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  4. Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors - [2023] QPEC 25

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Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors[2023] QPEC 25

Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors[2023] QPEC 25

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors [2023] QPEC 25

PARTIES:

LANTRAK PROPERTY HOLDINGS (QLD) PTY LTD

ACN 617 140 904

(appellant)

v

IPSWICH CITY COUNCIL

(respondent)

And

CLEANAWAY PTY LTD (ABN 79 000 164 938)

(first co-respondent by election)

And

CHIEF EXECUTIVE, DEPARTMENT OF STATE

DEVELOPMENT, MANUFACTURING,

INFRASTRUCTURE AND PLANNING

(second co-respondent by election)

And

CORNELIA TURNI

(third co-respondent by election)

And 

ROSEMAREE THOMASSON

(fourth co-respondent by election)

And 

IAN STEWART

(fifth co-respondent by election)

And 

KEITH NUTTON, SUE NUTTON AND DARELLE BOND

(sixth co-respondents by election)

And 

GEORGE HATCHMAN

(seventh co-respondent by election)

And 

IAN DAINER

(eighth co-respondent by election)

And 

WILLOWBANK AREA RESIDENTS GROUP INC.

(ninth co-respondent by election)

And 

JENNIFER STEVENSON

(tenth co-respondent by election)

And 

ROGER STEVENSON

(eleventh co-respondent by election)

And 

MATTHEW BAXTER AND JANE BAXTER

(twelfth co-respondents by election)

And 

MEGAN BARNES

(thirteenth co-respondent by election)

And 

NEVILLE SECKHOLD AND GWENDA SECKHOLD

(fourteenth co-respondents by election)

And 

TRACY COLES

(fifteenth co-respondent by election)

And 

JACQUELINE GROENENBERG AND PETER GROENENBERG

(sixteenth co-respondents by election)

And 

MATTHEW BOOTH

(seventeenth co-respondent by election)

And 

CORAL BARNES

(eighteenth co-respondent by election)

And 

BRUCE BARNES

(nineteenth co-respondent by election)

And 

CAROL ASHWORTH

(twentieth co-respondent by election)

And 

DANE ASHWORTH

(twenty-first co-respondent by election)

And 

PATRICK ROSS

(twenty-second co-respondent by election)

And 

HAZEL ROSS

(twenty-third co-respondent by election)

And 

HANS RUDZITIS

(twenty-fourth co-respondent by election)

And 

LYN PICKERSGILL

(twenty-fifth co-respondent by election)

And 

ELISE PICKERSGILL

(twenty-sixth co-respondent by election)

And 

ALAN PORTER

(twenty-seventh co-respondent by election)

And 

CHERYL PORTER

(twenty-eighth co-respondent by election)

And 

RONALD SHAW

(twenty-ninth co-respondent by election)

And 

JENNY SHAW

(thirtieth co-respondent by election)

And 

MARGHERITA BESS

(thirty-first co-respondent by election)

And 

PATRICIA LYTHGOE

(thirty-second co-respondent by election)

And 

BRIAN LYTHGOE

(thirty-third co-respondent by election)

And 

NEIL HUTCHINS

(thirty-fourth co-respondent by election)

And 

RAY CLARKE AND JOANNA CLARKE

(thirty-fifth co-respondents by election)

And 

RODNEY LUCHT AND JILL LUCHT

(thirty-sixth co-respondents by election)

And 

CHRIS NINNESS

(thirty-seventh co-respondent by election)

And 

TROY BUTLER

(thirty-eighth co-respondent by election)

And 

CHRISTIE NINNESS

(thirty-ninth co-respondent by election)

And 

KERRY BUTLER

(fortieth co-respondent by election)

And 

JOHN LAWRENCE AND EILEEN LAWRENCE

(forty-first co-respondents by election)

And 

DAVID WRIGHT AND VICKI WRIGHT

(forty-second co-respondents by election)

And 

JEANETTE JEYNES

(forty-third co-respondent by election)

And 

RAY WALLS AND LAUREL WALLS

(forty-fourth co-respondents by election)

And 

MURRAY BRIMS

(forty-fifth co-respondent by election)

And 

G L BELL

(forty-sixth co-respondent by election)

And 

KYM JOHNSON

(forty-seventh co-respondent by election)

And 

OWEN WESENER

(forty-eighth co-respondent by election)

And 

SARLI NELSON AND BELINDA NELSON

(forty-ninth co-respondents by election)

And 

VICTORIA WHYTE-JOHNSTON

(fiftieth co-respondent by election)

And 

JUDITH HOLZNAGEL

(fifty-first co-respondent by election)

And 

ANITA ARNOLD

(fifty-second co-respondent by election)

And 

TONY CORBYN

(fifty-third co-respondent by election)

And 

LIZ RUDZITIS

(fifty-fourth co-respondent by election)

And 

LINDA O'TOOLE

(fifty-fifth co-respondent by election)

And 

MALCOLM MEIKLEJOHN

(fifty-sixth co-respondent by election)

And 

JULIE WORBOYS

(fifty-seventh co-respondent by election)

And 

DIANE BROWN

(fifty-eighth co-respondent by election)

And 

DARRYL MULLER AND MICHELLE WALKER

(fifty-ninth co-respondents by election)

And 

DIANE TURNER

(sixtieth co-respondent by election)

And 

SHANE QUALISCHEFSKI

(sixty-first co-respondent by election)

And 

LIVIO LUCARINI

(sixty-second co-respondent by election)

And 

CHRISTINE MOORE

(sixty-third co-respondent by election)

And 

TIFFANY NUFFER

(sixty-fourth co-respondent by election)

And 

BARRY HATCHER

(sixty-fifth co-respondent by election)

And 

EMMA WILLIAMS

(sixty-sixth co-respondent by election)

And 

MELANIE MALLORY

(sixty-seventh co-respondent by election)

And 

DAMIEN HARRISON

(sixty-eighth co-respondent by election)

And 

WILTON VERMEER

(sixty-ninth co-respondent by election)

And 

STEVEN HERTRICK

(seventieth co-respondent by election)

And 

MARLENE WOLENS AND GARY WOLENS

(seventy-first co-respondents by election)

And 

K M WATKINS

(seventy-second co-respondent by election)

And 

WAYNE HEILBRONN

(seventy-third co-respondent by election)

And 

W J BAILEY AND E J BAILEY

(seventy-fourth co-respondents by election)

And 

GARY MOORE

(seventy-fifth co-respondent by election)

And 

ELIZABETH MOORE

(seventy-sixth co-respondent by election)

And 

MARGERY REIDLINGER

(seventy-seventh co-respondent by election)

And 

DAVID TEITZEL AND MICHELE TEITZEL

(seventy-eighth co-respondents by election)

And 

ROSEWOOD DISTRICT PROTECTION

ORGANISATION

(seventy-ninth co-respondent by election)

FILE NO/S:

3473 of 2019

DIVISION:

Planning and Environment Court

PROCEEDING:

Applicant appeal against a deemed refusal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

20 June 2023

DELIVERED AT:

Brisbane

HEARING DATES:

11, 12, 13, 14, 17, 18, 19, 20, 21, 25, 26, 27, & 28 May 2021

12, 13, 14, 26 & 27 July 2021

4 August 2021

Further written submissions provided on 18 August and 12 October 2021

JUDGE:

Williamson KC DCJ

ORDER:

  1. The appeal is dismissed.
  1. The appellant’s development application is refused.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against deemed refusal of a development application seeking a suite of approvals for an integrated waste facility – whether the development gives rise to an unacceptable risk of environmental impact – whether the development gives rise to unacceptable amenity impacts – whether there is non-compliance with the respondent’s planning scheme – whether there is non-compliance with a Temporary Local Planning Instrument – whether the proposed development, if approved, would act as a disincentive for resource recovery and recycling – whether there is a town planning and community need for the development – whether there are relevant matters supportive of approval – whether the development application should be approved or refused in the exercise of the discretion under s 60(3) of the Planning Act 2016.

LEGISLATION:

Integrated Planning Act 1997, s 2.1.3

Planning Act 2016, ss 4, 5, 8, 23, 45, 59 and 60

Planning & Environment Court Act 2016, ss 43 and 45

CASES:

48 Stuart Pty Ltd (atf 48 Stuart Unit Trust) v Brisbane City Council [2017] QPELR 133 

Abeleda v Brisbane City Council (2020) 6 QR 441

Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27

Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 

Brisbane Wharves & Wool Dumping Pty Ltd & Ors v Brisbane City Council & Anor [1994] QPLR 1

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

Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26

HPC Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors [2020] QPELR 534

IB Town Planning Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 791

Isgro v Gold Coast City Council [2003] QPELR 414

Nerinda Pty Ltd v Redland City Council & Anor [2019] 1 Qd R 523

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management v Fabcot Pty Ltd & Ors [2022] QPELR 309

Wilhelm v Logan City Council & Ors [2021] QPELR 1321

Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168

COUNSEL:

Mr B Job KC and Mr K Wylie for the appellant Mr C Hughes KC, Mr J Lyons and Mr B Rix for the respondent 

Mr D O'Brien KC and Mr J Ware for the second corespondent by election

Mr G Duffy for the third co-respondent by election

Ms R Thomasson (self-represented) for the 4th, 6th, 24th – 35th, 42nd, 44th, 46th, 48th – 55th, 57th, 58th, 60th – 63rd, 65th – 70th, 72nd – 76th and 78th co-respondents by election

Ms C Ashworth (self-represented) for the 20th – 23rd corespondents by election

Mr I Dainer (self-represented) for the 5th, 7th – 12th, 16th, and 36th – 40th co-respondents by election

Mrs U Monsiegneur for the 79th co-respondent by election  

SOLICITORS:

Mullins Lawyers for the appellant

McInnes Wilson for the respondent

Hopgood Ganim for the second co-respondent by election

Table of Contents

Introduction 12

The land and surrounding locality 13

The proposed development 17

The statutory assessment and decision-making framework 29

The properly made submissions and lay witness statements 31

Planning context 35

The disputed issues 50

Environmental impacts and risk 52

Rehabilitation 75

Amenity impacts 76

Assessment against the planning scheme and TLPIs 77

Further reasons for refusal 80

Resource recovery and sustainability 80

Town planning need 84

Statement of Proposals 87

Matters raised in support of approval 87

Exercise of the discretion 90

Disposition of the appeal 92

ANNEXURE A – LIST OF ISSUES 93

Introduction

  1. [1]
    On 2 May 2018, a development application was made to Ipswich City Council (Council) seeking a suite of approvals to authorise the use of a former coal mine, straddling the suburbs of Jeebropilly and Amberley, as an integrated waste management facility. The facility comprises a resource recovery area, a landfill for non-putrescible waste and associated ancillary uses. The development application was impact assessable. The public notification process attracted considerable public interest in the form of 250 properly made submissions.[1]
  2. [2]
    Council did not decide the development application within the decision period prescribed by the Development Assessment Rules.
  3. [3]
    This is an applicant appeal against Council’s deemed refusal.
  4. [4]
    The appeal is one of the three against decisions refusing an application seeking approval for a use that receives and disposes non-putrescible waste in landfill. The three applications are for land located in Council’s local government area.[2] Save for common issues with respect to need and the waste industry, I heard each of the appeals consecutively. The common issues as between the appeals were the subject of a joint hearing. Agreement was reached as to the evidence that was cross-admissible for each appeal.[3] This body of evidence, in conjunction with common submissions, has been considered in this appeal.
  5. [5]
    Council, and a number of submitters who elected to co-respond to this appeal (corespondents), oppose an approval. They each notified separate reasons for refusal. By the end of the hearing, the reasons advanced for refusal by each of these parties were in lock step.
  6. [6]
    The second co-respondent by election (Chief executive) was active in the appeal, supporting a referral agency response given for the development application. The referral jurisdiction arises in relation to impacts on the State controlled road network and because approval was sought for non-devolved Environmentally Relevant Activities.[4] The Chief executive’s response is supportive of an approval. The response assumes conditions are imposed on any approval granted. Parts of the referral agency response requiring external road upgrades were initially in dispute. These matters were resolved between the parties before the hearing was complete.
  7. [7]
    The appeal is a hearing anew.[5]
  8. [8]
    It is for the appellant (Lantrak) to establish the appeal should be upheld.[6]

The land and surrounding locality

  1. [9]
    The land the subject of the development application is a large site, comprising 20 contiguous lots[7] with a total area of 351 hectares.[8] It is former coal mine (the land). Underground mining is thought to have been undertaken during the period between 1929 and 1970.[9] Open cut mining commenced in 1982.[10] Mining operations have now ceased,[11] and at the time of the hearing, the land was being rehabilitated by the mine operator, New Hope.[12]
  2. [10]
    Access to the land is obtained via Ipswich Rosewood Road, which is a ‘Regional Transport Corridor’.[13]
  3. [11]
    Visual aids confirm the land is heavily disturbed.[14] This is the direct consequence of mining activity. This activity has disturbed in the order of 80% of the land area.[15] It has left a legacy of underground mine workings[16] and an open cut void. The open cut void has a surface area of approximately 68 hectares and is devoid of vegetation.[17] The base of the void is not uniform. It is in excess of 100 metres deep.[18] Water has collected in the bottom of the void. The water is a combination of ponded rainfall and drainage through the low-wall spoils. Groundwater has also made a contribution, albeit a small one.[19]
  4. [12]
    Mining activity has significantly interfered with, and altered, hydrological (surface water) and groundwater conditions. The groundwater was depressurised (lowered) by pumping. This created a cone of depression.[20] It is expected the groundwater level will increase in time through a combination of rebound and rainfall recharge.[21] The ultimate groundwater recharge level is expected to be about RL55m AHD.[22] This compares to the base of the existing void, which varies in level, but at its deepest is around RL-51.82m AHD.[23]
  5. [13]
    On any objective view, the land is degraded and in need of rehabilitation. Condition C14 of an extant Environmental Authority[24] (the Mining EA) applies to the land[25] and requires the progressive rehabilitation of disturbed areas, which include slopes, borrow pits, stockpile storage areas and sedimentation basins.[26] Condition C15 of the Mining EA requires these areas to be rehabilitated such that, inter alia, ‘all disturbed land is reshaped to a stable landform and is not subject to slumping’. Rehabilitation is a continuous obligation under the Mining EA. Condition C17 requires rehabilitation to continue until compliance is demonstrated with condition C16. In simple terms, it must be demonstrated the final landform is self-sustaining without intervention.
  6. [14]
    Exhibit 14.012 is a plan extracted from a joint expert report[27] prepared in relation to geotechnical, landfill design and land rehabilitation. The plan was prepared by Mr Amaral, Council’s expert, and identifies areas of instability on the land. Instability has manifested, inter alia, as: (1) failure in an area above an entry road; (2) landslip caused by spontaneous combustion of carbonaceous material; (3) movement in a rock sequence; and (4) movement and failure in recently placed unconsolidated mine spoil.
  7. [15]
    Conditions C18 to C20 of the Mining EA prescribe rehabilitated landform criteria. Starting with C18, this condition states:[28]

“All areas significantly disturbed by mining activities must be rehabilitated to the final land use description as defined in Table 2.0 – Final land use and rehabilitation approval schedule.” 

  1. [16]
    An examination of Table 2.0[29] suggests the reference to a ‘disturbance type’ of ‘Mining Pit/Voids’ and ‘re-contoured spoil area’ has application to the land.  With respect to the former, this captures a disturbance area of 97 hectares across the 12 mining leases to which it applies. The pre-mine land description for the area is ‘Grazing’. The post-mine land description for the area is ‘Water storage’. With respect to the latter, this captures a disturbance area of 950 hectares across 12 mining leases. The pre-mine land description for the area is ‘Grazing’. The post mine land description for the area is ‘Grazing’. An analogue site is identified for this disturbance area.
  2. [17]
    Condition C19 applies to that part of the land where ‘Grazing’ is intended as the postmine land description. The rehabilitation outcomes to be achieved are as follows:[30]

“(a) self-sustaining vegetation with projective cover, species composition and species distribution similar to the analogue site identified in Table 2.0 – Final land use and rehabilitation approval schedule; and

(b) a given measure of productivity (e.g. sustainable dry matter production, stock live weight gain) is similar to the analogue site identified in Table 2.0 – Final land use and rehabilitation approval.”

  1. [18]
    Condition C20 anticipates that some, but not all voids, subject to the Mining EA will be filled. The condition refers to residual voids and states:[31]

“Residual voids must comply with the following rehabilitation outcomes –

(a) residual voids must not cause any serious environmental harm to land, surface waters or any recognised groundwater aquifer, other than environmental harm caused by the existence of the residual void per se, and subject to any other condition of this authority;

(b) residual void design must comply with Table 2.2 – Residual Void Design.”

  1. [19]
    Table 2.2 prescribes, in degrees, the maximum competent rock slope for void walls. It also prescribes a maximum void surface area.
  2. [20]
    The land is not identified in Table 2.2.
  3. [21]
    This gives rise to some uncertainty as to the final intended landform for the void the subject of focus in this appeal. The uncertainty arises when condition C20 is compared with condition C18. Condition 20 is silent about the land in circumstances where C18 indicates voids and pits will be rehabilitated to provide ‘Water storage’ (i.e. not backfilled). The Mining EA does not define the phrase ‘Water storage’. It also does not provide clarity as to what is intended as ‘Water storage’ in circumstances where, as here, there is a void and is not intended to remain a ‘residual void’ for the purpose of condition C20.
  4. [22]
    Condition C11 of the Mining EA calls for the implementation of a closure plan. The plan is to provide for ‘progressive rehabilitation activities’[32] and is to, inter alia:
  1. (a)
    include ‘design objectives for rehabilitation of disturbed areas taking into consideration surrounding undisturbed areas and future land use(s) for the site’;[33]
  2. (b)
    include ‘details of rehabilitation methods to be applied to disturbed areas over the plan period’;[34] and
  3. (c)
    to demonstrate that landform design criteria, including end of mining design, is ‘consistent with the proposed future land use(s)’.[35]
  1. [23]
    Condition C11 does not prescribe when rehabilitation of the land is to be completed.
  2. [24]
    Exhibit 14.009 is a Mine Closure Plan, dated 14 February 2014 (Mine Closure Plan). The document pre-dates the Mining EA. The status of the document is unknown.[36] The author of the document was also not called. In any event, the plan applies to an area that is the subject of 12 mining leases. It divides that area into disturbance domains.[37] The land is included within Domain 4 and Domain 5. The former is described as ‘Backfilled spoil, haul road, noise bund’. The latter is described as ‘Backfilled spoil, in-pit co-disposal’.
  3. [25]
    Section 4 of the Mine Closure Plan identifies ‘rehabilitation design objectives’. Section 4.1 states:[38]

“The currently approved post-mine land use for the Project is grazing with some areas of water storage. The site is, however, in close proximity to existing urban areas and significant trunk infrastructure (both existing and planned) and lies within an area that has been identified by both local and State governments as having significant Industrial development potential.

Given the location of the mine within the high growth Western Corridor in south east Queensland, Jeebropilly Collieries has given active consideration to alternative higher value post mining land uses, specifically Industrial development. The following section outlines existing external lines of evidence that support the contention that ‘Industrial’ is a viable potential post-mining land use for the Jeebropilly site.”

  1. [26]
    Section 4.3 of the same document identifies rehabilitation objectives developed for the Mine Closure Plan.  They are as follows:[39]

“1. Rehabilitate the site to a standard sufficient to enable the surrender of the Environmental Authority and relinquishment of the Mining Leases

 2.      Establish a post-mining landform that is

a. safe for the community;

b. suitable for a variety of post-mining landuses;

c.compatible with the surrounding landscape; and

d. geotechnically stable.

