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Singh Properties Pty Ltd v Scenic Rim Regional Council[2018] QPEC 27

Singh Properties Pty Ltd v Scenic Rim Regional Council[2018] QPEC 27

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Singh Properties Pty Ltd v Scenic Rim Regional Council [2018] QPEC 27

PARTIES:

Singh Properties Pty Ltd

(ACN 010 768 948)

(appellant)

v

Scenic Rim Regional Council

(respondent)

FILE NO/S:

4267 of 2016

DIVISION:

Planning & Environment Court of Queensland, Brisbane

PROCEEDING:

Hearing of an appeal

ORIGINATING COURT:

Planning & Environment Court of Queensland, Brisbane

DELIVERED ON:

24 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

19, 20 and 21 April 2017, 23 to 27 October 2017, 13 and 14 November 2017 and 16, 17, 18 and 27 April 2018

JUDGE:

RS Jones DCJ

ORDER:

1. The appeal is dismissed.

2. Either party may file an application in relation to costs in the proceedings within 14 days of today’s date.

CATCHWORDS:

APPEAL AGAINST REFUSAL OF DEVELOPMENT APPLICATION – for a development permit for a material change of use for a poultry farm (expansion of existing farm) – where proposed development would increase the existing poultry farm from four sheds (approximately 200,000 birds) to 13 sheds (approximately 600,000 birds) and a manager’s residence – where reasons for refusal included inadequate setbacks – impacts on amenity as a consequence of odour and dust – where reasons for refusal included adverse impacts on existing and future rural landscape character and, in particular, that it would not protect air and water quality

WHERE APPLICATION RAISED – air quality including odour and dust – visual amenity – water quality and sufficient setbacks

CONFLICT WITH PLANNING SCHEME – where proposed development said to be in conflict with respondent’s planning scheme

NEED – whether in circumstances where there was conflict with the planning scheme sufficient grounds existed to warrant approval notwithstanding conflict

WHETHER STAGED – monitoring programme of existing facilities and each subsequent stages of expansion would justify approval

PRELIMINARY APPROVAL – whether amendment of development application to that of a preliminary approval avoided conflict with the Planning Scheme – whether the appellant protocol underpinning the amended application for preliminary approval offended the finality test.

Sustainable Planning Act 2009

Bell v Brisbane City Council [2018] QCA 84

Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2017] QPEC 23

Caloundra City Council v Pelican Links Pty Ltd & Anor [2004] QPEC 52

Kindimindi Investments Pty Ltd v Lane Cove Council & Anor (2006) 143 LGERA 277

Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370

McBain v Clifton Shire Council [1996] 2 Qd R 493

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Mitchell Ogilvie (Mitchell Ogilvie Menswear) v Brisbane City Council [2000] QPELR 414

Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 347

Pittwater Council v Minister of Planning [2011] NSWLEC 162

Tower 720 Pty Ltd v Hervey Bay City Council [2003] QPELR 178

Transport Action Group Against Motorways v Road and Traffic Authority & Ors (1999) 46 NSWLR 598

Weightman v Gold Coast City Council [2003] 2 Qd R 441

COUNSEL:

Mr D Gore QC with Mr M Williamson QC for the appellant

Mr R Traves QC with Mr M Batty for the respondent

SOLICITORS:

Connor O'Meara for the appellant

Thompson Geer for the respondent 

  1. [1]
    This proceeding was ultimately concerned with an appeal against the respondent’s decision to refuse the appellant’s “primary position”, being an application for a preliminary approval for a material change of use concerning the subject land owned by the appellant.
  1. [2]
    For the reasons set out below the orders of the court are:
  1. The appeal is dismissed.
  2. I will hear from the parties if necessary as to any consequential orders.

Background to the appellant’s “primary position”

  1. [3]
    At the commencement of this proceeding, the purpose of the development application was described as being “to obtain a development permit for the following aspects of development”.[1]  The nature of the proposal is dealt with in more detail below under the heading “the proposal”, however, it is appropriate at this stage to set out the evolution of the appellant’s position during the conduct of the proceeding. 
  1. [4]
    The initial position of the appellant was to seek approval for the expansion of an existing poultry farm, which is an environmentally relevant activity, by the construction of a further nine sheds across two pads, described during the course of the proceedings as the “central pad” and the “southern pad”. That expansion would have seen the number of poultry birds increased from the existing 200,000 odd birds up to somewhere in the order of 605,000 birds. At least as I understood the appellant’s case at the beginning of the proceeding, this expansion was to effectively occur simultaneously.
  1. [5]
    During the course of the proceeding, particularly after the evidence concerning air quality (including toxicology) was presented, the appellant changed its position by amending its application to provide for a staged development which would see each stage proceed only after stringent on-field sampling, testing and modelling had occurred. However, between the completion of the evidence on 18 April 2018 and final addresses on 27 April 2018, the appellant’s position changed again. On 22 April 2018, the appellant’s solicitor wrote to the solicitors for the respondent relevantly stating:[2]

“Having reflected upon the evidence given last week and taking into account the Respondent’s legal teams’ concerns about the Protocol (including with respect to input from third parties), the Appellant has provided us with instructions that its primary position in the proceedings will be to invite the Court to give a preliminary approval, rather than a development permit, in deciding the development application the subject of the appeal.

The Appellant’s position is that, the preliminary approval, if given by the Court will incorporate a condition which requires implementation of the Protocol...”  (Emphasis added).

  1. [6]
    Not surprisingly, this change took the respondent somewhat by surprise and on 23 April 2018, its solicitors wrote to the appellant’s solicitors seeking further details.[3]  In response to that request, at least in part, the appellant’s solicitors provided what was described as the “appellant’s amended protocol”.[4]  More will be said about this document below and, at this stage, it is only necessary to identify that the amended protocol replaced what was initially described as the “appellant’s protocol”.[5]  That document set out what could only be described as a complex and comprehensive series of steps designed to provide a “Protocol for Staged Approach to Establishment of Additional Poultry Sheds…” 
  1. [7]
    Notwithstanding this late change in the appellant’s position, final submissions proceeded on the allocated date and the matter was dealt with on the basis of the appellant seeking a preliminary approval for a staged development of the predicated expansion. In my view, it would be wrong to characterise the application for preliminary approval as the appellant’s “primary position”. It is its only position. No alternative outcome was ultimately pursued.[6]

The subject land and location

  1. [8]
    The land is located at Tramway Road, Tabooba. Tabooba is a rural district located, broadly speaking, approximately 17 km south of Beaudesert and 11km south-east of Kooralbyn. The land comprises a number of individual lots totalling an area of 358.505 ha: Lot 1 on RP 32556, Lot 2 on RP 192526, Lot 2 on WD249, Lot 3 on WD249, Lot 1 on RP 48061, Lot 2 on RP 32556, Lot 1 on RP 32557, Lot 1 on RP 32540, Lot 4 on RP 32540, and Lot 5 on RP 32540.
  1. [9]
    The land is included within the respondent’s Rural Zone Countryside Precinct under the Beaudesert Shire Planning Scheme 2007 (“the planning scheme”) and is currently improved by a poultry farm comprising four sheds, two dwelling houses and other various sheds and infrastructure. The poultry farm as it presently stands has been operating for approximately seven years and involves the management of about 200,000 birds. The grazing of cattle, presumably for the meat market, also occurs on the land.
  1. [10]
    Consistent with its land use designation, there are areas of extensive clearing but also areas that are still relatively heavily timbered.[7]  Also consistent with the rural zoning, the land is surrounded by a number of large rural residential type developments to the east and by a larger rural property to its south.  Other rural and rural residential type development also abuts the northern boundary of the land.[8]  More will be said about these surrounding developments when considering the amenity issues raised during the course of this proceeding.

The proposal

  1. [11]
    Various descriptions have been given to the proposed development as originally contended for. However, for the purposes of this proceeding, I consider it appropriate to simply repeat the description provided by the appellant’s consultants in its correspondence and supporting material dated 29 June 2015. In that material, it is described in the following terms:[9]

“The purpose of the application is to obtain a development permit for the following aspects of development: 

  • A Material Change of Use under the Planning Scheme for a Poultry Farm; and
  • An Environmentally Relevant Activity – ERA 4(2) Poultry Farm in excess of 200,000 birds.

The development application seeks approval to expand an existing poultry farm currently comprising four sheds with a total capacity of 200,000 birds.  The expansion will see the construction of a further 9 (nine) sheds across two pads.  4 (four) sheds will be established on a central pad on Lot 1 RP 32556 and 5 (five) sheds on a pad to the south on Lot 2 RP 32556.

Each of the new sheds will accommodate a maximum of 45,000 birds.  The total capacity of the expanded farm will be 605,000 birds. 

The farm may operate as either a standard commercial farm or a free range farm.  The Proposed Plans illustrate the layout for a commercial farm.  Should a free range operation be required, the side loading pads will be removed from between the sheds and will replaced by a fenced free range chicken area between the sheds and a 12.5 metre wide fenced range area on the northern and southern sides of each shed.

The odour emissions associated with a standard commercial farm are typically higher than a free range farm.  For this reason, the odour modelling has been undertaken on a commercial farm scenario.  However, a free range farm is expected to have a greater potential impact on soils and surface water as birds are not confined to the sheds.  As such, the Site Based Management Plan is prepared for the higher risk operation, namely a free range farm.  The accompanying reports demonstrate the farm can operate under either arrangement without detriment to the local environment.” (Emphasis added).

  1. [12]
    Under the heading “Operational Procedures” the following description ensues:[10]

“The farm will be responsible for growing, then supplying the chickens to a processing plant.  In simple terms, it is the farm’s responsibility to provide the infrastructure and labour to grow the birds.  The processor provides the day-old chickens and the feed.

The farm will typically work on a 60 day cycle, with an approximate 50 day growing cycle and 10 day clean out.  A growing cycle is made up of the replacement of new litter, the placement of day old birds, the growing of birds and the progressive removal of birds.  There will be on average about 5.5 of these cycles per year.  New litter will be laid on the shed floor as required.  The cleaning of the sheds and the removal of litter will be carried out after every cycle.

A batch of day old chickens are delivered to the farm from a hatchery, and are subsequently collected at various stages of the growing cycle and transported to a processing plant.  Day old chicks are placed via the brooding area of the sheds.  Fully stocked, each new shed will have up to 45,000 birds.

They are grown for about 8 weeks (50 days) with one thin out at about day 35 or as required.  This provides a range of bird sizes for the market and keeps the total bird rate down in the sheds as the birds grow.

…

The birds will be transported from the site by truck.  The birds will be placed into plastic hinged transport cages to ensure noise during transportation is minimised. 
 

…

Water for the new sheds will be sourced from on-site bores.

Modern monitoring systems will control the internal environment of the sheds.”

  1. [13]
    The location of the two pads and additional sheds is shown in an accompanying aerial photograph.[11]
  1. [14]
    There was no suggestion that the fundamental physical elements of the proposal would change as a consequence of the appellant’s final position, but rather only that, depending on the outcome of certain events, there would be a staging of the development.

Reasons for refusal

  1. [15]
    Following a number of information requests, on 29 September 2016 the respondent issued its decision notice refusing the application. The reasons for refusal were:[12]

“1). The proposal does not comply with the Specific Outcome SO2 and the Probable Solutions 2.1 of the Poultry Farm Code... The Building setback distance from the boundary of the site of the proposed poultry farm… is contrary to the requirement of more than 800m minimum distance required where development comprises more than 320,000 birds on the site.  This has an adverse impact on the health of residents living in the surrounding areas being inflicted with odour and dust emissions (potential environmental harm). 

2). The proposal does not comply with the Specific Outcome SO3 and the Probable Solution S3.3 of the Poultry Farm Code… The maximum odour level is beyond the boundary of the poultry farm and adversely impacts one existing dwelling house within the vicinity of 800m radius.

3). The proposal does not comply with the Overall Outcomes 5.2.63(a), (b) and (d) of the Poultry Farm Code.  The proposal will impact on the existing and future rural landscape character and the natural environment of the surrounding area, and furthermore it does not protect the air and water quality and the future amenity of the surrounding area.

4).  The odour impact assessment study indicates that the proposal will cause odour levels that exceed the Council’s odour guideline on an occupied lot… that is not part of the Development Application.

