Lane v Gatton Shire Council & Anor
[1988] LG 544
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- Lane v Gatton Shire Council & Anor[1988] LG 544
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Lane v Gatton Shire Council & Anor[1988] LG 544
Lane v Gatton Shire Council & Anor[1988] LG 544
IN THE LOCAL GOVERNMENT COURT HELD AT BRISBANE | 10 March 1988 L.G.A. No. 8 of 1987 |
BETWEEN:
T., J.A. AND D.J.H. LANE | Appellants |
AND:
GATTON SHIRE COUNCIL | Respondent |
AND:
WARREN JOHN STEPHAN | Respondent by Election |
REASONS FOR JUDGMENT - QUIRK D.C.J.
This is an appeal against the Respondent's refusal of an application for consent to use, as a piggery, part of a rural property (of 67.363 hectares in area) at Junction View. This locality is approximately 30 kilometres to the south of Gatton and, where the land is suitable, is used for farming and grazing. Much of the area is hilly.
The land is in the “Rural General Farming” zone in the Respondent's Town Planning Scheme. The stated intent of this zone is “Land zoned Rural General Farming in the Town Planning Scheme is land within the Shire which is used or is suitable for use for rural production. In this zone, those defined uses which are associated with the farming of land are as of right uses. Unless exceptional circumstances exist, land zoned Rural General Farming is reserved for rural production.”
“A piggery” is defined as
“any land, building or other structure used or intended for use for the keeping, pasturing, feeding or watering of pigs, or the disposal of wastes so produced where the pigs exceed ten”
A piggery is a discretionary use in the Rural General Farming Zone.
The land's western boundary lies in the valley formed by Blackfellows Creek and there is a relatively flat area in the valley which is used for cultivation. A sealed road to which the subject land has frontage runs along the valley and leads to Gatton. A well maintained community hall stands on the north-western corner of the land in a small area which appears to have been subdivided from the property in times gone by. There are two dwellings to the north of the hall. The Junction View Primary School, which is a typical small rural school, adjoins the south-west corner of the land. The bulk of the property is made up of steep forested slopes which are quite unsuitable for cultivation.
It is proposed to locate the piggery on a flat to gently sloping bench on a ridge flank in the north-eastern corner of the site approximately 130 metres above the alluvial flat. It will be approximately 500 metres from the hall and 1 kilometre from the school. The proposal which I am asked to consider is for a “60 sow piggery” and replaces an earlier one which involved a more intensive piggery which was to be in another area of the property which was lower down and closer to the school and hall.
The Appellants are a married couple and their son who have been involved in dairying and pig farming in the Fernvale area. It is their intention to set up a modern and efficient piggery and, for some time, they have searched widely for an appropriate site. Important requirements were abundant water, good access to food supplies and markets and land which was not particularly suitable for agriculture. The Appellants sought guidance from the Respondent's Health Surveyor and from officers of the Department of Primary Industries. They received what they interpreted as a favourable assessment of the subject land but it was clear at all times that surface stability would be a major consideration if the piggery was to be located on a higher part of the property.
Access to the piggery site is presently gained by a fairly roughly cut track which climbs and traverses the existing slopes. Although, as was demonstrated on inspection, it is capable of taking a conventional vehicle to the bench, the track will need to be upgraded considerably if the proposal is to proceed.
The piggery will consist essentially of two buildings to house the pigs, a pond in which wastes will be disposed of by bacterial action and some minor structures for food and other storage purposes. Water will be pumped from the valley floor (where there is an abundant supply) and stored temporarily in tanks.
Adverting to soil stability problems in the general area, the Primary Industry Department's District Advisor recommended that the Appellant obtain a Geologists assessment of the stability of the proposed piggery site. The Appellant approached Messrs. Coffey and Partners, an experienced and respected firm of Geo-Technical Consultants, for this purpose. On January the 7th 1987 Mr. Joseph Gough, a Senior Engineering Geologist with the firm, made an inspection of the site and on the following day furnished a written report which indicated that the piggery site was “potentially stable” provided certain precautions “which were detailed in the report” were adopted. In fairness to the Respondent, this report was not before it when it resolved to refuse the application on the 10th December, 1986.
The Respondents' expressed reasons refusing the application were -
“1.The proposed piggery would be likely to deterimentally affect the amenity of the Junction View locality for the following reasons:-
- The application has failed to demonstrate that pollution of surface and underground water will not occur.