3. Stabilise drainage lines and disturbed areas in order to minimise erosion and sedimentation.

4. Ensure no ongoing pollution or contamination on, or from, the site.

5.             Establish a landscape that requires minimal long term ongoing management.

These Objectives will apply regardless of whether the post mining land use is grazing, Industrial or some other alternative use.” (emphasis added)

  1. [27]
    Table 6.1 of the Mine Closure Plan identifies the ‘actions underway and planned for’ each domain.[40]   With respect to Domain 4 and 5, the table provides:

Domain

Rehabilitation action

Status

…

  

4

Backfill during development of pit

Completely backfill residual void

Recontour spoil

Revegetate with pasture grasses

Area still in use

5

Backfill during development of pit

Cap co-disposal areas

Revegetate with pasture grasses

Complete

Ongoing

Ongoing

  1. [28]
    Table 6.1 suggests New Hope intends to backfill the open cut void on the land and revegetate the finished surface with pasture grasses.
  2. [29]
    As I have already observed, the status of the Mine Closure Plan is unknown. It predates the Mining EA. In such circumstances, I do not accept the appeal should proceed on the footing this document identifies the rehabilitation obligations with which New Hope must comply. It is the Mining EA that prescribes the rehabilitation obligations. In terms of the void the subject of focus in this appeal, the Mining EA is unclear as to whether it is to be backfilled in whole, or part. The rehabilitation obligation imposed on the Mining EA is sought to be secured by Condition A2. It requires the giving of financial assurance for, inter alia, rehabilitation of the land to which the Mining EA applies.[41]
  3. [30]
    Looking beyond the boundaries of the land, the surrounding land uses are as follows: (1) past and current mining activities to the west and north; (2) RAAF Amberley Air Base to the north-east; and (3) the Willowbank township to the south-east. An aerial photograph overlaid with cadastre indicates the eastern boundary of the land is located about 2.4km from the runways at RAAF Amberley Air Base.[42]  The same aerial photograph indicates the southern edge of the mining void is located 710 metres from a low-density residential area and 690 metres from a rural-residential area. The two residential areas are interconnected and located within the Willowbank township.[43]

The proposed development

  1. [31]
    The proposed development is an integrated waste facility comprising, in broad terms, three components, namely a landfill, resource recovery area and associated ancillary uses. The latter provides an opportunity for a final pass through waste destined for landfill to ensure material that can viably be recovered, or recycled, will be.
  2. [32]
    There is a large body of evidence describing the development and the measures to be implemented and executed to manage environmental and amenity impacts.  Part of the material includes a draft Environmental Authority (the draft EA) for an integrated waste facility. The EA was also applied for, and obtained, by Lantrak under the Environmental Protection Act 1994. The EA was issued by the administering authority on 25 July 2019 and granted subject to conditions.
  3. [33]
    The draft EA approves an integrated waste facility on the land. The authority seeks to prevent the release of contaminants from the land in a manner that causes, or is likely to cause, environmental harm.  A release must not occur other than as permitted by conditions of the draft EA.[44]  The decision to grant the draft EA is not the subject of an appeal to this Court. It will not take effect unless a development approval is granted by this Court.[45]
  4. [34]
    The draft EA, and conditions attaching to it, are relied upon by Lantrak as part of a suite of adaptive management measures for the development. I will, as a consequence, discuss some conditions of the draft EA while describing the development for which approval is sought.
  5. [35]
    The landfill component involves the progressive filling of the existing open cut mining void (north to south) in seven stages.[46] The stages will be capped and rehabilitated as they are completed. Conditions W1 to W7 of the draft EA limit the type of waste to be received. It is to be non-putrescible and includes construction and demolition (C&D) waste, commercial and industrial (C&I) waste, clean fill, low level contaminated soil and asbestos.[47] The capacity of the void is about 44.6 million m3. Assuming up to 1,000,000 tonnes of waste is received per annum and directed to landfill, the life of the facility is estimated to be in the order of 50 years.[48]  Upon completion, the landfill is to be capped and monitored for a period of 100 years.[49] The final landform will reach a maximum height of RL81m AHD[50] in its southwestern corner, falling to the north, east and south. An area of 75 hectares will also be revegetated.[51] It is intended the land, once rehabilitated, will integrate with, and contribute to, the green space network in this locality.
  6. [36]
    The resource recovery area is to be centrally located on the land, and to the south-west of the void. It will provide for the recycling and re-use of materials and involve crushing, milling, grinding and screening activities. Crushing and screening activities will occur within an enclosed shed, surrounded by a 20 metre wide landscaped bund that is 3 metres high.[52] The facility will have capacity to process up to 250,000 tonnes of waste per annum.  Examples of recycling activities include re-processing concrete waste into various grades of aggregate, processing of timber, soil separation and metal processing.[53] Whilst Council was critical of the size of this component of the development relative to the size of the landfill, I accept Mr Perryman’s evidence (Council’s waste expert) that it would be a high-quality resource recovery facility aligning with recent waste management policy.[54] Contemporary waste management policy encourages the reuse and recycling of waste.
  7. [37]
    An area adjoining the resource recovery facility provides for ancillary uses such as offices, amenities, and a weighbridge.[55] This area is accessed from a haul route traversing the land. It connects to the access entering via Ipswich Rosewood Road.
  8. [38]
    The physical layout and staging of the development is depicted in a set of amended plans.[56]
  9. [39]
    Mr Murphy, who is employed by Lantrak Waste and Recycling (Qld) Pty Ltd, is the manager of an existing integrated waste facility at Swanbank. He was authorised to provide a statement in this appeal on behalf of Lantrak.[57]   In that statement, he helpfully identified the features that make the land a good site for a waste recycling and landfill facility. The features include:[58] (1) proximity to sources of waste and State-controlled roads; (2) the separation distances achievable between the land and sensitive land uses, such as residential uses; (3) the lack of visibility for passing traffic and other land uses; (4) the presence of a void available for rehabilitation; (5) the existence of large quantities of mining overburden and spoil that can be used in the landfill operation; and (6) the size of the site, which provides flexibility to include the waste recycling and storage area and buffers to mitigate adverse impacts.
  10. [40]
    I accept Mr Murphy’s evidence.
  11. [41]
    A proposal of the kind here has the potential to give rise to serious adverse impacts on amenity and the receiving environment. The potential risk is not lightly dismissed in this case given:
  1. (a)
    the landfill activity involves placing waste within a void, which is unable to gravity drain;
  2. (b)
    the landfill activity involves placing waste below the regional groundwater level – assuming a future rebound level of RL55m AHD, 42 million m3 of waste (90% of the waste)[59] would be placed below this level; and
  3. (c)
    the proposed development is located in the order of 700 metres from residential development, namely the Willowbank township.
  1. [42]
    To properly manage the impacts of the development, Lantrak proposes to adopt, implement, and execute a range of engineering controls and measures. With respect to amenity, it was uncontroversial hard amenity impacts (by reason of noise, light, odour, dust) and visual amenity impacts can be addressed through conditions. I am satisfied this can be accepted. In terms of visual amenity impacts in particular, I was satisfied this could be achieved having regard to, inter alia, the proposed plans of development. They depict significant areas of vegetated screening, including a screen wrapping around the resource recovery area. The vegetation will screen the proposed use so it is not visible from residential development in the Willowbank township. The establishment of a vegetated screening will also, in my view, make a positive contribution to the visual amenity of the site and surrounds.
  2. [43]
    The engineering controls and measures proposed to manage adverse environmental impacts are complex. They have to be implemented, adopted and executed in a manner that: (1) responds to known risks; and (2) precludes adverse results, even in the event of unintended system failure. The proposed development includes the following features to achieve this end.
  3. [44]
    The landfill has been designed to include a composite lining system on the base and sides of the void. This will physically separate waste from groundwater. It will inhibit the exchange of groundwater and leachate.
  4. [45]
    Typical sections through the base liner profile reveal it comprises, from the bottom up, a 600 mm thick compacted clay liner, a 2.0 mm thick HDPE geomembrane, a cushion geotextile, a 300 mm thick leachate collection aggregate layer and a separation geotextile.[60] Ms Taft is an engineer specialising in waste management and landfill design. She helpfully explained how the liner would be constructed, sitting on an engineered subbase.[61] The subbase is required to provide a graded platform (between RL-32m AHD to RL-48m AHD)[62] on which to construct the liner system. It would be constructed from material excavated within the void and conditioned prior to placement. Material susceptible to spontaneous combustion will be removed.[63] The fill material will be inspected, tested and certified by a qualified registered professional engineer.[64] Testing of mine spoil is required by condition G1 of the draft EA.
  5. [46]
    Typical sections through the sidewall liner profile indicate it comprises, from the base layer up, a 4 metre thick compacted clay liner, a HDPE geomembrane and cushion geotextile.[65] Ms Taft explained that the side liner would not be constructed all at once. It is to be constructed progressively in nominal 5 metre lifts (vertical height).[66]  At the top of each lift is a horizontal bench. This bench provides a platform to construct the next lift. It is also the location where liner joins (by fusion weld connection) occur.[67] 
  6. [47]
    Sections through the void indicate the construction of the sidewalls and sideliners will have its challenges.  Like the subbase, the sidewalls need to be contoured to provide a suitable platform to receive the compacted clay liner. Sidewall liner details prepared by Ms Taft indicate construction will take place on very steep batters (in some cases  1:1). The placement of the HDPE liner will not commence until the subbase is inspected and certified by a qualified registered professional engineer.[68]
  7. [48]
    Condition G1 of the draft EA requires the installation of a ‘double liner’ in every landfill unit. This is considered ‘best practice’.
  8. [49]
    The phrase ‘double liner’ is defined in the draft EA as follows:

“Double-liner means a landfill lined with compacted clay at least 600mm thick achieving a maximum permeability of 1 x 10-9 metres per second overlain with 1.5 mm HDPE synthetic liner or alternate double liner system being equivalent in performance as agreed in writing with the administering authority.”

  1. [50]
    The proposed development includes a double liner of the kind envisaged by Condition G1. It involves the combination of a HDPE liner with a compacted clay layer.  A liner system of this kind is highly effective at inhibiting the exchange of groundwater and leachate; it has a very low permeability. Dr Schiers, who is a recognised expert in the properties, durability and installation of polymer geomembranes and related synthetics, was cross-examined about this point and helpfully explained:[69]

“The liner, in any event…it’s not a…perfect seal, it does allow for transfer of…leachate water but at the rate, I think, the specification is 1.6 litres per day per hectare of area?---Well, that’s not transfer through the geomembrane barrier because the geomembrane barrier is impervious. It has a very, very low permeability figure…we talk about 10 to the minus 14, which is an extremely small number, meters per second…So it’s regarded as an impervious barrier. The clay is 9 to the minus 9 metres a second, but again, that takes hundreds of years for water to migrate through that. So the composite liner is effectively impervious. So what you’re referring to, that’s called an allowable leakage rate and in large lined areas, there’s always some small holes. You’ll never catch everything and so there’ll be an allowable leakage rate, which is…a figure to regulate the operators because it’s not a perfect seal. But it’s not migrating through the liner itself, it’s going through a hole. 

And obviously, if it’s going out through the hole, ground water can come in through the hole depending on the hydrostatic pressure on either side?---Well, …in my experience, I haven’t seen that. I mean...we do hydrostatic testing. It will take the path of least resistance and you’re right, it’s a balance of hydrostatics but the clay would have to swell appreciably, the 600 millimetres to compact the clay minimum, in order for water to penetrate through that clay and …in the form of a liquid water, we’re not talking vapour now, it would have to basically penetrate extensively through a swollen clay layer which would be very difficult to do.”

  1. [51]
    I accept this aspect of Dr Schiers’ evidence.
  2. [52]
    Dr Schiers recommended the following conditions be imposed to ensure the integrity of the liner system:[70]
  1. “9.1.1.
    that the subgrade is adequately prepared to give a smooth and unyielding base;
  2. 9.1.2.
    that the subgrade is certified by a RPEQ as required by the EPA/DERM guidelines prior to placement of the geomembrane;
  3. 9.1.3.
    that the strains in the geomembrane are limited to less than 6% global strain using good design and geogrid reinforcement if required;
  4. 9.1.4.
    that the Landfill Stability Assessment (LSA) study is performed by competent geotechnical engineers to confirm the interface stability;
  5. 9.1.5.
    that the Liner System Integrity Assessment (LSIA) study is performed by competent geotechnical engineers to confirm the liner will not be subject to damaging stresses;
  6. 9.1.6.
    that rockfall netting/barriers are installed to prevent potential damage to the liner from falling rocks.”
  1. [53]
    Lantrak accepts an approval should be granted subject to these conditions.
  2. [54]
    I am satisfied compliance with Condition G1 of the draft EA, along with the conditions recommended by Dr Schiers, will deliver a liner system consistent with ‘best practice’.[71]
  3. [55]
    Conditions G10 and G11 of the draft EA require the preparation and implementation of a ‘receiving environment monitoring program’. The program must include a groundwater monitoring programme, carried out in accordance with conditions WT7 and WT8 of the draft EA. Condition WT8(a) requires groundwater to be monitored for a period of 2 years before waste is deposited in the landfill. With this base data, ongoing groundwater monitoring can be used to detect and manage leakage, if any, through the liner system.
  4. [56]
    The evidence suggests there is good reason to be confident the best practice double liner system will protect groundwater from contamination. Mr Bristow, who was called by Lantrak, used the POLLUTE model to assess[72] the potential impact of catastrophic liner failure and consequential leakage of leachate into the groundwater. At section 5 of Technical Memorandum No.8a, he concluded:[73]

“The POLLUTE model results predict that the composite liner, surrounding geology and the proposed base of the landfill will limit the migration of leached contaminants as the liner design intended.

The model indicates that the modelled contaminants are largely contained by the composite liner with minimal migration through the liner, and any leached contaminants further contained by the surrounding geology and landfill base.

Without the liner, the results indicate that although containment is achieved to a slightly lesser extent, it will still take over 250 years for the modelled contaminants to leach through the entire depth (ranging between 14 m and 35 m) of the constructed landfill base into surrounding geology. The migration distance from the landfill in this scenario is not predicted to reach the site boundary.

While the performance of the liner is important, the model indicates that the constraining nature of the surrounding geology and the proposed landfill constructed base is effective at constraining leachate ammonia and copper contaminants from migrating far from source.

In the event of liner failure, transport of leachate contaminants via groundwater from the landfill is unlikely to move 10 m from the pit liner even after over 250 years, given the low hydraulic conductivity and low effective porosity of the proposed landfill base.”

  1. [57]
    Mr Bristow updated the model informing the above Technical Memorandum. He did so to reflect soil cation exchange capacity (CEC) results from overburden material on the land.[74] With the updated modelling in mind, Mr Bristow concluded:[75]

“The CEC results support the constraining nature of the surrounding geology and proposed landfill constructed base, and indicate that should the HDPE liner fail catastrophically, the leaching contaminants will not migrate far from the source, i.e. in the order of 10m both vertically and horizontally, minimising the risk of environmental harm.”

  1. [58]
    I accept Mr Bristow’s evidence.
  2. [59]
    A groundwater management system is proposed. It is depicted on the amended plans.[76] It is to be implemented to address, inter alia, the risk associated with hydrostatic uplift. Uplift of this kind may affect the subbase and/or lining system if sufficient pressure builds up. The pressure can lift and disturb the subbase and membrane.[77] The groundwater management system was described by Ms Taft in a supplementary statement as follows:[78]

“The design of the groundwater management system is based on installing a high permeability layer across areas where groundwater seepage occurs and discharging to the in-cell stormwater pond through gravity.

The system will relieve pore pressures that may develop behind the lining system and prevent potential damage of hydrostatic uplift of the lining system.

…

The groundwater relief layer will be installed beneath the liner which will maintain the lowered groundwater elevations. This system will comprise:

  1. –
    A groundwater drainage blanket comprising an aggregate layer spread across the whole of the base of the cell with a series of collection pipes within the aggregate with a minimum permeability of 1 x 10-3m/s 
  • A cupsated (sic) geosynthetic flow net with high transmissivity may also be incorporated 
  1. –
    A sump and pump for extraction of the groundwater
  2. –
    Geocomposite flow nets and strip drains on the sidewall where groundwater seeps are observed. These can be secured to the subgrade through soil nails.

The sump and the pump arrangement is provided as a secondary groundwater extraction, for extraction of the groundwater if the passive flow to the in cell sediment pond needs to be increased, or long term management of the groundwater if required.

The interception and collection drains and the secondary extraction system will remain in place throughout the waste deposition activities until waste reaches near ground surface for each cell or such that groundwater levels are required to be managed.”

  1. [60]
    The successful design and operation of a landfill requires leachate and stormwater to be separated. They are not allowed to comingle deliberately, or otherwise.[79] The engineering controls and measures proposed to separate leachate and stormwater are identified in a ‘synopsis’ prepared by Mr Bristow for the joint expert report dealing with surface water.[80]  A review of the synopsis reveals the land is to be partitioned into two areas, namely ‘in pit’ and ‘out of pit’. These areas are separated by isolation bunds and land grades.  This will facilitate the diversion of external stormwater and prevent it from running into the void. Only incidental rainwater will be able to enter the void. Rainfall will be collected from the in pit and out of pit areas then treated, reused and/or released through stormwater infrastructure to two lawful points of discharge. The discharge points are fixed by reference to specific longitude and latitude in Condition WT3 of the EA.
  2. [61]
    Within the landfill pit, stormwater is to be separated from waste using cover, bunds, drains and reverse grades. It will be collected, contained, treated and then reused and/or released. A sediment basin is proposed on the floor of the void up to Stage 5. It is expected this will overflow in significant or severe rainfall events. The overflow will be contained in the void. This will result in the void becoming inundated to several metres. It could take between 3 to 6 days to remove the inundation. The deposition of waste will temporarily cease until the height of the water is reduced to a level less than 300mm above the base.
  3. [62]
    Whilst the final design of the surface water and groundwater managements is yet to be completed, it was agreed a feasible design was available and could be implemented. The solution involves larger pumps, dams and bio-detention basins than originally proposed.[81] A minor change made to the development application substantially increased the size of pumps, dams and bio-detention basins.[82]
  4. [63]
    Leachate is to be collected and managed separately to stormwater.[83] The leachate management system is depicted on the proposed plans[84] and described in the groundwater and leachate joint expert report as follows:[85]

“Leachate is proposed to be collected from the top of the liner using a 300 mm thick leachate collection aggregate layer (protected from fines by a separation geotextile top blanket), embedded with HDPE perforated leachate collection pipes at 50m centres connected to a leachate collection well/s. Each well will be fitted with a submersible pump.

Leachate is pumped from the well/s out of the pit to an isolated, bunded leachate storage, recycling and treatment area  (located to the south west of the pit). Pumping starts and stops to maintain less than 300mm of leachate over the liner.

…

Some 80% of leachate collected is to be recirculated back into the waste mound…via irrigation of open waste areas…However, we recommend that this is changed to direct injection of leachate into the waste mass through wells or galleries to avoid recontamination of areas with PFAS.