5). The Development Application and supporting odour impact assessment study rely upon the farm achieving best practice design and management for odour.  If best practice design and management are not achieved in practice, odour impacts in the surrounding area are likely to be greater than anticipated in the Development Application.”

  1. [16]
    The decision notice also identified that there were ten properly made submissions adverse to the proposed development.
  1. [17]
    Subsequent to the filing of a notice of appeal, the respondent filed its Respondent’s Consolidated Grounds.  These essentially provide particulars of the respondent’s grounds for refusal.[13]

Grounds of appeal and issues as initially characterised

  1. [18]
    After identifying the grounds for refusing the application, the appellant’s notice of appeal contended that the applications should have been approved because, in addition to it not being in conflict with the planning scheme, it:[14]

“…is well designed to avoid adverse amenity impacts on surrounding land uses, including adverse odour impacts.  In particular, the approval of the Development Application is supported by an odour impact assessment report…

The proposed development is an appropriate extension of the existing use, which is consistent with the intent for the Land and the surrounding locality, and does not result in any adverse amenity impacts…

Further or in the alternative… to the extent that the proposed development, or any part of it, does conflict with the Beaudesert Shire Planning Scheme 2007 (which is not admitted), there are sufficient grounds to justify the approval of the opposed development.”

  1. [19]
    In a separate document the appellant identified what it contended constituted sufficient grounds to warrant the approval of the application in the event that there was conflict with the planning scheme. The grounds were:[15]

“1. There is a town planning, community and economic need for the proposed development.

  1. The town planning, community and economic need can be met by the proposed development, in circumstances where:
  1. (a)
    There are no unacceptable impacts on amenity;
  1. (b)
    The expansion of the existing use is consistent with economic objectives of the Beaudesert Shire Planning Scheme 2007; and
  1. (c)
    The poultry meat industry is a significant contributor to the economy of south east Queensland.
  1. The proposed development will not jeopardise the economic viability of existing or planned poultry farms in the locality.
  2. The proposed development represents a logical and appropriate expansion to the existing use on the land, in circumstances where:
  1. (a)
    it is consistent with the zoning of the land;
  1. (b)
    it is consistent with community expectations;
  1. (c)
     it is well designed to avoid adverse amenity impacts        on surrounding land uses or otherwise including adverse air quality and noise impacts;
  1. (d)
     it would not adversely impact upon good quality agricultural land;
  1. (e)
     it will not adversely impact upon existing and future landscape character and the natural environment of the surrounding area;
  1. (f)
     the location of the land is suitable for rural uses such as a poultry farm;
  1. (g)
     the land is not suitable for non-rural uses;
  1. (h)
     it provides a significant opportunity to produce up to an additional 405,000 birds in the local government area from an existing and successfully operating farm;
  1. (i)
     it will assist to reduce the future land burden of poultry farms in the local government area, to the benefit of the community; and
  1. (j)
     it will be readily accessible to the road network for vehicle access and bird collection and will not cause unacceptable traffic impacts;
  1. The proposed development exhibits a high quality of design, including appropriate setbacks, in a way which is consistent with the amenity and character of the locality.”
  1. [20]
    It can be readily identified that a number of these matters are not of themselves “grounds,” but assertions to the effect that there is no conflict, or at least no material conflict, with the planning scheme.
  1. [21]
    At the end of the day, the issues in the appeal centred around the asserted adverse impacts on amenity and, as a consequence, conflicts with the planning scheme, being:
  1. Visual amenity;
  2. Odour and air quality; and
  3. Toxicology and other health issues.
  1. [22]
    As a consequence of the need to carry out further investigations concerned with, in particular, odour and air quality, this proceeding unfortunately had to be heard in three sittings. One in April 2017, one in October 2017 and, finally, another in April 2018. As a consequence of the need to carry out those further investigations, the only substantive issues that were able to be dealt with initially were visual amenity and community/economic need.
  1. [23]
    As to visual amenity, it effectively disappeared as a substantive issue in that it was agreed that it was a matter that could be dealt with by way of appropriate conditions. Accordingly, it is not necessary to deal with that issue in any further detail at this stage.
  1. [24]
    The onus lies with the appellant to satisfy me that the appeal ought be allowed.[16]  Notwithstanding the introduction of the Planning Act 2016 and the Planning and Environment Court Act 2016, this proceeding is to be determined pursuant to the Sustainable Planning Act 2009 (“SPA”).  The appeal is by way of hearing anew.[17]  The court’s decision must not result in conflict with the planning scheme unless there are sufficient grounds to warrant approval notwithstanding the conflict.[18]

Farm management

  1. [25]
    Evidence was given by the owners and operators of the subject poultry farm, Mr Teja Singh,[19] Mr Amerjit Singh (“Ammy”),[20] and Mr Parmjit Singh (“Sammy”).[21]  None of those witnesses were required for cross-examination. Save for evidence concerning some business records that went missing for a period of time, the evidence of Amerjit and Parmjit Singh is of no particular relevance.  To a significant extent, the evidence of Teja Singh falls into the same category.  Teja Singh is the father of both Parmjit and Amerjit.  Whilst much of his evidence was not directly relevant to this case, save for relevant material provided to the economists, it identified that the appellant is a large and significant contributor in the poultry business in Queensland.  In total it currently produces in the order of 1.75 million birds per batch across its various farms.  Mr Singh also gave evidence that the existing farm employed two full-time employees.  However, having regard to the evidence of Mr Ferguson, it would appear that the real management and day-to-day operation of the farm was left to him.
  1. [26]
    Mr Ferguson is the manager of the existing poultry farm and it was not suggested that he would not be the manager of the expanded farm. Mr Ferguson was an unsophisticated man and, while on occasions he tended to be reluctant to give direct answers to some questions, overall I found him to be a sufficiently credible and reliable witness. Mr Ferguson provided two statements,[22] the first being more concerned with the operational side of things,[23] and the second being more concerned to address issues raised by the air quality experts.[24] 
  1. [27]
    As the farm manager, Mr Ferguson was obviously responsible for the day-to-day running of the farm and, in particular, to use his words, his “key responsibility, in simple terms, is to keep the birds alive and healthy, while managing impacts”.[25]  He identified his key duties as being:[26]

“… [M]onitoring and keeping records of various matters including: 

  1. (a)
    Litter management;
  1. (b)
    Fly and rodent activity;
  1. (c)
    Odour;
    …
  1. (d)
    Dust, light, noise and wind;
  1. (e)
    Irrigation;
    …
  1. (f)
    Collecting mortalities from overnight and culling sick birds;
  1. (g)
    Maintenance of farm equipment;
  1. (h)
    Monitoring the automatic feeding and watering arrangements for the birds;
  1. (i)
    Ordering all feed for the farm;
  1. (j)
    Day to day contact with Ingham’s; and
  1. (k)
    The wider farm operations, including the agisting of cattle and maintaining of boundary fences.”
  1. [28]
    The farm transitioned from a broiler farm to a breeder farm in November 2015. According to Mr Ferguson, during that transition a number of records went missing for a period of time. Of more significance though, according to Mr Ferguson, neither odour nor dust are a real problem.
  1. [29]
    According to him, “if any odour is detectable”:[27]
  • It would be at its strongest during the thin out of small birds at about 35 days in age.  This is primarily a consequence of forklifts entering and leaving the sheds, which stirs up the litter.
  • Is most detectable at the western end of the sheds.
  • Odour would often be caused by climatic conditions, including high humidity.  According to Mr Ferguson, these climatic conditions can be responded to and managed.  He opines:[28]

“…[O]dour is most often affected by changes in weather.  In that regard, odour is easiest to manage in Spring and Autumn and Winter is the most difficult because the sheds [are] closed more in order to keep the birds warm.  This means that the airflow is reduced but is still manageable.”

  1. [30]
    The importance of weather conditions was also addressed in Mr Ferguson’s second report, where he states:[29]

“Essentially, the reduction in shed temperature ensures that the birds do not overheat.  I do this by increasing the fans and ventilation.

Secondly, whilst my approach to growing and bird management depends upon the growing programme that I am using at the time, which is primarily dependent on weather conditions, keeping birds at a lower temperature towards the end of a batch cycle generally results in an increase in growing efficiency.

At the end of the batch it became apparent that, whilst the reduction in shed temperature was successful in keeping the birds comfortable and healthy and producing birds of good weight, it had the consequence that they required more food, which is not uncommon. 

If it was a requirement for the farm sheds to run at a higher temperature for the whole of the batch, such as for example a minimum of between 18 and 20 degrees Celsius, I could comfortably comply with that requirement.” (Emphasis added)

  1. [31]
    As I understood his evidence, much of what Mr Ferguson was referring to there was concerned with a particular batch, being batch 40. However, much of what Mr Ferguson said was also relevant to farm management overall.
  1. [32]
    Without descending into any detail, the evidence of Mr Ferguson makes it tolerably clear that a number of industry best practices were not being met. Of particular significance in this context is the management of the shed temperature. This matter will be dealt with in some detail when dealing with the odour experts, however, for the purposes of dealing with Mr Ferguson’s evidence, it is sufficient to note that the lowering of shed temperatures in certain climatic conditions increases the risk of odours escaping the farm boundaries and affecting surrounding residences, particularly those at lower topography levels. While I do not doubt that Mr Ferguson is genuinely concerned to ensure that the birds in the shed are kept as healthy and as comfortable as is practicable, there is no doubt that shed temperatures were manipulated to increase the weight of the birds at the end of the cycle before being sold to Ingham’s. This could involve in the order of 40,000 birds per shed.[30]
  1. [33]
    As alluded to above, that part of Mr Ferguson’s statement dealing with temperature control over some 9 to 10 days for batch 40 was suggestive that that incident was limited to only that particular batch. However, the practice was clearly a more established one developed to increase the weight of birds at the end of each cycle. In this context, the following exchanges took place between Mr Traves QC and Mr Ferguson:[31]

“Q: All right.  Now, one could be forgiven, can I suggest, reading paragraph 18, for thinking that that was the only time that you ran the sheds at a reduced temperature?

A: That’s – it’s only been this year [indistinct] that temperature, yes, in the winter period.

Q: I beg your pardon?

A: This is the only time I’ve read that – read that temperature.

Q: See, you do – you have made a habit, I suggest to you  –  it’s been part of your normal practice to run the temperature of the sheds at a lower than usual temperature towards the end of the batch, particularly if the particular batch is looking small and you want to grow them more?

A: Yeah.  To increase performance, yes.

Q: All right.  So to come back to my question, the one before the one I just asked you, it’s true, is it not, that on a regular basis, for the last 10 or so days of the batch in a shed for productivity reasons, you will run the shed at lower temperatures?

A: Yes, you can do that.  Yes.

Q: And you did?

A: Yes I did.”

  1. [34]
    Further into the cross-examination Mr Ferguson, when referring to lowering the temperature at the end of the cycle, said “I put it down to increase the performance of the bird.”[32]  His evidence strongly suggests that this has been a practice of the appellant for a number of years.[33]
  1. [35]
    In addition to the practical consequences of the deliberate lowering of temperature insofar as it impacts on the potential to increase odour emissions, the evidence of Mr Ferguson also had an impact on the theoretical modelling exercise carried out by Mr Galvin, the odour expert relied on by the appellant. When Mr Ferguson was taken to the average temperature relied on by Mr Galvin, namely 25°C, which in turn was based on the recommended Ingham’s ambient temperature, at least as far as he was concerned, the modelling had been based on an incorrect temperature input.[34]

Lay witnesses

  1. [36]
    During the course of this proceeding, a number of local residents and land owners also gave evidence.[35]  Their properties, be it owned or rented, broadly speaking, lay to the northwest, north, east and south of the subject land.[36] 
  1. [37]
    Each of those witnesses gave evidence about the impact on amenity caused by the existing poultry operations, particularly regarding odour, depending on climatic conditions (in particular, wind direction, temperature, and farm management practices; a matter which I will address in more detail below). It would be fair to say that while each of these witnesses experienced negative impacts on amenity from the existing operation, they seemed even more concerned about the possible impacts that might result from the proposed expansion. That is particularly the case in respect of those residents to the south and east and, in particular, the Thomsons and Beggses.[37]
  1. [38]
    That said, it is clear that these impacts are intermittent, largely dependent on air temperature and, more importantly, wind direction, and are not such as to cause any grave concerns regarding health save perhaps for the situation experienced by Mr Westbrook, Ms Dent and Mr Adermann. In this context, each of the witnesses agreed with the proposition advanced by Mr Gore QC, which was to the effect that while the impacts from the existing facility might have a negative impact on amenity, it is not such as to cause them to consider selling their properties and relocating. Of course that a person or persons might be prepared to live with negative amenity impacts does not mean they are acceptable.
  1. [39]
    Three witnesses in particular spoke not only of odour but also of a dust or residue emanating from the existing operation from time to time. In his statement, Mr Westbrook relevantly said in this context:[38]

“I have noticed that, as well as the smell, a film or residue of some sort of substance would settle on the house and our outdoor furniture.  When you smell it, it clearly smells like the chicken farm.

