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- Phipps Pastoral v Somerset Regional Council[2016] QPEC 38
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Phipps Pastoral v Somerset Regional Council[2016] QPEC 38
Phipps Pastoral v Somerset Regional Council[2016] QPEC 38
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Phipps Pastoral v Somerset Regional Council [2016] QPEC 38 |
PARTIES: | PHIPPS PASTORAL Appellant v SOMERSET REGIONAL COUNCIL Respondent |
FILE NO/S: | 786/16 |
DIVISION: | Planning and Environment Court |
PROCEEDING: | Application |
DELIVERED ON: | 26 August 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 August 2016 |
JUDGE: | Bowskill QC DCJ |
ORDER: | The application is dismissed. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – development approval granted by the Court for a poultry farm to be operated as a free range facility, with no more than 250,000 birds - where the applicant requested changes to the approval, with the effect that the farm would not be operated as a free range facility, and with an increase in the number of birds to 300,000 – whether the proposed changes constituted a permissible change Sustainable Planning Act (2009), ss 367, 369 |
APPEARANCES: | D Phipps appeared in person, on behalf of the Appellant D Kevin (King & Company) for the Respondent |
- [1]Mr Doug Phipps, with members of his family, runs a chicken farm on a property at 91 Bischoffs Road, Coominya, under the name Phipps Pastoral. Phipps Pastoral obtained approval for a development application to use the land for this purpose, by order of this Court made on 23 August 2013. The conditions of that approval included, relevantly:
“1.9 No more than 250,000 birds are to be housed at the facility at any one time.
1.10 There are to be no more than six (6) sheds on the subject land, with such sheds to be constructed and located in accordance with the approved plans.
1.11 [Requirements for each shed to have a scratch area.]
1.12 There are to be no more than 42,000 birds housed in any one shed at any one time.
1.13 The maximum stocking density for each of the sheds is to be 16 birds per m2.
1.14 The development shall be operated as a free range facility and strictly in accordance with the standards set out in the document annexed hereto as Appendix D.
1.15 Each day:-
a) all birds are to be removed from the sheds and released into the scratch area adjoining each shed; and
b) the litter in the sheds is to be ventilated while the birds are outside the scratch area.”
- [2]Prior to that order being made, Phipps Pastoral had received a letter of intent from a processor of free range chicken, to enter into an agreement to grow free range chickens for them. Mr Phipps’ evidence is that subsequently, and while the sheds were being constructed in accordance with the development approval, the market demand changed, and as a result major supermarket chains decided to principally sell RSPCA-accredited chicken, rather than free range chicken. As a result, a contract to grow free range birds was no longer available. However, Phipps Pastoral went on to complete the sheds, and have been operating “efficiently … as an RSPCA accredited commercial farm” for the past 2 and a half years.
- [3]Following an inspection in December 2015, the Somerset Regional Council wrote to Mr Phipps outlining a number of areas of non-compliance with the conditions of the development approval, including that the farm is not operating as a free range facility, and that the maximum number of birds was being exceeded. The letter from the Council states that these matters had been raised previously, and indicated that if they were not rectified by 1 June 2016, Council would commence enforcement action.
- [4]That letter prompted this application by Phipps Pastoral, under s 369(1)(d) of the Sustainable Planning Act 2009, for approval to make a number of changes to the development approval, on the basis that they are “permissible changes” within the meaning of s 367. The changes sought to be made are to:
- (a)amend condition 1.9 to read “No more than 250,000 birds are to be housed at the facility at any one time when operating as a free range facility and not more than 290,000 birds at any other time”;
- (b)amend condition 1.12 to read “There are to be no more than 42,000 birds housed in any one shed at any time when being operated as a free range facility and not more than 49,000 birds at any other time”;
- (c)amend condition 1.13 to read “The maximum stocking density for each of the sheds is to be 16 birds per m2 when operated as a free range facility”;
- (d)amend condition 1.14 to read “The development, when operated as a free range facility, is to be strictly in accordance with the standards set out in the document annexed hereto as Annexure D”; and
- (e)amend condition 1.15 to read “When operated as a free range facility and birds are the appropriate age, each day:
- (a)
- (a)All birds are to be removed from the sheds and released into the scratch area adjoining each shed; and
- (b)The litter in the sheds is to be ventilated while the birds are outside in the scratch area”.[1]
- [5]It is immediately apparent that what Phipps Pastoral is seeking to achieve is a change to the development approval so that its farm is not required to be operated as a “free range facility” at all (as required by condition 1.14); the existing conditions only apply if it is being operated as a “free range facility” (which it is not intended to be); and when not operated as a free range facility, a higher number of birds (an additional 40,000 overall) can be housed at the facility.