The remaining 20% of the leachate is to be disposed of by evaporation. Shallow, purpose-built evaporation ponds are proposed for this…”

  1. [64]
    In his statement of evidence,[86] Mr Bristow confirmed leachate would only be extracted from the landfill under pump control. He also confirmed that leachate could not build to a height that would over top the void.[87]
  2. [65]
    Leachate is to be pumped to the leachate storage and treatment area for processing. A treatment plant is proposed in this area.[88]  It was described as a ‘50m3/day system, using chemical precipitation, pH correction, filtration, oxidation, and membrane (UF&NF) technology units’.[89]  The treatment system would be utilised where there is more leachate generated than the storage and evaporative ponds can hold. This allows leachate to be treated on-site before it is released. Leachate can also be removed from the site by tanker and disposed off-site.[90]
  3. [66]
    Mr Bristow said the control of leachate in the resource recovery area had not been designed and documented.  As a consequence, he recommended conditions be imposed on any approval. The conditions recommended are as follows:[91]

“4.2.19. The subject matter for inclusion in conditions would include the following. Conditions dealing with such matters are not complex or unusual:

a) bunding and drainage to prevent comingling of leachate from any transfer station or mixed resource stockpiles with stormwater;

b)             inert recycled material stockpiles are controlled (located on nonpermeable hardstand, drained and bunded) and seepage/runoff collected and treated via local area biodetention to remove inert contaminants (eg grit & silts) prior to release to stormwater system (storage dam);

c) collection and treatment of stormwater into the stormwater harvesting system – as shown in Technical Memorandum 5, 6, 9

d) isolation and drainage of leachates generated from any mixed C&D feed or mixed resource stockpiles to a local collection sump well and collected leachate transferred to the leachate storage and treatment area.

e) The area must be provided with a low permeable layer under road base to prevent seepage from stockpile areas into the underlying soil and protect groundwater.”

  1. [67]
    Condition W9 of the draft EA requires the leachate management system be designed, installed and maintained to achieve the following:[92]

“a)     collect leachate generated in the landfill unit; and

b) convey the collected leachate out of the landfill unit to an appropriate leachate storage facility; and

c) restrict the height of leachate above the liner system to a maximum level of 300mm.” 

  1. [68]
    A condition such as W9c) is imposed to limit the driving head forcing leachate through the liner and into the groundwater. The condition is also imposed to avoid anerobic conditions in the base of the landfill, which has an impact on the decomposition of waste. Dr Johnson explained why it is important to avoid anerobic conditions:[93]

“…the two types of decomposition are either aerobic or anaerobic, anaerobic typifying in the absence of air. And under those conditions the decomposition takes place primarily by a chemical process called reduction. And you get substantially different by-products of the decomposition. And in general, those by-products under anaerobic conditions…leads to the production of quite unacceptable by-products. So for example, anaerobic decomposition will lead to the formation of ammonia. It will also lead to decomposition of phosphate, that …would create an undesirable outcome. The other issue is that if material has decomposed anaerobically, it is very hungry for air. As in, if you take an anaerobic by-product and then expose it to the atmosphere, it will break down very quickly, but generally, cause quite significant contamination, particularly in an odour sense. So that the idea in the waste void is to try and establish aerobic conditions throughout, other than in the sump area which is collecting the material to the base.”

  1. [69]
    Whilst the depth of leachate on a day-to-day basis is expected to vary, the proposed leachate management system will extract at a rate that maintains the height to less than 300 mm over the liner. The maximum average daily head was modelled by Mr Bristow. It is likely to be as little as 10 to 15mm in depth.[94]
  2. [70]
    Condition L2 of the draft EA requires the design and installation of a capping system. The condition states:[95]

“When the deposition of waste to the landfill unit ceases, a final capping system to the landfill unit must be designed by an appropriately qualified person(s) and installed to minimise:

a)      infiltration of water into the landfill unit and water ponding on the surface; and

b)      the likelihood of any erosion occurring to either the final capping system or the landfilled materials.

A final capping system is not required when the deposition of waste to a landfill unit ceases temporarily for the purpose of using an alternative working face.”

  1. [71]
    In response to this requirement, the landfill is to be progressively capped with a low permeability compacted clay liner and covering soils to provide a growing medium for vegetation. A typical section[96] through the cap profile reveals it comprises the following elements (from the top down): (1) 200mm thick topsoil/mulch; (2) 500mm thick subsoil; (3) 500mm thick compacted clay liner; and (4) a 300mm thick soil cover over the waste. The section also indicates a landfill gas collection trench and pipe will be constructed in the layer identified in item (4). The top of the collection trench is to be covered with a separation geotextile.
  2. [72]
    To starve the underlying waste of water, the proposed cap has been designed to achieve a minimum grade of 1 in 20 (5%). This is to promote runoff and avoid ponding of water on the surface of the cap.
  3. [73]
    The vegetation proposed for the completed capping system was described by Mr Moffitt (an ecologist) and Mr Young (an arborist).[97] They considered a series of revegetation ‘patches’ between 3ha and 11ha in size, located on the landfill cap and adjoining spoil pile areas. This will achieve 32.5% forest cover of the land. For the patches of vegetation on the cap sitting above the footprint of the landfill, a mounded landscape profile is proposed. This is to contain the root mass of trees, so they do not extend down to, and damage, the clay capping. The proposed vegetation types include grasses, shrubs, mid-storey trees and apex canopy trees. The development application was amended to remove large trees from the proposed planting schedule. Large trees were replaced with smaller species found on the sandstone ridges of Ipswich, which has a listed growth range of between 2 and 7 metres.
  4. [74]
    Mr Young explained why the proposed planting regime would not compromise the integrity of the clay capping system:[98]

“…the soil placed over the landfill cap to support the vegetation provides a degree of surety that you’re not going to get any damage to that cap in three ways. One, the species selection of trees and shrubs has been reduced in size so…the root zone is smaller. The soil volume that we’ve provided is more than enough soil volume, in depth, to support apex canopy trees. By way of the fact that we’ve reduced the size of the trees, we’ve put another safety factor in there. And the third factor is the compacted landfill cap has a bulk density that will impede root growth even if there was roots that got down to that point.” 

  1. [75]
    Mr Young also explained why the proposed planting system would not impede maintenance of the cap. He said the vegetation is minor in scale; it would be ‘very easy to remove, they’re very easy to repair…re-soil, replant’.[99]
  2. [76]
    I accept Mr Young’s evidence.
  3. [77]
    The amended development application also includes a revegetation intent plan.[100] The plan provides for significant areas surrounding the landfill footprint to be revegetated with patches of native endemic forest species.[101]
  4. [78]
    Condition L4 of the draft EA requires a post-closure landfill care program to be conducted. The condition states:[102]

“Following cessation of deposition of waste at the landfill facility, a post-closure landfill care program must be conducted for a period of 100 years or until the operator demonstrates that the landfill facility and surrounding site are stable and that no release of waste materials, leachate, landfill gas or other contaminants that may cause environmental harm is likely.”

  1. [79]
    Condition L5 of the draft EA prescribes the measures the post-closure programme must include. It must include measures to, inter alia: (1) achieve the final rehabilitation criteria in condition L3; (2) maintain and operate the leachate collection system; (3) maintain and operate the groundwater protection systems; (4) maintain the groundwater monitoring programme; (5) maintain the structural integrity and effectiveness of the cap; and (6) maintain and operate the landfill gas monitoring system.
  2. [80]
    During the course of the appeal, an agreement was reached between Lantrak and the Chief executive with respect to the imposition of conditions about the upgrade of the State controlled road network. In particular, it was agreed conditions should be imposed requiring two intersections to be upgraded, namely: (1) the Ipswich Rosewood Road/Haigslea-Amberley Road/Rosewood Road intersection (referred to below as the Western couplet); and (2) the Ipswich Rosewood Road /Southern Amberley Road/Cunningham Highway intersection (referred to below as the Eastern couplet).
  3. [81]
    Traffic experts retained for this appeal agreed the two intersections identified above are operating less than satisfactorily.
  4. [82]
    Mr Rytenskild is a traffic engineer called by Lantrak. He expressed the following unchallenged opinion about the intersection upgrade works:[103]

“9 CONCLUDING COMMENTS 

9.1                       The identified upgrade works at the [Eastern Couplet] would not only mitigate the impact of the proposal as is required by TMR’s GTIA, but provide further capacity that will be of benefit to the local area. There is a significant imbalance between the extent of works identified and the resultant benefits, and the impact of the proposal. Such will significantly improve road capacity and therefore benefit other activities in the area. 

9.2                       The identified works at the [Western Couplet] address existing safety deficiencies and are required regardless of the proposal. Such would be carried out by the Appellant as there is otherwise no funding mechanism in place for such to be completed. This would also be of significant benefit to the local community.”

  1. [83]
    I accept Mr Rytenskild’s evidence.

The statutory assessment and decision-making framework

  1. [84]
    The development application was properly made on 3 May 2018.[104]
  2. [85]
    In terms of the statutory assessment framework, the application seeks planning approval for a material change of use and is impact assessable. The balance of the application seeks approval for a number of ERAs under the Environmental Protection Act 1994. It is unnecessary to dwell on the latter.  The refusing parties conducted their respective cases on the footing the fate of ERAs turns on the success of the material change of use application.
  3. [86]
    The statutory assessment and decision-making framework for this appeal is prescribed by the PA. This Act requires, inter alia, the development application be assessed in accordance with s 45(5) and decided in accordance with ss 59(3) and 60.
  4. [87]
    Section 45(5)(a)(i) of the PA mandates assessment against assessment benchmarks in a categorising instrument. Section 45(7) confirms the reference to an assessment benchmark is one in effect when the development application was properly made. Here, that captures, inter alia, Council’s 2006 Planning Scheme (the planning scheme) and a Temporary Local Planning Instrument promulgated in 2018 (the 2018 TLPI).
  5. [88]
    The statutory assessment framework is to be approached consistently with the following Court of Appeal authorities, namely Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987, Abeleda v Brisbane City Council (2020) 6 QR 441, Wilhelm v Logan City Council & Ors [2021] QPELR 1321 and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309. Having regard to these authorities, it can be observed:
  1. (a)
    the ultimate decision called for when making an impact assessment under ss 45 and 60 of the Act is a ‘broad evaluative judgment’;[105]
  2. (b)
    in contrast to its statutory predecessor, the discretion conferred by s 60(3) of the PA admits of more flexibility to approve an application in the face of noncompliance with a planning scheme;
  3. (c)
    the exercise of the discretion under s 60(3) of the PA is subject to three requirements, including that it be based upon the assessment carried out under s 45;[106] and
  4. (d)
    the PA does not alter the characterisation of a planning scheme – it remains a reflection of the public interest.[107]
  1. [89]
    Consistent with the approach adopted in the other landfill appeals, Council submitted the planning scheme is a reflection of the public interest but says time and circumstances mean it does not paint a complete and contemporary picture. Council invited the Court to look at the planning scheme with the benefit of contemporary forward planning documents. In particular, the Court was invited to consider policy promulgated by the State Government in relation to waste management. This policy came into existence well after the planning scheme was adopted in 2006.
  2. [90]
    I considered this point at paragraphs [113] to [117] of Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27 and at paragraph [105] of Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26. At paragraph [117] of Austin I said:

“Whilst a particular case may call for the public interest to be examined by reference to an adopted planning scheme and other relevant matters, the extent to which the latter informs the outcome of that examination involves matters of fact and degree. The outcome will of course be informed by, inter alia, the knowledge that a planning scheme is a statutory instrument with the force of law. Decision making that maintains confidence in such a document is itself a matter of public interest…”

  1. [91]
    I have adopted the same approach in this appeal. The facts and circumstances here do not establish the planning scheme, or two TLPIs, are out of step with contemporary expressions of planning intent and waste management principles. Contemporary planning envisages the land may be developed with a landfill, subject to meeting prescribed qualifications. The qualifications are directed to environmental and amenity considerations. This, in my view, means Council’s point about the planning scheme does not manifest in a way that advances this appeal one way or another.
  2. [92]
    The issues in dispute call for consideration of matters that were the subject of the exercise of referral agency jurisdiction by the Chief executive under the PA.  Unlike Austin and Cleanaway, Council does not assert non-compliance with focal provisions of State Code 22: Environmentally relevant activities.[108] Nor is State Code 22 addressed in Council’s written submissions.[109]
  3. [93]
    Like Austin, there was uncertainty as to whether State Code 22 is a mandatory consideration or a relevant matter to which regard may be had in the assessment and decision making process. I have adopted the same approach in this appeal as I did at paragraph [121] of Austin and paragraph [107] of Cleanaway. In short, the issue for Court is whether an assessment against State Code 22 establishes a basis for refusal. I have undertaken an assessment against the document to the extent required by the agreed issues in dispute. The issue raised with State Code 22 is one that rises and falls on the same evidence going to the assessment of the development application against the planning scheme and two TLPIs. In this sense it can be said the issues involving State Code 22, in and of themselves, do not advance the determination of the appeal one way or another.

The properly made submissions and lay witness statements

  1. [94]
    An assessment manager (and this Court on appeal) is required to take into account properly made submissions in an impact assessment. Here, the development application attracted 250 properly made submissions and 28 informal submissions that were not properly made.[110] The submissions were put before the Court in three volumes and marked exhibits 2.076 to 2.078 inclusive.
  2. [95]
    I have reviewed the submissions. They are strongly opposed to an approval and call for refusal having regard to a number of issues, including: (1) the proposed development will pollute the receiving environment (e.g. air, noise, dust, water and groundwater); (2) the proposed development will give rise to impacts on health (e.g. respiratory issues); (3) the proposed development will have adverse traffic impacts; (4) the proposed development will not be sufficiently separated from existing residential uses and adversely impact on the wellbeing and quality of life of residents; (5) the nature of the proposed development will result in an increase in rodents and scavenger species in the locality; (6) the proposed development will adversely impact on the heritage value of a historical cemetery; (7) the proposed development will have adverse ecological impacts (flora and fauna); (8) a lack of community consultation and engagement; (9) the proposed development will impact on the nearby RAAF Amberley Air Base (e.g. bird strike); and (10) geotechnical instability issues liner failure.
  3. [96]
    Lay witness statements of Mr Dainer, Ms Thomasson, Ms Ashworth and Mrs Monsiegneur were tendered during the appeal.[111] I was grateful for the statements. They raise similar issues to those identified in the submissions in circumstances where the deponents had the benefit of a substantial part of the evidence before this Court to form their respective views.
  4. [97]
    The matters raised for consideration in the submissions and lay witness statements are not limited to those set out above. They also include the following themes.
  5. [98]
    First, it is said in many submissions that landfill is not ‘rehabilitation’.
  6. [99]
    I am unable to agree with this assertion. Filling a former mining void, such as that here, with non-putrescible waste can lead to the rehabilitation of land. In simple terms, by filling the void, it enables what is unproductive land to be put to one of the future uses anticipated in the planning scheme.  This is, however, subject to an important qualification; the end result must be a self-sustaining landform. The filled void needs to reach this position without the need for management (such as the continued operation of leachate and groundwater management systems) in perpetuity.
  7. [100]
    Second, many submissions point out that the landfill will take decades to complete in circumstances where it provides no direct benefit to surrounding residential communities. One submission colourfully said, ‘the residents of Willowbank have absolutely nothing to benefit from this application being approved and we will be dead and buried when the landfill eventually stops’.[112] A similar point was made in another submission to this effect: ‘The duration of the operation (30 to 50 years plus) is generational in nature and no assessment has been done to look at the negative impacts to the community across such an operational lifespan’.[113]
  8. [101]
    It can be accepted the proposed landfill is unlikely to deliver a direct benefit to all of the residents of Willowbank. It cannot, however, be said it will deliver no benefit. In simple terms, existing and future residents of Willowbank can generate nonputrescible waste, which is unsuitable for recovery or recycling. This waste requires disposal, generating a demand for landfill airspace. This demand was accommodated for in the common waste and need evidence. That evidence focuses on a study area. The area is a region, namely South East Queensland. The study area was examined to ascertain demand for private non-putrescible landfill airspace. The calculation for future landfill airspace demand is driven, in part, by existing and future population figures, of which Willowbank forms part.
  9. [102]
    Third, many submissions asserted the proposed landfill was contrary to reasonable expectations. An expectation to which particular reference was made relates to the obligation imposed on New Hope to rehabilitate the land upon cessation of mining. Submissions suggested this was expected to occur in the ‘next few years’,[114] with the land returned close to its original form. By way of example, the submissions include the following:

“New Hope Collieries have a lawful obligation under their mining Environmental Management Overview Strategy (EMOS), to fully rehabilitate the whole of the Jeebropilly open-cut coal mining site. The proposed development of this landfill operation is a disgusting attempt to avoid their financial, social and environmental obligations to restore the Jeebropilly mine site after they have exploited the coal resources with minimal social benefit to the Ipswich community.”[115]

          And:

“Please be advise (sic) that I am writing to show my objection to this development and change of current purpose. When the original project was started it was of the understanding that the area in question would be returned to or regenerated back to rural use. As this is not going to happen, wat (sic) safe guards (sic) are in place to protect our current life style?”[116]

          And:

“I understand that once mining ceases the land will be left in a state that is unable to be used, however I do not believe that a landfill is the answer. Why is the mining company not rehabilitating the land?”[117]

          And:

“At all times the expectation has been that the site would be rehabilitated as the mining progressed and that rehabilitation to a minimum of ‘open pasture’ functionality closely approximating the original land form would be completed at the conclusion of mining operations by no later than 2018. This has clearly not eventuated.”[118]

          And:

“When I purchased my property some 20 years ago, then built my home, it was with the real expectation that there would be an end to the mining activity in the area, and that the environment would be returned to some semblance of its original profile in my lifetime. But if the application(s) by Lantrak are approved any assumption that my lifestyle here in Willowbank will be improved are negated. In fact far from it; my suburb will become the “dump” for Brisbane, SE Queensland, and possibly beyond. Has Ipswich not suffered the stigma of being a hole in the ground long enough?”[119] 

  1. [103]
    I accept it is reasonable for members of the community to expect the land would be rehabilitated after the cessation of mining activities. As to when, and how, this would occur, one must turn to the requirements of the Mining EA.  For reasons given in paragraph [21], this document is not particularly clear about the rehabilitation intent for the void. Nor is it clear when rehabilitation is to be completed. The Mining EA does not suggest an expectation about rehabilitation should include landfill, let alone landfill of the scale proposed. 
  2. [104]
    Fourth, the submissions and lay witness statements assert that the presence of landfill will impact adversely on the amenity and quality of life for existing residential communities. One submission spoke of ‘living in the shadow’[120] of a landfill. In a similar vein, another submission said that ‘Willowbank is a rural residential community and the high impact activity of a dump runs counter to the entire concept of rural residential communities’.[121]
  3. [105]
    In this same context, the submissions also speak of a concern that an approval would lead to ‘stigmatisation’ of Willowbank and Ipswich more generally. This point can be seen from the last submission in paragraph [102] above. It can also be seen in the following extracts of the submissions:

“DUMPING GROUND FOR BRISBANE

Ipswich already takes a large proportion of Brisbane’s rubbish. We do not want our suburb to become known as a dump city.”[122] 

          And:

“Stigma concerns: What is being done to void the stigma that Willowbank will be a dump site for the community?

-   What about Ipswich? There are already whispers of it being called “Tipswich”.