My family hangs our clothing out to dry overnight.  If the clothing was out when the odour came across, your clothes would smell like the chicken farm the next day.  Apart from the discomfort this causes, it serves as a continued reminder of the unpleasant odours experienced at the house.

Our house is not connected to the town water supply and is instead supplied by means of a tank that collects rain water from the roof of the house.  Because of my concerns about the dust from the chicken farm, my family does not use the tank water for drinking, but buys bottled water instead.”

  1. [40]
    Mr Westbrook gave consistent evidence from the witness box and his evidence was not shaken in cross-examination.[39]  His partner, Ms Dent, gave similar evidence.[40]  As was the case with Mr Westbrook, her evidence was not shaken in cross-examination.
  1. [41]
    The evidence of Ms Dent was particularly concerning in that her unchallenged evidence was that on occasions the odour was sufficient to cause her to have headaches and, on one occasion (2 May 2017), the odour was so strong as to require her to shut all the doors and windows of the house and, notwithstanding that, cause her seven-year-old son to dry reach. Evidence was also given that on occasions Mr Westbrook and Ms Dent would use “Vicks” under their noses and on ceiling fans to try and negate the odour.[41]
  1. [42]
    Mr Potter does not reside in the area but owns a 260 ha property which is managed by Mr Boyd. Mr Potter’s property lies, broadly speaking, to the south of the subject land. The property operates as a commercial horse-spelling and pre-training facility for race horses. It would be fair to say that he only visits this property occasionally. However, when he does, he has experienced what he described as a smell “like rotten eggs”.  He went on to observe that the odour was “very unpleasant and it is impossible to enjoy the amenity when the wind is blowing from the chicken farm to the extent that we need to go back inside and shut doors and windows.”[42]  Mr Potter did not complain of experiencing dust in his statement, however, during his evidence from the witness box he did.  His evidence was that this dust would settle on the roof and was “in our water system”.[43]
  1. [43]
    While I accept that there is the potential for bias and exaggeration of the type explained by Ms Richardson, the scientist relied on by the respondent in respect of air quality and odour,[44] and that there are a number of anomalies, if not inconsistencies, in some of the residents’ evidence,[45] there is little room for doubt that from time to time each of them suffers, but to varying degrees, material negative impacts on amenity.  That these impacts have not caused them to sell and move does not mean they are acceptable.  In this context though, it is of relevance that none of the lay witnesses have made and followed through on what could be described as a formal complaint to any authority, nor to the owners and/or operators of the existing poultry farm.  That no complaints have been made is, in my view, only relevant to the extent that it tends to establish that they are prepared to put up with intermittent adverse impacts on amenity. 
  1. [44]
    Also in this context, it needs to be borne in mind that to a very significant extent these people are from the land and/or enjoy living in a rural setting. Indeed, the Westbrook property and the Potter property, to the northwest and south of the subject land respectively, are operating farms with horses and cattle.
  1. [45]
    It struck me that these were people who were likely to be far more tolerant of unpleasant amenity experiences associated with rural living than would probably be the case when dealing with urban residents. That no complaints have been made, while relevant, is in no way decisive.

The town planning evidence

  1. [46]
    While much of the evidence given initially by the town planners was arguably made redundant by the appellant’s late introduction of its preliminary approval case, I consider it appropriate to deal with it at least to some extent. That is so for two reasons. First, it identifies the relevant provisions of the planning scheme and the respective positions of the town planners up until the introduction of the appellant’s amended protocol[46] and its preliminary approval case. Secondly, at least insofar as the appellant was concerned, the initial concerns of Mr Venn were considered relevant. However, as is identified below, the evidence of the town planners is in no way determinative.
  1. [47]
    Each of the parties relied on the evidence of a town planner. Mr Vann on the part of the appellant and Mr Venn on the part of the respondent. In their Joint Expert Report (“JER”)[47] the “planning issues” were summarised as follows:[48]

“(a) Requirements of the planning scheme.

  1. (b)
     Existing and future landscape and rural/agricultural character, rural identity and scenic amenity, having regard to the scale, form and intensity of development on the locality and community expectations.
  1. (c)
     Health and amenity of local residents including odour, dust, traffic and truck visitation on developed and vacant lots in the locality and nuisance to people and property through location, design and adequacy of buffering.
  1. (d)
     Water quality and soil resources.
  1. (e)
     Whether there are sufficient grounds to justify approval of the proposal in the event that a conflict is found with the planning scheme (including planning, community and economic need).”
  1. [48]
    Under the heading “concluding statements”, Mr Vann concluded:[49]

“…[H]aving dealt with poultry farm proposals and the changing circumstances and operational characteristics of this industry over the last 35 years particularly in this general area, considers the subject site a very good one for the proposed use which accords well with the intention of the planning documents, as it:

  1. (a)
     is consistent with the broader intentions for this use and this rural area, as set out in the relevant planning documents (both the planning scheme and SEQ regional plan);
  1. (b)
     is located in the only precinct of the planning scheme where a Poultry Farm is a consistent use;
  1. (c)
     is considering an existing facility in a form consistent with other poultry farms in the area;
  1. (d)
     is in a general area of other existing poultry farms and so able to be efficiently serviced by the hatchery and abattoir;
  1. (e)
     is close to good road access;
  1. (f)
     sits comfortable with the rural character of the locality;
  1. (g)
     is able to be effectively screened and produces little visual impact from key viewer locations;
  1. (h)
     is unlikely to raise unacceptable impacts on water and soil quality (subject to the matters identified above in relation to the outstanding toxicology joint experts report and further assessment of dust arising from the onsite traffic);
  1. (i)
     proposes pad sites that are separated from environmental constraints and agricultural land;
  1. (j)
     subject to the input of the relevant experts, is unlikely to raise any unacceptable impacts on amenity through odour, dust or noise emissions;
  1. (k)
     is a use for which there is a need.

The proposal does not, in my opinion, conflict with the planning scheme, but should it be found to do so, the conflicts are with the “performance” type of more detailed scheme provisions, rather than the intention for the types of areas that this use is supported; and there are sufficient grounds, as detailed above, to justify its approval notwithstanding any such conflict.

It is also evident from this JER that Mr Venn considers “intangible” impacts on amenity relevant to assessing the proposal.  This appears to be an expression of the concept of psychological amenity, which is not applicable to this proposal in my opinion, both because this use is one clearly contemplated in this area by the planning scheme and logically located in rural areas, and is not the type of use (such as funeral parlour or crematorium) to which this concept is relevant.” (Emphasis added)

  1. [49]
    After referring to a number of provisions of the planning scheme and the input of “local resident witnesses”, Mr Venn said:[50]

“It is acknowledged that the ‘consistent use’ status of a poultry farm in the Countryside Precinct could ordinarily lead to an ‘expectation’.  However, as an impact assessable application, it is to be assessed against the whole of the planning scheme and local residents would ‘expect’ that a proposal would satisfy all of the environmental tests to be applied in that assessment.”

Mr Venn then went on to conclude:[51]

“…It is not appropriate to dismiss the concerns of the community – particularly close neighbours – on the basis that they will become sensitized to the effects and therefore that impacts and the perception of them – both tangible and intangible – will diminish or abate over time.  The planning scheme may be there to facilitate, encourage and guide development but it does so against a background of standards and test criteria that are to be imposed and satisfied to ensure that the health and the well-being of the Scenic Rim constituents are safeguarded as a primary concern.”

  1. [50]
    At face value the land is well suited for a large poultry farm of the type proposed, not only because of its location and physical attributes,[52] but more importantly, it being situated at the Rural Zone and Countryside Precinct of the respondents’ 2007 planning scheme.  Not surprisingly, Mr Vann considered the land’s zoning was a “significant factor”.[53]
  1. [51]
    Without intending any disrespect to the town planners, there can be no doubt that while their evidence has some relevance to the outcome of this proceeding, it is the evidence of the toxicologists and odour experts that is determinative. In this context I agree with the following observation of Mr Vann:[54]

“The key tests that arise from the planning scheme, read as a whole and in the context of the Regional Plan and SPP, relate to landscape character and amenity, including odour and dust, health and water quality.  Whether these tests are met is informed by the input of the other experts in this appeal.  If these tests are met, having regard to the input of other experts, then it is considered that no conflict with the planning scheme exists.”

  1. [52]
    Mr Vann’s evidence was initially to the following effect. First, it is relevant to take into account the existing operation when considering the subject proposal. Secondly, if the complaints of the lay witnesses are correct, particularly that of Mr Westbrook and Mr Dent, they would constitute serious impacts on amenity[55] and would show that “there’s clearly a nuisance happening beyond the site…”[56]  Thirdly, his opinion was that as currently managed the existing operations “…were operating outside the way it’s intended to operate…” and that the court should, if it were to approve the proposed development, do so on the basis of the “conditions approach” advanced by Mr Galvin.[57]
  1. [53]
    That part of the evidence of Mr Vann just referred to arose in the course of cross-examination where it was being put to him that the evidence established that the original proposal would be in conflict with, in particular, Specific Outcomes (“SO”) SO2 and SO3, of the Poultry Farm Code, which relevantly provides:[58]

“SO2 Development has a sufficient Building setback from a property boundary to prevent any adverse impacts from odour, noise or dust emissions on the health of residents living in surrounding areas.

SO3 Development does not cause a dust, noise or odour nuisance at or beyond the boundary of the Poultry Farm.”

  1. [54]
    A number of “Probable Solutions” are set out in respect of each SO but it is not necessary to set them out.
  1. [55]
    Also of relevance in this context are some of the Desired Environmental Outcomes (“DEOs”) prescribed under the planning scheme.  Not surprisingly, there is a degree of overlap between the objectives of some of the DEOs and SOs.  DEOs 2.1.3(1)(b) and (f) provide:[59]

“Environment – the environment is conserved such that –

…

  1. (b)
     the adverse impacts of development including the loss or degradation of native vegetation, habitat for significant flora and fauna and other nature conservation values, loss of amenity, land degradation, water pollution from inadequate effluent disposal practices and chemical contamination, are avoided or otherwise mitigated; and

…

  1. (f)
     development protects the Shire’s water and soil resources and their associated values, including their ability to provide healthy ecosystems to support the livelihood and lifestyles of residents and visitors.” (Emphasis added).
  1. [56]
    For reasons that will become apparent when dealing with the evidence concerning toxicology and air quality, the appellant failed to establish that, as originally proposed, the development would not have resulted in serious conflict with the planning scheme. That is particularly so in respect of SO2 and SO3 of the Poultry Farm Code.[60]  DEO 2.1.3(1)(b) and possibly DEO 2.1.3(1)(4)[61] would also have been conflicted.  For essentially the same reasons, conflict also arose in respect of a number of the Overall Outcomes of the Rural Zone Code.[62]
  1. [57]
    In circumstances where the appellant would not have been able to satisfy me that the original proposal would not have been in genuine conflict with the planning scheme, it would then be necessary to then consider whether there were sufficient grounds to justify approval despite the conflict.
  1. [58]
    In this regard, save for “town planning, community and economic need” the appellant’s “sufficient grounds”[63] proceed on the basis that there would be no unacceptable adverse impacts on amenity and, otherwise largely relies on the physical characteristics, location and zoning of the land.
  1. [59]
    Section 326 of the Sustainable Planning Act 2000 (“SPA”) relevantly provides:
     