- [6]Mr Phipps frankly acknowledges that the facility is not being operated as a free-range facility; that in fact it has not been for the past two and a half years. Rather, it is being, and is intended to be run as an RSPCA accredited facility, which means the birds are largely confined to the sheds, rather than free ranging (although Mr Phipps said the birds do have the opportunity “at times” to be outside).
- [7]Phipps Pastoral argues that these are “permissible changes” within the meaning of s 367 because:
- (a)the increase from 250,000 birds to 290,000 birds would be a “minor change”, just as the change from 300,000 birds (the subject of Phipps Pastoral’s original application) down to the 250,000 birds the subject of the approval by the court, was regarded as a minor change;
- (b)there is no change proposed to the number of sheds on the property;
- (c)it would be highly unlikely that a person would make a properly made submission if the circumstances allowed because:
- the farm is “existing and being operated very effectively and efficiently under an Environment Management Plan; Environment Authority and Suitable Operator Registration under the Environmental Protection Act”;
- Phipps Pastoral is “unaware of any ongoing complaints about the farm or of any unhappy people in the area”;
- the original application went through public notification, for a 300,000 bird farm; only one submission was received, from a person who has since left the district; and it is unlikely a person would now make a submission when the maximum number of birds requested is 290,000;
- (d)of the “good reputation, record, knowledge and experience of” Phipps Pastoral in constructing and operating this meat chicken farm; and
- (e)of the “valuable contribution made to society in providing sustainably produced food for the residents of south east Queensland”.[2]
- (a)
- [8]The Council opposes the application, on the basis that:
- (a)the changes would result in a “substantially different development”, because they involve a new use with additional impacts (operating the farm as an RSPCA accredited facility, rather than a free range facility, with an additional 40,000 birds) and increase the severity of known impacts (namely, odour); and
- (b)it cannot be said that the changes would not be likely to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed, because the Council has received emails from owners of 3 nearby properties indicating that they would.
- (a)
Permissible change – relevant principles
- [9]In determining this application, the Court must apply the statutory test set out in s 367(1) of the Sustainable Planning Act 2009, having regard to the evidence before the Court. The onus is on Phipps Pastoral, as the applicant for approval to make the change, to demonstrate that the statutory test is met, on the balance of probabilities.
- [10]Under s 367(1) a “permissible change” for a development approval is, relevantly, a change to the approval that would not, because of the change:
- (a)result in a substantially different development; or
- (c)for an approval for assessable development that previously required impact assessment – be likely, in the responsible entity’s opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed.
Substantially different development
- [11]There is no definition of “substantially different development” in the Act. It is to be given its ordinary common sense meaning,[3] although there is assistance to be gained from statutory guideline 06/09, made under s 759(1) of the Act. Changes that are identified in the guideline as some that may result in a substantially different development include changes that:
- (a)involve a new use with different or additional impacts; or
- (b)introduce new impacts or increase the severity of known impacts.