-   Are we going to be a dump site for other states, NSW?”[123]

And:

 “The stigmatising of our suburb as a dump capital and the disregard of any commitment to counter social stigma of the Willowbank community.”[124]

  1. [106]
    There was no dispute that weight can be given to subjective opinions or desires articulated in submissions (and lay witness evidence of the same character) in the exercise of the discretion under s 60(3) of the PA. The issue in this appeal is how much weight ought be given to the submissions in the circumstances. Council and the corespondents pressed the substance of the submissions as a feature warranting refusal of the development application. 
  2. [107]
    It is obvious the submissions do not support approval. In substance, they stridently oppose the proposed development. Whilst many of the issues raised in the submissions find no support in the evidence before this Court,[125] a point raised in opposition is the potential for significant and detrimental impacts on the general amenity and wellbeing of the community. Given the nature of the proposed development, this contention is not an unreasonable one. Living in the shadow of a landfill facility, which is inherently incompatible with residential uses, have the real potential to adversely impact on character, sense of place and general amenity/wellbeing. The extent of that impact should not be understated here given: (1) the proposed landfill has a life expectancy in excess of 50 years (2 generations);[126] and (2) the proposed development, if approved, would introduce over 44 million m3 of contaminated fill onto the land, which is incapable of being economically or efficiently removed by future generations in the event of an adverse environmental outcome.
  3. [108]
    It does not follow that the impact about which the submissions speak warrants refusal. It is necessary to examine the asserted impact against the evidence I accept, and in the light of the planning scheme. This includes examining the amenity impact having regard to: (1) the concession made by the refusing parties that traffic, visual amenity and hard amenity (noise, dust and odour) are not reasons for refusal and can be dealt with by conditions; (2) a concession by Council that the planning scheme encourages the rehabilitation of mining land and voids; [127] (3) the planning scheme, which recognises a use of the kind proposed as a potentially consistent use of the land in circumstances where the land is proximate to existing and future residential uses; and (4) the planning scheme, which regards the Willowbank township as an area already adversely affected, in amenity terms, by existing non-residential uses, including the RAAF Amberley Air Base and a motor racing precinct.

Planning context

  1. [109]
    The planning scheme is an assessment benchmark against which the development application must be assessed. It was prepared, and took effect, when the Integrated Planning Act 1997 (IPA) was in force and ‘provides a framework for managing development in a way that advances the purpose’ of that Act.[128] For the purposes of this appeal, nothing turns on the differences between the purpose of the IPA and PA. A review of each purpose statement reveals there is an intention to achieve ‘ecological sustainability’ under both Acts. 
  2. [110]
    The planning scheme is divided into nine localities.[129] Planning scheme maps reveal the land is included in the Regionally Significant Business Enterprise and Industry Areas locality (RSBEIAL).[130] This locality is divided into six zones.[131] The land is included in the Regional Business and Industry Investigation Zone (Investigation zone).[132] A small wedge in the south eastern corner of the land is included in Regional Business and Industry Buffer Zone.[133]
  3. [111]
    Some zones in the planning scheme incorporate Sub Areas and Precincts.[134]  A note to the planning scheme indicates the division of zones in this way has a particular purpose. It reflects that certain areas have features affecting the application of, inter alia, assessment criteria.[135] That part of the land included in the Investigation zone forms part of Sub Area RBIA1 – Ebenezer Willowbank (RBIA1).[136] This Sub Area is divided into precincts. Figure 6-16-1 of the planning scheme indicates the land is partly included in Precinct 1, Former or Current Mining Lands and partly included in Precinct 4, Future Industry.[137] The footprint of the landfill straddles Precinct 1 and 4.
  4. [112]
    The use for which approval is sought is defined in the planning scheme as ‘special industry’. This use is anticipated in Precinct 1 and 4 of Sub Area RBIA1, subject to satisfaction of an identified qualification. Specific Outcomes 6.16(c)(i)(K) and 6.16(c)(iv)(I) of the planning scheme are in identical terms. They apply to Precinct 1 and 4 respectively. The provisions state that the precinct provides for:[138]

“special industries, where the use has no discernible amenity or environmental impact outside of the buffer area designated on Overlay Map OV8.”

  1. [113]
    Overlay Map OV8[139] identifies a motorsport buffer area. A review of the map reveals the Willowbank township falls inside the primary and secondary buffer area and subject to a note that reads: ‘Existing and Committed Residential Areas to be Advised of Possible Amenity Impacts’. This is complemented by Specific Outcome 6.16(c)(i)(K) and 6.16(c)(iv)(I). The map, note and Specific Outcomes, taken in combination, inform reasonable expectations as to amenity. They suggest residential uses located outside of the buffer area are treated differently to the same uses located within the buffer area. The provisions suggest the latter should expect that amenity will be adversely affected to a greater degree by, inter alia, uses anticipated in Precinct 1 and 4 of Sub Area RBIA1.
  2. [114]
    Encouragement for special industries in the RBIA1 Sub Area is consistent with the provisions of the planning scheme applying to the RSBEIAL and Investigation zone. With respect to the former, Overall Outcome 6.6(2)(p)(ii)[140] for the RSBEIAL anticipates a ‘range of business and industry uses’ in ‘investigation areas for future development’. With respect to the latter, Overall Outcome 6.14(2)(a) for the Investigation zone states:[141]

“Uses and works within the Regional Business and Industry Investigation Zone provide regional business enterprise and industry employment opportunities subject to the resolution of applicable constraints such as potential amenity impacts on nearby residential areas, mining, flooding and available services.”

  1. [115]
    A review of the applicable locality and zone provisions of the planning scheme reveal they provide relevant context for this appeal.
  2. [116]
    As was correctly pointed out by Mr Job KC and Mr Wylie, the rehabilitation of land affected by mining activities is positively encouraged by the planning scheme.[142] To make good on this point, reference was made to the following provisions of the planning scheme, namely:

(a)  Overall Outcome 6.6(2)(g) for the RSBEIAL, which states:[143]

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

(b)  Overall Outcome 6.14(2)(j) for the Investigation zone, which is in identical terms to Overall outcome 6.6(2)(g);[144]

(c)  Specific Outcome 6.15(15)(d) for the Investigation zone, which states:[145]

“Uses and works within the Regional Business and Industry Investigation Areas occur within a comprehensive planning framework that-

…

(d)  provides for the rehabilitation, repair and reuse of former mining lands;”

  1. [117]
    The planning scheme does not define the term ‘rehabilitation’. However, when considered in the context in which it appears in the above provisions, rehabilitation is to be a step towards the ‘reuse’ of degraded or contaminated land ‘in an appropriate manner’. 
  2. [118]
    As to use in an ‘appropriate manner’, the planning scheme provisions traversed above identify that a ‘special industry’ is such a use, provided relevant qualifications are met. The use of land for greenspace purposes also falls into this category. So much is made clear by Overall Outcome 6.6(2)(e) and (u) for the RSBEIAL. These provisions envisage that areas, including those which are unsuitable to business or industry uses given constraints, contribute to a greenspace setting. These provisions state:[146]

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

          And:

“(u) A range of passive or active recreation or other non-industrial uses are provided on land which is generally unsuitable for business and industry activities owing to geotechnical or other land use constraints.”

  1. [119]
    Overall Outcome 6.14(2)(h) for the Investigation zone is in identical terms to subparagraph (e) above.[147]
  2. [120]
    Council accepts there is encouragement to be found in the planning scheme for the proposed development. The point however made on its behalf was that this encouragement is qualified. The ‘qualifications’ are directed towards: (1) the performance of the proposed development, primarily the landfill component, in environmental and amenity terms; and (2) whether the proposed development, if approved, will rehabilitate the land as anticipated by the planning scheme.
  3. [121]
    What does the planning scheme require in terms of the management of environmental and amenity impacts?
  4. [122]
    The planning scheme is an imposing document comprising a number of layers. Each layer exposes what is to be demonstrated by new uses and works in terms of environmental and amenity considerations. The requirements, or tests to be met, are not expressed in identical terms.  The provisions of the planning scheme providing a flavour of what is to be demonstrated include the following. 
  5. [123]
    The broadest expression of planning intent is contained in Part 3 of the planning scheme. It sets out the Desired Environmental Outcomes (DEO) for the local government area. Provisions of this kind are a creature of the IPA[148] and form the basis for the measures of the planning scheme.[149] Each DEO is sought to be achieved to ‘the extent practicable’, having regard to each other DEO.[150] DEO (3)(b) and (j) are relevant to the environmental and amenity impacts of new development. The provisions are in the following terms:

“(b)  adverse effects on the natural environment are minimised or prevented with respect to the loss of natural vegetation and associated habitat, soil degradation, air pollution and water pollution owing to erosion, chemical contamination, acidification, salinity, sewage and wastewater treatment, management and effluent disposal and the like;

…

(j)  the health and safety of people, and the amenity they enjoy, are maximised, particularly in the urban and township areas where different types of uses are located close together;” 

(emphasis added)

  1. [124]
    Beneath the DEOs sit the locality provisions. 
  2. [125]
    Overall and Specific Outcomes for the RSBEIAL are set out in Part 6, Division 3 of the planning scheme.
  3. [126]
    The Overall Outcomes for the RSBEIAL speak of an area having a ‘high standard of amenity’.  To manage amenity and environmental impacts, a specific strategy is articulated. It is one involving separation from, and buffers to, sensitive and incompatible uses. Overall Outcomes (2)(d) and (i) relevantly state:[151]

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

 …

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

  1. [127]
    Specific Outcome 2(c) for the RSBEIAL provides guidance with respect to environmental management. It states:[152]

“Uses and works with the potential for material or serious environmental harm, establish and implement a site specific Environmental Management Plan, which describes the measures to be used to avoid or minimise adverse impacts, and how such measures are to be implemented during the life of the development.” (emphasis added)

  1. [128]
    Lantrak’s case is that site specific engineering controls and management measures can be implemented and maintained for the life of the development to avoid, or minimise, adverse environmental impacts.
  2. [129]
    It is convenient to now turn to the provisions of the planning scheme applying to the Investigation zone and Sub Area RBIA1.
  3. [130]
    Save for a slither of land in its south eastern corner, the predominant part of the site is included in the Investigation zone.  The land use mix anticipated in this zone comprises ‘regional business enterprise and industry employment opportunities’.[153] This is subject to:

“…resolution of applicable constraints such as potential amenity impacts on nearby residential areas, mining, flooding and availability of services.” (emphasis added)

  1. [131]
    A constraint of relevance is land degradation due to mining activities. Specific Outcome (j) for the Investigation zone, consistent with the planning strategy discussed above, promotes the rehabilitation of this land along with its use in an appropriate manner.[154]
  2. [132]
    Where constraints cannot be resolved appropriately, it does not necessarily follow that land within the zone is unsuitable for development. New uses or works may still occur, but, again, subject to qualification. Such uses and works are limited to land extensive or low yield activities with minimal buildings requirements.[155] They are not to compromise business or industry activities.[156] Nor are they to have significant detrimental amenity impacts on existing or proposed residential areas.[157]
  3. [133]
    The land use pattern envisaged for the Investigation zone is one of transition. Overall Outcome (2)(d) for the Investigation zone states:[158]

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

  1. [134]
    This Overall Outcome is complemented by Overall Outcome (k) for the same zone, which states:[159]

“Buffers are created between incompatible uses to ensure that there are no discernible amenity or environmental impacts which affect adjacent residential land uses.” (emphasis added)

  1. [135]
    This provision can be contrasted with the more specific planning for the RBIA1 Sub Area. Specific Outcomes 6.16(c)(i)(K) and (iv)(I), which are relevant to ‘special industry’ uses proposed in Precincts 1 and 4 of the RBIA1 Sub Area, do not speak of impacts on adjacent residential uses. They speak of ‘no discernible impact’ outside a buffer area designated on Overlay Map OV8.
  2. [136]
    Section 6.17 of the planning scheme identifies consistent and inconsistent uses, use classes and other development for the Investigation zone.[160] Subsection (2) of this provision identifies the proposed use as a potentially consistent use in the zone, subject to meeting a qualification. The qualification is stated in these terms:

“…if of a type and scale appropriate for the prevailing nature of the area and the particular circumstances of the site and its surrounds…”

  1. [137]
    Part 12 of the planning scheme includes development specific codes. Division 7 of this part of the planning scheme contains the Commercial and Industrial Code. In terms of environmental and amenity controls, the Commercial and Industrial Code requires uses and works, inter alia:
  1. (a)
    to not cause nuisance or disturbance of nearby land, particularly that of residents and sensitive receptors;[161]
  2. (b)
    to be compatible with the physical characteristics of the site and character of the local area;[162]
  3. (c)
    to provide reasonable buffers to incompatible land uses and zones;[163]
  4. (d)
    maintain a height and scale commensurate with the intent of the zone and Sub Area in which it is located and compatible with the surrounding development;[164]
  5. (e)
    minimise the risk of exposure to harmful elements, with a particular emphasis on residential areas situated in close proximity;[165]
  6. (f)
    be developed and managed in accordance with acceptable environmental standards;[166] and
  7. (g)
    have no significant detrimental effect on the amenity and general well-being of the area.[167]
  1. [138]
    What does the planning scheme require in terms of rehabilitation?
  2. [139]
    The planning scheme encourages the rehabilitation of degraded land. It does not define ‘rehabilitation’. Its ordinary meaning involves notions of restoration or regeneration.[168] In context, the term suggests degraded areas are to be rehabilitated for use in an appropriate manner. I take this to mean a use anticipated by the planning scheme. Here, that includes industrial uses. It also includes active and passive recreation uses that assist integrating the land into a network of green spaces. 
  3. [140]
    On 21 March 2014, Council adopted Implementation Guideline No.32, which is titled ‘Ebenezer Regional Industrial Area Implementation Guideline’ (the Guideline).[169] The purpose of such a guideline is revealed by Part 2, s 2.3(2) of the planning scheme, which states:[170]

“The Local Government may prepare implementation guidelines to assist with the implementation of the planning scheme or to clarify the Local Government’s planning intent for an area or issue covered by the planning scheme.”

  1. [141]
    A review of the Guideline confirms the land: (1) is included within the study area of interest;[171] (2) has a preferred land use designation of ‘Medium Impact Business & Industry Areas’;[172] and (3) is included in an area identified as ‘Northern Planning Unit’.[173]
  2. [142]
    Figure 4 to the Guideline[174] is a Preferred Land Use Concept Master Plan. It indicates there are three preferred land use designations for business and industry areas.[175] The pattern of development envisaged for business and industry areas is one that graduates from low impact uses on the edge of the study area (near sensitive uses), up to high impact uses towards the centre of the study area.[176] The planning purpose of this is to ‘buffer and limit any adverse impact upon existing sensitive land uses in particular, the Willowbank Township and rural residential lots outside of the ERIA study area’.[177] The residential areas proximate to the land are located within the study area. They are separated from the land by two intervening preferred land use designations (moving east to west), namely Low Impact Business & Industry Areas and Greenspace Framework.
  3. [143]
    Section 3.1 of the Guideline provides that ‘new uses and works’ within the business and industry areas should:

“−   develop in an orderly manner without prejudicing the orderly delivery of development for the Planning Unit;

-  provide trunk infrastructure in an orderly manner;

-  encourage sustainable water usage, particularly where relating to water sensitive design and the use of recycled water;

-  ameliorate impacts that may adversely affect or cause an unacceptable safety risk and harm to other land uses;

-  not adversely affect to a significant level sensitive uses or the residential amenity and lifestyle of existing residences adjacent to the industrial development areas; and

-  have regard to Overlay Map OV7A – OVC to ensure the RAAF Base Amberley operates efficiently and effectively without significant external impacts.” (emphasis added)

  1. [144]
    The statement of intent for the Medium Impact Business and Industry preferred land use designation is:[178]

“Medium Impact Business and Industry uses are generally conducted within buildings however, have potential for noticeable impacts to sensitive land uses owing to their large scale and offsite emissions (eg. fumes, odour and noise generation). These uses may generate moderate to high volumes of traffic, may include evening/night activities, and may generate an elevated demand on the local infrastructure network (eg. may require access to transport or rail infrastructure). The potential impacts must be appropriately ameliorated and not cause an unacceptable safety risk to sensitive land uses, particularly nearby residential uses.

The Medium Impact Business and Industry Area should accommodate a wide variety of medium to larger scale industrial activities (eg. that may be difficult-to-locate owing to the uses requiring a large footprint) and may include –

·  rail, transport, timber and metal processing industries;

· research and technology industries;

·  concrete batching plants;

· finishing, repairing, packaging, storing, distributing;

·  wholesaling products such as wood, metal, plastic, textiles, food, beverages, construction materials, minerals;

·  large scale warehouses and distribution (with 24 hours of operation);

· general industries (ie. making, assembling, dismantling, breaking up, servicing, storing or repairing);

· food and beverage manufacturing;

· freight or truck depots; and

· service trades uses.

Land uses associated with motorsports and automotive and related uses in the Medium Impact Industry Areas are also encouraged where located in proximity to the Ipswich Motorsport Precinct.

Incompatible uses to Medium Impact Business and Industry or inclusion of sensitive land uses (particularly residences) are not supported.” (emphasis added)

  1. [145]
    Section 4(d) of the PA recognises that Temporary Local Planning Instruments provide planning and development assessment policies to ‘protect all or part of a local government area from adverse impacts in urgent or emergent circumstances’. They may suspend or otherwise affect the operation of another local planning instrument, but do not amend or repeal that instrument.[179] A Temporary Local Planning Instrument does not create a superseded planning scheme,[180] nor result in an adverse planning change.[181] They do however prevail to the extent of inconsistency with a planning scheme.[182]
  2. [146]
    The 2018 TLPI provides an interim policy response in respect to landfill and waste industry uses occurring in the Ebenezer/Willowbank/Jeebroopilly industrial area.[183] It took effect on 29 May 2018, being a date after the development application was properly made.[184] It had effect for a period not exceeding two years.
  3. [147]
    The 2018 TLPI was repealed and replaced by a second TLPI, which is in identical terms. The second TLPI is No.2 of 2020 (Waste Activity Regulation) (2020 TLPI). It took effect on 28 January 2020.[185] Notice of the adoption of the 2020 TLPI was published in the Queensland Government Gazette on 3 April 2020. The Notice indicated the document would cease to have effect on 27 January 2022, or such longer period as may be permitted by law or unless repealed sooner.[186] The 2020 TLPI was repealed prior to the promulgation of these reasons for judgment.
  4. [148]
    Given the 2018 and 2020 TLPIs are in identical terms, I will refer to them as the TLPIs.
  5. [149]
    The TLPIs comprise four parts, namely: (1) the text of the TLPI identifying, inter alia, an overview, purpose, Strategic Outcomes, and definitions; (2) a map (Attachment A) identifying the area to which the TLPI applies; (3) a code in Attachment B titled ‘Ebenezer/Willowbank/Jeebroopilly Waste Activity Code’ (Activity Code); and (4) a Table of Assessment and Relevant Assessment Criteria.
  6. [150]
    Sections 2.1 and 2.3 of the TLPIs state:[187]

“2.1   This TLPI provides an interim policy response in respect to landfill and waste industry uses occurring in the Ebenezer/Willowbank/Jeebroopilly industrial area.

…

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

  1. [151]
    The area to which the TLPIs apply is depicted in a map marked Attachment A.[188] The land is included in two designations on the map, namely the Ebenezer/Willowbank/Jeebroopilly Waste Activity Area (Waste Activity Area) and Ebenezer/Willowbank/Jeebroopilly Buffer Area. All but a small part of the landfill footprint (its south eastern corner) falls within the Waste Activity Area. Lantrak has indicated it will accept a condition of approval limiting the footprint of the landfill to the Waste Activity Area. I have assessed and decided the application on the footing such a condition would, and can be, imposed. The refusing parties did not suggest otherwise.
  2. [152]
    The purpose of the TLPIs is stated in s 3.1 as follows:[189]

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

  1. [153]
    To achieve this purpose, the TLPIs[190] include Strategic Outcomes, definitions, two waste activity regulation areas, categories of assessment and assessment benchmarks. The documents also include the Activity Codes.
  2. [154]
    There are three Strategic Outcomes stated in the TLPIs. They are comparable to DEOs in the planning scheme[191] and prescribe where types of ‘Waste Activity Uses’ are anticipated.
  3. [155]
    Waste Activity Uses are defined in s 8.6 of the TLPIs as follows:[192]

““Waste Activity Use” means – The use of premises for:

(a)  “Compost Manufacturing Enclosed”;

(b)  “Compost Manufacturing Unenclosed”;

(c)  “Landfill”; and

(d)  “Rehabilitating a mining void.”