“326  Other decision rules

  1. (1)
     The assessment manager’s decision must not conflict with a relevant instrument unless—
  1. (a)
     the conflict is necessary to ensure the decision complies with a State planning regulatory provision; or
  1. (b)
     there are sufficient grounds to justify the decision, despite the conflict; or…”
  1. [60]
    The court stands in the position of the “assessment manager.” Sufficient grounds for the purposes of s 326(1)(b) means matters of public interest and does not include the personal circumstances of an applicant, owner or interested party.[64]  As I observed in Boral Resources (Qld) Pty Ltd v Gold Coast City Council,[65] in determining whether sufficient grounds exist, the examiner is not limited to considering the positives that might flow from any given proposal only within the relevant local government area.  Benefits that might flow from a proposal extending beyond the boundaries of any particular local government area may well be nonetheless relevant to establish sufficient grounds for the purposes of s 326 of the SPA. 
  1. [61]
    The grounds initially relied on by the appellant could, according to Mr Vann, be put into three categories. First, economic/community need. Secondly, locational and/or geographical matters. Thirdly, state policy and guideline considerations.[66]
  1. [62]
    During the course of this proceeding (day nine) a further report of Mr Galvin was tendered. It contained what was essentially a set of draft conditions[67] that were then adopted by the appellant as an additional ground in support of approval.  That aspect of Mr Galvin’s evidence is dealt with below

Economic/community need

  1. [63]
    In Weightman v Gold Coast City Council[68] Atkinson J (with the other members of the court agreeing) said:

“In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s. 4.4(5A)(b) of the P & E Act, the decision maker should:

  1. examine the nature and extent of the conflict;
  2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
  3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”
  1. [64]
    In addition to articulating the necessary “tasks” to be considered in cases involving conflict, Her Honour said:[69]

“The proposal must be refused in such a situation if there are not sufficient planning grounds to justify the approval despite the conflict. The discretion, as White J observed in Grosser v Council of the City of Gold Coast is couched in negative terms, that is, the application must be dismissed unless there are sufficient grounds. This is a mandatory requirement. If there is a conflict, then the application must be rejected unless there are sufficient planning grounds to justify its approval despite the conflict. The primary judge wrongly held that it was directory only…

The first task required of the decision maker, as the learned primary judge recognised, is to consider the nature and extent of the conflict. The conflict may be minor or major in nature or indeed anywhere on the continuum between those two extremes. The conflict in this case is a major one, arising as it does from an absolute prohibition on the height of any development exceeding the maximum stipulated height of three storeys...

The second question the decision maker has to consider is whether there are any planning grounds on which to approve, or which militate against approval of, that part of the application which is in conflict with the planning scheme. The nature and extent of the conflict may be such as to suggest that there are significant planning considerations against that part of the application.

The decision maker should then consider other aspects of the development and determine whether they are consistent with proper planning grounds. Those are the planning grounds which apply whether or not the conflict exists.

It is only after consideration of all of these matters that the decision maker is able properly to assess whether or not the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.” (Emphasis added)

  1. [65]
    More recently the Court of Appeal endorsed the three step approach adopted in Weightman in Lockyer Valley Regional Council v Westlink Pty Ltd where it was said:[70]

“The Council’s attempt at construing Weightman so as to add another layer of explication to Atkinson J’s explanation of the section (in its earlier form) should be rejected. There is no warrant in s 3.5.14(2)(b) itself for applying different weight to different grounds. To do so would be to impose an entirely artificial set of fetters on the decision-making required. The importance of the ground must depend on what it is, not where it falls in the three-step approach in Weightman.”

  1. [66]
    The section referred to in Lockyer Valley is a reference to the relevant provision under the then Integrated Planning Act 1997 which has been repealed and replaced by s 326 of the SPA.
  1. [67]
    In respect of the issue of economic/community need, the parties relied primarily on the evidence of the economists - Mr Duane for the appellant and Mr Damasi for the respondent. The appellant also relied on the evidence of Mr Easton, a senior executive within the Ingham Enterprises Group (“Ingham’s”). Ingham’s is the largest vertically integrated producer of poultry meat in Australia and New Zealand.
  1. [68]
    Apart from providing some interesting insights into the operation of the poultry industry and, in particular, that of Ingham’s, much of Mr Easton’s evidence was not directly relevant to the issue of economic need. That said, his evidence, which is accepted by me is that:
  • Ingham considers the appellant to be amongst its top contract growers of poultry.[71]
  • The expansion of the appellant’s current production capacity would be likely to result in economies of scale that would or could result in Ingham being able to deliver a more cost effective product to the end consumer.[72]
  • Approximately 97% of Ingham’s broiler farms in Australia are operated by third party operators such as the appellant.[73]
  • Poultry is the leading source of animal protein currently being consumed in Australia and since the 1990s consumption has grown faster than the consumption of any other form of animal protein.  Poultry share of total animal protein consumption increased from 21% in 1990 to 35% in 2015.[74]
  • Ingham’s projected market growth rate of 4.1% per annum would mean a net increase of 30 sheds per annum across Australia.[75]  However, in this context it would appear that it is likely that the 4.1% rate of growth was optimistic and that it might be more in the order of 2.7% per annum growth.  If that were the case instead of an additional 30 sheds being required, it might be more in the order of 19-20 per annum.[76]
  1. [69]
    The evidence of Mr Easton also establishes that Ingham’s has entered into an “agreement” with the appellant to the effect that if this proposal were to proceed it would, over a period of 3-3.5 years, enter into further “growing contracts” which would, as I understand the evidence, result in Ingham’s potentially eventually purchasing the end product of all of the sheds proposed.[77]  However, of significance is the fact that while Ingham is “looking at lining up capacity to support… growth in the future”, there is at present, sufficient supply capacity to meet demand for poultry meat and, in the event that this proposal did not proceed, it was likely that Ingham’s would be able to find alternative supply sources if needed.[78]
  1. [70]
    In both the joint expert report (“JER”)[79] and his court report,[80] Mr Duane identified a number of matters which he contended identified a need for the proposal.  Many of these matters are uncontroversial, including the following:
  • Agriculture, and of particular relevance here, poultry farming, makes a significant contribution to the future growth and vitality of the respondent’s local government area;
  • Demand for chicken meat is likely to increase in the future, broadly in line with population growth particularly in southeast Queensland but, more generally, also including the eastern seaboard;
  • There is an ongoing rationalisation in the industry leading to a reduction in the number of smaller poultry farms/enterprises and an increase in fewer but larger such enterprises;
  • The appellants are recognised as being effective and reliable poultry farmers;
  • The subject land is conveniently located for expansion and supply to Ingham’s processing facilities.
  • During construction of the proposed sheds it would be expected that a number of local residents would be employed however, that would be for only a relatively short period of time and, thereafter, the expansion would result in probably no more than 3 to 4 additional employees.
  1. [71]
    After identifying these “positives,” Mr Duane concluded in the JER:[81]

“Overall, there is a high level of need for the expansion of the meat chicken poultry farm within Scenic Rim and at the subject site.  It represents an economically efficient location for such an expansion.”

And in his court report:[82]

“Consequently, the subject proposal would help to continue to contribute to a low price growth environment for a popular animal protein across the local community and the South East Queensland market more generally.  This was agreed… [in] the Joint Economic report, which highlighted the efficiency of production of chicken meat compared with other meat animals.”

  1. [72]
    While I can readily accept that the proposed development “represents an economically efficient location for such an expansion”, I am unable to accept that there is anything like the level of need that would be required for the expansion of the proposed chicken meat industry as suggested at the current time.
  1. [73]
    In the JER it was identified that, insofar as existing operational poultry farms were concerned within the Scenic Rim area, there was a total of 183 sheds capable of accommodating some 6,839,000 birds. In addition, there are in the order of 200+ approved (but not constructed) poultry sheds capable of accommodating another 8,620,000 birds, and some 26 applications (excluding the subject application) for an additional 26 sheds capable of accommodating a further 1,170,000 birds.[83]
  1. [74]
    In this proceeding, the evidence falls well short of establishing a sufficient level of economic and/or community need to warrant approval. I have already referred to the evidence of Mr Easton as to the current supply and demand situation insofar as Ingham’s is concerned. And, in that regard, there is no evidence that the situation concerning Ingham’s is any different to that of any other major player in the industry. The evidence of Mr Easton is consistent with that of Mr Damasi who, in the JER stated:[84]

“(a) The proposed expansion would represent an increase of 4.7% to the current approved poultry farm capacity in the Scenic Rim Council area; approximately 1% of the South-East Queensland market; about 0.7% of the total Queensland market and about 0.16% of Australia’s national market.

  1. (b)
     There is significant unused capacity already approved for additional chicken meat farming within existing farms throughout Scenic Rim.

…

  1. (h)
     There is no evidence of any supply constraints in the national chicken market. Indeed, the price of chicken meat per kg over the past 15 years has risen by just 0.9% per annum, which is less than average CPI over this timeframe, despite the fact that chicken consumption has increased by about 3.4% per annum over this timeframe.
  1. (i)
     There is no evidence of any undue difficulties in finding and approving appropriately located chicken farms throughout Scenic Rim or Queensland more broadly…”

And in his court report:[85]

“My conclusion as to economic need is the opposite of Mr Duane’s because, after considering both supply and demand issues, it is clear to me that there are no supply side constraints to relatively easily and effectively meeting demand for chicken meat…

In this regard, the fact that the very substantial long term increase in chicken meat consumption by the Australian population has been quite easily accommodated, with minimal resulted growth in nominal chicken meat prices, and a significant reduction in real prices, is a point of agreement in the JER.”

  1. [75]
    I accept Mr Damasi’s evidence concerning the supply and demand situation. Indeed, during the course of his cross-examination, Mr Duane acknowledged that the fact that chicken consumption increasing but the price for chicken meat continuing to decline was a “strong indicator” that supply was meeting demand.[86]  In this context, when asked whether he could point to any evidence of a “supply-side shortage” he answered:

“In terms of not being able to meet demand, no, I can’t point to evidence of that existing at the moment, no.”

  1. [76]
    That last passage of Mr Duane’s evidence is also consistent with the evidence of Mr Easton to the effect that there is no current demand for the additional 400,000 birds that would be accommodated in the proposed 9 sheds but that, over time (perhaps 3-3.5 years), as demand increased, Ingham’s would be looking to enter into further “growing contracts” with the appellants on an “as and when required” basis. In this context, during re-examination the following exchange took place between Mr Duane and Mr Gore:[87]

“Q: You agreed with Mr Traves that there’s no evidence of a supply-side shortage.  What’s the relevance of that concession, in your opinion, from an economic perspective, to the views you’ve expressed about need?

A: As I said, all this is taking into account your planning for the future.  So although there’s not a supply-side shortage, if we don’t relatively plan for the future, in any industry, and we know there’s growing demand, there will be a shortage in the future.  So just before (sic) there’s not a shortage now, it doesn’t mean we don’t plan for new facilities, and I’m saying this is planning for new facilities in line with experienced operators who understand the market very well.”[88]

  1. [77]
    The totality of the evidence concerning need leads me to conclude that while there is no doubt that growth and demand will require more poultry sheds in the future, current demand levels are being adequately met. Further, the likely level of future growth in demand for poultry would not warrant the approval of a development of the size proposed at this time. In such circumstances, and given the level of conflict involved, there are insufficient economic reasons to warrant approval of the proposal. As much was accepted by the appellants.[89]
  1. [78]
    Section 326 of the SPA was very recently considered by the Court of Appeal in Bell v Brisbane City Council & Anor.[90] McMurdo JA (with Sofronoff P and Phillipides JA agreeing) relevantly said:[91]

“Section 326(1)(b) will be engaged only where there is a tension between the application of the relevant instrument, here a planning scheme, and the public interest. If that tension exists, it will be for the decision maker to consider whether there are sufficient grounds, in the public interest, to depart from the instrument. Necessarily, cases where that tension exists will be exceptional, because a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land. In Clark v Cook Shire Council, 69 Keane JA, with the agreement of the other members of this Court said:

“The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme.”

  …

Cases could arise where relevant circumstances have changed since the planning scheme was made, or where it can be seen that there is a factual error in the scheme itself. Cases of that kind were identified in the explanatory notes for s 3.5.14 of the Integrated Planning Act 1997 (Qld). There might also be cases where it is evident that the planning scheme has not anticipated the existence of circumstances which have created a need for a certain development in the public interest. In exceptional cases of all of these kinds, the decision maker might be able to conclude that the planning scheme is not, in the particular case, an embodiment of what is in the public interest.

