southern void in the following exchange with Mr Hughes QC in his oral evidence[151]:

Now, is it relevant to you as a town planner that there is on the subject land an area already approved to accommodate landfill? That’s what we’ve been referring to as the southern void, subject of course to obtaining operational works approval?Yes, it’s – certainly in my view that is highly relevant. It is part of the existing approval that exists on the site and it does not require a further town planning application to bring it about. If that void was filled, that would result in a – compliant with the planning scheme’s invitation to – to fill voids and to rehabilitate those areas. It will also be consistent with the idea of filling, but not above the voids, other than in a minor way identified in the TLPI. So – and it’s approved. It doesn’t require – it doesn’t require a process such as we’re involved in at the moment for it to – to go ahead. It’s part of the original approval.

  1. [131]
    The ‘concern’ raised by Mr Perkins, and the importance he placed upon the southern void, are, in my view, legitimate matters to be considered in this appeal. Mr Perkins was concerned the waste used to create the grassed mound would be diverted from, and thereby impede, the progressive rehabilitation of the southern void on the land. The filling of the southern void is the subject of the extant development approval for the land to which I have already referred.
  1. [132]
    Whilst this ‘concern’ is by no means decisive, I was far from persuaded that Bio-recycle had a credible response to it. The concern expressed by Mr Perkins is founded upon important provisions of the planning scheme relevant to this appeal. The provisions encourage the rehabilitation and repair of land affected by former mining activities. In this context, it was legitimate to enquire as to whether the creation of the grassed mound may compromise the rehabilitation of the land overall, which includes the southern void. This point should have come as no surprise to Bio-recycle. It was raised by Mr Perkins in the first town planning joint report. The point was supplemented in his oral evidence.
  1. [133]
    That Bio-recycle did not lead credible evidence responsive to Mr Perkins’ concern serves to reinforce my view that it has failed to demonstrate the proposed development complies with the planning scheme. In particular, it has failed to demonstrate the proposed development complies with the those provisions of the planning scheme requiring landfill operations to rehabilitate land, and ensure such operations do not compromise the future use of land for open space purposes of the kind mentioned in paragraphs [49] to [53] above.
  1. [134]
    It was submitted on behalf of Bio-recycle that Mr Perkins’ evidence about the southern void should be disregarded because it is founded on two errors in principle[152], namely: (1) the evidence is based upon a ‘better development test[153]; and (2) has the effect of prejudging the outcome of some other application, namely an operational works application to fill the southern void[154].
  1. [135]
    I accept, as a matter of principle, that the Court is not required in an appeal such as this to determine whether the proposed development is the best form of development for the land. I also accept it would be wrong in principle to prejudge the outcome of an application which is yet to be made to Council. These principles, however, have no application to Mr Perkins’ evidence. He did not suggest the southern void was a better form of development for the site. He did not seek to prejudge, let alone assume, an operational works application would be approved to permit filling in the southern void.
  1. [136]
    The purpose of Mr Perkin’s evidence, as I have understood it, was to point out there was a legitimate planning concern as to whether the proposed development would impede the rehabilitation of the land for future open space uses. Bio-recycle was obliged to meet this point. The evidence led by Bio-recycle in response was underwhelming.

Will an approval give rise to unacceptable visual amenity impacts?

  1. [137]
    Paragraph 3 of Exhibit 25A asserts the development application should be refused because:

It has not been sufficiently demonstrated (and may not able (sic) to be sufficiently demonstrated) that approval of the development application will result in an acceptable visual outcome.

  1. [138]
    The planning issue to be considered in the light of this reason for refusal is: whether an approval would contribute to, or deliver, the visual outcomes anticipated by the planning scheme. For the reasons set out in paragraphs [109] to [128], the proposed development will not achieve the desired visual outcomes stated in the planning scheme and, in this sense, will have an unacceptable visual impact. This is a matter pointing to refusal of Bio-recycle’s development application.

Will an approval give rise to unacceptable general amenity impacts?

  1. [139]
    Paragraph 4 of Exhibit 25A asserts the development application should be refused because:

It has not been sufficiently demonstrated (and may not be able to be sufficiently demonstrated) that approval of the development application will result in an acceptable general amenity outcome.

  1. [140]
    Council’s written submissions with respect to this reason for refusal call in aid the decision in Broad v Brisbane City Council & Anor [1986] 2 Qd R 317 at 326 where de Jersey J (as he then was) observed:

There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident’s subjective perception of his locality. Knowing the use to which a particular site is or may be put, may affect one’s perception of amenity.”

  1. [141]
    It is Council’s case that the locality under consideration is neither intended, nor planned, to become a reformed landscape based upon mountains of waste, which will forever dominate the visible backdrop to the RVPDA. In this context, it was further submitted[155]:

“…the visibility of the proposed resultant hill will be a constant reminder of the approval of changes to a landfill operation on this site which permitted the visible hill, obvious from the surrounding residential areas rather than the filling of former mining voids which was originally approved.

  1. [142]
    Council’s position assumes the planning scheme does not intend for the landscape to contain mountains of waste with a resultant profile that serves as a reminder of past landfill operations. I do not accept that the community’s reasonable expectation about development in the RSBEA locality can be stated in such absolute terms.
  1. [143]
    The community’s reasonable expectations about the height of landfill operations in the RSBEA locality should be informed by, inter alia, an objective reading of the planning scheme. As the planning scheme analysis set out in paragraphs [16] to [54] reveals, the planning for the RSBEA locality, and Swanbank New Chum, encourages the rehabilitation of land affected by past mining activities. The rehabilitation may take the form of a landfill facility, subject to meeting a range of planning requirements. The planning scheme requires the development to contribute to a greenspace setting, and facilitate the future use of the land for open space and recreation uses of the kind mentioned in paragraphs [49] to [53].
  1. [144]
    These requirements may, in a particular case, require the creation of a hill, or mound. That hill, or mound, will need to be appropriately landscaped to integrate within a network of green spaces. It will also need to be rehabilitated in a way that provides for future active and passive recreation uses.
  1. [145]
    The important point, in my view, is that the proposed development does not comply with the planning scheme requirements with respect to the rehabilitation of the land. More particularly, the evidence does not establish that:
  1. (a)
    the proposed development will facilitate the future use of the land for open space and/or recreation uses of the kind mentioned in paragraphs [49] to [53];
  1. (b)
    the proposed development will achieve the desired visual outcomes for the locality; and
  1. (c)
    the rehabilitation of the land necessarily requires the creation of a grassed mound above the northern void, which has itself been filled, to facilitate future open space and recreation uses of the kind mentioned in paragraphs [49] to [53].
  1. [146]
    The proposed development does not comply with the planning scheme. The non-compliances sound in identifiable planning consequences. They manifest as an unacceptable visual amenity impact. They also manifest as an intangible amenity impact. As Mr Curtis said, the proposed development will have an impact on the ‘sense of place’ for residents of the RVPDA. This is a product of two things: (1) the height and visibility of the stockpile of waste; and (2) the rehabilitation requirements as recommended by the rehabilitation experts, which will do little to disguise the grass mound as an artificial hill created by a stockpile of waste that lies beneath.
  1. [147]
    I regard the impact on the sense of place as akin to an impact on the perception of the place as referred to by de Jersey J in Broad. The perception of the place will be diminished because the grassed mound, which will appear as a bland, artificial, treeless man-made hill, will be visible from the RVPDA. The man-made, artificial hill will, as Council submits, serve as a permanent reminder of the historical use of the land for the deposition of waste.
  1. [148]
    This impact on amenity is an intangible one, and is relevant to the exercise of the planning discretion. In my view, it does not warrant refusal of the development application in its own right. This is because it is a symptom of non-compliance with the visual outcomes desired by the planning scheme.

Is there a planning, community and economic need for the development?