  1. [156]
    Each of the above uses are in turn defined. Only two are of direct relevance, namely:[193]

““Landfill” means –

(a) the use of land for the disposal of material such as domestic waste, putrescible waste, organic waste, regulated waste, building waste, commercial and industrial waste or the like, to raise the level of the site, or to fill or partly fill a mining void on a site.

(b)  The term includes the reprocessing of material from landfill on or off site.”

And:

““Rehabilitating a mining void” means –

 (a)  the filling of a mining void involving only ‘clean earthen material’.”

  1. [157]
    The phrase ‘clean earthen material’ is defined as follows:[194]

““Clean Earthen Material” means-

(a)  bricks, pavers, ceramics or concrete that does not contain embedded steel reinforcing rods, and no piece has any dimension of more than 300mm; or

(b) clean earth that has trace elements and containment levels within the interim ecologically based investigation levels for urban use under the document ‘Schedule B(1)-Guidelines on the Investigation of Soil and Groundwater’, forming part of the National Environment Protection (Assessment of Soil Contamination) Measure 1999.”

  1. [158]
    The proposed development includes Landfill as defined in the TLPIs.
  2. [159]
    One of the three Strategic Outcomes set out in s 3.2 of the TLPIs provides that ‘Landfill’ only occurs in the Waste Activity Area.
  3. [160]
    Attachment C[195] to the TLPIs provides that an application for Landfill in the Waste Activity Area is impact assessable. Relevant assessment criteria for such an application is prescribed to include the Activity Code. Compliance with this code is achieved through consistency with identified Overall Outcomes and Specific Outcomes.[196] Development that is inconsistent with the Activity Code is ‘undesirable development’ and ‘unlikely to be approved’.[197]
  4. [161]
    The Overall Outcomes and Specific Outcomes for the Activity Codes confirm two things. First, Landfill uses are directed to the Waste Activity Area. Outside of this area, Landfill is regarded as an ‘inconsistent use’.[198] Second, there are five topics that call for close examination when assessing the merits of an application for a new Landfill as defined in the TLPIs. The topics are identified in Overall Outcome 3(2)(b), which state:

“Waste Activity Uses:

(i)  do not have a detrimental impact on the amenity of the surrounding area, particularly on existing, approved or planned residential areas or other sensitive receiving uses (including major events and motor sports uses); and

(ii)  do not have a significant impact on visual amenity from residential and other sensitive receiving uses (including major events and motor sports uses); and

(iii)  do not have a detrimental impact on the environment; and

(iv)  are designed, operated and maintained to avoid actual or potential nuisance impacts on existing, approved, or planned residential and other sensitive receiving uses (including major events and motor sports uses); and

(v)  achieve appropriate rehabilitation outcomes for land affected by former mining activities.” 

  1. [162]
    There is alignment between Overall Outcome 3(2)(b) and the planning scheme. Both call for the amenity and environmental impacts of uses such as that proposed to be carefully examined. They also confirm there is an ongoing intention for land affected by former mining activities to be rehabilitated.
  2. [163]
    Whilst there is alignment, it can be said that the Activity Code brings a slightly sharper focus to bear in terms of the environmental and amenity issues to be examined.  This is clear from the terms of the document, in particular Specific Outcomes s 4(4) to (7) inclusive.
  3. [164]
    Specific Outcome 4(4) is relevant to rehabilitation and provides:[199]

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

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

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

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

  1. [165]
    Specific Outcome 4(5) is relevant to the overall height of Waste Activity Uses, particularly those involving the filling of former mining voids and having the potential for adverse visual amenity impacts. The provision states:[200]

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

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

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

  1. [166]
    Specific Outcome 4(6) deals with a range of issues, but principally environmental impacts. The provision states:[201]

“(6) Waste Activity Uses are developed in a manner that: 

(a)  establishes and maintains native vegetation buffers to improve amenity or environmental impacts particularly where situated close to residential areas or riparian corridors; and 

(b)  retains and maintains significant existing vegetation, particularly remnant native vegetation and areas of environmental significance; and 

(c)  does not adversely affect surface or ground water quality, including through storm water runoff or the dewatering of former mines, and where possible, improves the quality of nearby surface and ground water; and 

(d)  does not adversely affect stormwater management and where possible, improves the management of the catchment.”

  1. [167]
    Specific Outcome 4(7) calls for an examination of amenity impacts. The provision states:[202]

“(7)  Waste Activity Uses are designed, operated and maintained so that: 

(a)  no nuisance or disturbance is caused to the amenity of surrounding and nearby residential and other sensitive receiving uses (including major events and motor sports uses); and 

(b)  airborne emissions, including odours, dust or substances harmful to public health, do not cause nuisance or harm to surrounding and nearby residential and other sensitive receiving uses (including major events and motor sports uses); and 

(c)  the generation of noise or light overspill does not cause nuisance or disturbance to surrounding and nearby residential and other sensitive receiving uses (including major events and motor sports uses).”

  1. [168]
    Council relies upon alleged non-compliance with the Activity Code to warrant refusal. It does so on the footing an assessment against the document should be given weight under s 45(8) of the PA.  This provision assumes the 2020 TLPI is in force. 
  2. [169]
    Given the delay in delivering these reasons, and so as not to visit this delay upon Council, I have assessed the development application on the basis the 2020 TLPI, and associated Activity Code, can be given weight as a relevant matter under s 45(5)(b) of the PA. To ensure there is no doubt, the weight given to the assessment in the exercise of the discretion has not been reduced by reason the 2020 TLPI (and associated Activity Code) has been repealed.
  3. [170]
    Before moving on to the final piece of planning context, it can be observed that Council submitted the planning scheme and TLPIs manifest a preference for voids, such as that on the subject land, to be filled with clean earthen material. I dealt with this point in Austin at paragraphs [217] to [224]. For the reasons set out therein, it is my view the preference to which Council refers does not advance the determination of the appeal one way or another.
  4. [171]
    The final piece of planning context to examine is a Statement of Proposals promulgated in 2019.[203] A review of its contents, which includes a draft Strategic Framework, confirms the document is not a draft planning scheme. It is a proposal to prepare a new planning scheme. There are many steps to be completed before the Statement of Proposals is converted into a draft planning scheme ready, and approved for, public notification.
  5. [172]
    Council alleged non-compliance with a focal provision of the draft Strategic Framework, which requires the demonstration of a need for additional landfill airspace capacity. A review of the entire document, which has no statutory force, reveals five things. First, the document recognises, and seeks to respond to, contemporary waste management principles espoused in the Queensland Government’s Waste Management and Resource Recovery Strategy.[204] Second, the document recognises there is an ongoing need to rehabilitate contaminated or degraded land such as the subject land. Third, Waste Activity Uses, which include landfill, are anticipated in the same area captured by the TLPIs. Fourth, landfills are anticipated, provided there is a demonstrated need for the ‘additional landfill capacity above that already approved’.[205] Five, the environmental and amenity tests prescribed for a new landfill use bear a striking similarity to the Specific Outcomes of the Activity Code set out above.
  6. [173]
    The draft Strategic Framework is not, in my view, to be treated as if it were a draft planning scheme. It falls well short of this status. This means it is unnecessary to approach the document: (1) as if a detailed compliance assessment should be carried out against it; or (2) on the footing the ‘Coty’[206] principle is engaged. That does not however mean the document is to be ignored. Its very existence, and substance, is of assistance to this appeal. It permits an examination of the strategies espoused in the planning scheme, and TLPIs, for consistency with contemporary planning and waste management policy.
  7. [174]
    What does the Statement of Proposals, and draft Strategic Framework, say about the planning strategies espoused in the planning scheme and TLPIs?
  8. [175]
    The content of the Statement of Proposals, more particularly the draft Strategic Framework, is consistent with the planning scheme and TLPIs. All of the documents, taken in combination, indicate the land may be used for an integrated waste facility, such as that proposed, and always subject to a careful examination of environmental and amenity impacts. When this is appreciated, neither the Statement of Proposals, nor the draft Strategic Framework, suggest the planning scheme and TLPIs are out of date, overtaken by events, or unsoundly based. Put another way, the draft Strategic Framework does not suggest compliance with the planning scheme and TLPIs will lead to development that is incongruous with contemporary planning, or contemporary expressions of the public interest. This informs the weight to be given to compliance with, inter alia, the planning scheme in the exercise of the discretion under s 60(3) of the PA.
  9. [176]
    Council pressed non-compliance with the need test set out in the draft Strategic Framework; the document calls for need to be demonstrated for additional landfill capacity above that already approved. This test has a purpose. In my view, its purpose is to ensure, inter alia, the supply and demand balance for landfill facilities strikes an appropriate balance between two competing considerations, namely: (1) to make provision, in a land use sense, for important and necessary pieces of infrastructure; as against (2) the need to avoid an oversupply of landfill capacity, which may lead to a range of adverse impacts. Item (2) is advanced by Council in this appeal as a reason for refusal. It asserts the proposed development would exacerbate an oversupply of landfill airspace capacity. This oversupply is said to manifest in an adverse impact on the circular economy; Council contends an approval would act as a disincentive for investment in resource recovery and recycling.
  10. [177]
    In circumstances where there is consistency in Council’s planning and: (1) the planning scheme in force does not require the demonstration of a need for additional landfill airspace; (2) the proposed development includes a meaningful resource recovery component; and (3) the Statement of Proposals and attached draft Strategic Framework fall well short of being a draft planning scheme; I was persuaded the Statement of Proposals is not a feature of the case that ought be acted upon to found a reason for refusal. To do otherwise, in my view, would be to give the document greater planning significance than it deserves at present.

The disputed issues

  1. [178]
    By the end of the hearing, an amended list of disputed issues was tendered and marked exhibit 5.003. It is attached to these reasons as Annexure A.
  2. [179]
    Exhibit 5.003 is titled ‘Agreed issues in dispute’. Five reasons for refusal, and supporting particulars, are set out in the document. The reasons for refusal are as follows:
  1. 1.
    The landfill component of the development does not promote resource recovery including re-use, recycling, and waste to energy initiatives.
  2. 2.
    There is no need for the development, the provision of further landfills will act as a disincentive for resource recovery, and it does not satisfy Council’s Statement of Proposals Strategic Framework Growth Management – Waste part 3.5.4.4(5)(a)(i).
  3. 3.
    The proposed development is contrary to planning intentions set out in the planning scheme and 2020 TLPI, that the land be rehabilitated such that future land uses can be accommodated.
  4. 4.
    The proposed development is unacceptable having regard to matters of landfill design and management.
  5. 5.
    The proposed development is not of a type or scale appropriate for the site and surrounds, and will have unacceptable amenity impacts upon general well-being, sense of place and community perception of the Willowbank locality and the local government area. 
  1. [180]
    Central to the reasons for refusal are alleged inconsistencies with a range of documents, including the PA, South East Queensland Regional Plan 2017 (SEQRP 2017), the planning scheme, the Activity Code and the draft Strategic Framework attached to the Statement of Proposals. It was submitted the Court ‘need only consider whether there is compliance or non-compliance with the identified “focal” provisions’, which are highlighted in yellow in exhibit 5.003.[207]
  2. [181]
    Lantrak joins issue with the reasons for refusal. More particularly, Lantrak’s case for approval was advanced on the footing the development complied with the planning scheme and Activity Code. It also contended there are matters supportive of approval relevant to the exercise of the discretion under s 60(3) of the PA. The complete list of matters relied upon are set out at paragraph 6 in exhibit 5.003. They were helpfully recast by Mr Job KC and Mr Wylie as follows at paragraph 10 of their written submissions:[208]

“10. Lantrak relies upon relevant matters in paragraph 6 of Ex. 5.002 which involve: 

  1. (a)
    need and the incorporation of a quality resource recovery process (6(a), (g) and (i)); 
  2. (b)
    that the proposal will rehabilitate the site (6(b) and (c)) and the land is currently suitable for very few uses other than that proposed (paragraph (e)); 
  3. (c)
    were the site not developed as proposed, there would be disbenefits associated with visual amenity, hydraulic outcomes, ecological outcomes and adverse impacts to the operation of the RAAF Base (paragraph (f)); 
  4. (d)
    traffic engineering benefits to the local community (paragraph 6(d)); 
  5. (e)
    the proposal is well located (paragraph (h) and it will not result in any unreasonable offsite amenity impacts or environmental impacts (paragraphs (j) and (k)); and 
  6. (f)
    DES has granted an environmental authority for the development (paragraph (l)).” 
  1. [182]
    Whilst I was grateful the parties reached agreement about a list of issues to be determined, the document tells the reader little, if anything, about the structure of the cases in favour of refusal or approval. In this regard, the document: (1) does not purport to put the issues (in favour of approval or refusal) in any order of importance; and (2) does not give the reader a sense of whether an issue is relied on in combination with other reasons, or is said to be determinative of the appeal in its own right. That was surprising given the reasons for refusal raise the prospect of adverse environmental impacts. 
  2. [183]
    Further, it can be observed that the reasons for refusal are followed by, in effect, a list of particulars. There are two difficulties with the particulars. First, the document does not identify whether the particulars are put as a composite allegation, or a series of alternative cases. Second, the particulars blend different parts of the assessment. More particularly, the particulars blend allegations of alleged non-compliance with assessment benchmarks in force at the time the development application was properly made with alleged non-compliances with documents that are given consideration (as matters of weight) under ss 45(5)(b) or (8) of the PA. 
  3. [184]
    After considering the written submissions prepared on behalf of all active parties and the very large body of evidence, it is my view the issues for determination in the appeal can be split into three categories.
  4. [185]
    The first category are the reasons for refusal having the greatest potential to influence the exercise of the discretion under s 60(3) of the PA. The issues falling into this category are:

1.      Whether it has been demonstrated the environmental impact and risk of the proposed development is acceptable?

2.      Whether it has been demonstrated the proposed development will rehabilitate the land?

3.      Whether the proposed development will have an unacceptable impact on amenity (in an intangible sense)?

4.      Whether findings in relation to questions 1, 2 and 3 demonstrate compliance with the planning scheme and Activity Code?

  1. [186]
    I was satisfied an approval (subject to conditions) should follow if all of the above questions were resolved favourably to Lantrak. The remaining issues are not, in and of themselves, of sufficient potency to stand in the way of an approval where development complies with the adopted planning scheme.
  2. [187]
    The second category of issues are reasons for refusal that inform the exercise of the discretion. As I have said, they are not sufficient, in and of themselves, to warrant refusal in the face of compliance with the planning scheme (and Activity Code). The reasons, assuming they are established, come into play in the event one or more of the first category of issues are resolved in favour of refusal. The reasons for refusal falling into this category are as follows:

1.      Whether the proposed development will act as a disincentive for resource recovery and is inconsistent with contemporary waste management policy?

2.      Whether there is an economic, community or town planning need for the proposed development?

3.  Whether the proposed development satisfies the need test stated in the draft Strategic Framework attached to the Statement of Proposals?

  1. [188]
    The third category of issues are the matters raised in support of approval. 