…

Consequently, any consideration of the application of s 326(1)(b) of the SPA must proceed upon the premise that it is in the public interest that the planning scheme, in each relevant respect, be applied, unless the contrary is demonstrated…”
(Emphasis added)

  1. [79]
    In the circumstances of this case, the evidence going to economic need falls well short of establishing a level of public interest sufficient to create a tension with the relevant provisions of the planning scheme concerned with, in particular, amenity and public health.
  1. [80]
    For the reasons given, the economic/market evidence falls far short of establishing a ground that would warrant approval in the face of the conflicts identified below. As much was conceded in the appellant’s written submissions where it was said:[92]

“Singh does not submit that, in the particular circumstances of this case, need alone would be sufficient to justify an approval if there were conflict with SO2 and SO3 of the Poultry Farm Code.  Singh relies upon the protocol, against a background of the odour experts (sic) evidence, as the primary response to issues arising out of SO2 and SO3 and the matters of public interest associated with the protocol…[n]evertheless, it remains important to appreciate that there is a need for further and larger poultry farms in South East Queensland.”

  1. [81]
    As to the “locational” and/or “policy” matters advanced by Mr Vann they, even in conjunction with the economic evidence, would not justify approval of the development as originally contended for.  As to the “condition” package proposed by Mr Galvin, it was made redundant as a consequence of the evolution of the appellant’s preliminary approval case.

Toxicology

  1. [82]
    Toxicology might conveniently be defined for the purposes of this proceeding as the study of the adverse effects of xenobiotics i.e. foreign compounds. Toxicology played a significant part in the respondent’s reasons for refusing the application as initially framed.[93]  Professor Ng, the toxicologist relied on behalf of the respondent, summarised the real issues concerning toxicology as being:
  1. Whether the existing chicken farm is a cause of microbial contamination found at sampling locations near to the farm, including a number of private residences;
  2. If so, whether the concentrations of microbial contaminations, particularly E. coli found in the rain water tanks of nearby residences are of such a level as to result in an unacceptable risk to human health; and
  3. Whether the proposal for a threefold expansion of the chicken farm was likely to result in an unacceptable risk to human health.
  1. [83]
    I accept that as being a sufficient summary for the purposes of this proceeding.
  1. [84]
    There was no dispute between Professor Ng and Dr Dennison, the toxicologist relied on by the appellant, that no health risk issues were posed by nutrients or salmonella.[94]  The difference of opinion between them really came down to a debate about detectable levels of E. coli and “total chloroforms”. 
  1. [85]
    Professor Ng’s independence as an expert witness and his methodology was robustly criticised in both cross-examination and the appellant’s written submissions.[95]  I do not accept those criticisms.  The professor’s curriculum vitae speaks for itself and, while there was some shifting of ground on his part, particularly in his treatment of E. coli, I have no doubt that his evidence was honestly given and that his evidence was given in a manner consistent with his obligations to the court.  The same can be said in respect of Dr Dennison.  As was pointed out in the respondent’s written submissions,[96] there were areas where her evidence was found wanting but her expertise in the relevant field was not seriously challenged and, as was the case with Professor Ng, I am satisfied that she also gave evidence in a manner consistent with her obligations to the court.  That said, overall I found the evidence of Professor Ng to be the most convincing.  That is so despite there being a “complete absence” of any complaints from nearby residences indicating any serious health issues resulting from the operation of the existing facility.
  1. [86]
    Returning to the summary of primary issues as characterised by Professor Ng, he answered the questions posed in the following terms:[97]
  1. The chicken farm was a likely source of contamination on neighbouring properties and, in particular those of Westbrook and Adermann;
  2. The levels of microbial contamination particularly E. coli found in the tank water of Westbrook and Adermann were unacceptably high and probably unsafe for drinking;
  3. The proposed threefold increase in the number of poultry birds from 200,000 to 600,000 would be likely to result in an increase in contamination emissions and could result in significant health issues particularly in respect of the Westbrook and Adermann properties to the north.
  1. [87]
    One of the major difficulties confronting the evidence of Dr Dennison was that she proceeded on a number of important bases that were revealed to be incorrect. Dr Dennison had proceeded on the basis that the poultry farm was managed and operated in a way consistent with that of other poultry farms. The evidence of Mr Ferguson clearly shows that that was not the case.[98]  Dr Dennison also erroneously proceeded on the basis that her water samples that were taken from a shed on the poultry farm was from roof water,[99] when in fact the source of that water was from a bore.[100]  There were similar concerns about her water samples from the water tank adjoining the farmhouse on the subject land.[101]
  1. [88]
    The result of the joint investigations undertaken by Professor Ng and Dr Dennison were concisely summarised in a table.[102]  Those results tend to corroborate the opinions expressed by Professor Ng, particularly in respect of the Westbrook and Adermann properties.  Dr Dennison agreed that it was likely that the subject poultry farm operations contributed to the results on the Westbrook property, although she maintained that the level of that contribution was far from clear.[103]  It was, nevertheless, a potential cause.[104]  In this context, I accept the professor’s evidence that the E. coli readings at the Westbrook and Adermann properties were matters of genuine concern.[105]  I also accept his evidence that it is more likely than not that the readings of the Westbrook property were likely to be as a consequence of its proximity to the north of the poultry farm.[106]  The prevailing winds being, broadly speaking, from a southerly direction.
  1. [89]
    I also accept the submission made on behalf of the respondent that Professor Ng’s thesis that the poultry farm was the most likely source of the E. coli contamination was supported by the “spatial distribution results” obtained from the efforts of both Professor Ng and Dr Dennison.  It was the professor’s opinion that the readings for inorganic nutrients provided further support of his view that a spatial distribution pattern had been demonstrated.[107]  Ultimately, Dr Dennison conceded that the spatial distribution graphs produced by Professor Ng supported his spatial distribution theory for total chloroforms.[108]  Dr Dennison also accepted that her attempts to identify an alternate thesis was rather simplistic and not definitive.[109] 
  1. [90]
    As identified at the outset when dealing with this topic, the evidence of the two witnesses concerned with toxicology was quite complex and far from definitive, however, the evidence of Professor Ng which overall, for the reasons given, leads me to comfortably conclude that I am not satisfied that the expansion as originally proposed would not be likely to cause a genuine risk of unacceptable levels of contaminants escaping from the proposal in its original form.
  1. [91]
    In conclusion on this topic, I would note that the appellant’s amended protocol[110] expressly provides for the monitoring, sampling and testing of microbiological contaminants.  In this context in final submissions Mr Gore said:[111]

“Your Honour, it was submitted that the primary approval mustn’t conflict with the scheme.  I don’t disagree with the submission as a matter of principle.  But I disagree with the implied submission that this preliminary approval does conflict because it’s designed to achieve compliance with the principle provisions, SO2 and SO3, in the Poultry Farm Code.  So it’s my submission that, strictly speaking, there isn’t any conflict.  Even if your Honour finds that the current operation is problematic, or harbours concerns that the current operation is problematic, that doesn’t mean that exhibit 99 represents conflict because exhibit 99 is designed to eliminate those conflicts.  And the alternative way of viewing it is to say, well, if there is conflict, exhibit 99 does constitute sufficient grounds because – for the reasons again set out in the outline…”

  1. [92]
    To use Mr Gore’s language, I am not satisfied that the existing operations, let alone what might occur upon expansion, would not be problematic. The significance of Exhibit 99 will be addressed in more detail below.

Air Quality/Odour

  1. [93]
    As was the case concerning the potential for the distribution of contaminants, the evidence of Mr Galvin and Ms Richardson was, in some areas, detailed and complex. However, due to the manner in which this case evolved, it is not necessary to delve into the details of this evidence to such an extent as might otherwise have been necessary. In Mr Galvin’s further court report, he stated:[112]

“I understand that concerns have been raised with regard to the following areas:

  1. (i)
     Site Management
  1. (ii)
     K factor (emission rates adopted)
  1. (iii)
     Target Temperature and Shed Exit Temperatures
  1. (iv)
     Observations at nearby receptors.”
  1. [94]
    During cross-examination, Mr Galvin accepted that all four of the matters identified by him did not have to be present to render the results of his modelling questionable. That is, variation in respect of any one or more could result in serious question marks being placed over his modelling. The caveat being that any discrepancy would have to be “significant”.[113]
  1. [95]
    Dealing with each of those four matters in turn. First, the evidence of Mr Ferguson makes it quite clear that the existing poultry farm was not being managed in an orthodox manner. The net result of his evidence being that, during the last 10 days of each batch cycle, farm temperatures were deliberately lowered to increase chicken body weight. As a consequence of that, significant concerns arose in respect of both target temperatures and shed exit temperatures. That is, the third matter identified by Mr Galvin. In respect of the K-factor emission rates, Mr Galvin candidly conceded that he was not anticipating measurements of the type and quality that were ultimately revealed under testing. As was submitted on behalf of the respondent, that was perhaps not surprising in circumstances where olfactometry test data revealed K-factor observations of 3.9 and 5.0 on 26 September 2017.[114]  Mr Galvin went so far as to say that the evidence on this issue introduced a “relevant concern”[115] about the ability of the expanded proposal to achieve the K-factor of 2.2 as intended.  According to him, “there is a concern that the K-factors may not be able to be continually be met based on the test data to date”.[116]  As to the last of the matters of significance identified by Mr Galvin, he also accepted that if the observations concerning odour and dust as reported by the lay witnesses was correct, that would also raise significant concerns about his modelling predictions.[117]
  1. [96]
    In this context, he conceded that the conclusions drawn in the modelling performed by him were likely not to be valid as a consequence of the failure of the existing sheds being operated at the correct temperature.[118]  His evidence was that “… the colder air [from the existing sheds] would keep the plume down lower, and the plume would be more likely to track along the ground, and that could explain why you’d have arguably – similar emissions but a far worse impact.”[119]  He accepted that the sheds being operated at cooler than normal industry practices would tend to give more credence to the observations and recordings of local residents.[120]
  1. [97]
    Mr Galvin, on more than one occasion, expressed the view (as did Mr Vann) that he had never encountered evidence of the type advanced by the lay witnesses in this case. Their evidence has already been addressed above and I do not intend to repeat it. However, it is likely that this farm had been historically managed in a way that neither Mr Galvin nor Mr Vann would have come across before.
  1. [98]
    In circumstances where the onus is upon the appellant, it is not necessary to deal with the evidence of Ms Richardson other than to observe that I found her to be a persuasive witness, and her concerns about Mr Galvin’s modelled results were well founded. That is so for the reasons set out above, and in circumstances where Mr Galvin accepted that on the existing data, the actual air quality impacts of the expanded farm could be higher than predicted by the modelling,[121] and that that data was not able to be explained by his modelling.[122]
  1. [99]
    The concerns raised in respect of Mr Galvin’s modelling, together with those matters identified by Ms Richardson in the relevant joint expert reports, leaves me in the situation where I was not satisfied that those provisions of the planning scheme addressing residential amenity, at least insofar as dust and odour are concerned, were capable of being met. For the same reasons I am unable to accept Mr Galvin’s opinion, at least as originally expressed, that compliance with the “state odour guideline” would be achieved.[123]
  1. [100]
    Mr Galvin’s further court report, under the heading “conclusion” provided:[124]

“If each of the concerns listed in Section 4 was valid that would indicate that the modelling could not be relied on in an unqualified way. 

Nevertheless, I am of the opinion that the proposed expansion remains capable of approval with conditions which can address the concerns.”

  1. [101]
    The means of addressing those concerns involved what was described as a “staged data collection program”.[125]
  1. [102]
    Mr Gore candidly conceded that exhibit 69 reflected a changed position in the nature of the case being advanced by the appellant.[126]  According to Mr Gore:[127]

“So we’re being realistic and acknowledging that we had to address those issues in a fashion which we will be submitting at the end of the day makes your Honour’s task easier.  Now, it still may mean that the appellant loses.  Your Honour may not be satisfied that the difficulties are sufficiently overcome by the new approach that’s proposed, but it will mean that your Honour will need – won’t need to make as much fact-finding about those issues as you would have had to if we were running two cases, a primary case and a secondary case.  We’re not running two cases.  We’re just running the case that’s reflected in exhibit 69.”  (Emphasis added)

  1. [103]
    The staged development contemplated in that report, at least insofar as it dealt with the staging of the development and the “data collection program”, was further refined in what was described as the “appellant protocol”.[128]  It is not necessary to deal with that document as it was overtaken by the “appellant’s amended protocol”.[129]  That it was inevitable that I could not be satisfied that the relevant provisions of the planning scheme and policies would be met if the proposed development went ahead was, if not expressly then impliedly, accepted by the appellant in its written submissions.  Those submissions acknowledged that on the “current evidence” there were valid concerns about site management.  It was then submitted:[130]

“Mr Galvin also accepted that there was a concern about K factors, target temperatures (based on the earlier batch cards), and that the observations of the residents did indicate a problem.  He again went on to explain that the temperatures observed on the five occasions he had visited the site were satisfactory but, overall, he accepted that there were concerns about relying on the modelling. 