- (a)
- [12]The guideline is no more than that. The examples given are not exhaustive, nor are they determinative – they are simply some examples of changes that may result in substantially different development, depending on the individual circumstances of the case.[4] The assessment of whether a proposed change would, or would not, result in a substantially different development involves matters of fact and degree, to be considered broadly and fairly, having regard to the overall development application.[5] It is relevant to consider the changes from a qualitative as well as a quantitative perspective, consistently with the guideline which refers not only to the physical degree of change, but to its impacts.[6] It has been observed that the court will scrutinise more critically those changes which have the potential to raise new or additional impacts, not dealt with at the development application stage.[7]
Likelihood of submission
- [13]As observed by Morzone QC DCJ in Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 at [75]:
“(1) The words ‘because of the change’ … require a causal connection between the permissible change and a likely submission. The question is whether the proposed change would provoke an adverse submission that was not provoked by the pre-existing approval as amended from time to time.
- (2)‘Likely’ in this context conveys a notion of something substantial, and ought to be construed as a ‘real’ or ‘not remote’ chance or possibility regardless of whether it is less or more than 50 per cent. In relation to causing a person to make a submission, the word is synonymous with ‘prone’, ‘with a propensity’ or ‘liable’.
- (3)Consideration must be given to the likelihood of submissions ‘objecting to the proposed change’ being made ‘on a relevant basis at least’. The question here is whether the submission raises a new objection about the change itself and not about the pre-existing approval as amended from time to time.
- (4)The potential submitter must be assumed to be objective and rational, and to be acting reasonably. …”[8]
- [14]The formulation of the test in s 367(1)(c) is of a matter that must be negatived, on the balance of probabilities: it must be shown, on the balance of probabilities, that the proposed changes would not, because of the change, be likely to cause a person to make a properly made submission objecting to the change.
- [15]As Rackemann DCJ observed in Scanlon Group Pty Ltd v Sunshine Coast Regional Council [2012] QPELR 394 at 395, “the question is not whether the change would cause a person to make a submission which would ultimately be upheld in the sense of leading to a refusal on the merits, but rather whether the change would cause a submission objecting to the changes to be made”.
- [16]Here, as in Scanlon Group, the Court does have material before it which evidences a level of opposition from at least three people who, it would seem, may wish to make a submission objecting to the changes, if circumstances allowed.
Are the changes such that they would not, because of the changes, result in a substantially different development?
- [17]Mr Phipps submits that there is no new use, or different impact as a result of the proposed changes, because “it’s still a chicken farm”. Although he acknowledges it could be said there may be an additional impact with the increased number of birds, he submits they are very experienced farmers, the farm is very well run, and relies on letters he has obtained from neighbours indicating that “they’re happy for us to have those extra birds”. He submits there would be no increased impact in terms of odour, because they have no issues with odour now, and 16% (being the amount of the increase in birds) “of nothing is nothing”.
- [18]Phipps Pastoral relied on a report from Vipac Engineers & Scientists Ltd, dated 14 September 2012, which analysed the proposal, at that time, to develop a free-range chicken farm on the subject land, comprising six sheds each holding 50,000 birds, totalling 300,000 birds, being kept as free range, and expressed the opinion, based on odour and dust modelling, that the proposed site was suitable for this development.[9]
- [19]It is apparent from this report that it is clearly premised on the facility being operated as a “free-range chicken farm”, with comments being made, for example:
- (a)in relation to operational aspects of the development, that “compared to non free-range chicken sheds, there will be fewer birds per m2 and most of the birds will be outside anyway during daytime” (p 5);
- (b)in relation to odour emission, in relation to which litter moisture content is a critical factor, that “the litter moisture content at the proposed development is expected to be very low because:
- (a)
- The stocking density of the farm is roughly 20% lower than a typical poultry shed;
- The birds are free to roam outside the shed during daytime; and
- Operations at the shed are expected to conform to modern best practice techniques. Specifically there is a small tractor and rotary harrow which will be used to aerate the litter.
As the birds will be away from the litter and the shed will be naturally ventilated during daylight hours, the litter will also be able to dry out significantly more than is possible in a typical poultry shed. This will also prevent odour build up within the shed” (pp 11-12);
- (c)on the basis of that analysis, it was concluded the litter moisture content would be significantly lower than a typical poultry farm and therefore it was considered appropriate to decrease emission rates from the development by a factor of 2 (so a 50% reduction) (p 12); and
- (d)applying that reduction to its odour dispersion modelling, Vipac found the odour concentrations were all compliant with applicable criteria (save for one receptor, the result for which was said to be affected by the impact from another existing facility) (pp 14-15).