Environmental impacts and risk

  1. [189]
    The use proposed has the potential to adversely impact on the environment. This risk subsists during the operational and rehabilitation/post-closure phases. The latter phase will take in the order of 100 years to complete after the landfill has ceased receiving non-putrescible waste.
  2. [190]
    It was not suggested the development application should be refused simply because it carries the risk of adverse environmental impact. This was entirely appropriate having regard to the authorities traversed at paragraphs [211] to [214] of Cleanaway and [533] to [536] of Austin. Decisions of this Court confirm the mere presence of risk does not, in and of itself, call for a nervous approach or intolerance in any circumstance. The approach to be adopted to the assessment of risk, and its acceptability, requires an examination of: (1) the nature and the extent of the risk; and (2) the means by which it is to be addressed to preclude adverse results (i.e. adverse environmental impacts).
  3. [191]
    What are the environmental risks in this case?
  1. [192]
    The proposed landfill involves the placement of contaminated fill (non-putrescible waste) into a void, which is unable to gravity drain and below the regional groundwater level. The refusal case and evidence focused on four potential environmental impacts arising in these circumstances. First, there is a potential for leachate within the landfill to migrate into, and contaminate, groundwater. Second, there is a potential for clean stormwater to be contaminated by leachate. Third, there is a potential for underground fires to occur near the void as a consequence of local geology and the presence of hot carbonaceous mine spoil. Fourth, there is potential for water (groundwater and surface water) to infiltrate the waste mass before and after the landfill is capped. The latter may result in the need for engineering systems to be operated in perpetuity to remove leachate.
  2. [193]
    Lantrak contends the environmental risks of the proposed development are known and can be addressed successfully by a range of engineering controls and measures. Those controls and measures would be implemented and, in some cases, maintained for the life of the project, to preclude adverse environmental impacts. The controls are discussed in the paragraphs [43] to [79] and include: (1) the placement of a double liner system on the base and walls of the void to separate leachate from groundwater; (2) the removal of carbonaceous material where located beneath the proposed void liner system; (3) the operation of a groundwater depressurisation system to, inter alia, prevent uplift of the liner; (3) the implementation and operation of a leachate management system, including a permanent treatment plant, to ensure the height of leachate is kept below 300mm above the liner; (4) civil works to divert clean stormwater away from the void and waste areas; (5) implementation of a stormwater management system to separate clean stormwater from waste and leachate; (6) the implementation of a groundwater monitoring program; (7) implementation and maintenance of a landfill gas management system; (8) acceptance of a condition limiting the size of the landfill working face to limit rainfall infiltration; and (9) staged rehabilitation of the void to provide a cap that prevents the infiltration of water into the waste mass (so it can decompose and the landform settle).
  3. [194]
    To demonstrate the engineering controls and measures can be implemented to effectively preclude adverse environmental impacts, Lantrak led evidence from seven[209] highly qualified and experienced experts in a number of fields, namely geotechnical engineering; landfill design; groundwater; surface water; leachate management; landfill rehabilitation; and ecology. The evidence of Lantrak’s experts was consistent with, and supported by, the evidence of Dr Johnson. He was called by the Chief executive to deal with surface water, groundwater and leachate management.
  4. [195]
    Council and the co-respondents did not accept the proposed development could be conditioned to preclude adverse environmental impacts. Many criticisms were directed at the proposed development. The criticisms were founded on the evidence of three experts called by Council, namely Messrs Amaral, Sutherland and Collins. The criticisms made of the proposed development are interrelated. At a high level, they can be reduced to the following twelve (12) points:[210]
  1. (a)
    the land is unsuitable for landfill involving the placement of waste in the void, which cannot gravity drain and will not be separated from groundwater by a natural unsaturated attenuation zone;
  2. (b)
    it has not been demonstrated the engineering works required to ready the void for the receipt of the clay liner can be properly and safely carried out, particularly along the eastern high wall;
  3. (c)
    it has not been demonstrated the engineering works required to place and compact the clay liner (on the base and sides) can be undertaken in a manner that produces a firm, level and unyielding surface for the receipt of the polymer liner;
  4. (d)
    the integrity of the proposed liner, which is critical to the protection of groundwater, will fail as a consequence of differential settlement within and immediately adjoining the landfill footprint, permitting the exchange of leachate and/or groundwater into or out of the landfill unit;
  5. (e)
    the subbase for the liner will incorporate mine spoil, which is unsuitable;
  6. (f)
    it has not been demonstrated the risk of underground fires, which can result in damage to the base and side liner system, can be dealt with appropriately;
  7. (g)
    it has not been demonstrated off-site stormwater impacts can be dealt with appropriately, including impacts associated with increased pollutant loads;
  8. (h)
    it has not been demonstrated the potential for interaction between surface water and leachate can be dealt with appropriately, particularly in extreme weather events;
  9. (i)
    it has not been demonstrated the placement of waste in close proximity to the walls of the landfill can occur in a safe manner;
  10. (j)
    the environmental success of the operational landfill is reliant upon vigilant management, and the operation of pumps, for a period of at least 50 years;
  11. (k)
    the proposed cap will not preclude the infiltration of surface water into the underlying waste mass; and
  12. (l)
    the environmental risks for the landfill component of the development will exist in perpetuity and require active management in perpetuity, leading to an inability to comply with condition L4 of the draft EA (paragraph [78]).
  1. [196]
    The evidence addressing the environmental impact and risk of the development is extensive, highly technical, and complex. It includes a six volume geotechnical landfill design and rehabilitation joint expert report with 1783 pages.   The evidence also includes technical joint expert reports with respect to groundwater, leachate and surface water. After joint expert reports were prepared, Lantrak elected to amend its proposal to respond to issues, criticisms and queries raised during that process. The response included further design work by Mr Bristow, who gave evidence, primarily, with respect to surface water and leachate. He made particular recommendations with respect to the stormwater and leachate management system. Lantrak has adopted his recommendations. Mr Bristow also carried out additional modelling, with assistance from Mr Hair. The modelling considered, inter alia, potential impacts on groundwater. One iteration of the model assumes the polymer liner, in effect, evaporates or dissolves, leaving only the clay liner to separate waste, leachate and groundwater.
  2. [197]
    Save for two qualifications I will discuss shortly, I was satisfied the evidence led by Lantrak established, in theory, the proposed development could be conditioned so it is designed, constructed, operated and maintained to preclude adverse environmental impacts. It will also be able to achieve compliance with condition L4 of the draft EA. I was satisfied this is so for the following reasons.
  3. [198]
    First, the proposed development, unlike the site in the Cleanaway appeal, is not constrained by the design and construction deficiencies of an existing operation that has preceded it. This has allowed important site investigations to be carried out, followed by rigorous assessment of site opportunities and constraints. With knowledge of the opportunities and constraints, Lantrak’s experts have demonstrated, on the balance of probabilities, the proposed development can be designed, constructed and operated to appropriately manage the risk of adverse environmental impacts. This is, in my view, primarily due to the proposed development including the following key design elements: (1) a double liner system and subbase, which can be constructed and certified by a Registered Professional Engineer in Queensland; (2) a comprehensive leachate management system, which incorporates a fixed treatment plant installed and operational from the first day waste is received, facilitating compliance with condition W9 of the draft EA; (3) a stormwater management system that enables clean water to be separated from leachate; and (4) a groundwater depressurisation system and monitoring programme. 
  4. [199]
    Whether these systems and controls will be successful involves an exercise of professional judgment about which reasonable minds may differ. Overall, I was satisfied the evidence laid more than a sufficient foundation for Lantrak’s experts to share the confidence they expressed in the development, and the proposed management systems and measures. It is fair to say this confidence was not gained by looking through rose coloured glasses. It was reached in full knowledge of site constraints. Those constraints were repeatedly and forcefully pointed out by Council, the co-respondents, and Messers Amaral, Sutherland and Collins. 
  5. [200]
    Second, whilst reasonable minds may differ about matters of professional judgment of the kind involved here, I found Mr Amaral and Mr Sutherland to be overly pessimistic about the risk, and likelihood, of liner failure. After reading and listening to Mr Amaral’s evidence, one might be forgiven for thinking liner failure would be inevitable and catastrophic. Mr Sutherland’s evidence has a similar tenor but, in fairness to him, this was coloured by the views expressed by Mr Amaral. 
  6. [201]
    I also found Mr Amaral and Mr Sutherland were too ready to assume leachate or groundwater would exchange through the liner system proposed in the event of subbase and/or liner failure. Indeed, both Mr Amaral and Mr Sutherland spoke of leachate or groundwater migrating through the liner as if it were inevitable.
  7. [202]
    Dr Schiers demonstrated liner failure was far from inevitable at the level of strain estimated by Mr Amaral. His evidence also demonstrates it should not be assumed leachate or groundwater will readily exchange through the double liner system, even in the event of failure. The liner comprises a polymer sheet placed over a thick clay layer. It is the clay layer that comes into play in the event the polymer sheet fails. Water or leachate would not migrate through this layer easily. This was explained in the following passage of Dr Schiers’ oral evidence:[211]

“And obviously, if it’s going out through the hole, ground water can come in through the hole depending on the hydrostatic pressure on either side?---Well…I haven’t seen that…we do hydrostatic testing. It will take the path of least resistance and you’re right, it’s a balance of hydrostatics but the clay would have to swell appreciably, the 600 millimetres to compact the clay minimum, in order for water to penetrate through that clay and…in the form of a liquid water, we’re not talking vapour now, it would have to basically penetrate extensively through a swollen clay layer which would be very difficult to do.”

  1. [203]
    Dr Schiers was not challenged about this explanation. I accept his evidence.
  2. [204]
    I pause to observe that Mr Collins assumed Mr Amaral and Mr Sutherland’s evidence about liner design and failure was correct and would be accepted. To the extent Mr Collins’ evidence is based on that assumption I do not accept it. For reasons given later, I do however accept Mr Collins’ evidence with respect to: (1) the unacceptability of the perched pond proposed for stage 7 of the landfill; and (2) the need to test for pollutant loads, in addition to pollutant concentrations. These matters will be addressed shortly.
  3. [205]
    Third, as would now be clear, Council’s case proceeded on the footing the liner, which is critical to the separation of leachate and groundwater, would fail. It was further assumed liner failure would lead to: (1) the contamination of groundwater; and (2) the need to operate pumping systems in perpetuity to achieve compliance with condition W9 of the draft EA, which requires leachate to be no higher than 300mm above the liner system. The combined evidence of Ms Taft, Mr Huntley and Dr Schiers satisfied me that liner failure, whilst a risk, was low. The evidence of Ms Taft and Dr Schiers was particularly persuasive in this regard.
  4. [206]
    Ms Taft has been involved in the design of over 30 landfill projects worldwide and is a  certified landfill designer.[212] As a landfill engineer, she designs the specifications for lining systems and has a detailed appreciation of the geotechnical and strength requirements for lining systems.[213] She explained that landfill engineers design clay lining systems and undertake stability analyses and the associated foundation engineering.[214] All of this experience, and training leaves Ms Taft in a position where she is qualified, and experienced, to certify the design and construction of landfill projects such as that proposed.
  5. [207]
    With the benefit of her considerable experience and qualifications, Ms Taft helpfully explained how the landfill component would be constructed and, in turn, the subject of engineering certification. In giving this explanation, it was not suggested by Ms Taft that the site was without its challenges. Rather, with full knowledge of Mr Amaral’s criticisms of the development, Ms Taft was comfortable a suitable base for the landfill liner could be designed, constructed and certified to meet the requirements spelt out by Dr Schiers. I accept this evidence. It was supported by the evidence of Mr Huntley, which I also accept.
  6. [208]
    Dr Schiers was a very impressive witness with significant expertise in polymer science. He has worked extensively with geosynthetics used in civil engineering, mining and landfilling. A considerable part of his professional life has focused on the durability and integrity of geomembrane liners; he operates a polymer testing laboratory. Dr Schiers also co-authored the Victorian Best Practice Environmental Management Guide (for landfill design and operation). This Guide has been adopted by other States. It was suggested an analogous Guideline published by the Queensland Department of Environment and Science is partly based on the Victorian guide coauthored by Dr Schiers.
  7. [209]
    It was apparent during Dr Schiers’ oral evidence that Mr Amaral’s views about liner failure were based on out-dated science, and an assumption the subbase would be unsuitable. Dr Schiers explained this was not the case. He explained how liners would not be placed, and certified, unless the subbase was suitably engineered and certified. The clay liner beneath the polymer liner will provide such a base. It can be reinforced with geotechnical reinforcement (geogrids) to prevent multiaxial stress. This will stabilise the clay liner.
  8. [210]
    I am satisfied, having regard to Dr Schiers’ evidence, the double liner proposed here can be designed, constructed and certified by an engineer. This will require compliance with the following conditions recommended by Dr Schiers: [215]

“In my opinion the proposed landfill can be constructed from a geomembrane installation and liner welding perspective provided the following necessary requirements are met:

  1. 1.
    the base (subgrade) is adequately compacted and/or reinforced to prevent potentially damaging multiaxial stress on the geomembrane liner;
  2. 2.
    the liner is anchored by appropriate trenching/benching and secured so no damaging uniaxial tensile stresses (i.e. strains) are induced in the geomembrane liner;
  3. 3.
    geosynthetic reinforcement such as geogrids can be employed to stabilize the clay layer against heavy loading.
  4. 4.
    a liner system integrity assessment is undertaken and it is shown the risk of straining the proposed liner system is limited and the estimated tensile strains are deemed acceptable;
  5. 5.
    appropriate rock fall measures are introduced to protect the installers and liner from potentially damaging rock impacts which could lead to puncture damage and perforation to the liner.
  6. 6.
    spalling of rocks from the eastern high wall can be addressed using rockfall protection barriers (RPB) see references annexed namely Berends (2011), Bertolo (2009), Boral (2011) and Maccaferri (2016)).
  7. 7.
    the type of HDPE geomembrane liner selected is made from a specialty PERT HDPE resin which has higher heat resistance than conventional HDPE liners to deal with the potential of pockets of elevated temperature if they are present up to 100 deg.C.
  8. 8.
    the type of HDPE geomembrane liner selected is correctly formulated and fortified with thermal antioxidants and protective stabilizers to ensure a 160+ year service life with respect to potential oxidation damage and durability.
  9. 9.
    the type of HDPE geomembrane liner selected is made from HDPE resin with excellent stress crack resistance to prevent potential stress cracking at susceptible welds and folds/creases.
  10. 10.
    the installation and welding of the liner is overseen by third-part Construction Quality Assurance (CQA) to ensure best practice installation and welding procedures are achieved and any nonconformances are quickly identified and corrective action taken.
  11. 11.
    a stability assessment is undertaken for the base liner system and that it is shown acceptable safety factors for the landfill.”
  1. [211]
    I accept Dr Schiers’ evidence.
  2. [212]
    Fourth, I was grateful for the evidence of Mr Bristow. His analysis of the proposed stormwater and leachate management systems was comprehensive. He demonstrated, subject to one qualification, the stormwater and leachate systems proposed will preclude adverse environmental impacts. The evidence also went so far as to demonstrate there is good reason to be confident that adverse environmental impacts are far from a sure thing even in the event of liner failure. In this regard, Mr Bristow’s modelling of groundwater impacts in the event of liner failure was compelling. I accept this aspect of Mr Bristow’s evidence. It was not the subject of challenge.
  3. [213]
    In paragraph [197] I referred to two qualifications, which have been mentioned in passing above.
  4. [214]
    The first qualification relates to the stormwater management system. The proposed plans for Stage 7 indicate the stormwater management system includes a moveable perched pond, with a 60ML capacity at 2 metres in depth.[216] The basin has an area of about 2.5 hectares and will sit on top of the waste. Mr Collins was critical of this aspect of the proposal. He said in oral evidence:[217]

“…you…mentioned before the 60-megalitre, moveable, extended detention stage that’s referred to being on top of the waste; what’s your issue there as a surface water expert?---It’s just not good – it’s not good practice in that any water-retaining structure…such as dams and reservoirs, you try and build on decent foundations... So it’s challenging to actually get something of that size to work, particularly when it’s got to be reconstructed multiple times and moved around so that it is going to be intact and not leak. And it just would be better to put it outside the pit.”

  1. [215]
    Mr Collins was cross-examined about the perched pond, which he had earlier described as the ‘weak link in the chain…sitting on top of, potentially, 80 metres plus of landfill’.[218] It was put to him that the movement and reconstruction of the pond several times ‘can be done’.[220] In response, Mr Collins gave the following evidence:[220]

“…You accept that can be done?---Well, there’s…no details of it. If it was made of five metres thick reinforced concrete with some sort of piling system, yes, you can engineer something to stand up, but I’m not so sure that that’s what they’ve got in mind. It’s a clay liner with, maybe, …a plastic liner on top. It’s 200 metres long, 120 metres wide. I don’t know how much differential settlement you’re going to need to cause – to make that have problems, but …as an engineer who’s designed numerous dams and some quite big ones and water retaining structures, that has red warning signs on it to me with reliance on something that large. 

Well,…your concern is…that there might be some failure?---Yes. Yes, that is my concern.”

  1. [216]
    Mr Collins was pressed further in cross-examination about the perched pond and likely cracking. The following interchange occurred between Mr Wylie and Mr Collins:[221]

“…your concern is that…that the moveable detention basin may crack?---Is cracked. Has differential settlement and has been leaking and leaks for every event that’s pumped to it.

And you’d accept that these are areas well outside your area of expertise as a surface water expert?---No, I don’t accept that leaking of a water retention structure is outside my area of expertise. 

You would agree with me that the likelihood or probability of this type of detention basin cracking or otherwise failing is a matter outside your area of expertise?---I think I answered that question. …It’s within my area of expertise to design water-retaining structures, including dams up to 50 metres high. That’s what I’ve designed in my career… And I’m telling you that you don’t build water-retaining structures to sit on 80 metres of …landfill that is breaking down and settling. It’s just not good practice. 

And that’s because of the significant height of the stormwater?---No, it’s because…it’s moving underneath it. You’re dealing with a 200metre-long by 130-metre-wide, two-metre-deep basin sitting on top of 80 metres, potentially, of waste. It just doesn’t make good engineering sense, not when you consider the risks. 

And if it did crack, you’d agree with me that any leakage would go into the void?---Yes, but my concern is there’s 300-odd events in the period of simulation where there would be water ponded in that storage that could leak into the void. 

Three-hundred events is for the entire lifespan of the 50 years; it’s not the stage of settling?---That’s true. I accept that. 

So it’s much less than 300?---I guess so. 

And you’d agree with me that tests and inspections could be put in place to ensure that cracking didn’t occur because for the majority of the time this would be empty or of a very low amount of water?---I don’t know how you could do that and be sure that it’s not leaking. I really would struggle with that. And the differential settlement question is one that – it could break its back. It’s a bit like a resort pool. You get a crack in a resort pool, and you don’t necessarily know it’s there, and you only notice eventually during a – keeping track of the water meterage rates because you’re actually losing water at a greater rate than evaporation. It’s not that easy to detect that sort of leak.”

  1. [217]
    Mr Bristow was confident the perched dam was a feasible solution. He pointed to a real world example where it had been adopted as a design solution and implemented with success. 
  2. [218]
    Whilst this design solution may have been adopted and implemented successfully elsewhere, it is solution I am far from persuaded is ideal. In this regard, I accept Mr Collins’ evidence. His scepticism about a moveable structure intended to hold water while balancing on a mound of waste is soundly based.  That said, I am satisfied this short coming in the design does not rise to the height of a reason for refusal. There is an alternative solution. It involves locating a new basin outside of the landfill footprint and, if necessary, increasing stormwater pumping capacity. Given the size of the land, and given pumps are already proposed for use in the development, I am satisfied the precise details of the alternative solution is a matter to be resolved through the imposition of conditions. 
  3. [219]
    The second qualification also arises out of Mr Collins’ evidence.
  4. [220]
    Mr Collins did not agree the downstream environment would be protected by strict compliance with the conditions imposed on the draft EA. In circumstances where the conditions of the draft EA assume there will be some discharge from approved release points,[222] Mr Collins gave the following oral evidence of note:[223]

“Now, on the subject of Dr Johnson, he has expressed the view that provided the…draft environmental authority conditions are…strictly complied with, that would be a satisfactory protection of the downstream environment. Do you agree with that opinion and, if so, why or why not?---No, I don’t agree with that opinion. I think there needs to be…much stronger controls because the environment authority puts limits on pollutants leaving the site, whereas the council requirements go further in terms of dealing with protection of downstream systems, taking account…of loads, for example, average annual loads, and for the current void, under the rehabilitation strategy, a lot of the contaminants that are dealt with by EA conditions won’t be present, so you’re introducing contaminants that, even if you meet the EA licence conditions on discharge, you have to accept that there’s going to be an increase in load of those pollutants over time downstream, albeit potentially in low numbers, but in kilograms per year terms, there are more pollutants leaving the site, and those are the things that the planning scheme also gives consideration to.”

  1. [221]
    The draft EA includes discharge criteria that must be complied with before water is released from the land. The point made by Mr Collins was a simple one; additional discharge criteria need to be specified over and above that already set out in the draft EA. The additional criteria relate to ‘pollutant load’ as distinct from pollutant concentration. Pollutant load has the potential to accumulate in downstream waterways, resulting in a worsening of water quality.  It is an impact that can increase in severity over time.
  2. [222]
    I accept Mr Collins’ evidence. The discharge criteria in any town planning approval should impose an additional requirement over and above the draft EA conditions. This is to ensure pollutant load is tested and monitored. In my view, this should not stand in the way of an approval. It is a matter to be dealt with through the imposition of conditions.
  3. [223]
    Finally, Mr Amaral and Mr Sutherland maintained the cap to the landfill should be finished with a grass sward rather than trees. It is the same point advanced in Cleanaway and Austin. Overall, I found the evidence of Mr Amaral and Mr Sutherland on this topic unpersuasive. It had the tenor of a preference rather than a point going to the acceptability or otherwise of the cap design. In any event, I preferred the evidence of Mr Young, who pointed out that the proposed planting schedule would not compromise the integrity of the landfill cap. The planting schedule will also permit appropriate inspection and maintenance of the landfill cap during the post-closure care period.
  4. [224]
    It will be recalled I am satisfied Lantrak established, in theory, the proposed development could be conditioned to preclude adverse environmental impacts and achieve compliance with condition L4 of the draft EA. To convert theory into reality, Lantrak’s case requires the Court to be satisfied, inter alia, that: (1) the engineering control systems and management measures proposed to manage environmental impacts can be implemented and maintained to preclude adverse results for at least five to six decades; and (2) the landfill, once started, will be completed.
  5. [225]
    Does the evidence establish item (1) in paragraph [224]?
  6. [226]
    The proposed landfill has a capacity of 44 million m3. It is undoubtedly a large landfill project. Subject to market conditions, the life of the use could be 50 years. It could be longer. For example, the landfill could take up to 59 years to complete if it is assumed 750,000 tonnes of waste per annum is directed to landfill and a compaction rate of 1:1 is achieved.[224] Whether the life of the use is 50 or 59 years, the period of time to complete the landfill has a bearing upon an assessment of the risk of adverse environmental impact. In simple terms, every day the landfill is operational gives to public health and environmental risks. The level of risk, in my view, will increase over time because the engineering controls, such as a base and side liner reflect design standards in place at the time of construction. It is unknown how these standards will compare to those applying in 20, 30 or indeed 50 years’ time. A vivid illustration of this very point is to be found in the facts of the Cleanaway appeal.  There, the facts demonstrate how change in landfill design has improved significantly over a thirty year period;[225] two of the landfill cells in the Cleanaway facility are unlined.
  7. [227]
    The successful management of risk in this case assumes the operator would implement and maintain a complex array of engineering solutions and controls for 50 years, and likely more. The standard to which this must occur is high to preclude adverse impacts. In this regard, Dr Johnson was of the view that the acceptability of the proposed development, in environmental terms, requires ‘strict compliance’ with all conditions of the draft EA.[226] This, in my view, is a matter of import; strict compliance is required with conditions in circumstances where, over the life of the landfill, it can be assumed: (1) the waste industry will change as it moves towards zero net waste, where landfill is seen as a ‘last resort’;  (2) engineering controls and measures required to manage environmental impacts (liners, pumps and associated reticulation systems etc.),[227] are susceptible to failure and technological obsolescence over time; and (3) engineering systems and control measures, including the leachate management and groundwater depressurisation systems, may have to operate for some time, even after closure of the landfill.[228]
  8. [228]
    With respect to item (1) in paragraph [227], this is supported by contemporary waste management policy and the evidence of Mr Perryman. He gave the following oral evidence:[229]

“…if we’re talking about, let’s say, 50 to 65 years for present purposes, what changes in the industry in South East Queensland would you expect to occur while this large landfill facility remains in place?--Well, to look forward half a century is a bit challenging. It’s – I suppose it’s almost if you look backwards and think where the waste industry was in 1970 where pretty much everything ended up going into a landfill. Often they were unlined landfills. Just our understanding of the waste and how to manage it and recover it was pretty limited. So if you take from where we were then to where we are now with all the recycling measures that we have in place, the different collection systems, sort separation, and the way we understand the waste and the potential harm or, you know, issues and risks that presents for the environment, I’d say yes, in another half a century, it’s going to be significantly moved forward.”