The concessions made by Galvin reflected his independence as an expert.  It is to be recalled though that, in Mr Galvin’s individual statement, it was after his discussion of the four areas of concern, that he proposed a staged data collection program, which formed the basis of the protocol (ex 76), which was produced after the orders made by the court on 14 November 2017.  In other words, to use language that is familiar to this jurisdiction in another context, much of the cross-examination has been “overtaken by events”. 

Similarly, much of the cross-examination about the protocol itself has been overtaken by events, as Singh has revised the protocol to accommodate concerns raised relating to such matters as time limits, the input of local residents, and decisions by the Council.  The revised protocol, and the invitation to the court to only grant a preliminary approval, directly responds to these issues.” (Footnotes omitted)

Preliminary approval and the finality test

  1. [104]
    As identified at the outset, what the appellant now contends for is preliminary approval of the proposal. In the event that I were satisfied that preliminary approval ought be granted, the nature of the orders I might finally make were explored with Mr Gore. That included simply publishing my reasons and making no orders at all. In this context, Mr Gore submitted:[131]

“That’s an option for your Honour.  The option that I’ve referred to in the outline involves your Honour being affirmatively satisfied that a preliminary approval is appropriate and legally available in the circumstances of this case, but recognising as I do on behalf of the appellant, that exhibit 99 is intended to be the basis of a protocol.  I know Mr Traves gets upset when I contemplate that there could be further changes.  But that’s part of the conditioning stage.  Exhibit 99 would definitely have to be addressed as part of the condition stage.  So I would not be asking your Honour to lock in exhibit 99 because that locks out the council.  I would be asking your Honour to say that you’re satisfied on the strength of exhibit 99 that a feasible protocol can be developed.  And therefore a preliminary approval is appropriate….” (Emphasis added)

  1. [105]
    The amended protocol is designed to address both air quality (odour and dust) and the concerns expressed by Professor Ng concerning toxicology. Under the heading “Preliminary Approval” it is stated:[132]

“This development approval is for a preliminary approval only and: 

  1. Step 1 of the protocol applies to this preliminary approval and Steps 2, 3 and 4 apply to any subsequent development permit obtained for the development;
  2. This preliminary approval lapses if Step 1 is not satisfied within 2 years starting after the day the approval takes effect;
  3. Any subsequent development permit obtained for the development cannot be acted upon unless Step 1 of this Protocol has been satisfied;
  4. Any subsequent development permit obtained for the development must include this protocol as a condition of approval, including conditions that:

a. The development permit lapses if Step 2 is not satisfied and council approval has not been obtained within 3 years after the date the permit takes effect;

b. The development permit lapses if Step 3 is not satisfied and council approval has not been obtained within three years after the date Part 5 of Stage 1 has been completed.

  1. Any applications for a development permit for the development must comply with the statutory and planning instruments applicable at the time the application is made.”
  1. [106]
    Thereafter, a number of steps are involved which include detailed data collection, testing and monitoring and further modelling. Accordingly, three possible scenarios might arise. First, no further expansion takes place and the poultry farm operates as is. Secondly, the existing poultry farm and stage 2, (the central pads) are developed but not stage 3. Thirdly, the existing, the central pads and the southern pads are developed to accommodate up to 600,000 plus birds.
  1. [107]
    The approval process is detailed, complex and involves a number of steps including the requirement of the respondent to consider and decide upon the results provided to it by the appellant. The possible scenario outcomes are set out in “The Poultry Stage Flow Chart” attached to these reasons.[133]
  1. [108]
    In the event that preliminary approval were granted, there could be a number of positive outcomes. These could include the reduction in the existing operational K-factor under which the existing development was approved. That is, a reduction from 3 to 2.2.[134]  Further employment opportunities would also be likely in a local government area where rural industry is an important contributor to its economy including employment.  According to Mr Traves though, any such attraction would be “superficial” as there is no certainty that any future expansion would occur.[135]
  1. [109]
    The respondent’s real opposition to the granting of a preliminary approval of the type contended for was primarily based on the fact that it would offend the finality principle and result in an unacceptable constraint on the exercise of statutory power.[136]
  1. [110]
    Unsurprisingly, the respondent placed particular emphasis on the Court of Appeal decisions of Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council[137]and McBain v Clifton Shire Council.[138]
  1. [111]
    It was submitted on behalf of the appellant that considerable caution was necessary when considering those cases in the context of this proceeding as they were “decided over 20 years ago, and need to be considered in the light of ongoing development of the law in this area in other jurisdictions (esp NSW)”[139] and, in particular, both of those decisions were decided under the then Local Government (Planning and Environment) Act (1990).  That Act, unlike the Integrated Planning Act (1999) and the Sustainable Planning Act (2000), did not provide for the granting of preliminary approvals. 
  1. [112]
    According to the appellant “…that is precisely the scope and intent of the statutory regime (under SPA) dealing with a preliminary approval.  A preliminary approval would have been an appropriate approach, had it been available under the P&E Act to the circumstances in McBain”.[140]  In this context emphasis was placed on the decision of this court in Tower 720 Pty Ltd v Harvey Bay City Council & Anor.[141]
  1. [113]
    That McBain and Mt Marrow were decided more than 20 years ago is of little significance in my view.  However, at least at face value, the introduction of the concept of preliminary approvals in the SPA is a significant development which would tend to favour the position taken by the appellant.  According to the appellant, whatever decision might be made by the respondent in the future under the amended protocol, “will not alter the development, but simply decide whether or not it can go ahead in its present form.  That is not offensive to the principle.”[142]
  1. [114]
    In Mt Marrow it was held that the relevant condition did not offend the so called finality principle.  There, the contentious condition imposed by the council (as varied by the primary judge) was in the following terms:[143]

“Provision of an easement which prohibits the erection of any residential building on that part of lots 55-66 (inclusive) and lot 6 as shaded in green on plan number A 2.717/4 and such building restriction lined to be amended in a generally north-easterly direction where necessary to ensure that residential building sites are not subjected to noise levels due to the operation of the quarry…”

  1. [115]
    After referring to a number of New South Wales authorities McPherson JA and Ambrose J with Pincus JA generally in agreement (said):[144]

“The subject condition is not open to the same criticism.  The precise location on the ground, or on a plan of the land, of the building restriction line is, it may be acknowledged, left to be fixed in the future; but that is so only in the sense that its position has not yet been measured in situ or designated by metes and bounds.  The objective criteria necessary to arrive at such a designation are nevertheless now fully identified in condition 30.  The appellant accepts that the limits of the specified noise levels are scientifically ascertainable, and that the building restriction line must correspond to them.  The case is therefore not one in which the decision of an essential matter is deferred to a future occasion, or delegated to another person.  On the contrary, it is one in which clear objective standards are used ‘which are capable of producing a result about which every man must agree if he knows the facts and figures and has made his calculations correctly’.”  (Emphasis added.  Authorities omitted)

  1. [116]
    With respect, that that conclusion was reached is unsurprising. It can however be distinguished from the current situation where there is, in my view, the deferral of an essential matter to a future occasion and where the processes proposed could not be described as one “capable of producing a result about which every man must agree if he knows the facts and figures and made his calculations correctly.”  A number of the steps contemplated would, in my opinion, leave considerable potential for further disagreement. For example, the deposit sampling, dust reporting, modelling and odour reporting steps.
  1. [117]
    The amended protocol envisages the total number of steps involved could take up to four years before all three stages were “up and running”.[145] There is no guarantee that any of the objects will be achieved but, as Mr Galvin observed, if the objects were not being achieved by two years, “it’s probably not going to happen”.[146] In this context, Mr Galvin was speaking about a critical object of the amended protocol, namely achieving a K-factor in respect of each stage when operating of less than or equal to 2.2.[147]
  1. [118]
    McBain, at least at face value, has a number of similarities with the preliminary approval case advanced by the appellant.  In that case the council approved an application to use the subject land as a piggery subject to, among others, the following conditions:

“Piggery capacity

3 This consent permits a maximum resident pig population of 8,000 sows and their prodigy with a total pig population not to exceed 80,000 at any one time on the basis of pig numbers may exceed this limit by a maximum of 5% to accommodate variations in breeding programs…

Development staging

4(1) Stocking of the piggery shall only be undertaken in staged increments beginning with a maximum of 20,000 pigs…and increasing in increments of 20,000 up to a maximum number of pigs allowed.

  1. (3)
     The first in each subsequent incremental increase shall only be undertaken upon the written approval of the Local Authority who in turn will act upon advice from the ‘Monitoring Review Committee, that the current and proposed stock numbers represent an environmentally sustainable operation in accordance with an approved Environmental Management Plan prepared in accordance with the conditions of this consent.’”
  1. [119]
    The Court of Appeal identified that under the contentious conditions, three outcomes were possible. One that most favoured the respondents, namely, that 80,000 pigs would constitute an environmentally sustainable operation. At the other extreme, the view that most favoured the appellants was that the council, in reality had not decided that a piggery of no more than 20,000 pigs was environmentally sustainable. Thirdly, what was described as the “intermediate argument”.
  1. [120]
    Using the language adopted in Mt Marrow, the appellants in McBain contended that the eventual outcome of the approval was not one based on “clear objective standards” and which must produce “a result about which every man must agree if he knows the facts and figures and has made his calculations correctly”.
  1. [121]
    The Court of Appeal accepted that submission and concluded:[148]

“In our opinion, that is correct.  There is no certainty that the Council (or the Monitoring Committee) will be satisfied of the ‘environmental sustainability’ of the ‘current and proposed’ operation of the piggery when each stage of its expansion from 20,000 to 80,000 is proposed: rather as the Environmental Impact Statement which supported the other respondents application to this council recognised by reference to the Draft Environmental Management Plan, impact from the piggery might be ‘different to those predicted’.  Future decision which are required by the conditions to the approval concerning whether the ‘current and proposed’ operation of the piggery is then environmentally sustainable will therefore alter the development of the piggery in a ‘fundamental respect’, each decision will in turn decide the permissible size of the piggery.  In our opinion the postponement of such decisions from the issue of the conditional approval until unspecified future dates clearly offends the finality principle.”

  1. [122]
    In my respectful opinion, that is the situation in this case. It is not in reality a preliminary approval of a staged expansion of the existing operation of up to 13 sheds and in excess of 600,000 birds. As identified above, three possible outcomes are on the table at this stage: the existing operation, the existing operation plus expansion to the central pads and, finally the existing operation plus expansion on the central and southern pads. As the respondents identified, a fundamental problem with the amended protocol is that it defers the approval for any form of development until it can be demonstrated that each stage of the proposal can operate to the prescribed standards, in circumstances where it has not been demonstrated with any degree of certainty that those standards can be achieved.
  1. [123]
    At the end of each of the stages envisaged in the amended protocol, a report or submission must be made to the council for its consideration and which, depending on the view taken, might or might not agree to the expansion of the next stage. To adopt the words used in McBain “each decision will in turn decide the permissible size of the (poultry farm).” A matter readily accepted by Mr Vann,[149] who described the protocol as a “belt and braces way of achieving” the final outcome.[150]
  1. [124]
    In Caloundra City Council v Pelican Links Pty Ltd & Anor,[151] Judge Robertson, after referring to Mt Marrow and McBain, said in terms similar to those used in a more recent decision of the Land and Environment Court of New South Wales:[152]

“It seems to me therefore that there are, as it were, 2 aspects to the “test”, and if the condition infringes either or both it is invalid. These can be stated relevantly to the facts here in the following way. Firstly, if a condition imposed (on an approval) by Council has the effect of significantly altering the development in respect of which the development application is made, then the proposed approval is no approval at all. Secondly, where a condition leaves for later decision an important aspect of the development, and the decision on that aspect could alter the proposed development in a fundamental way, then the approval with that condition cannot be regarded as final.”