  1. [149]
    Bio-recycle contends there is a planning, community and economic need for the proposed development[156]. The extent of that need was characterised in the written submissions prepared on behalf of Bio-recycle as being ‘clear and obvious[157].
  1. [150]
    To establish the ‘clear and obvious’ need, Bio-recycle relied upon four matters, namely: (1) the proposition that landfill projects are an essential public facility that will be required into the foreseeable future[158]; (2) the outcomes of the numerical analysis undertaken by the waste management and need experts[159]; (3) the proposition that the proposed development has been in operation for in excess of 15 years with an established client base, who would benefit from the continued operation of the landfill[160]; and (4) the proposition there is a need for the proposed development due to its proximity to critical road infrastructure and infrastructure generally[161].
  1. [151]
    Bio-recycle’s written outline of submissions dealt with each of the four matters set out above in detail. It is to be noted that, within those submissions, additional qualitative matters were relied upon to establish a need for the proposed development. In this regard, it was asserted the proposed development would provide additional competition and choice in the market. It was also asserted that it made economic sense to increase the capacity of the existing use, rather than create a new landfill facility.
  1. [152]
    I accept, as a general proposition, that landfill facilities represent important items of infrastructure, and will be required into the foreseeable future in South East Queensland. This was accepted by the waste industry experts, who spoke of an existing demand for landfill facilities and a zero-waste position, which does not literally mean no waste to landfill. As I have said, it is accepted certain categories of waste are unsuitable for recovery and recycling and will create a demand for landfill facilities.
  1. [153]
    This general proposition, in isolation, does not establish there is a planning, community or economic need for the proposed development. One needs to look to more detailed considerations, which go to the extent of ongoing and foreseeable demand for landfill capacity, and the ability of the market to meet that demand in a timely way. To undertake this assessment, I was assisted by two waste industry experts, Ms Manning and Ms Taft. I was also assisted by two economists, Mr Brown and Mr Duane.
  1. [154]
    The numerical analysis undertaken by the waste industry experts, Ms Manning and Ms Taft, reveals they agreed on four key integers relevant to the assessment of demand and supply for landfill capacity in South East Queensland. The key integers were as follows:
  1. (a)
    approved and available landfill capacity in South East Queensland is in the order of 86.7 million cubic metres[162];
  1. (b)
    the demand for landfill airspace in South East Queensland is in the order of 5.9 to 6.4 million cubic metres per annum[163];
  1. (c)
    based upon an agreed modelling scenario, there is approximately 16 years of total approved landfill airspace in South East Queensland[164]; and
  1. (d)
    to ensure security of air space, it was agreed 15 years of approved and available landfill airspace capacity was required[165].
  1. [155]
    The numerical analysis undertaken by the waste industry experts reveals the approved and available landfill capacity in South East Queensland exceeds 15 years, being an appropriate period to ensure there is security of airspace. As a starting point, this does not support a clear and obvious need for the proposed development.
  1. [156]
    The position does not improve for Bio-recycle having regard to other aspects of the numerical analysis undertaken by the waste industry experts.
  1. [157]
    The proposed development, if approved and acted upon, would increase the available landfill airspace in South East Queensland by about 735,000 to 748,000 cubic metres[166]. Ms Taft calculated this would increase the life of the existing landfill facility by less than two years, assuming the maximum annual importation rate of 450,000 cubic metres was achieved[167].
  1. [158]
    An increase of about 740,000m3 of landfill airspace capacity: (1) equates to less than 1% of the total available and approved landfill air space capacity[168] for South East Queensland; and (2) provides about 1.5 additional months landfill airspace supply for South East Queensland[169]. When considered in this light, it is difficult not to accept Ms Manning’s characterisation of the proposal. She characterised the resulting increase in airspace capacity as marginal[170].
  1. [159]
    That the proposed development, if approved, would make a marginal contribution to the available landfill airspace capacity in South East Queensland was far from controversial. By way of example, in cross-examination, Mr Gore QC sought to establish with Ms Manning that the proposed development would not lead to an excess of supply of landfill airspace. That is true, but as the cross-examination demonstrated, the contribution made to overall capacity would almost be unappreciable. The relevant exchange in cross-examination was as follows[171]:

“…And if you turn to page 77 to table 3, it’s in table 3 in the last column headed Proposed that we find the figure of an addition 748,000 cubic metres proposed by this application?Yes.

And if we go to the joint report, exhibit 15, I think it is, we go to that figure at page 32 in paragraph 100 of approximately 87,000,000 cubic metres?Yes.

So that what’s proposed here represents less than one per cent of the overall landfill capacity in the way in which it was assessed by you and Ms Taft?That's correct.

And so there’s absolutely no basis for saying that an approval of this proposal would result in any excess capacity in the market?Well, I – I don’t understand the question, because I – has that been stated?

I’m asking you. Do you agree that it’s not going to result in any excess capacity in the market?I agree it doesn’t represent excess capacity, but I also – I also stated, too, earlier that I do not – I do not recognise the need for it on the basis of the current capacity that is available in the market.

Well, doesn’t that small percentage increase, and you express it as less than two years supply – two months supply, that’s what it amounts to, doesn’t it? An extra two months supply?Two – approximately two years supply, as in overall capacity.

If it’s 748,000 cubic metres ?Yep.

The 87,000,000 tonnes for the 16-year period that you agreed on at page 33 of the joint report represents, on average, consumption of about 453,125 cubic metres per month? That sound about right?It sounds reasonable.

Yes, so the 748,000 cubic metres is less than two months?Of the total waste being presented in south-east Queensland.” (emphasis added)

  1. [160]
    It is difficult to accept, against the background of the matters discussed in paragraphs [154] to [159], it has been established there is a clear and obvious need for the proposed development.
  1. [161]
    Mr Duane, Bio-recycle’s economist, was pressed in cross-examination about the absence of a community or economic need for the proposed development. Day 3 of the transcript records the following exchange between Mr Hughes QC and Mr Duane[172]:

Well, the reality is, either on the figures that you’ve produced in your report, there’s no community or economic need at the moment for us to increase the amount of supply of volumetric availability for landfill rates compared with the demand?You’re only looking specifically the quantitative factor there. On quantitative factor at a point in time, we’re now further down the track and over time, those figures will change. So you’ve got to constantly be looking at that figure but we’re heading towards the minimum is my view so, again, going back to my position, given we’re towards the bottom end of what we should be supplying to meet future demand, and given the changes that are occurring and the difficulty in assessing how they will be implemented and how they’re achieved, it makes sense, as I said, good economic sense to actually approve a expansion to an existing facility than approve new ones, which will need some future date.

  1. [162]
    It is sufficiently clear from Mr Duane’s response that he did not reject the underlying proposition put to him by Mr Hughes QC, namely that the ‘figures’ for demand and supply did not support a need to increase landfill airspace capacity in South East Queensland. Rather, as I understood Mr Duane’s evidence, he took issue with the extent to which there could be confidence, and certainty, attaching to the assessment of supply as against the 15 year benchmark for air space security[173]. This is a point made at paragraph 94(d) of the economic need joint report where Mr Duane said:

The current supply of approved landfill facilities is equivalent to around 15 years supply under a middle ground scenario agreed by the waste industry experts. It could be as low as 10 years, or as high as 20 years, particularly dependent on the level of waste recovery rates used. Given the uncertainty around waste recovery rates together with at least 5-10 years to get approval and construction of new facilities, the small scale extension of existing facility is an economically sensible outcome as compared with approving new facilities given the rapid changes that may occur in the industry over time.