- [20]The original proposal by Phipps Pastoral (for a 300,000 bird free range facility) was rejected by the Council. The development was subsequently approved by the Court, on appeal, but on the basis of a reduction in the number of birds to 250,000 (it is not clear whether there were other changes as well – this is the most obvious). I do not have the benefit of material which explains the reason for the reduction in numbers to 250,000.
- [21]For the Council reliance was placed on evidence from Mr Simon Welchman, of Katestone Environmental Pty Ltd, who was asked to conduct a peer review of the Vipac report, to determine “if it provides an adequate technical basis that demonstrates that a conventional broiler farm with an increased capacity from 250,000 to 290,000 can be operated at the site without causing environmental nuisance”.[10]
- [22]The conclusion reached by Mr Welchman (summarised at paragraph 7 of his affidavit) was that:
- (a)the Vipac report underestimated odour emission rates:
- firstly, Mr Welchman was critical of Vipac’s assumed 50% reduction in emissions of odour due to low moisture content, saying it is “not valid”, and so the predicted concentrations of odour in the Vipac report would be likely to be up to twice as high;
- but Mr Welchman was also critical of the methodology used in the Vipac study, as not being consistent with the Department of Agriculture, Fisheries and Forestry’s Poultry Modelling Guidance, with the result that “it appears that the magnitude of peak odour emissions may have been underestimated in the Vipac Study by a factor of six” (p 2 of the report); and
- (b)as a consequence, the Vipac report indicates that a conventional broiler farm operating with a capacity of 290,000 birds would cause EHP’s[11] odour guideline to be exceeded at each of the four sensitive receptors that were identified and hence the farm would be likely to cause environmental nuisance.
- (a)
- [23]Mr Welchman observes that increasing the number of birds, as proposed, will increase the odour emission rate by 16%, which is significant (paragraph 10 of his affidavit).
- [24]Mr Welchman also observes that he is not aware of any further odour modelling work that has been prepared on behalf of Phipps Pastoral that demonstrates the proposed 290,000 bird conventional poultry farm will not cause EHP’s odour guideline to be exceeded (paragraph 8 of his affidavit).
- [25]It is uncontroversial that no such further odour modelling work has been carried out.
- [26]Phipps Pastoral relies on the EHP guideline on odour impact assessment[12] as providing for an alternative to modelling, in the form of “community odour surveys”. In both his affidavit filed 26 June 2016, and a further affidavit filed on 9 August 2016, Mr Phipps annexes documents said to reflect the views of various neighbours, who say they have no issues with the Phipps Pastoral farm. These documents are in the form of acknowledgements, in a common form, which appear to have been signed by a neighbour,[13] or handwritten letters from others.[14]
- [27]However, Mr Welchman’s evidence is that Phipps Pastoral has not submitted any information that would constitute a valid alternative to odour dispersion modelling (paragraphs 20-25 and 33 of his affidavit). Mr Welchman says that the two letters from neighbours first obtained by Mr Phipps do not constitute a community odour survey for the purposes of the guideline.[15] I accept that. Even taking account of the additional 7 neighbours Mr Phipps subsequently says he spoke to (which Mr Welchman would not have been aware of), there remain a number of people who have not been asked to comment, and it is clear that these kinds of informal approaches by Mr Phipps, are not what is contemplated by a “community odour survey” under the guideline.[16]
- [28]In relation to Mr Phipps’ submission that the increase from 250,000 to 290,000 ought to be seen as “minor”, just as the reduction from 300,000 to 250,000 birds was – that does not logically follow.