  1. [229]
    With respect to item (2) in paragraph [227], it is not difficult to accept the future may bring scientific and technological improvements impacting on the design and operational standards for landfill facilities. Mr Collins made this very point in his oral evidence:[230]

“…It’s a very large pit, very large area. Therefore, the size and life of the project are certainly factors the need to be accounted for, and they’re important. It’s a long life. It’s a very large pit over a lot of time. Like, you’re talking 150 years in the future. I think back 10 years and we weren’t even aware of what PFAS was, generally. You think back 100 years, what were we doing with these sort of facilities then, and that’s left us a legacy issue.”

  1. [230]
    It can also be accepted, as a matter of ordinary experience, that mechanical equipment, such as a pump, can fail. They can also become obsolete as new and advanced technology is introduced.  If it is assumed mechanical failure and technological obsolescence have a part to play in the future of the proposed landfill, Mr Collins helpfully explained, by reference to real world experience, how leachate management becomes difficult to manage in a void. As I understand the evidence, Mr Collins’ point is that leachate within a void is a problem. It can get away from an operator over time. He spoke of operators having to ‘play catch-up’ as leachate levels build up in the base of the landfill to a level that does not comply with a condition such as W9 of the draft EA.[231]  It was put to Mr Collins that such a scenario was not unacceptable here because leachate would sit in the base of the landfill and not escape. Mr Collins responded as follows:[232]

“…Yes, it’ll get into the base of the pit, but my concern is over the life of this project – so we got 50 years of landfilling, and understanding the argument about the recycling, if I understood that correctly, it could well be longer. Over that period of time is it going to be death by a thousand cuts, which is what we’re seeing on the other two landfills, …, where they just  lose control of it and it builds up and it builds up and it builds up and they’re not committed to anything more than a certain capacity treatment arrangement…”

  1. [231]
    Ordinarily, this Court assumes, in the context of a merits appeal, conditions imposed on any approval would be complied with.  There is good reason to do so; it should not be assumed an applicant for approval would flout the law in a way that leads to the commission of a development offence.[233] This is not to say a different view may never prevail. The evidence may reveal there is a proper basis to conclude otherwise.[234]
  2. [232]
    The matters discussed in paragraphs [226] to [230] do not persuade me to depart from the ordinary course. The most significant factor in favour of this is the large body of technical evidence. This evidence establishes, in my view, that the engineering controls and measures proposed: (1) unlike Cleanaway as an example, can be implemented in a staged way and prior to the receipt of waste; and (2) can be conditioned to provide appreciable levels of redundancy to deal with unexpected circumstances, such as extreme weather events. Mr Bristow’s evidence, which I accept in part, comfortably establishes there is more than sufficient redundancy in the engineering measures and controls proposed to ensure adverse environmental impacts are precluded, even in rare or unexpected circumstances.  The unexpected circumstances can include human error in the implementation, operation or execution of these important measures and controls. 
  3. [233]
    Assuming the landfill can be completed as proposed, I am satisfied it is appropriate to proceed on the footing the engineering control systems and management measures proposed to manage environmental impacts can be implemented and maintained to preclude adverse results for the life of the proposed use.
  4. [234]
    Does the evidence establish item (2) in paragraph [224]?
  5. [235]
    I am satisfied it has been established the proposed landfill, once started, must be completed to avoid adverse environmental impact. Completion is required to avoid a situation where the community is burdened with a legacy operation. Such an operation requires ongoing daily management and involves considerable expense to remediate. The failure to complete the landfill here would mean the land is not rehabilitated. The proposed development, in that circumstance, has further degraded the land by introducing contaminated fill.
  6. [236]
    Particular aspects of the evidence make good on this point.
  7. [237]
    Mr Perryman, who is a waste industry expert, said:[235]

“261. As the proposed landfill would be within an existing void, it must be completed to the final landform to ensure surface drainage and rainfall is directed away from the body of waste and avoids the on-going generation of leachate. If for any reason the landfill takes significantly longer to be completed, the additional time the void is ‘open’ and requires leachate management, the higher the risk the landfill poses to the natural environment.

 262. Given the projection (sic) reduction in waste tonnages requiring landfill in the future, there is a material risk that the landfill will take longer to fill, and that the annual tonnage of waste received could decrease to a level where the facility could become unviable and close before it is completed. This would leave an environmental issue that would require daily management of leachate and be extremely costly to remediate.”  

  1. [238]
    Mr Perryman’s view was supported by Mr Sutherland. In his further statement of evidence, Mr Sutherland said:[236]

“However, based on my experience and having regard to this landform at this site, this proposal presents a greater environmental risk than other landfilling opportunities elsewhere. I say this because:

i. The proposal involves placing waste at or below the watertable, which is generally contrary to best practice. In this landform, particularly when groundwater recharge or rebound is considered, such a practice should be avoided in my view.

  …

iii.  Once begun, the landfilling activity at this site would need to be completed to the top of the void to avoid ponding waters on top of waste, which would seriously risk generating leachate. If, for any reason, the landfill activity was interrupted or ceased, the rehabilitation outcome would be worse than under the current mine rehabilitation requirements. This is because surface and groundwater inflow could collect on the landfill surface, creating a driving head for leachate by infiltration into the waste.

iv.  Rehabilitation of a void with waste (where currently there is no waste) increases the overall environmental risk to the receiving environment compared to the current mine rehabilitation requirements.”

  1. [239]
    Mr Sutherland was pressed in cross-examination about this matter in light of the staging of the landfill. With knowledge of the staging, Mr Sutherland simply reaffirmed his view. Mr Sutherland said:[237]

“…But the risk remains the same that…if the landfilling ceases halfway through, then you run the risk of ponding over the top of the leachate, and – and that’s why I say in the joint reports once this starts, it has to be completed….there are no backdoor solutions.”

  1. [240]
    The evidence of Mr Perryman and Mr Sutherland was further supported by the Mr Collins.[238] The topic was the subject of specific examination in Mr Collins’ evidencein-chief:[239]

“In respect of timing, do you also have ongoing concerns that the landfill operation involving such a large volume over perhaps 50 years or more may cease prior to the void being filled and capped and, if so, what’s the stormwater issue with that?---If it ceases operational before the void is filled, that is very problematic from a stormwater management point of view, and I was present when Dr Johnson talked about that, and I concur with the comments he made about that. You’ll either have to have commitment to ongoing stormwater pumping with those 1.2 – 1.6, sorry, metres cubed per second pumps and associated storage beyond the pit in perpetuity, and who pays for that is not clear. Or you have to accept that there’s going to be accumulation well above the 300 millimetres, of potentially to significant heights of stormwater buildup comingling with leachate within the void, both of which require major management measures and both of which would be very problematic to the environment.”

  1. [241]
    Mr Collins was cross-examined about this topic and directed to conditions of the draft EA, namely L2 to L5. He was asked to assume compliance was achieved with these conditions, along with the provision of financial assurance. With these assumptions in place, Mr Collins was asked whether this addressed his concerns about a partially completed landfill. After pointing out the conditions do not deal with circumstances where the landfill is partially completed, Mr Collins answered the question with a question.[240] He said ‘[b]ut how do you comply with it if the activity ceases and it’s no longer viable or economically feasible to continue?’
  2. [242]
    In his evidence-in-chief, Mr Collins referred to the opinions expressed by Dr Johnson in relation to partial completion of the landfill. I apprehended Mr Collins was referring to the following passage of Dr Johnson’s cross-examination:[241]

“…you said in your evidence-in-chief that one of the potential sanctions in the event that the site’s not properly managed would be to seek orders to shut down the use?---Yes. 

And that would be a complete disaster for the community, wouldn’t it, if that happened to occur?---If the applicant were shut down and simply abandoned the site, then that would be a very bad outcome for the community. I don’t know the issue of whether there are bonds held in respect of these, but my understanding is that there would be some bond in respect of rehabilitation of the site, but, no, I – I agree. I mean, it would obviously be a very undesirable outcome. 

..The undesirability of the outcome would be the result of a partial filling of the void with waste, with contaminants but not taking it to a level of cap where the cap is free draining, so you’ve still got the risk of rainfall and, indeed, groundwater penetrating into the body of waste?---Yes….”

  1. [243]
    The written submissions prepared on behalf of Lantrak responded directly to, and joined issue with, the suggestion that the operational life of the proposal poses a risk of non-completion.[242] The response was founded on three parts of the evidence.
  2. [244]
    First, reliance was placed on the evidence of Mr Haywood.[243] He is a waste industry expert called by Lantrak. Mr Haywood, who is very experienced, said he had never encountered a major metropolitan landfill that was closed due to lack of waste. Landfills, in his experience, are typically profitable ventures.[244]
  3. [245]
    Second, reliance was placed upon the evidence of Mr Behrens.[245]  He is an economist called by Lantrak. Mr Behrens saw clear advantages in the scale of the proposed landfill.[246] In short, the advantages he saw, as I apprehend them, relate to certainty of supply (for many decades), competition and choice for a critical piece of infrastructure serving South East Queensland. Mr Behrens was also of the view that the proposed development would not, if approved, become a stranded asset having regard to four considerations.[247] In summary, the four considerations are as follows:
  1. (a)
    the development is a commercial investment by Lantrak ‘based on a suitable business case it sees’;
  2. (b)
    a large part of the expense associated with the landfill is the up-front establishment cost, and once built, the landfill exists and is an economic asset for its effective life (i.e. while it has available airspace capacity);
  3. (c)
    Lantrak’s primary business is not landfill, it provides a broader set of essential services to the SEQ building and construction industry; and
  4. (d)
    the economic modelling establishes there is an ongoing need for nonputrescible landfill airspace capacity.
  1. [246]
    Third, reliance was placed on the common waste and need evidence.[248] This overlaps with the last of Mr Behrens’ four considerations set out above.
  2. [247]
    For the reasons given in Austin at paragraphs [762] to [778] and [818] to [836], I am satisfied the common waste and need evidence establishes it can be assumed there will be a consistent supply of non-putrescible waste available for disposal in private nonputrescible landfills in the short to medium term. This, in my view, is period of up to 20 years. The life of this landfill goes well beyond this period; it is a 50 year plus proposition.
  3. [248]
    If it is assumed: (1) the waste management industry proceeds as it has done in the past; and (2) there has been, and will continue to be, little change in societal attitudes towards waste management; there would be no difficulty in proceeding on the footing that the finding in paragraph [247] is unlikely to change during the life of the proposed development. This, however, is inconsistent with the contemporary waste management policy and the common waste and need evidence. [249]
  4. [249]
    There is a clear policy intention for Queensland to transition to a zero net waste society.  This policy intention can be identified in the SEQRP 2017, namely Theme 4. This theme speaks of an intention to achieve a zero net waste society in a planning horizon of 50 years. The same policy intent is reflected in the Queensland Government’s ‘Waste Management and Resource Recovery Strategy’ (Waste Strategy). 
  5. [250]
    The Minister’s foreword to the Waste Strategy states, in part:[250]

“There is a groundswell of community support for better waste management in Queensland…

The Waste Management and Resource Recovery Strategy (Waste Strategy), developed in partnership with industry and local government, presents a fundamental shift in the way we manage waste in Queensland. Using waste as a valuable resource to create new products, industries and jobs and disposing of it to landfill only as a last resort.

Our vision is for Queensland to become a zero-waste society, where waste is avoided, reused and recycled to the greatest possible extent.

We will achieve this by moving away from our current ‘take-make-usedispose’ approach, and creating a new, more circular system that keeps materials in use for longer, extracting the maximum value from them…”

  1. [251]
    The sentiments of the Minister’s foreword are consistent with the overview given in the body of the Waste Strategy, which states, in part:[251]

“The Strategy presents a strategic plan for a better way of managing waste in Queensland, by harnessing the potential value of resources that have traditionally been discarded. The Strategy’s three strategic priorities will guide the transition to a more circular economy, reduce the amount of waste disposed to landfill, or illegally, and provide a more sustainable source of end-of-life products and materials to create new products.”

  1. [252]
    The overview makes clear that: (1) the Waste Strategy involves three strategic priorities; (2) the strategic priorities are intended to guide a transition to ‘a more circular economy’; and (3) the strategic priorities are intended to reduce the amount of waste disposed of in landfill.  The three strategic priorities articulated in the Waste Strategy are broadly stated objectives. Priority 1 is ‘Reducing the impact of waste on the environment’. Priority 2 is ‘Transitioning to a circular economy for waste’. Priority 3 is ‘Building economic opportunity’. Each of these priorities are supported by ‘Outcomes’. Relevantly for this case, an outcome for Priority 1 is a ‘Reduction in the amount of waste that goes to landfill, is littered or illegally dumped’.
  2. [253]
    The ‘Vision’ statement for the Waste Strategy is in the following terms:[252]

“Queensland will become a zero-waste society, where waste is avoided, reused and recycled to the greatest extent possible. Strategic investment in diverse and innovative resource recovery technologies and markets will produce high-value products and generate economic benefits for the state.”

  1. [254]
    The Vision, like the Strategy overview, has in mind a transition.  It is a transition to a zero-waste society. A society of this kind is defined in a footnote of the Waste Strategy as follows:[253]

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

  1. [255]
    To support the Vision, the Waste Strategy includes targets for the year 2050, representing a 30 year planning horizon. With respect to reducing waste going to landfill, the Waste Strategy states:[254]

“In 2017-18, more than 50 per cent of Queensland’s waste was sent to landfill. To drive the growth of recycling markets, the Queensland Government will introduce a waste disposal levy in July 2019 to provide a clear price signal to divert valuable material away from landfill. The levy will be accompanied by a series of companion measures that will subsequently create an alternative pathway for these materials to be recycled or recovered. There are a number of wastes, such as asbestos, for which landfill is unavoidable and these have been accounted for in the long-term targets. The targets reflect that overall diversion rate for all material diverted from landfill. The ninety percent target for 2050 reflects only ten percent of waste going to landfill.

Table 2 – Waste diversion landfill targets (recovery rate as a percentage of total waste generated)”

Stream

Baseline (2018)