  1. [163]
    Mr Duane repeated a similar point to that above at paragraph 6.4 of his further statement of evidence[174].
  1. [164]
    Ms Taft, Bio-recycle’s waste industry expert, echoed the opinion expressed by MrDuane. It is articulated in its clearest terms at paragraph 21 of Ms Taft’s further statement of evidence[175] where she said:

“The experts agreed that there is currently approximately 16 years of landfill airspace. In my opinion this is not sufficient, given that it (sic) close to the agree (sic) infrastructure security of 15 years, and there are many unknow (sic) impacts that can quickly reduce this airspace availability including those listed below, combined with uncertainty in obtaining approvals for new facilities:

a.Inaccuracy in reporting.

b.The potential for disaster waste (waste from cyclones and floods can decrease airspace by 2 years).

c.The increase in contaminated soils resulting from PFAS/PFOA remediation.

d. The impact of PFAS/PFOA on landfill site operations resulting in clean fill requirements for daily and interim cover rather than the use of contaminated soils.

e. The impact of PFAS/PFOA on the waste industry and requiring the currently recoverable resources to be landfilled (concrete and soils).

f. Not achieving the current strategy targets for 2024, or the proposed strategy targets for 2024.

g. Markets not being available for recovered products and so increase in residuals being landfilled.”

  1. [165]
    The point made by Mr Duane, and Ms Taft, is to the effect that the 15 year supply benchmark is not one that should be rigidly applied given a range of considerations, all of which are to be taken in combination. The considerations include an appreciation that the estimated supply of existing capacity is dependent upon modelling scenarios that yield a ‘range’ – the range of estimated supply is 10 to 19 years.
  1. [166]
    Is 10 to 19 years of landfill capacity for South East Queensland sufficient from a planning, community and economic need perspective?
  1. [167]
    I am satisfied this question is answered in the affirmative.
  1. [168]
    The level of supply assessed by the waste and need experts, even assuming it is limited to 10 years supply, provides ample time and opportunity for a range of entities, including Council, to consider how to address any planning, community and economic need for landfill facilities within South East Queensland. To put this period in context, 10 years can represent the life of a planning scheme before it is reviewed, or replaced. This is reflected in s.25(1)(a) of the PA, which requires a local government to review its planning scheme within 10 years after it was made, or otherwise reviewed.
  1. [169]
    In addition, I am satisfied the landfill supply capacity assessed as being between 10 to 19 years is sufficient for the following reasons.
  1. [170]
    First, the waste industry experts’ assessment of existing and available landfill airspace capacity is conservatively low.
  1. [171]
    As was confirmed by Ms Taft in cross-examination, the assessment of available landfill airspace capacity, which is in the order of 87 million cubic metres, takes into account only those facilities that have all necessary approvals, including land use approvals and operational works approvals[176]. This approach to the assessment of available airspace capacity was agreed between Ms Taft and Ms Manning. In practical terms, it meant the only sites included in the existing airspace capacity assessment were approved, and operational, facilities. All other alternative sources of supply were excluded from the assessment and, in this sense, treated as equals.
  1. [172]
    To treat all sites excluded from the supply assessment as equals, has the potential to paint a misleading picture when one turns to examine the certainty, or otherwise, of available and approved landfill airspace capacity in South East Queensland. This is because the sites excluded from the supply capacity assessment may fall anywhere along a spectrum. One end of the spectrum captures sites that have no approvals at all and will take a considerable period to become operational. The other end of the spectrum captures sites that have the benefit of some, but not all approvals necessary to become operational. The point at which a site sits on this spectrum impacts on the amount of time required for it to become operational and, in turn, meet a need for additional landfill airspace capacity in a timely way.
  1. [173]
    By way of example, the southern void on the land was excluded from the available capacity assessment because it did not have an operational works approval. This is very different to a brownfield site having no approvals at all.
  1. [174]
    As the evidence demonstrated, an operational works approval could potentially be obtained within 12 months[177]. An application seeking to obtain an approval for operational works would be unlikely to require impact assessment and, as a consequence, not be subject to public notification. This is to be contrasted with a brownfield site with no approvals which, Ms Manning said, requires a gestation period of some 5 to 6 years.
  1. [175]
    The numerical assessment involved, in part, benchmarking the available and approved landfill airspace capacity against a notional 15 year planning term. Once it is appreciated that the benchmarking exercise carried out by Ms Taft is premised on a conservatively low assessment of available supply, it is difficult to accept there is a genuine risk, or uncertainty, as to the level of landfill airspace supply in South East Queensland. More importantly, the evidence falls short of demonstrating the risk, or uncertainty, is such as to call for an additional 735,000m3 to 748,000m3 of landfill airspace capacity.
  1. [176]
    Second, Ms Taft’s assessment, which arrived at a 10 year supply of landfill airspace capacity, is based upon a series of pessimistic assumptions[178]. Her assessment assumes three things, namely: (1) the existing capacity of landfill in South East Queensland includes only those sites that have all necessary approvals, as discussed in paragraph [171] above; (2) there would be no change in the rate of waste recovery in South East Queensland; and (3) there would be an increase in the volume of waste to landfill in South East Queensland.
  1. [177]
    Item (1) is conservative for the reasons I have discussed in paragraphs [171] to [174] above. Items (2) and (3), taken in combination, suggest it has been assumed there will be a complete failure of the Queensland government’s policy measures to improve recovery rates for waste, and to reduce the volume of waste going to landfill in South East Queensland. These policy measures have been the subject of considerable, and recent, consideration by the government, and are reflected in Exhibits 28, 32, 33 and 34.
  1. [178]
    As the evidence of Ms Manning demonstrated, there is a genuine commitment on the part of the Queensland government to achieve a ‘zero-net waste’ position. This is not a short term goal. In an attempt to work towards it, the government has introduced a waste levy, banned single use plastic bags, created container recycling schemes, promulgated a Draft Waste Management and Resource Recovery Strategy, and created the Office of Resource Recovery.
  1. [179]
    The evidence supports the submission that the Queensland government is taking conscientious steps towards the reduction of the volume of waste going to landfill in South East Queensland, and in turn, increasing the volume of waste that is recovered and reused. To assume this policy will be an abject failure is, of course, a judgment call, but a conservative one at that.
  1. [180]
    Once the three assumptions that underpin Ms Taft’s 10 year supply assessment are acknowledged as being individually, and collectively, conservative, a comparison of this level of supply against the 15 year benchmark does not suggest there is a risk, or level of uncertainty that calls for an additional 735,000m3 to 748,000m3 of landfill airspace capacity in South East Queensland.
  1. [181]
    Third, even assuming the supply of landfill capacity in South East Queensland was assessed as being 10 years, and the conservative nature of this assessment is ignored, there remains sufficient time for there to be an appropriate planning, and market, response to any material reduction in landfill capacity.
  1. [182]
    As Ms Manning said, a period of 5 to 6 years is required to deliver a landfill facility on a brownfield site. This period is, self-evidently, considerably less than the assessed 10 years of airspace capacity, leaving ample opportunity to meet a future need, if any, for additional waste management and recovery facilities in Ipswich, and South East Queensland.
  1. [183]
    Further to the above, this is not a case where the planning scheme has failed to make any, or inadequate provision for landfill facilities in Ipswich. As is clear from the analysis in paragraphs [16] to [54], the planning scheme provides for, and encourages, landfill facilities in the RSBEA locality, subject to meeting specific requirements. This encouragement is directed to filling former mining voids, such as the southern void on the land. As will be seen shortly, this encouragement is maintained in a more recent planning document, the TLPI, but again subject to meeting specific requirements. There is no evidence to suggest the planning scheme has failed to make adequate provision for landfill facilities or, alternatively, has been overtaken by events.
  1. [184]
    Given the matters set out above, I do not accept that the level of landfill airspace capacity in South East Queensland is uncertain or at risk. Even if it was uncertain, or at risk, the position would not be appreciably improved by granting the approval sought by Bio-recycle. As the evidence demonstrated, the approval, even if granted and acted upon, would create less than 2 months of additional landfill airspace capacity in South East Queensland.
  1. [185]
    To establish a need for the proposed development, Bio-recycle, as I have said, also relied upon qualitative matters over and above the numerical analysis discussed above. I have identified these qualitative matters as: (1) enhancing competition and choice; and (2) adopting a sensible economic approach by reusing and enhancing the capacity of existing infrastructure.
  1. [186]
    Do the qualitative matters establish there is a community, economic and planning need for the proposal?
  1. [187]
    I am comfortably satisfied the above question is answered in the negative.
  1. [188]
    In general terms, I accept the development is close to existing critical infrastructure and will, consistent with economic theory, efficiently reuse and extend existing infrastructure. The more important question is one of weight. What weight is attributed to this matter in the assessment of need?
  1. [189]
    In my view, the consideration deserves little weight in the circumstances. This is because, whilst the economic benefit of reusing and extending the capacity of existing infrastructure is a matter of public benefit, it is a matter for consideration in the planning scheme, namely s.6.6(2)(j)[179]. Further, the significance of the benefit is in any event limited, if not marginal, given the extent to which the proposed development would provide additional landfill airspace capacity for South East Queensland.
  1. [190]
    As I have already said, the numerical analysis carried out by the waste industry experts establishes the proposed development will provide less than 2 months additional landfill airspace capacity for South East Queensland. It will extend the life of the facility for a period of two years. The achievement of ‘economic efficiency’ for a period of two years pales against the public detriment that would be suffered as a consequence of the approval. An approval would result in the creation of an artificial man-made grassed mound, which will remain in perpetuity, and unacceptably detract from the amenity of the RVPDA. When seen in this light, the benefit of economic efficiency does little, if anything, to advance Bio-recycle’s need case. Further, it does little to suggest that the proposed development will, taking all things into account, ‘improve the physical well-being of the community[180].
  1. [191]
    I also accept, as a general proposition, the proposed development will provide additional competition and choice for landfill airspace. This contribution will, however, be limited, if not marginal, in the circumstances. The evidence establishes the market is spoilt for choice. Bio-recycle is one of 10 private landfill operators providing landfill airspace in South East Queensland. In addition, there are 8 local government operated landfill facilities. The number of operators in the market suggests there is ample choice. There is no evidence to suggest the market is suffering from a lack of competition, or is in need of additional competition.
  1. [192]
    It is common for an applicant to advance ‘town planning need’ as a reason supporting approval of a development application. This is particularly where, as here, the development is inconsistent with material parts of the relevant planning documents. As this Court has recognised for many years[181], if not decades[182], need in the planning sense is underlined by a basic assumption there is a latent unsatisfied demand which is either not being met, or adequately met, by the planning scheme in its present form. This basic assumption was not established on the evidence before me.
  1. [193]
    An analysis of the planning scheme reveals, it has encouraged for many years the filling of mining voids to rehabilitate degraded land. Put another way, the planning scheme makes provision for the very land use which is the subject of this development application. There is no evidence to suggest the provision made by the planning scheme is inadequate to meet the legitimate landfill needs of the local government area, or South East Queensland. More particularly, the evidence fell well short of demonstrating that a latent unsatisfied demand exists for 735,000m3 to 748,000m3 of landfill airspace that cannot be met by resent planning arrangements.
  1. [194]
    The evidence, in my view, establishes there is no planning, community or economic need for the proposed development. The application, in such circumstances, is more akin to an exercise in entrepreneurial skill involving a matter of private economics. The matter of private economics relates to Bio-recycle’s intention to sustain its existing landfill operation for the benefit of its customers, and its own financial reward. This is not said in any way as a criticism. Rather, the point is that the development is one that, if approved, undoubtedly sounds in an economic benefit for Bio-recycle, but not a benefit for the public in a planning sense.
  1. [195]
    The absence of a planning, community and economic need is relied upon by the Council as a reason for refusing the development application. I accept it is a reason for refusal. Its significance in the exercise of the planning discretion is considered later in these reasons for judgment.