- Odours may affect neighbouring dwellings, the community hall and the Junction View School.
- The application has failed to demonstrate that waste can be disposed of in a satisfactory manner.
- The application has not demonstrated that the piggery can be sited on the bench area proposed and does not guarantee the stability of the site.
- The proposal is not in the public interest.”
(It must be noted that the Respondent was dealing with the proposal the intensity of which has since been halved.) There was a considerable number of objections to the proposal from residents of the area. The grounds of these objections focused generally on amenity considerations and on the danger of pollution of the underground water supply.
It is not difficult to understand why members of a community would be reluctant to welcome a piggery into their area but it must not be forgotten that the entitlement to exclude such a proposal by means of the exercise of the town planning power of a Local Authority must be shown to be based on proper town planning considerations. This appeared to be recognized by the Respondent in its conduct of the appeal. Although some reference was made to peripheral considerations including the economic viability of the proposal (about which there was some difference of opinion among experts who gave evidence) and such matters as the cost and stability of the internal access road, it was apparent that, bearing in mind the land's zoning as Rural General Zoning, the determinative issue in the appeal was whether the proposal posed an unacceptable risk to the community in the area of public health. This in turn depended upon a consideration of the stability of the proposed piggery area and the likelihood of a bench collapse which would lead to escape of contaminating material from effluent ponds through existing water courses to the valley and its underground water supply. The evidence is that many of the residents of the area depend on this supply for domestic purposes.
The Appellants, quite properly, consulted the Water Quality Council of Queensland, explained their proposal and had officers of the Council inspect the site. One of these officers, Mr. Lindsay Chappell (a Civil Engineer with particular experience in the effect on water quality of such rural activities as piggeries, feed lots etc.) was called to give evidence. The view which he expressed was based on the assumption that the bench was sufficiently stable to ensure the long term integrity of the piggery and associated pondage. He pointed to his Council's guidelines regarding the disposal of animal manure which he felt could be met in this case. If these were followed, the proposal did not present an unacceptable risk to water quality in the area.
Dr. Kingston, a highly qualified Veterinary Surgeon and Rural Consultant called by the Respondent, gave interesting evidence as to problems that can arise for the community as a result of bacterial contamination from piggery waste. However, sobering as this evidence was, his concerns pre-supposed an escape of effluent material as a result of bench failure and an aerobic pond collapse.
One must be careful, in cases of this kind, not to allow considerations which may tend to provoke emotive responses to confuse the process whereby a planning authority is required to discharge its function. The gravity of possibly adverse consequences of risks associated with a proposal cannot be ignored. It should not be permitted however to distort the standard of proof required of an Appellant in the discharge of the onus of showing that a town planning application should be approved.
The attractions of avoiding responsibility for allowing any proposal which has an element of serious risk, while only too obvious, must be resisted. As Carter J. (when constituting this Court) in Davjan v. Noosa Shire Council 1981 Q.P.L.R. 69 observed (when a similar situation arose) “such an approach would be superficial and an abrogation of my judicial function”. He went on to point out that the standard to which a tribunal must be satisfied that a development will not of itself be a source of risk to other land holders is the “civil standard” namely “a degree of persuasion of the mind according to the balance of probabilities”. The passage from Rejfek v. McElory 112 C.L.R. 517 at 521 which he cited is worthy of repetition
“the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to obtain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.”
What will determine this case is whether, on the balance of probabilities, the Appellants have shown that the bench is a suitable and stable platform for the piggery proposal and that a collapse of the effluent pond will not occur.
The Appellants called Dr. Richard Hammer a Geographer of extensive experience in both the academic area and in the field. Dr. Hammer has examined the site and the locality in which it is found. He has also considered studies of the general area made by eminent Geologists Wilmott and Zahawi which form part of the “Geological Survey of Queensland”.
Dr. Hammer concluded that Mr. Gough of Coffey and Partners was correct in his assessment of the stability of the proposed piggery site and adopted the “Development Recommendations” which are set out in the Gough Report. As he put it “within a human perspective, (the proposal) with proper development should not create future instability of the bench or environs”.
The Respondent called Mr. Bruce McNaughton a Consulting Engineer whose firm was, in November 1987, commissioned to consider the subject application. In December 1987 he made an inspection of the site and also considered available material regarding the area including the writings of Wilmott and Zahawi.