- [29]This point was clearly demonstrated by Rackemann DCJ in Emaas at [19] where his Honour said:
“Accordingly, for example, a change in building height of a given quantum (say a change of two storeys to an original six storey proposal) is more likely to be regarded as within the bounds of minor if, by a reduction of height of that magnitude, adverse amenity and planning issues identified upon assessment of the original proposal are obviated, than if, by an increase of the same magnitude, impacts are exacerbated or created or new issues arise (by, for example, raising the building to exceed a relevant standard with which the original proposal was compliant). Each case however, must be assessed having regard to its own circumstances.”
- [30]As already noted, Mr Phipps also submits that the chicken farm is being efficiently operated, in accordance with the Environmental Authority, granted under the Environmental Protection Act 1994, and the Environmental Management Plan for the farm. In this context, Mr Phipps also emphasised that the Department of Infrastructure, Local Government and Planning has no objection to the proposed changes.[17] He argues that matters of environmental regulation and management of chicken farms are within the jurisdiction of the State government, under the Environmental Protection Act, not the Council, and accordingly challenges the ability of the Council to object to the proposed changes on environmental grounds (odour).
- [31]This submission appears to proceed from a misunderstanding of the differing roles of the State government, as the entity charged with responsibility to enforce the Environmental Protection Act, and the local government, as the entity charged with continuing responsibility to oversee matters concerning planning and development, under the Sustainable Planning Act.
- [32]At the end of the day, however, for the purposes of this application, it is the Court that is the “responsible entity” for the purposes of determining whether the proposed changes are “permissible changes”, within the meaning of s 367(1), having regard to the evidence which is before the Court.
- [33]I am not satisfied, on the evidence before me, that the changes would not result in a “substantially different development” because:
- (a)One of the fundamental changes – although not in express terms - is from a “free range facility” to a different type of facility, being RSPCA accredited, but not free range. There is not material before the Court which explains what is involved in operating an RSPCA accredited facility, in contrast with a free-range facility, but it is clear that at least the fundamental difference is that, in the former, the birds are not removed from the sheds each day and released into the scratch area.
- (b)That change in itself, on the evidence before the Court (contained in the Vipac report, even putting to one side the criticisms from Mr Welchman) will have an impact on odour emissions – because an important aspect of the Vipac’s analysis was the fact that it was a free range facility.
- (c)If the criticisms made by Mr Welchman of the Vipac methodology are taken into account, the potential impact on odour emissions is even greater.
- (d)The increase in the number of birds, of 16%, compounds the issue (although in fairness it must be observed that the Vipac analysis was on the basis of a 300,000 bird facility).
- (a)
- [34]In my view it is arguable that the change involves a new use, being an RSPCA accredited facility, rather than a free range facility. But even if the “use” is appropriately described more generally as a poultry farm, the evidence before the Court supports a finding, on the balance of probabilities, that the changes will increase the severity of known impacts (being the known impacts associated with a 250,000 free range facility, as originally approved). On that basis it cannot be the said the changes would not result in a substantially different development.
Are the changes such that they would not, because of the changes, be likely to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed?
- [35]There was one submission received in relation to the original proposal.[18] The objection was on the basis that Bischoffs Road, in the condition it was then, was unsuitable for “more heavy vehicle traffic”.
- [36]The evidence was that the person who lodged that submission, Mr Donohoe, no longer lives in the area and that, in any event, the road has now been sealed with bitumen. The Council also confirmed that traffic is not an issue.
- [37]The Council relied on material which shows the parcels of land owned within a 2 kilometre radius of the Phipps Pastoral chicken farm, and a list of each of these property owners.[19] The Council’s solicitor, Mr Cerruto, deposes to having spoken to 3 of these owners, Ms Gow, Mr Jablonski and Ms Wold, about the proposed changes to the development approval. He exhibits email responses he received from each of those persons, which make it plain those people would make a submission objecting to the proposed change, if the circumstances allowed.
- [38]Ms Gow refers primarily to the issue of odour, but also mentions animal welfare, reduction in values of surrounding properties and whether Buaraba Creek is becoming contaminated by the products of the chicken farm. Mr Jablonski raises the issue of odour, as well as the effect on property values and water quality of “our bore due to run off”. Ms Wold mainly refers to traffic issues, but also adds reference to the unpleasant smell.