Discretionary considerations favouring approval (other than need)

  1. [196]
    Bio-recycle submits there are six ‘relevant matters’ that support approval of the development application[183]. It is contended these matters are of such significance as to support approval, even in the face of non-compliance with the planning scheme[184].
  1. [197]
    The six relevant matters relied upon are as follows: (1) the proposed development would improve the operational and environmental performance of the landfill facility; (2) an approval will positively contribute to the development of the RVPDA, given the rehabilitation and visual amenity outcomes that will be achieved; (3) the proposed development will not result in any adverse amenity impacts in terms of odour, dust, acoustics, traffic, groundwater, hydraulics and rehabilitation; (4) the proposed development will assist in achieving the intent of the 2017 Regional Plan as it will contribute to the Southwest industrial corridor; (5) the proposed development will facilitate the achievement of various outcomes in the planning scheme, namely those identified in paragraphs 9 to 11 of the notified list of relevant matters[185]; and (6) approval of the proposed development would assist the consolidation and expansion of waste and landfill facilities at an existing facility, rather than create a new facility.
  1. [198]
    I accept Bio-recycle has established the matters set out in items (1), (4) and (6) above. Each are relevant to the exercise of the planning discretion, and favour approval.
  1. [199]
    I do not accept item (2) has been established, namely that the proposed development will positively contribute to the development of the RVPDA as suggested by Bio-recycle. This is so for the reasons set out in paragraphs [109] to [128] above.
  1. [200]
    I accept Bio-recycle has established item (3) above, but in part only.
  1. [201]
    The evidence demonstrates the proposed development will not result in any adverse amenity impacts by reason of odour, dust, acoustics, traffic, ground water and hydraulics. Each of these matters are relevant to the exercise of the planning discretion, and favour approval.
  1. [202]
    As against this, for the reasons given in paragraphs [98] to [128] and [137] to [148], the evidence does not establish the rehabilitation proposed will be appropriate, and avoid any unacceptable impacts.
  1. [203]
    As to item (5), it is contended the proposed development, consistent with the planning scheme, will:
  1. (a)
    provide for an efficient use of existing infrastructure;
  1. (b)
    realise the economic potential of the land;
  1. (c)
    rehabilitate a degraded site affected by past mining activities; and
  1. (d)
    locate the use in a way that minimises the risk that residents will be exposed to harmful elements.
  1. [204]
    I accept the proposed development will comply with the planning scheme such as to achieve (a), (b) and (d) above. This is relevant to the exercise of the planning discretion, and favours approval. I would however note that, for the reasons given in paragraphs [188] to [190] above, items (a) and (b) attract little weight.
  1. [205]
    I am not satisfied the evidence has demonstrated the development will rehabilitate the land as suggested in paragraph (c) above. This is for the reasons given in paragraphs [98] to [128].
  1. [206]
    There is a further ‘relevant matter’ that needs to be considered.
  1. [207]
    In a set of supplementary written submissions, Bio-recycle submitted it is relevant in the exercise of the discretion that the proposed development advances the purpose of the PA[186]. It submitted an approval would advance the purpose of the Act because: (1) it would facilitate the achievement of ecological sustainability; and (2) it would contribute to the achievement of the matters identified in ss.5(2)(g), (h), (i) and (j) of the PA.
  1. [208]
    The submission that the development will advance the purpose of the PA is, in my view, an unattractive one in the circumstances of this case. Serious non-compliance with the planning scheme has been established. This fact, in my view, is a strong indicator that the purpose of the PA is unlikely to be advanced by an approval.
  1. [209]
    Central to the purpose of the PA is the achievement of ‘ecological sustainability’. This is a defined term in s.3(2) of the PA. It contemplates a ‘balance’ that integrates three things: (1) the protection of ecological processes and natural systems; (2) economic development; and (3) the maintenance of cultural, economic, physical and social wellbeing of people and communities.
  1. [210]
    Section 4 of the PA deals with the ‘system’ for facilitating the achievement of ecological sustainability. There are two relevant parts of the ‘system’ of importance to this appeal. It includes planning schemes[187], which set out integrated State, regional and local planning and development assessment policies for a local government area. The ‘system’ also includes a ‘development assessment system’ for, inter alia, ‘implementing planning instruments and other policies and requirements about development…’.
  1. [211]
    Here, the proposed development does not withstand scrutiny when assessed against the planning scheme, which is a recognised part of the ‘system’ for achieving ecological sustainability. It is also a mandatory consideration for the exercise of the planning discretion[188]. In such circumstances, how can it be said the proposed development will advance the purpose of the PA? In my view, an approval will not achieve this, absent some relevant further planning consideration.
  1. [212]
    What further planning considerations are called in aid by Bio-recycle? It calls in aid supporting factors derived from broad motherhood statements in s.5(2) of the PA.
  1. [213]
    That support may be found for an approval, or refusal in s.5(2) of the PA is unsurprising. The provision contains a number of statements as to how the Act may be advanced. The section is expressed in sufficiently broad terms that it can fairly be said to offer ‘something for everyone’. In my view, care needs to be exercised with this provision of the PA in the context of alleging the existence, or otherwise, of relevant matters said to favour approval or refusal. The provision should not, ordinarily, be approached as if it provides an imprimatur for, or injunction against, a particular form of development. One looks to the adopted planning controls for such guidance.
  1. [214]
    Putting to one side the broad nature of the statements contained in s.5(2) of the PA, the submissions advanced on behalf of Bio-recycle failed to demonstrate how the purpose of the PA would be positively advanced by compliance with the general statements contained in this provision. More particularly, the submissions, and the evidence, failed to demonstrate how the purpose of the PA will be advanced where an approval would give rise to a number of material departures from the adopted planning controls. The submissions made on behalf of Bio-recycle fell into one of two categories.
  1. [215]
    First, the submissions emphasised features of the proposed development that can, when taken in isolation, be said to advance the purpose of the PA, but, on closer inspection, do no more than establish compliance with the planning documents. The matters emphasised are required to be considered under the planning scheme in any event[189]. For example, the efficient use of existing infrastructure is a relevant consideration under s.6.6(2)(j) of the planning scheme. The point is also raised for consideration under Desired regional outcome 10 of the 2009 Regional Plan. The same applies to the submission about the environmental performance of the development. The environmental performance of the proposed development is to be considered under s.6.7(5)(f)(ix) of the planning scheme.
  1. [216]
    Second, the submissions advanced about the purpose of the PA rely, in part, upon the evidence establishing: (1) a need for the development[190]; and/or (2) that the development will have no unacceptable impacts on amenity[191]. Neither of these matters were established by the evidence.
  1. [217]
    Irrespective of which of the two categories above applies, Bio-recycle’s case about the purpose of the PA was unpersuasive. It was, in my view, always going to be a difficult task to demonstrate that the purpose of the PA will be advanced in circumstances where: (1) the proposed development, if approved, would result in a material departure from the adopted planning controls; (2) there is no planning, community or economic need to support the departure from the adopted planning controls; and (3) the departure from the adopted planning controls will manifest in unacceptable impacts on amenity.
  1. [218]
    That Bio-recycle has failed in this task does not, in my view, create a separate and distinct reason for refusal. The point to bear steadily in mind is that material non-compliances with the adopted planning controls have been identified, and those non-compliances manifest in unacceptable impacts of the kind mentioned in paragraphs [137] to [148] above. These features of the case give rise to a reason for refusal, the force of which is not meaningfully advanced by a failure on Bio-recycle’s part to demonstrate the purpose of the PA will be advanced by an approval.
  1. [219]
    Each of the ‘relevant matters’ that have been established will be considered with all of the issues examined in this appeal. Before doing so, it is necessary to examine one final matter, namely the TLPI.