Essentially his conclusions were of a negative kind; namely that the Appellants:
- Had not demonstrated that the piggery can be sited on the bench area.
- Were unable to “guarantee” the stability of the site.
- Had failed to demonstrate that waste could be disposed of in a satisfactory manner and would be unlikely to pollute both surface and underground water.
Having regard to the nature of his brief one can perhaps understand the negative approach adopted by Mr. McNaughton. There were, nevertheless, areas in which his evidence and that of Dr. Hammer came into conflict.
When questioning the stability of the site Mr. McNaughton relied to a considerable extent on the writings of Zahawi and Wilmott. Extracts from these reports must however be understood in the context in which they appear and it is noted that the Geologists were engaged in surveys of a wide area which were intended as guides for large scale planning. I feel Dr. Hammer's comment was pertinent when he said:
“The study area (of the Zahawi paper) is approximately 1,800 square kilometres. A study of this magnitude necessitates all encompassing statements in order to reduce the classification of zones to a manageable number. There is no evidence in the paper to suggest (Zahawi) directly addresses the piggery site which represents about 1/29,000 of his study area.”
The difficulty in applying the techniques adopted by Wilmott and Zahawi to an investigation of the stability of this specific site is illustrated by the somewhat artificial (and one might suspect unscientific) exercise of adapting the criteria used by the Geologists to that investigation. For instance, both experts before me found it necessary to decide whether the bench was “wide” or “narrow” as those terms are used by the Geologists. The first difficulty was to identify the true dimensions of the bench, and without going into great detail I say simply that I had some misgivings about Mr. McNaughton's approach in disqualifying a “bench” as much of the area that Dr. Hammer thought was.
It was, of course, also necessary to decide what constituted a “broad” bench as distinct from a “narrow” one. Here the difficulty in transposing the method adopted by an expert in one study to a different assessment altogether became evident. Mr. McNaughton referred to one of Wilmott's “zones” which was said to be made up in part “relatively broad flat benches on the flanks of ridges”. He also pointed to a statement by the author that this zone was “considered capable of acreage (5-10 hectares) settlement”. From this he concluded that a bench of an area of anything less than 5 hectares must be considered “narrow” and hence of doubtful stability.
Leaving aside the obvious difficulties in the logic of this approach, one cannot help doubting whether Wilmott ever intended that these statements should be used in this way.
I mention this matter only as an example of what I regarded as an inappropriate application of parts of the Geological Survey of Queensland to a site evaluation in this case. There were other instances to which Dr. Hammer referred in his written reports and in his evidence. I do not wish to be unduly critical of Mr. McNaughton's evidence which must be appreciated against the background of what he was asked to do and the resources made available to him.
I am content to say that, in my view, the evidence adduced by the Respondent did not, in any important way, weaken that given by Dr. Hammer and I accept the opinions regarding bench stability which he expressed.
On the evidence given in the appeal I find that the onus of demonstrating the stability of the proposed piggery site, provided appropriate precautions were taken, has been discharged.
Dr. Hammer gave other evidence regarding the likely impact of the proposal in terms of “environmental pollution potential” and concluded “the proposed piggery at Junction View appears to possess a very limited potential to create an odour/pollution problem. The basic design is well above accepted standards and the separation from existing structures is greater than that required by (existing) guidelines.”
I listened with interest to the evidence given by objectors who are resident in the area. I felt that their evidence was given in a forthright and genuine manner and I understand the attitudes to the proposal which they expressed. But, as I have already stated, decisions in this Court must be based on considerations which are relevant in a Town Planning sense and, having regard to the zoning of the area, in my view the only basis upon which this proposal could be refused is that it represents an unacceptable risk to community health. As noted its likely environmental impact is otherwise not such as to call for its rejection.
On the whole of the evidence I find that the onus of showing that a proposal for a 60 sow piggery ought to be approved has been discharged. The appeal will therefore be allowed. There will, of course, need to be conditions and I will adjourn the appeal for an appropriate time to allow these to be formulated.
In the area of geo-technical and environmental control I am prepared to act on the recommendations of the Water Quality Council and Dr. Hammer. As I indicated at the close of the hearing, all parties, in my view, put forward cases which were of substance and which were presented competently and reasonably.
It does not appear to me to be a case where any orders in respect of costs is appropriate.