  1. [125]
    I respectfully agree with his Honour’s analysis and the amended protocol underpinning the appellant’s primary approval case falls squarely within the second limb identified by Robertson DCJ.
  1. [126]
    In this context, the judgment of Wilson SC DCJ (as he then was) in Tower 720 is able to be reconciled with the finality principle.  That case was decided while the Integrated Planning Act 1997 was in force which, as already identified, provided for the granting of preliminary approvals.  His Honour, with respect, quite correctly pointed that the concept of a preliminary approval was introduced to permit applications to obtain what was, in effect, a conceptual approval which was nonetheless legally binding so far as it went.[153]  His Honour also, with respect, correctly identified that a preliminary approval did not authorise development to occur and carried an obvious contemplation of a requirement for further approvals.  And, accordingly, the finality principle did not immediately translate to the “new kind” of preliminary approval created by the Integrated Planning Act,[154] such approvals by their very nature are not “final”.
  1. [127]
    In Tower 720 the controversial condition (14) provided:[155]

“Prior to lodging a development application seeking a Development Permit for the development approved by this Preliminary Approval the Applicant shall admit to Council:

  1. (i)
    A report which demonstrates to Council’s satisfaction that the projected five year demand for additional Retail Showroom floor space less the available supply of Retail Showroom floor space equals or exceeds the floor space sought by the development application.
  1. (ii)
    Documentation which demonstrates to Council’s satisfaction that a tenant or tenants have been secured for no less than fifty (50) percent of the floor space of the proposed Retail Showroom subject of the development application and a report that demonstrates to Council’s satisfaction that the alternative suitably zoned premises and land are unsuitable for the particular requirements of the prospective tenant or tenants.”
  1. [128]
    The proposed development was for a standalone retail showroom with an approximate gross floor area of 9,000 square metres, and associated car parking and driveway areas. His Honour concluded:[156]

“Here, the terms of the approval development are clear, and no objection is taken to any of the conditions imposed, save condition 14.  The preliminary approval relates to a material change of use for retail showrooms incorporating an approved plan.  All of its terms and conditions are known, and certain, and any future alteration in them must be consistent with them…

In the present case, whatever decision is made about need at the time of an application for a development permit will not alter the development, but simply decide whether or not it can go ahead in its present form.  That is not offensive to the [finality] principle.”  (Footnotes and authorities omitted).

  1. [129]
    In reaching a conclusion his Honour distinguished the decision of Robin QC DCJ in Mitchell Ogilvie (Mitchell Ogilvie Menswear) v Brisbane City Council.[157]
  1. [130]
    That case was also concerned with an application under the Integrated Planning Act 1997.  Of relevance here is that his Honour when addressing the conditions relating to a proposed taxi rank, observed that the conditions set by the council deliberately left open a number of possible outcomes concerning the provision of the taxi rank to the extent that, “the result is that no one can say what the final impact of the proposed development on and under Edward Street will be, in particular, what will happen to the taxi rank.  Matters whose importance to the general public is obvious are left for later decision.”  His Honour concluded that this offended the “finality principle”.  It is worth observing that his Honour considered it appropriate to refer to a line of authorities including Mison v Randwick Municipal Council[158] and among others, McBain and Mt Marrow Blue Quarries.  However, it is important to recognise that Robin QC DCJ in Mitchell Ogilvie was not concerned with a preliminary approval. 
  1. [131]
    In any event, the nature of the preliminary approval contended for in this case, for the reasons given, can be readily distinguished from that under consideration in Tower 720.
  1. [132]
    For the sake of completeness, while I can readily accept that in Tower 720 “this Court was correct in distinguishing McBain in this way (remembering that, in Mt Marrow, the Court of Appeal upheld a condition as valid)”.[159]  That said, that it is a preliminary approval that is being considered does not render the finality principle redundant.  Indeed it is quite clear, with respect, that in Tower 720 the court distinguished that case from McBain and Mt Marrow on the facts and not on the basis that the finality principle had little or no relevance in situations involving a preliminary approval.  That is abundantly clear from his Honour’s observations that the nature of the condition was not “offensive to the principle”.[160]
  1. [133]
    Finally, turning then to the more recent line of authority relied on by the appellant it is necessary only to make a number of observations in my view. The most significant observation is that none of those cases to which I was referred, either expressly or by implication, water down the principles decided in McBain. Each of the New South Wales authorities referred to turned on their own set of facts and the relevant statutory provisions of that State’s legislation
  1. [134]
    In Transport Action Group Against Motorways v Road and Traffic Transport Authority & Ors,[161] Mason P (with Sheller JA in agreement) was able to distinguish Mison. The President rhetorically asked “but what level of precision or finality is required?”[162] His Honour unsurprisingly, with respect, noted that the application of Mison did not invalidate every development consent containing conditions which leave matters open for later decision.[163] After a detailed analysis of the case law, the conditions, and legislation, the President concluded:[164]

“This analysis shows that all of the conditions may properly be described as ancillary to the core purpose of the activity and consistent with the proper exercise of the RTA's power to modify.

There is nothing objectionable in deferring to the greater expertise ofappropriate authorities such as the Environment Protection Authority, Depart­ment of Land and Water Conservation, National Parks and Wildlife Service or Sydney Water Corporation, or contemplating that such bodies will exercise their statutory powers in the future as particular issues referable to their several expertises arise. Mison or any variant of it does not preclude such a sensible way of carrying out an aspect of the activity in the future.”

  1. [135]
    This case does not assist the appellant. It, unlike the present situation, did not involve the genuine risk that what is eventually developed may bear no resemblance to what was approved, albeit on a preliminary basis. Namely, a 13 shed poultry farm accommodating up to 600,000 plus birds. Also, what the amended protocol involves or envisages could not reasonably be described as involving “an aspect of the activity…”[165] The amended protocol goes to the very heart of what might or might not eventuate.
  1. [136]
    The next case I was referred to by Mr Gore was Pittwater Council v Minister for Planning,[166] a decision of Pain J of the Land and Environment Court of NSW. That case relevantly involved the consideration of a “project approval” and approval of a “concept plan approval”, leaving open a number of important matters, including the ultimate number of dwellings, their location and height, and other potential modifications.[167]
  1. [137]
    In dealing with the issue of finality, Pain J clearly had some reservations about whether that principle even had any application given the relevant statutory regime.[168] In any event, her Honour went on to say:[169]

“Applying Mison as explained in Warehouse Group, the terms of the modifications imposed on the project approval give a final and certain development height for the yellow buildings shown in stages 1 and 2 on the drawing in annexure A of Meriton’s written submissions. The remaining buildings are given “clear criteria” for their final design, being limited to four storeys, the fourth storey to have a lesser footprint than the third level, unit numbers are reduced to maintain a dwelling yield of no more than 60 dwellings per hectare and changes in the built form must comply with the Residential Flat Design Code and have a minimum of 50% of the developable area as deep soil landscaping. The Council’s submission that the modifications contemplate changes to the siting and form of the building envelope incorrectly suggests that is open permission to make substantial changes to the development. The court would not construe the modifications to produce that result, per Ulan at [66] per Preston J.

There is sufficient finality under the project approval for the modifications to be given effect without any significant alteration to the approved development. There was no unlawful delegation to the DG in leaving to him the approval of amended plans ensuring these complied with the modifications imposed. The Council’s case is based on the terms of condition B1 issued in January 2011 in any event and that cannot be judged based on what the DG approved in March 2011.”

  1. [138]
    This case does not support the appellant. Modifications are not involved here. As I have already identified, the amended protocol (or any successor) goes to the heart of the matter. What is involved in this case could not, in my respectful opinion, be sensibly compared to a project approval involving a concept plan nor could it be said that the protocol advanced provides for a level of “sufficient finality” as was found in Pittwater.
  1. [139]
    The last case to which I will refer in this context is Kindimindi Investments Pty Ltd v Lane Cove Council & Anor.[170] Among other matters, the court was concerned with a challenge to “uncertain conditions” concerning the construction of a shopping centre near a school. A requirement for the construction of a pick-up and drop-off facility was contained in a private deed between the council and the developer, rather than as a condition of development. The court below held that this obligation should have been a condition of development consent, and the consent was subsequently invalidated.  The Court of Appeal held that there are two circumstances where uncertainty invalidates a development consent. First, where the condition has the effect of significantly altering the development in respect of the application made. Secondly, where the council has granted consent but due to lack of finality or certainty there is no effective consent to the application in substance. Uncertainty was not made out in this case.
  1. [140]
    The court in Kindimindi was not required to consider the validity of the proposed conditions solely in the context of the finality principal, but also whether the conditions complied with relevant statutory provisions outlining requirements for conditions that are expressed in terms of outcomes or objectives. There are no statutory provisions of a similar effect in Queensland relevant to this proceeding. As such, I am not satisfied that the proviso that the finality principle should be treated with caution because “a decision will only be invalid by lacking certainty or finality if it falls outside the limits of the particular statutory power in question”.[171]
  1. [141]
    For the reasons given, up until the appellant introduced its “Staged Data Collection Program” and subsequently its application for only preliminary approval, the appeal would have been dismissed on the basis of the court not being satisfied that what was proposed would not conflict with the planning scheme, and that there were no grounds to warrant approval despite the conflict.
  1. [142]
    Also for the reasons given, the appellant’s application for preliminary approval must be dismissed. Neither the arguments advanced on the appellant’s behalf nor the authorities to which I was referred on its behalf cause me to doubt the applicability of the finality principle as expressed in McBain to the circumstances of this proceeding. The principle applies, and the proposal as finally articulated, offends it. It involves a deferral over an unspecified time frame of the consideration and determination of a critical matter to the respondent. Namely, the capacity to comply with the planning regime and other policies and guidelines concerned with air quality. Whether compliance is achieved or not will, in turn, determine the final extent of the development. Further, as already observed, the potential for dispute as between the appellant and respondent about whether satisfactory compliance with the steps proposed cannot be readily discounted.
  1. [143]
    As I have already indicated, in the event that each of the steps and stages contemplated in the amended protocol were achieved, it could result in not only improved amenity for local residents, but also provide economic benefits for the wider community. It is true, as Mr Traves said, there is no guarantee that anything will occur. However, given the appellant’s investment in the poultry industry and its apparent commitment to this project, as evidenced to some extent to tis commitment to this proceeding, it seems to me that there would be a genuine prospect of a real attempt on the part of the appellant to make the proposal work.
  1. [144]
    The orders of the court are as follows:
  1. The appeal is dismissed.
  2. I will hear from the parties if necessary as to any consequential orders.

Annexure A

Singh Properties Pty Ltd v Scenic Rim Regional Council [2018] QPEC 27

Footnotes

[1]  Exhibit 2, vol 1, p 33.

[2]  Exhibit 97.

[3]  Exhibit 98.

[4]  Exhibit 99.

[5]  Exhibit 76.

[6]  Appellant’s outline of submissions (Exhibit 100), para 9. T13-89 ll 39-47, T13-90 ll 1-7.

[7]  See e.g. Exhibit 1 and Exhibit 24.

[8]  See Exhibit 24.

[9]  Exhibit 2, vol 1, p 33.

[10]  Ibid p 35.

[11]  Ibid p 138.  See also Exhibit 22, p 15.

[12]  Exhibit 2, vol 3, pp 814-815.

[13]  Exhibit 2, vol 1, pp 13-15.

[14]  Ibid pp 5-7.

[15]  Ibid pp 16-17. Also expanded on by Mr Vann in Exhibit 9, pp 27-28.

[16]  SPA s 493.

[17]  SPA s 495(1).

[18]  SPA s 326.  “Grounds” means matters of public interest.

[19]  Exhibit 13.

[20]  Exhibit 33.

[21]  Exhibit 34.

[22]  Exhibits 35A and 35B.

[23]  Exhibit 35A.

[24]  Exhibit 35B.

[25]  Exhibit 35A, para 10.

[26]  Ibid para 11.

[27]  Ibid para 23.

[28]  Ibid para 24.

[29]  Exhibit 35B, paras 22-25.

[30]  T5-34 ll 40-45.

[31]  T5-11 ll 9-26.

[32]  T5-15 ll 3-7.

[33]  T5-23 ll 23-30.

[34]  T5-13 ll 28-40.