The TLPI

  1. [220]
    The purpose of the PA is to, inter alia, establish an accountable system of planning that facilitates the achievement of ecological sustainability[192]. The system to facilitate the achievement of ecological sustainability includes Temporary Local Planning Instruments. As s.4(d) of the PA recognises, they are planning instruments, which set out planning and development assessment policies to:

“… protect all or part of a local government area from adverse impacts in urgent or emergent circumstances …”

  1. [221]
    A Temporary Local Planning Instrument may suspend or otherwise affect the operation of another local planning instrument, but does not amend or repeal that instrument[193]. Nor does it create a superseded planning scheme[194], or result in an adverse planning change[195]. A Temporary Local Planning Instrument however prevails to the extent of any inconsistency with a planning scheme[196].
  1. [222]
    As I have already said, Council, in conjunction with the Minister, decided to promulgate the TLPI. It took effect in April 2018, about two months after this appeal was commenced. It is described as an ‘interim policy response’ to concerns about landfill and waste industry uses occurring in Swanbank/New Chum industrial area.[197] More particularly, s.2.3 of the TLPI states:

… this TLPI seeks to further regulate applications for new or expanded waste activities to protect existing, approved and planned residential and other sensitive receiving uses from adverse impacts including odour, dust, noise, air quality, and amenity (including visual amenity).

  1. [223]
    The purpose of the TLPI is stated in s.3.1 of the document, which is in the following terms:

The purpose of the TLPI is to regulate applications for new or expanded waste activities within the Swanbank/New Chum industrial area (located within the Ipswich local government area) to ensure this regionally significant economic area is appropriately regulated to protect existing, approved or planned residential and other sensitive receiving uses, from adverse impacts associated with waste activities.”

  1. [224]
    Council contends the TLPI is a relevant matter for the purpose of s.45(5)(b) of the PA, or alternatively, is a document that is entitled to weight in the assessment of the application under s.45(8). Bio-recycle initially submitted the TLPI should be ignored[198]. It abandoned this submission in a set of written submissions marked Exhibit 41[199].
  1. [225]
    In my view, the TLPI is a relevant document for the assessment of the development application. It is relevant on the two bases advanced by Council. It is a relevant matter under s.45(5)(b) given it represents Council’s most contemporary statement of planning intent in relation to planning circumstances that are said to be ‘urgent or emergent’. It is also entitled to weight under s.45(8) of the PA.
  1. [226]
    The real issue to be determined is the weight, if any, to be attributed to the TLPI, and any assessment carried out against it.
  1. [227]
    I will firstly consider the development application against the provisions of the TLPI raised by the parties.
  1. [228]
    The TLPI is a local categorising instrument under the PA. As such, it categorises development and, inter alia, identifies assessment benchmarks for assessable development[200]. The assessment benchmarks under the TLPI include Attachment B, which is described as the ‘Swanbank/New Chum Waste Activity Code[201] (the Code).
  1. [229]
    Section 3 of the Code identifies the Purpose and Overall Outcomes. Overall Outcome 2(a) states:

“Applications involving new or expanded waste activities that are inconsistent with the outcome sought by the Swanbank/New Chum Waste Activity Code, constitute undesirable development and are unlikely to be approved.”

  1. [230]
    Overall Outcome 2(a) is directed towards ‘waste activity uses’, which are defined to mean, inter alia, ‘Landfill’ and ‘Rehabilitating a mining void’.[202] To the extent such uses are inconsistent with the outcomes sought by the Code, they are expressly said to constitute ‘undesirable development’.
  1. [231]
    Overall Outcome 2(b) has a recognisable symmetry with requirements stated in the planning scheme with respect to the RSBEA locality, Swanbank/New Chum area and the Investigation Zone. In particular, the Overall Outcome requires waste activity uses to achieve appropriate rehabilitation outcomes for land affected by former mining activities.[203] This is advanced in Specific Outcome (4) of the Code, which states:

“Waste Activity Uses achieve appropriate rehabilitation outcomes for land affected by former mining activities that:

(a)add to a network of green spaces, environmental corridors and active and passive recreation areas; and

(b)do not prejudice or compromise the future rehabilitation use, repair or maintenance of the land; and

(c)includes appropriate landscaping and revegetation strategies appropriate for the long-term use of the rehabilitated land.”