- [39]In his third affidavit, filed on 9 August 2016, Mr Phipps takes issue with Mr Cerruto’s affidavit, and the attached emails from 3 owners of properties, on the basis that those people do not reside on their properties. Mr Phipps says he has spoken to the people who do reside on those properties, and says they have no issues with the chicken farm (annexing either a signed acknowledgment, or letter from them); as well as speaking to the owners/occupiers of four other properties listed in MJC1 and MJC2, who likewise have advised they have no issues with the farm.
- [40]It is fair to say, as the Council does, that the views of owners of properties ought not be disregarded, merely because they do not reside on those properties. It is also fair to observe that, between the people who have sent emails to the Council (who indicate they would object) and the people Mr Phipps has spoken to (who indicate they would not), there are a number of other property owners in the area whose views are not known.
- [41]As noted above, the matter to consider is whether the proposed change would be likely to provoke an adverse submission that was not provoked by the pre-existing approval.
- [42]Here, the Court is not left to ponder entirely the hypothetical prospective submitter; there is evidence before the court that the proposed change would provoke objection by at least the three people earlier referred to, if given the opportunity. But in any event, in my view, it is reasonable to conclude that the issue of potentially increased odour emissions, from the changed nature of the operation, and increase in number of birds, would prompt a rational submitter, acting reasonably, to object to the change, if the circumstances allowed. The evidence before me does not indicate the other matters (run off, property values, traffic) are things that would not have prompted an objection when the original application was made, and so I do not place any weight on those. But odour, in particular increase in odour, could well do so.
- [43]In those circumstances, on the balance of probabilities, I am not satisfied the changes are not likely to cause a person to make a properly made submission objecting to the changes if the circumstances allowed.
Conclusion
- [44]The matters referred to in s 367(1)(a) and (c) are not cumulative – if either is not met, the test is not satisfied. So even if a different conclusion had been reached on “substantially different development”, the conclusion I have reached in relation to likelihood of submission results in the ultimate conclusion that the proposed changes are not “permissible changes” for the purposes of s 367.
- [45]The application is therefore dismissed.
Footnotes
[1] Underlining added, to highlight the changes proposed.
[2] Grounds set out in the application filed 26 February 2016.
[3] Explanatory notes to the Sustainable Planning Bill 2009, p 185.
[4] Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 at 512C-D; Dickson Properties Pty Ltd v Brisbane City Council [2015] QPELR 595 at [22].
[5] Heritage Properties at 512E; Emaas Pty Ltd v Brisbane City Council [2014] QPELR 579 at [18].
[6] Emaas at [15].
[7] Emaas at [15].
[8] Footnotes omitted. Emphasis added.
[9] Annexed to the affidavit of Douglas Phipps filed 26 February 2016.
[10] Affidavit of Simon Welchman filed 8 August 2016, annexing his peer review report at SW-2.
[11] The Department of Environment and Heritage Protection (EHP).
[12] Annexed to Mr Phipps’ second affidavit, filed 29 June 2016.
[13] In the case of Mr Brendan Neumann, Mr Matthew Phillips, Mr Egan Pennisi, Mr Peter Kelly, Mr Graham Bischoff, Ms Teitia Shipsey and Ms Leonie Gallaway.
[14] In the case of a person named Brehm and a Ms Deanna Vollbrecht.
[15] At the time Mr Welchman’s affidavit was filed, the further acknowledgments/letters, from another 7 neighbours, had not been provided by Mr Phipps.
[16] See appendix A to the EHP Guideline (p 25), annexed to Mr Phipps’ affidavit filed 29 June 2016
[17] Letter dated 11 March 2016, annexed to Mr Phipps’ affidavit filed 26 June 2016.
[18] Exhibit 2.
[19] Exhibits MJC-1 and MJC-2 to Mr Cerruto’s affidavit filed 8 August 2016.