[35]  Michael Westbrook (Exhibit 16), Sarah Dent (Exhibit 42), Joanne Beggs (Exhibit 17B), Jamie Beggs (Exhibit 17A), Andrew Thomson (Exhibit 18), Garry Pemberton (Exhibit 19), John Potter (Exhibit 20), Jonathan Adermann (Exhibit 37).

[36]  See e.g. Exhibit 24.

[37]  Ibid.

[38]  Exhibit 16, paras 13-15.

[39]  See T5-45 to T5-49.

[40]  Exhibit 42, paras 10 and 11; T6-52 ll 20-33.

[41]  T5-41 ll 19-32; Exhibit 41 “MSW-2”, p 1.

[42]  Exhibit 20, para 10.

[43]  T6-5 ll 19-30. 

[44]  T11-47 ll 4-27; T11-61-T11-62; T11-67 ll 26-46.

[45]  Set out in detail in the appellant’s outline of submissions, paras 40 to 44.

[46]  Appellant’s outline of submissions, para 34.

[47]  Exhibit 9.

[48]  Exhibit 9, p 18, para 6.1.3.

[49]  Exhibit 9, p 30.

[50]  Exhibit 9, p 32, para 8.0.4 at 5.

[51]  Exhibit 9, p 33, para 8.0.5.

[52]  Area, topography, access, proximity to market etc.

[53]  T8-50 ll 28-37.

[54]  Exhibit 9, p 20, para 7.1.8.

[55]  See generally T8-56 to T8-59.

[56]  T8-56 ll 40-47.

[57]  T8-59 ll 6-30.

[58]  Exhibit 3, tab 5, pp 5-77 and 5-78.

[59]  Ibid, div 2, pp 2-1 to 2-2.

[60]  Ibid, chapter 5, pp 5-77 to 5-78.

[61]  Ibid, chapter 2, pp 2-1 to 2-2.

[62]  Ibid, chapter 3, pp 3-119 to 3-120; OO14 and OO33.

[63]  Exhibit 9, pp 52-53.

[64]  SPA schedule 3.

[65]  [2017] QPEC 23.

[66]  E.g. see Exhibit 8 pp 27-28. See also T8-51 L 46.

[67]  Exhibit 69, p 27.

[68]  [2002] QCA 234 at [36].

[69]  Ibid at paras [35]-[37] and [44]-[46].

[70]  [2012] QCA 370 at [21]. See also Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147 cited with no apparent disapproval in Bell v Brisbane City Council [2018] QCA 84 at [55].

[71]  Exhibit 14, para 46.

[72]  Ibid.

[73]  Ibid para 27.

[74]  Ibid para 35.

[75]  Ibid para 39.

[76]  T2-78, ll 27-45.

[77]  T2-80, ll 23-47; T2-81, ll 1-4.

[78]  T2-78 ll 40-45; T2-79, ll 1-10.

[79]  Exhibit 8, pp 39-40.

[80]  Exhibit 12, pp 10-11.

[81]  Exhibit 8, p 40, para (k).

[82]  Exhibit 12, p 11, para 4.12.

[83]  Exhibit 8, p 23 (as amended).

[84]  Exhibit 8, pp 40-41.

[85]  Exhibit 21, p 7.

[86]  T2-23 ll 7-27.

[87]  T2-58 ll 23-33.

[88]  The reference to “before” should be “because.”

[89]  Appellant’s outline of submissions, para 89.

[90]  [2018] QCA 84.

[91]  Ibid at [66]-[68] and [70].

[92]  Appellant’s outline of submissions, para 89.

[93]  DEO 2.1.3(1)(b) – the proposed development would cause unacceptable chemical contaminants due to dust; DEO 2.1.3(1)(f) – the proposed development would not protect the shallow water and soil resources and their associated values due to unacceptable dust admissions; DEO 2.1.3(1)(h) – the proposed development would not incorporate best practice environmental management; DEO 2.1.3(3)(b) – emissions from the proposed development would result in adverse effects on the community; DEOs 2.1.3(3)(e), Rural Zone Code OO14, Rule Zone Code OO33, SO2, SO33 were also relied on as was Poultry Farm Code s 5.2.63(b) and SO2.

[94]  Exhibit 7, paras 190-192.

[95]  Appellant’s outline of submissions, paras 74-76.

[96]  Written submissions on behalf of the respondent (Exhibit 101), paras 80-124.

[97]  Exhibit 43, paras 6.1 to 6.9.

[98]  T5-102 ll 25-35; T6-86 ll 30-35.

[99]  T6-41 ll 5-24.

[100]  T7-6 ll 7-8. See also Exhibit 7, p 3, para 16.

[101]  T6-68 L 34.

[102]  Exhibit 43, p 5, table 1.

[103]  T6-80 L 12.

[104]  T6-81 ll 30 to T6-82 L 9.

[105]  Exhibit 43, p 7, para 3.24.

[106]  Ibid p 7, para 3.25.

[107]  Ibid paras 3.28-3.29. Spatial distribution reflected the pattern of the spread or distribution of microbial contamination. There being greater readings closest to the farm reducing over distance.

[108]  T6-85 ll 5-10.

[109]  T6-45 L 35; T6-46 ll 5-15 and T6-48 L 10.

[110]  Exhibit 99.

[111]  T13-89 ll 10-20.

[112]  Exhibit 69, p 2, para 5.

[113]  T11-7, ll 20-33; T11-8 ll 1-24.

[114]  See Exhibit 32, p 3, table 1 and T10-20, L 40.

[115]  T10-73, ll 20-30.

[116]  T10-74, ll 20-25.

[117]  T10-35, L 30.

[118]  T9-57, ll 20-30.

[119]  T10-49, ll 15-20.

[120]  T10-49, ll 20-25.

[121]  T10-79, ll 25-35

[122]  T9-52, ll 25-35

[123]  Ex 6, p 52, para 167. Discussion at pp 50-52.

[124]  Exhibit 69, p 26, paras 129 and 130.

[125]  Ibid p 27.

[126]  T8-7, ll 20-33; T8-8, ll 1-24.

[127]  T9-7, ll 9-17.

[128]  Exhibit 76. 

[129]  Exhibit 99.

[130]  Appellant’s outline of submissions, paras 66-68.

[131]  T13-89 ll 39-47; T13-90 ll 1-7.

[132]  Exhibit 99, p 1.

[133]  Attached as Annexure A.

[134]  In this context, Mr Venn accepted that if the protocol achieved its objectives that would result in a “public benefit”; T12-63 ll 32-47; T12-64 ll 1-5.

[135]  T13-14 L 46.

[136]  T13-9 ll 1-5. Written submissions on behalf of the respondent, para 155.

[137]  [1996] 1 Qd R 347.

[138]  [1996] 2 Qd R 493.

[139]  Appellant’s outline of submissions, para 21.

[140]  Ibid para 26.

[141]  [2003] QPELR 178.

[142]  That reference is one to Tower 720 at [50]-[51].

[143]Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 347 at 352.

[144]  Ibid at 353.

[145]  T12-54 ll 12-17.

[146]  T11-32 ll 29-37.

[147]  Exhibit 99, pp 1 and 4.

[148]Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 347 at 503.

[149]  T12-52 ll 26-42.

[150]  T12-56 ll 11-24.

[151]  [2004] QPEC 52 at [51].

[152]Pittwater Council v Minister of Planning [2011] NSWLEC 162.

[153]Tower 720 Pty Ltd v Harvey Bay City Council & Anor [2003] QPELR 178 at [40].

[154]  Ibid at [50].

[155]  Ibid at [9].

[156]  Ibid at [51].

[157]  [2000] QPELR 414.

[158]  (1991) 23 NSWLR 734.

[159]  Appellant’s outline of submissions, para 26.

[160]Tower 720 Pty Ltd v Harvey Bay City Council & Anor [2003] QPELR 178 at [51].

[161]  (1999) 46 NSWLR 598.

[162]  Ibid at [114].

[163]  Ibid at [117].

[164]  Ibid at [135]-[136].

[165]  Ibid at [136].

[166]  [2011] NSWLEC 162.

[167]  Ibid at [37]-[38].

[168]  Ibid at [54]-[55].

[169]  Ibid at [56]-[57].

[170]  (2006) 143 LGERA 277.

[171]  Appellant’s outline of submissions, para 20.

Close

Editorial Notes

  • Published Case Name:

    Singh Properties Pty Ltd v Scenic Rim Regional Council

  • Shortened Case Name:

    Singh Properties Pty Ltd v Scenic Rim Regional Council

  • MNC:

    [2018] QPEC 27

  • Court:

    QPEC

  • Judge(s):

    Jones DCJ

  • Date:

    24 May 2018

Appeal Status

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

Cases Cited

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Bell v Brisbane City Council [2018] QCA 84
4 citations
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Cite 2 - [2018] QCA 84
Cite 3 - [2018] QCA 84
Cite 4 - [2018] QCA 84
Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2017] QPEC 23
2 citations
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Cite 1 - [2017] QPEC 23
Cite 2 - [2017] QPEC 23
Caloundra City Council v Pelican Links Pty Ltd [2004] QPEC 52
2 citations
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Cite 1 - [2004] QPEC 52
Cite 2 - [2004] QPEC 52
Kindimindi Investments Pty Ltd v Lane Cove Council & Anor (2006) 143 LGERA 277
2 citations
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Cite 1 - (2006) 143 LGERA 277
Cite 2 - (2006) 143 LGERA 277
Lockyer Valley Regional Council v Westlink Pty Ltd[2013] 2 Qd R 302; [2012] QCA 370
2 citations
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Cite 1 - [2012] QCA 370
Cite 2 - [2012] QCA 370
McBain v Clifton Shire Council[1996] 2 Qd R 493; [1995] QCA 513
2 citations
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Cite 1 - [1996] 2 Qd R 493
Cite 2 - [1996] 2 Qd R 493
Mison & Ors v Randwick Municipal Council (1991) 23 NSWLR 734
2 citations
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Cite 1 - (1991) 23 NSWLR 734
Cite 2 - (1991) 23 NSWLR 734
Mitchell Ogilvie (Mitchell Ogilvie Menswear) v Brisbane City Council (2000) QPELR 414
2 citations
Jump To
Cite 1 - (2000) QPELR 414
Cite 2 - (2000) QPELR 414
Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 347
5 citations
Jump To
Cite 1 - [1996] 1 Qd R 347
Cite 2 - [1996] 1 Qd R 347
Cite 3 - [1996] 1 Qd R 347
Cite 4 - [1996] 1 Qd R 347
Cite 5 - [1996] 1 Qd R 347
Pittwater Council v Minister of Planning [2011] NSWLEC 162
6 citations
Jump To
Cite 1 - [2011] NSWLEC 162
Cite 2 - [2011] NSWLEC 162
Cite 3 - [2011] NSWLEC 162
Cite 4 - [2011] NSWLEC 162
Cite 5 - [2011] NSWLEC 162
Cite 6 - [2011] NSWLEC 162
Tower 720 Pty Ltd v Hervey Bay City Council (2003) QPELR 178
8 citations
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Cite 1 - (2003) QPELR 178
Cite 2 - (2003) QPELR 178
Cite 3 - (2003) QPELR 178
Cite 4 - (2003) QPELR 178
Cite 5 - (2003) QPELR 178
Cite 6 - (2003) QPELR 178
Cite 7 - (2003) QPELR 178
Cite 8 - (2003) QPELR 178
Transport Action Group Against Motorways v Road and Traffic Authority & Ors (1999) 46 NSWLR 598
6 citations
Jump To
Cite 1 - (1999) 46 NSWLR 598
Cite 2 - (1999) 46 NSWLR 598
Cite 3 - (1999) 46 NSWLR 598
Cite 4 - (1999) 46 NSWLR 598
Cite 5 - (1999) 46 NSWLR 598
Cite 6 - (1999) 46 NSWLR 598
Weightman v Gold Coast City Council[2003] 2 Qd R 441; [2002] QCA 234
3 citations
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Cite 1 - [2002] QCA 234
Cite 2 - [2002] QCA 234
Cite 3 - [2003] 2 Qd R 441
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147
1 citation
Jump To
Cite 1 - [2014] QCA 147

Cases Citing

Case NameFull CitationFrequency
Singh Properties Pty Ltd v Scenic Rim Regional Council (No 2) [2018] QPEC 361 citation
1

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