  1. [232]
    Specific Outcome (4) is consistent with requirements in the planning scheme for development to rehabilitate land degraded by former mining activities such that it will: (1) contribute to a greenspace setting; (2) integrate within a network of greenspaces; and (3) not compromise the prospect of a future use. For the reasons given in paragraphs [98] to [128] above, I am not satisfied it has been demonstrated the proposed development complies with these requirements of Specific Outcome (4) of the Code.
  2. [233]
    Specific Outcome (5)(a) of the Code is identified as a focal planning provision by Council in Exhibit 25B. The provision states:

“(5)Filling and earthworks associated with Waste Activity Uses:

(a)do not extend beyond the top of former mining voids, except for approved minor contouring, that improves stormwater management and drainage outcomes; and…”

  1. [234]
    It was uncontroversial the proposed development does not comply with Specific Outcome 5(a). The submissions prepared on behalf of Bio-recycle said ‘it was self-evident’ the proposed development would extend beyond the top of a former mining void[204].
  2. [235]
    Specific Outcome (5)(b) of the Code is also relevant. It states:

“(5)Filling and earthworks associated with Waste Activity Uses:

(b)are designed, operated and maintained so that exposed waste is not visible from surrounding residential and other sensitive receiving uses at any time.”

  1. [236]
    It was common ground between the town planning witnesses that the proposed development would be operated such that waste was visible to surrounding residential uses, namely the residential uses (existing and planned) in the RVPDA[205]. This, however, needs to be tempered by the evidence of the visual amenity experts.
  2. [237]
    Mr McGowan and Mr Curtis independently said the batter of the proposed landfill would be exposed to view as it was progressively rehabilitated. However, they both said it would not be exposed to view for long periods of time[206], and it would be difficult to discern as ‘waste’, as distinct from dark ‘soil’. This was said to be a consequence of the separation distance between the affected residential development and the land[207].
  1. [238]
    In light of the matters set out above with respect to Specific Outcomes (4) and (5)(a), Overall Outcome (2)(a) of the Code is engaged. This provision, as I have said, provides that development which is inconsistent with the Code is ‘undesirable’, and ‘unlikely to be approved’. Whilst this may not be engaged in the circumstances of this case having regard to Specific Outcome 5(b), little assistance is gained from the fact that the use may be operated in a way that exposes a landfill batter to view from surrounding residential development and will appear as dark soil, rather than waste.
  1. [239]
    As against the above, Bio-recycle calls in aid Specific Outcome (8) of the Code, which states:

“(8)Applications to change or expand an existing Waste Activity Use:

(a)may be given favourable consideration where it can be clearly demonstrated, with a high degree of certainty, that improved amenity, environmental or community outcomes are able to be achieved; and

(b)are not likely to be approved where such changes may lead to increased detrimental amenity, environmental or community outcomes.”

  1. [240]
    The evidence establishes the development will not have any unacceptable amenity impacts by reason of environmental emissions, namely noise, dust, odour and light. The evidence also establishes the proposed development, if approved, provides an opportunity to achieve improved environmental performance of the landfill facility.
  1. [241]
    The land rehabilitation experts, Mr Gray and Mr Sutherland, agreed, subject to the imposition of conditions[208], that an appropriate closure plan for the proposed development should generally provide an improved environmental outcome compared to finishing the landfill with a shallow graded cap as is envisaged by the existing development approval for the land[209]. The profile of the landfill as presently approved is potentially susceptible to ponding with a concomitant risk of water infiltration[210].
  1. [242]
    Further, it was agreed by the experts that, by using a suitably steep profile cap to cover the waste, rainfall infiltration can be reduced, which, in turn, would lessen leachate generation, and reduce the concomitant risks to regional ground waters[211].
  1. [243]
    Ms Taft, a waste industry expert, concurred with the views expressed by Mr Gray and Mr Sutherland at paragraph 15 of her further statement of evidence.
  1. [244]
    I accept the evidence of Mr Gray, Mr Sutherland and Ms Taft without reservation.
  1. [245]
    As a consequence, I am comfortably satisfied Bio-recycle has demonstrated its application may be given favourable consideration under Specific Outcome (8) of the Code. It has demonstrated, with a high degree of certainty, that improved environmental outcomes are able to be achieved if an approval is granted.
  1. [246]
    Taking all of the above matters into account, an assessment of the application against the TLPI, particularly the Code, leads to the conclusion there are points for, and against, the proposed development. That said, on balance, the document makes it more difficult for Bio-recycle to demonstrate an approval should be granted. Having regard to the evidence, this seemed to be uncontroversial. The clearest part of the evidence demonstrating this arose in the cross-examination of Council’s town planning witness, Mr Perkins[212]. Mr Gore QC pressed Mr Perkins with the following question:

Do you agree that the two TLPIs make it harder to get an approval than the current scheme?I think that the TLPIs …on balance, don’t make it ha – I mean….if it was an approval for a landfill that filled a void, then I would say one would expect that compliance with the TLPI should lead to an expectation of approval for the landfill. So I’d say it makes it harder for landfills …we’re filling above the void other than the limited exception is proposed.

  1. [247]
    The weight to be attributed to the assessment of the TLPI in the circumstances is considered below.

Exercise of the planning discretion

  1. [248]
    The statutory assessment and decision making framework for this appeal is prescribed by, inter alia, the PA. I have approached this framework consistent with my decision in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 and the recent decision of her Honour Judge Kefford in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46. In particular, I am cognisant the discretion to decide the fate of Bio-recycle’s impact assessable development application under the PA is expressed in broad terms, and is more flexible than its statutory predecessor. This planning discretion is not constrained by a conflict and grounds test.
  1. [249]
    Bio-recycle relies upon essentially four points to contend the planning discretion should be exercised in favour of approval, namely: (1) the development complies with the planning scheme; (2) there is a need for the development; (3) the development will have no unacceptable impacts; and (4) there are relevant matters (over and above need) that support approval, including advancement of the purpose of the PA.
  1. [250]
    I am not satisfied Bio-recycle has established items (1), (2) and (3).
  1. [251]
    With respect to item (4), there are two points to be made. First, Bio-recycle did not establish each and every ‘relevant matter’ it relies upon. I am satisfied Bio-recycle has established the ‘relevant matters’ identified in paragraphs [67], [68], [103], [198], [200], [201] and [204]. Second, for the reasons given in paragraphs [207] to [218], I am not satisfied it has been demonstrated the proposed development will, overall, advance the purpose of the PA.
  1. [252]
    As would be clear from the reasons for judgment set out above, I am not satisfied the development complies with the planning scheme. The non-compliances with the planning scheme arise with respect to a clear planning strategy for the rehabilitation of degraded land in the RSBEA locality. The nature and extent of the non-compliance is material, and not lightly brushed aside. This is particularly so, where, as here, it was not suggested the planning scheme (or planning strategy) is unsoundly based, or has been overtaken by events. In circumstances such as this, the planning scheme should be given its full force and effect. In so doing, a compelling, if not decisive, reason for refusal is established.
  1. [253]
    In addition, there is a further compelling reason to refuse the development application. As I have already said, there is no planning, community and economic need for the proposed development, and it will have unacceptable impacts on amenity. When considered in isolation, these matters may not be decisive in their own right, but in combination, they represent a relevant planning reason to refuse the application[213]. As a reason for refusal, it also has compelling, if not decisive force.
  1. [254]
    This is so for three reasons.
  1. [255]
    First, the unacceptable impact on visual amenity is not one reasonably expected having regard to the planning scheme.
  1. [256]
    Second, the unacceptable visual impact would, on any view, be a long term impost on the community, in particular, the RVPDA.
  1. [257]
    Third, there is no planning, economic or community need that would render the effect on amenity justifiable. The evidence establishes that, at best, the proposed development, if approved and acted upon, would provide a marginal increase in landfill airspace capacity in South East Queensland, being a period of less than 2 months.
  1. [258]
    As against this, Bio-recycle has demonstrated there are relevant matters that point in favour of approval. The matters I have taken into account are identified in paragraph [251]. This includes a point made by Mr Schomburgk to the effect that the proposed development, if approved and acted upon, would serve as a buffer between industrial and residential uses[214], as is anticipated by the planning scheme.
  1. [259]
    One particular factor in favour of approval which, in my view, attracts significant weight is the potential for an improvement in the environmental performance of Bio-recycle’s landfill facility. In this regard, Bio-recycle submitted, and I accept having regard to the evidence, that[215]:

…Approval of the proposed development would lead to the implementation of a suite of strict conditions relating to rehabilitation, stormwater, erosion and sediment control, a site based management plan, maintenance and monitoring. Those conditions were produced against a background of rigorous assessment by a number of experts in the water and rehabilitation fields. All of those experts agree that, subject to the imposition of the agreed conditions, the proposal can be approved. Indeed, the 4 water experts agreed that it could be ‘readily approved’” …

  1. [260]
    The ‘relevant matters’ established by Bio-recycle are, I accept, relevant to the exercise of the discretion. The matters are entitled to weight and, give pause for thought. On balance, however, I am not satisfied the matters are, either individually or collectively, sufficient to establish the public interest, in a planning sense, is better served by an approval, rather than adherence to the planning scheme. This is so for the following reasons.
  1. [261]
    An approval would, as a matter of private economics, sustain Bio-recycle’s operation on part of its land for less than 2 years. During this period, an opportunity is provided to: (1) re-use and expand existing infrastructure; and (2) improve the environmental performance of the landfill facility. As is recognised in paragraph [251], other planning benefits may also be achieved.
  1. [262]
    The planning benefits that may be attributed to the proposed development have to be balanced against its long term effects, for which there is no planning, community or economic need. The long term effects involve the creation of an 8 storey mound of landfill that does not achieve the intended visual amenity outcomes for the locality, as articulated in the planning scheme. This is not assisted by the resulting land form, which is unlikely to support future open space and recreation uses, as is intended by the planning scheme.
  1. [263]
    When the planning benefits of the proposed development advanced by Bio-recycle are balanced against: (1) the long term impacts of the development; (2) the absence of need for the development; and (3) the nature and extent of non-compliance with the adopted planning controls, it cannot be said an approval represents an appropriate exercise of the discretion to achieve ‘a balanced decision in the public interest[216]. An approval, in my view, would only serve to undermine the community’s confidence in the planning scheme, which is a statutory planning control having the force of law[217].
  1. [264]
    Accordingly, the application should be refused.
  1. [265]
    For completeness, I would add that the TLPI is entitled to weight in the exercise of the planning discretion. It is difficult to suggest otherwise given the very reason for its existence. As s.4(d) of the PA confirms, it is a document that is directed at addressing adverse impacts that have arisen in an urgent, or emergent, circumstance. The urgency is a product of the identification of an adverse impact needing attention, coupled with the delay which accompanies the adoption of a formal planning scheme amendment to address the identified adverse impact.
  1. [266]
    As to the weight that should be attributed to the document in the exercise of the discretion, the TLPI is not determinative, or decisive, in deciding the appeal. This is because I am minded to refuse the development application, and the assessment against the TLPI does not suggest a different result should follow. As Mr Gore QC put to Mr Perkins in cross-examination, the TLPI increases the level of difficulty confronting Bio-recycle to secure an approval. When considered in this light, the TLPI only serves to reinforce my view that the application should be refused.

Conclusion

  1. [267]
    Bio-recycle has not discharged the onus.
  1. [268]
    It is ordered:
  1. The appeal is dismissed.
  1. The respondent’s decision to refuse the appellant’s development application, communicated by way of decision notice dated 18 January 2018, is confirmed.

Footnotes

[1] Ex.8, p.5 of 8, condition W1.

[2] Ex.29.

[3] Ex.8.

[4] Ex.8, p.1 of 3 and Ex.29, condition 3(b).

[5] Ex.2A, p.30, section 1.2.

[6] Ex.8, p.6 of 8, condition L3.

[7] Ex1, p.26, sections A, B and C.

[8] Ex.2A, p.30, section 1.2 and Ex.17, paragraph 34.

[9] With a pre-settlement height of 102m AHD (Ex.36).

[10] Ex. 2B, p.512.

[11] McGowan: T4-8, Lines 25 to 30.

[12] Ex.12, paragraph 7(d).

[13] For example, as demonstrated by Ex.23, p.24.

[14] Ex.38, paragraph 24.

[15] Ex.13, paragraph 21 i.

[16] Ex.2B, p.632 and following.

[17] Under s.229 of the Planning Act 2016 (PA).

[18] s.43 of the Planning & Environment Court Act 2016 (PECA).

[19] s.45(1)(a) PECA.

[20] s.60(3) PA.

[21] Walker v Noosa Shire Council [1983] 2 Qd R 86, 88 and Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPEC 16, [86].

[22] Ex.37, p.10, paragraph 40 citing Jakel Pty Ltd v Brisbane City Council [2018] QPELR 763; Ex.38, p.7, paragraphs 25 and 26.

[23] Ex.38, p.11, paragraph 37.

[24] Ex.25B.

[25] Ex.38, p.11, paragraph 40.

[26] Ex.39.

[27] Ex.3B, p.613.

[28] Ex.4, p.15, paragraph 13; Ex.39, paragraph (c).

[29] Ex.37, p.15, paragraph 77.

[30] Preamble (Ex.3A, p.1).

[31] s.1.1.

[32] s.1.11.

[33] s.1.12 and 1.13.

[34] Ex.3A, p.11, subsections (c)(i) to (vi).

[35] Ex.17, p.13, paragraph 47; p.57, Figure 3.

[36] s.6.6(2)(a), Overall Vision.

[37] Ex.3A, pp.29 to 30.

[38] Ex.3A, p.27.

[39] Ex.3A, p.65.

[40] Compare Ex.3A, pp.27 and 66.

[41] Compare Ex.3A, pp.27 and 65.

[42] Compare Ex.3A, pp.27 and 66.

[43] Compare Ex.3A, pp.27 and 65.

[44] Ex.3A, p.29.

[45] Ibid.

[46] s.6.7(4)(a)(i).

[47] Items (1) and (2).

[48] Ex.3A, p,30.

[49] Ex.3A, p.40.

[50] Ex.3A, p,30.

[51] Ibid.

[52] Ex.3A, p.32.

[53] s.6.7(4)(a)(v)(C) (Ex.3A, p.31); s.6.7(4)(a)(v)(D)(V) (Ex.3A, p.32).

[54] s.6.7(4)(a)(v)(D)(II) (Ex.3A, p.32).

[55] Ex.3A, p.33.

[56] Ibid, Note 6.7D(1).

[57] Ex.3A, p.33.

[58] s.6.7(5)(a)(i)(H)(ii)(A); (B) (Ex.3A, p.33).

[59] Ex.3A, p.36.

[60] Theme (1), paragraph [21].

[61] Ex.3A, p.36.

[62] Theme (2), paragraph [21].

[63] Themes (3) and (4), paragraph [21].

[64] Ex.3A, p.27.

[65] Ex.3A, p.147.

[66] Ex.3A, p.149, subsection (f)(vi).

[67] Ex.3A, p.145, ‘Introduction’.

[68] Ex.3A, p.76.

[69] Ex.3A, p.151.

[70] Ex.3A, p.152.

[71]Outdoor recreation’ is a defined administrative term in the planning scheme (Ex.3A, p.163).

[72] Ex.3A, p.68.

[73] s.6.7(4)(a)(i)(G) (Ex.3A, p.30); s.6.7(4)(a)(vi)(D)(VII) (Ex.3A, p.32).

[74] s.6.7(4)(a)(i)(H) (Ex.3A, p.30).

[75] Ex.3A, p.161.

[76] Ex.25 and Ex.25A.

[77] Ex.38, p.17, paragraph 56.

[78] Ex.3A, p.175, third column.

[79] Ex.3A, p.1.

[80] Ex.25A, paragraph 1.

[81] Ex.38, p.16, paragraph 51.

[82] Ex.3A, p.294.

[83] Ex.3A, p.296.

[84] Ex.25A, unnumbered paragraph before reason for refusal 1.

[85] Ex.16, p.34, paragraph 94 d.; Ex.27, p.9, paragraph 6.4 and T3-24, Lines 31 to 33.

[86] Brown: T3-53, Line 39 to T3-54, Line 11; Manning: T2-45, Line 33 to 37; Ex.15, pp.17 and 33, paragraphs 52, 53 and 112.

[87] Ex.3A, p.27.

[88] Ex.3B, p.358, left hand column, second paragraph.

[89] Ex.3B, p.359.

[90] Ex.3B, p.363.

[91] Ex.38, paragraph 52.

[92] Ex.38, paragraph 53.

[93] Ex.15, paragraph 40.

[94] Ex.33, p.7.

[95] T3-4, Line 38.

[96] Ex.15, p.24, paragraph 80; T3-4, Line 13 to 23.

[97] T3-4, Line 25 to 34.

[98] Ex.38, p.24, paragraph 94.

[99] Ex.15, pp.32-33, paragraphs 100 and 108.

[100] Ex.26, p.6, paragraph 14.

[101] Ex.15, p.15.

[102] Overall Outcome s.6.6(2)(g) (Ex.3A, p.27).

[103] Specific Outcome s.6.7(4)(a)(i)(G) (Ex.3A, p.30).

[104] Overall Outcome s.6.14(2)(j) (Ex.3A, p.66).

[105] Macquarie Dictionary, Revised Third Edition, p.1594, see ‘rehabilitate’ and ‘rehabilitation’.

[106] Ex.29.

[107] Ex.37, p.22, paragraph 103, under the heading ‘Compliance Achieved’ with respect to s.6.7(4)(a)(i)(G).

[108] As discussed in paragraphs [49] to [53] above.

[109] s.6.7(4)(a)(vi)(D)(VII) (Ex.3A, p.32).

[110] s.6.7(4)(a)(i)(G) (Ex.3A, p.30).

[111] s.6.7(4)(a)(i)(H) (Ex.3A, p.30).

[112] Ex.17, p.37.

[113] Ex.18.

[114] Ex.20.

[115] T5-7, Line 9 to 32.

[116] Ex.14, p.13, paragraph 36.

[117] Ex.14, p.13, paragraph 39.

[118] T4-5, Line 8 to 41.

[119] T5-42, Line 28 to 42.

[120] Ex.5, pp. 6, 8, 10, 12, 17, 19, 21 and 23.

[121] T4-23, Line 45.

[122] See paragraph [54] above.

[123] As referred to in paragraphs [21] – [22] and [35] – [36] above.

[124] Ex.23, p.9, paragraph 24.

[125] T4-31, Line 23 to 25.

[126] T4-31, Line 27 to 35.

[127] T4-31, Line 39.

[128] T4-31, Line 37.

[129] T4-27, Line 22 to 28.

[130] T4-26 to T4-28.

[131] T4-27, Line 42 to 45.

[132] T4-28, Line 12 to 15; T4-29, Line 4 to 8.

[133] T4-35, Line 45 to T4-36, Line 13.

[134] Ex.3A, p.32, s.6.7(4)(a)(v)(D)(II).

[135] Ex.35.

[136] Ex.3A, p.32, s.6.7(4)(a)(v)(D)(II).

[137] s.6.6(2)(e).

[138] s.6.7(4)(a)(v)(D)(v).

[139] ss.6.7(4)(a)(i)(I); 6.7(5)(a)(i)(H)(ii)(A).

[140] s.6.7(5)(a)(i)(H)(ii)(C).

[141] s.6.7(4)(a)(v)(D)(II).

[142] s.6.7(5)(f)(i).

[143] s.6.7(5)(a)(i)(H)(ii)(D).

[144] s.6.7(5)(a)(i)(H)(ii)(B).

[145] Ex.3A, p.76.

[146] T5-41, Line 27.

[147] T5-41, Line 12 to 20.

[148] Ex.3A, p.30.

[149] T5-42, Line 9 to 26 – which Mr Perkins described as a ‘very unlikely outcome’.

[150] Ex.17, p.39.

[151] T5-27, Line 12 to 21.

[152] Ex.37, p.21, paragraph 98.

[153] Ex.37, p.21, paragraphs 99 to 100.

[154] Ex.37, p.21, paragraph 101.

[155] Ex.38, p.21, paragraph 74.

[156] Ex.4, p.15, paragraphs 14 to 16.

[157] Ex.37, p.33, paragraph 137.

[158] Ex.37, p.26, paragraph 113.

[159] Ex.37, p.28, paragraph 120.

[160] Ex.37, p.27, paragraph 115.

[161] Ex.37, p.38, paragraph 119.

[162] Ex.15, p.16, paragraph 47.

[163] Ex.15, p.15.

[164] Ex.15, p.16, paragraph 48.

[165] Ex.15, p.16, paragraph 49.

[166] Ex.26, p.6, paragraph 14 and Ex.2A, p.37, Table 3.

[167] Ex.26, p.6, paragraph 14.

[168] Which is in the order of 87 million m3.

[169] Manning: T2-45, Line 1 to 2.

[170] T2-45, Line 9.

[171] T2-44 Line 19 and onwards.

[172] T3-35, Line 40 to T3-36, Line 4.

[173] As discussed in paragraph [154](d).

[174] Ex. 27, p.9.

[175] Ex.26.

[176] Taft: T2-15, Line 44 to T2-16, Line 12.

[177] Taft: T2-16, Line 14 to 16.

[178] Ex.22, paragraph 21.

[179] See paragraph [67].

[180] Cut Price Stores Retailers Ltd & Ors v Caboolture Shire Council [1984] QPLR 126, 131.

[181] Isgro v Gold Coast City Council & Anor [2003] QPELR 414, 418 [21].

[182] Williams McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, 35.

[183] Ex.37, paragraphs 143 to 149.

[184] Ex.37, paragraph 140.

[185] Ex.4, Tab 3, paragraphs 9 to 11.

[186] Ex.41, paragraph 8(e) and (f).

[187] s.4(c), PA.

[188] s.45(5)(a)(i), PA.

[189] Ex.41, paragraph 8(e)(i) and (iii) and (f).

[190] Ex.41, paragraph 8(e)(ii).

[191] Ex.41, paragraph 8(f).

[192] s.3(1) of PA.

[193] s.23(3), PA.

[194] s.23(7)(a), PA.

[195] s.23(7)(b), PA.

[196] s.8(4)(d), PA.

[197] Ex. 3B, p. 613, s. 2.1.

[198] Ex. 37, paragraphs 53-57.

[199] At paragraph 3.

[200] Ex. 3B, p. 614, s.7.1.

[201] s.7.2(b).

[202] Ex. 3B, p. 615, s. 8.6.

[203] Section 3(2)(b)(v).

[204] Ex. 37, p.14, paragraph 70.

[205] Schomburgk: T5-20, Lines 6 to 9 and Perkins: T5-53, Lines 11-16.

[206] Ex. 14, pp.13-14, paragraphs 35(g) and 40(d).

[207] McGowan: T4-14 and T4-21; Curtis T4-35.

[208] Ex. 12, ‘Point of agreement’.

[209] Ex. 12, para 3.

[210] Ex. 12, para 5(a).

[211] Ex. 12, para 4.

[212] T5-47, Line 42 to 47.

[213] Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347, 357 [13].

[214] T5-7, Line 9 to 32, read with Overall Outcome (2)(i) set out in paragraph [21].

[215] Ex.37, p.13, paragraph 60.

[216] Ashvan, paragraph [50].

[217] Ashvan, paragraph [57].

Close

Editorial Notes

  • Published Case Name:

    HPC Urban Design & Planning Pty Ltd and Bio-Recycle Australia Pty Ltd v Ipswich City Council, Chief Executive, Department of Infrastructure, Local Government and Planning and Queensland Electricity Transmission Corporation Ltd trading as Powerlink Queensland

  • Shortened Case Name:

    HPC Urban Design & Planning Pty Ltd v Ipswich City Council

  • MNC:

    [2019] QPEC 56

  • Court:

    QPEC

  • Judge(s):

    Williamson DCJ

  • Date:

    13 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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