2025

2030

2040

2050

MSW

32.4%

55%

70%

90%

95%

C&I

47.3%

65%

80%

90%

95%

C&D

50.9%

75%

85%

85%

85%

Overall

45.4%

65%

80%

85%

90%

  1. [256]
    Table 2 indicates that C&D and C&I waste diversion (away from landfill) targets are forecast to increase during the 30 year planning horizon. The proposed development, assuming it has a life of 50 years, would enter the post-closure period at least 20 years after this planning horizon has come and gone. Table 2 indicates that at the end of the planning horizon, 10% of the aggregate of the three waste streams identified will be diverted to landfill, compared to a baseline starting position in 2018 of 54.6%.
  2. [257]
    The Waste Strategy, and zero net waste by definition, accept the community has an ongoing need for landfill facilities. They provide support to resource recovery operations as an appropriate place to dispose of waste that has reached the end of its economic life or is otherwise unsuitable for recovery/recycling. The issue presently under consideration goes to the rate at which the transition to a zero net waste society will reduce the supply of non-putrescible waste required to complete the proposed landfill as intended. 
  3. [258]
    This issue is not resolved by the evidence referred to in paragraphs [244] to [245](a) to (c) inclusive. This is so for the following reasons:
  1. (a)
    As to Mr Haywood’s evidence (i.e. he has never encountered a landfill in a metropolitan area that has closed), I can accept his point is correct as a matter of history. The difficulty is that considerable changes are foreshadowed to the waste industry in documents such as the Waste Strategy. It was not explained how the history relied upon by Mr Haywood is, in the face of recent waste management policy, a reliable indicator of future performance;
  2. (b)
    that Lantrak sees a business case for the proposed development and would need to operate the use for its life to recover initial establishment costs can be accepted – this is, however, a matter of private economics. It does not change the fact that Lantrak will only be able to complete the landfill if it is supplied with non-putrescible waste. If that supply slows to unsustainable levels, private economics will not change this. Rather, private economics are likely to lead to a position where there is pressure on Lantrak to send material to landfill that may otherwise be suitable for processing in its resource recovery facility;
  3. (c)
    it is correct to say the landfill, if approved and constructed, will exist regardless of any uncertainty of supply. It is, however, unclear how this advances the matter in any meaningful way. That the facility would exist does not change the fact that Lantrak will only be able to complete the landfill if it is supplied with non-putrescible waste; and
  4. (d)
    I accept Lantrak provides a broad range of services. I also accept, at present, landfill is a small contributor to Lantrak’s operating revenue but an important part of its business model nonetheless. Neither point, however, advances the matter because the structure of Lantrak’s business does not alter the fact that the landfill would be completed at a rate linked to the amount of non-putrescible waste received at the gate. It can be added that the comfort derived from the structure of Lantrak’s business can only take the matter so far. This is because the approval sought here, if granted, would attach to the land and not the operator. Lantrak’s business structure cannot be the subject of a condition. The facility could be operated by someone other than Lantrak during its expected lifetime of 50 plus years.
  1. [259]
    I am also not satisfied the issue stated in paragraph [257] is answered by the common waste and need evidence, in particular the modelling for Scenarios 1 and 2.[255] This is for the following reasons.
  2. [260]
    Lantrak submits the modelling discussed in the common waste and need evidence, irrespective of the Scenario adopted, demonstrates there will be an ongoing need for non-putrescible landfill airspace for the life of the proposed landfill.[256] In this regard, it is pointed out that: (1) the model for Scenario 1 indicates there will be an ongoing annual demand for non-putrescible airspace in South East Queensland exceeding 2 million m3 per annum;[257] and (2) the model for Scenario 2, which is not accepted by Lantrak,  suggests there will be an ongoing annual demand for non-putrescible airspace, which corresponds with the proposed landfill (i.e. about 750,000 tonnes per annum).[258] It was submitted, in either scenario, the proposed development has a role to play in meeting the ongoing need for non-putrescible airspace in South East Queensland. 
  3. [261]
    I am satisfied the common waste and need evidence demonstrates there is a need for additional private non-putrescible landfill facilities to service South East Queensland. The same evidence also establishes there is a transition under way; it is a transition to a zero net waste society where landfill is seen as a last resort. This transition will, I accept, lead to a reduction in the volume of all waste streams directed to landfill over time. It will be diverted to alternatives, such as energy for waste, recycling and recovery. Whilst the rate at which this will occur was subject to disagreement between the experts, there is a risk this will lead to a situation where existing landfill facilities that are permitted to receive putrescible waste need to secure materially more nonputrescible waste to remain viable. As I said in Austin at paragraph [778], the common waste and need evidence suggests, in reality, this scenario is unlikely to occur before 2030. It is a longer term prospect in the order of 15 to 20 years.
  4. [262]
    This has the consequence, in my view, that the proposed landfill, if approved, straddles two periods. First, it would operate in a period where there is demand for a facility of the kind proposed, which cannot be met by existing facilities absent adverse economic consequences (identified in paragraph [831] of Austin). Second, it would operate in a period where there is likely to be stable, if not reduced demand, to dispose waste in landfill, coupled with a change to the market – the change involves a material increase in the level of airspace supply because putrescible waste facilities will seek to secure a greater share of non-putrescible waste. It is this second period which is of interest given the evidence of Dr Johnson and Messrs Perryman, Sutherland and Collins discussed at paragraphs [235] to [242].  During this period, there is a genuine risk the supply of non-putrescible waste for disposal in landfill will reduce to levels that are unsustainable to complete the proposed landfill in a timely way, if at all.
  5. [263]
    Does the economic modelling relied upon demonstrate there will be a sustainable level of non-putrescible waste for disposal during the life of the proposed landfill?
  6. [264]
    I was not satisfied this question can be answered in the affirmative.
  7. [265]
    The modelling undertaken as part of the common waste and need joint expert report examines a 25 year period spanning 2021 to 2046.[259] Two scenarios were produced. The outputs for the scenarios represent opposite ends of a broad spectrum and are the direct product of a number of compounding assumptions. 
  8. [266]
    In broad terms, Scenario 1, which is advanced by Lantrak, assessed total landfill airspace demand for the period of 2021-2046. It estimated a demand in the order of 55.14 million m3. It also forecast that private non-putrescible airspace would be exhausted in 2023,[260] with all remaining airspace exhausted in 2040.[261] Scenario 2 is advanced by Council. It assessed total airspace demand for the same period to be in the order of 17.05 million m3, with a surplus of 50 million m3 of airspace capacity in 2046.
  9. [267]
    The outputs of the Scenario 1 are underpinned by four key assumptions: (1) there are separate markets for the disposal of putrescible and non-putrescible waste; (2) the separate markets will persist given putrescible waste facilities seek to preserve their air capacity to ensure reliable ongoing supply is available to meet the demands associated with the disposal of municipal waste; (3) the rate per capita for waste generation in the region will increase to the national average and then remain constant, particularly given predicted population growth; and (4) the provision of energy for waste facilities will be slow, as will likely increases in resource recovery rates – the recovery rates will be less than the stretch targets identified in the Waste Strategy. 
  10. [268]
    Scenario 1 represents a cautious approach to the modelling exercise. As a general proposition, this can be accepted as appropriate given the nature of the proposed development; it represents a proposal for important community infrastructure.
  11. [269]
    As to the volume of non-putrescible waste available for deposition in the proposed development, Scenario 1, if accepted, indicates:
  1. (a)
    there will be an ongoing need in 2046 to dispose of about 2.2 million m3 of nonputrescible waste in private non-putrescible waste facilities in South East Queensland;[262]
  2. (b)
    the supply of private non-putrescible landfill facilities would be exhausted by 2023; and
  3. (c)
    there will be an ongoing need in 2046 to dispose of about 5 million tonnes of waste to landfill in South East Queensland,[263] in circumstances where landfill airspace of all types is exhausted by 2040.[264]
  1. [270]
    The outputs for Scenario 1 do not resolve the question posed in paragraphs [257] or [263]. This is, in simple terms, because the model, in my view, assumes landfill airspace will be depleted at a rate that is too fast, which is exacerbated by an assumption that no additional landfill airspace supply will be provided between now and 2046. This flows from the following assumptions made for Scenario 1 that I do not accept. Scenario 1: (1) assumes the transition to a zero net waste society will be at a rate that is too conservative; (2) assumes no further private non-putrescible airspace capacity will come online between now and 2046; (3) assumes the existing landfill airspace will be exhausted, applying a construction and demolition waste generation rate that is overstated; and (4) assumes waste will be compacted at a rate that is appreciably lower than rates actually achieved in South East Queensland.
  2. [271]
    The primary difficulty I have with Scenario 1 is that it assumes the supply of airspace is not increased during the 25 year modelling period. This, I accept, represents one scenario for examination, but not the only one to be considered to resolve the questions in paragraphs [257] and [263]. In my view, further modelling was required to examine the sensitivity of the model outputs to additional landfill supply over time.  This was required to test how long, if at all, the life of airspace would be prolonged beyond 2040.  For example, it should have been asked: how do the outputs of the model change if it is assumed that all, or any one, of the proposed landfill proposals before this Court are approved?  A modelling exercise that assumed the Austin and Lantrak proposals had been approved could be expected to impact materially on: (1) the rate at which putrescible landfill airspace would be consumed prior to 2046; and (2) the amount of airspace available in 2046. These outputs were, in my view, required to resolve the issues identified in paragraphs [257] and [263]. Scenario 1 was not examined in this way. This, in my view, is a material shortcoming in the evidence. 
  3. [272]
    This is not the only difficulty I have with the Scenario 1 model.
  4. [273]
    Forecast waste generation is an important input into the model. The experts retained by the applicants in each of the Austin, Cleanaway and Lantrak appeals assumed, inter alia, the generation rate per capita for construction and demolition waste would rapidly increase from 0.81 tonnes to the Australian average of 1.1 tonnes.[265] Mr Perryman and Mr Lassen, who were retained by Council, adopted 0.63 tonnes per capita.[266] I do not accept the position adopted by either group of experts. In my view, the generation rate applied should have remained constant at 0.81 tonnes per annum to balance forecast population growth and the need for infill development against: (1) the Queensland average for generation of construction and demolition waste for the last decade, which is 0.6 tonnes per annum; (2) historical data, which indicates the generation rate for this waste stream has not exceeded 0.85 tonnes per annum in Queensland over the last 10 years (2012-2013) where there has been significant periods of population growth and the property cycle has transitioned through boom and bust; and (3) the consequences associated with the transition to a zero net waste society, where there is an intention to reduce waste generation and an increase in the recycling of, inter alia, demolition and construction waste.[267]
  5. [274]
    Mr Lee, who is an economist retained by Cleanaway, prepared a sensitivity analysis of waste demand parameters.[268] His analysis indicates the total airspace demand would reduce in Scenario 1 from 55.14 million m3 to 40.91 million m3 if it were assumed the adopted generation rate per capita for construction and demolition waste was 0.63 tonnes. Whilst I do not accept this is the correct generation rate to be applied, this vividly demonstrates that a reduction in the assumed generation rate per capita for one stream of waste has a significant impact on the Scenario 1 model outputs.
  6. [275]
    I also have difficulty accepting the assumptions made by the applicants’ experts for Scenario 1 in terms of compaction rates for the waste streams deposited in landfill.
  7. [276]
    The applicants’ experts agreed the following compaction rates should be adopted:[269] (1) C&D, 0.9t/m3; (2) C&I, 0.85t/m3; (3) Asbestos, 1.2t/m3; (4) Regulated soils, 1.4 t/m3; and (5) MSW, 0.85t/m3. Council’s experts did not agree with these compaction rates. As a consequence, the following compaction rates were adopted for the Scenario 2 model:[270] (1) C&D, 1.2t/m3; (2) C&I, 1.0t/m3; (3) Asbestos, 1.2t/m3; (4) Regulated soils, 1.5t/m3; and (5) MSW, 1.0t/m3.  I prefer the evidence of Mr Perryman, Council’s expert, in relation to compaction rates.
  8. [277]
    Mr Perryman’s evidence was based on data provided by the Department of Environment and Science.[271] The data supports Mr Perryman’s adopted compaction rates. Indeed, the evidence demonstrates that Mr Perryman adopted conservative compaction rates in contrast to compaction rates derived from existing landfill facilities across South East Queensland.
  9. [278]
    Mr Lee helpfully examined the extent to which the outputs for Scenario 1 change if a different construction and demolition compaction rate is adopted. His analysis indicates the total airspace demand would reduce from 55.14 million m3 to 44.75 million m3, assuming the only change made to the model took up Mr Perryman’s compaction rate for construction and demolition waste. The change to the Scenario 1 model outputs was not assessed to reflect all of the compaction rates assumed by Mr Perryman. Putting this to one side, it is clear that a change to only one compaction rate has a significant impact on the Scenario 1 outputs.
  10. [279]
    The model outputs are the product of many inputs that have a compounding effect.  Mr Lee’s evidence only looks at the extent to which the change to one model input in isolation alters the outputs. His evidence does not allow an appreciation of the extent to which the outputs of Scenario 1 change to take into account the issues discussed in paragraph [270] to [277]. At best, it can be said the total airspace demand assumed for Scenario 1 needs to be reduced from 55.14 million m3 to an unknown figure, which is likely to be less than 40.91 million m3. It can be inferred this reduction would alter the landfill airspace demand assessment in 2046, prolonging the life of existing landfill airspace supply. The extent to which it does so is unknown. That it is unknown means the issues identified in paragraph [257] and [263] are unable to be answered favourably to Lantrak.
  11. [280]
    I am also not prepared to act on the outputs of Scenario 2 to resolve the issues identified in paragraphs [257] and [263]. This is for the reasons given in Austin. 
  12. [281]
    If I had arrived a different view, Scenario 2 indicates the proposed development, if approved, would be competing in 2046 for a share of about 750,000 m3 per annum of waste.[272] This is comparable to the annual capacity for which approval is sought. Put another way, the proposed development, if approved, would be competing for close to 100% of the available supply of non-putrescible waste. Little needs to be said about whether this is realistic or sustainable in circumstances where Scenario 2 also suggests in excess of 50 million m3 of airspace supply will be available at this time.  The position does not, in my view, improve, if the 50 million m3 of available supply is put to one side and one looks for an alternative figure to be considered in substitution. For the reasons given above, the evidence does not provide an alternative to act on. 
  13. [282]
    Given the matters traversed above, it has not been demonstrated the proposed landfill, once started, can be completed either in a timely way, or as proposed. This is undesirable for the reasons identified by Mr Perryman, Mr Sutherland, Mr Collins and Dr Johnson. In short, an inability to complete the landfill leads to the use becoming a legacy operation, which:
  1. (a)
    has introduced significant levels of contamination onto land that is already degraded and affected by past mining activities;
  2. (b)
    would require ongoing management; and
  3. (c)
    would be costly to remediate.
  1. [283]
    Throughout the operational years, and for decades after they close, landfill facilities present a risk to the environment. I am satisfied this risk can be managed appropriately, provided it is demonstrated the use, once started, can be completed, or completed in a timely way. The evidence, on the balance of probabilities, does not establish this can be assumed. In such circumstances, I am satisfied the proposed development would involve an unacceptable level of environmental risk. This warrants refusal of the development application in its own right.

Rehabilitation

  1. [284]
    Lantrak’s case in relation to rehabilitation is, at face value, an attractive one.
  2. [285]
    It was submitted the planning scheme actively encourages the rehabilitation of land affected by mining activities. This is intended to facilitate future uses, which include uses for industrial and open space purposes.[273] Having regard to the planning context traversed above, I accept this submission. 
  3. [286]
    It can also be accepted that the proposed development seeks to respond to the planning scheme by striking two birds with one stone. First, the development is an industrial use expressly anticipated on the land by the planning scheme. Second, the nature of the proposed use, once completed and self-sustaining, will have rehabilitated the land as promoted by the planning scheme.
  4. [287]
    Given paragraphs [282] and [283], I am not satisfied the assessment of the proposed development should proceed on the footing the land will be rehabilitated, and reach a self-sustaining position in a timely way, if at all. In such circumstances, it cannot be said an approval will result in the rehabilitation of the land. Rather, there is an unacceptable risk the landfill will not be completed, leaving the community with a legacy site. Ongoing management will be required. Remediation would be costly. Once this is appreciated, it can be said there is an unacceptable risk the proposed development will further degrade the land through the introduction of contaminated fill.
  5. [288]
    Council invited the Court to conclude an approval, if complied with, would delay the rehabilitation of the land. This point was relied upon as a reason for refusal. It was advanced on the footing the Mining EA requires the void to be rehabilitated (i.e. filled) in a timely way. Given the findings above, it is unnecessary for me to express any concluded view on this point. It can however be observed that there is merit in the submissions made by Lantrak about the rehabilitation obligations arising under the Mining EA. The obligations are less than clear. If it had proven necessary to consider Council’s point in the exercise of the discretion under s 60(3) of the PA, it is not a point that should stand in the way of approval because it fails to give sufficient recognition, in my view, to the following matters, namely: (1) a landfill that achieves a self-sustaining landform constitutes the rehabilitation of land; and (2) the planning context traversed earlier in these reasons makes clear that a ‘special industry’ use is anticipated on the land, subject to identified qualifications. The identified qualifications do not require land to be rehabilitated in any particular way, or by a particular time.

Amenity impacts

  1. [289]
    The residual amenity issue to be considered concerns the intangible aspects of amenity, such as sense of place and character.
  2. [290]
    The determination of this issue is informed, to a significant extent, by the planning scheme and the reasonable expectations to be drawn from it with respect to future development on the land and locality. It is also informed in this appeal by the technical evidence, and Council’s concession that an approval would not give rise to visual amenity or hard amenity impacts that warrant refusal. In this regard, Council concedes visual impacts, and impacts occasioned by reason of noise, dust and odour emissions, can be dealt with through the imposition of conditions.
  3. [291]
    The planning context traversed earlier in these reasons establishes that reasonable expectations as to future development in this part of Ipswich ought to properly take into account the prospect the land may be used for a ‘special industry’ use as proposed. It should also include an expectation that the land may be the subject of rehabilitation so it can be used in an ‘appropriate manner’. The planning scheme makes clear that use in an appropriate manner includes development for industrial and open space purposes to facilitate the achievement of a Regionally Significant Business and Industry Area of regional importance.
  4. [292]
    The proposed use is, in my view, consistent with these expectations.
  5. [293]
    Whilst the planning scheme does not prescribe a method for, or a temporal limitation on, the rehabilitation of land, the context traversed earlier in these reasons makes clear that any support for the proposed development is qualified. It must be demonstrated the environmental and amenity impacts of the use will be acceptable.
  6. [294]
    The most specific planning provisions are to be found in the provisions of the planning scheme dealing with Sub Area RBIA1. A ‘special industry’ use is anticipated in that Sub Area, subject to, inter alia, it being demonstrated the impacts of the use are not discernible outside of the designated buffer area on Overlay Map OV8. If it is assumed the matters traversed in paragraphs [282] to [283] had been resolved in Lantrak’s favour, the evidence demonstrates the environmental and amenity impacts of the proposed development would not be discernible outside the designated buffer area. This is due, in part, to the fact there is significant separation achieved between the proposed development and existing and future residential communities.
  7. [295]
    I readily accept the proposed waste facility, with a life of 50 plus years, would have a negative impact on the amenity of nearby residential communities. This point is made repeatedly in the submissions and lay witness evidence. This negative impact is not, however, to be considered in isolation. It has to be examined in the light of matters traversed in paragraphs [290] to [294] along with the technical evidence and concessions made in relation to visual amenity and hard amenity impacts. Such an examination, in my view, leads me to conclude that the negative impact on amenity: (1) is not decisive in this appeal; and (2) does not attract significant weight in the exercise of the discretion.
  8. [296]
    To arrive at a contrary conclusion, in my view, would require the expectations conferred by the planning scheme for development on the land to be given little weight, or applied in a way that suits those who choose to oppose development.  Such an approach has the potential to undermine confidence in the planning scheme in circumstances where confidence is a matter of public interest for all members of the community. Reasonable expectations as to future development in a locality is not the sole province of those who seek to maintain the status quo. As Judge Quirk observed in Brisbane Wharves & Wool Dumping Pty Ltd & Ors v Brisbane City Council & Anor [1994] QPLR 1 at 3, Line F-G: 

“…proper town planning requires that a town planning scheme should give rise to expectations as to the way in which particular land may be used so that commitments in regard to tenure, building, plant, equipment and other “infrastructure” can be made with confidence…”

  1. [297]
    The position however changes materially once the findings set out in paragraphs [282] to [283] are taken into account. Those findings, in my view, lead to an unacceptable risk the land will not be rehabilitated and become a contaminated legacy site. The planning controls do not confer an expectation the land may be used to achieve this end. That there is an unacceptable risk the community will be left with a contaminated and unrehabilitated site gives rise to a significant, and unacceptable, adverse impact on amenity. This was not lost on those who elected to make properly made submissions or those who elected to prepare lay witness statements for this appeal. This aspect of the properly made submissions and lay witness evidence should therefore attract weight in the exercise of the discretion. They are consistent with, and support, a refusal.
  2. [298]
    The properly made submissions indicate the community is acutely aware of legacy landfill sites; they are a notorious fact in Ipswich. Sites of this character have an impact on the air, feel and character of the place. The impact would be adverse and significant. It would be discernible and extend well beyond the buffer area identified on Overlay Map OV8.
  3. [299]
    Whilst the prospect of an approval leading to unacceptable impacts on amenity is an important consideration in the exercise of the discretion under s 60(3) of the PA, the point here is symptomatic of a more fundamental issue that attracts very significant weight; there is an unacceptable risk the proposed development will contaminate rather than rehabilitate the land.

Assessment against the planning scheme and TLPIs

  1. [300]
    The agreed list of issues requires compliance with provisions of the planning scheme and the Activity Code to be examined.[274] The provisions in issue are identified as ‘focal provisions’. 
  2. [301]
    Thirteen (13) focal provisions of the planning scheme are in issue. I am satisfied compliance has been demonstrated with all but the following seven (7) provisions.
  3. [302]
    The proposed development does not comply with s 6.17(2)[275] of the planning scheme.[276] This provision identifies the uses that are regarded as consistent with the outcomes sought in the Investigation zone. A ‘special industry’ is consistent with the outcomes sought in the zone where it is ‘of a type and scale appropriate for the prevailing nature of the area and particular circumstances of the site and its surrounds’. For the reasons given in paragraphs [282] to [283], [287] and [297] to [298], I am satisfied the proposed development is not of a scale that is appropriate for the particular circumstances of the site and its surrounds.
  4. [303]
    The Overall Outcomes for the RSBEIAL include ss 6.6(2)(e) and (g).
  5. [304]
    Section 6.6(2)(e) states:[277]

“Where possible, the areas maintain or develop an overall greenspace setting, inclusive of active and passive recreation uses and pedestrian and cycle trials.”

  1. [305]
    For reasons given in paragraphs [282] to [283] and [287], there is an unacceptable risk the proposed development, if approved, would not contribute to the maintenance or development of a greenspace setting. This, in combination with an absence of evidence suggesting the achievement of an overall greenspace setting was not otherwise possible, led me to conclude non-compliance was established with s 6.6(2)(e).
  2. [306]
    Section 6.6(2)(g) states:[278]

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

  1. [307]
    For reasons given in paragraphs [282] to [283] and [287], there is non-compliance with this provision of the planning scheme because:
  1. (a)
    there is an unacceptable level of risk the proposed development, if approved, would not rehabilitate the land; and
  2. (b)
    the proposed development is not an appropriate use of the land given, as discussed in paragraph [302], there is non-compliance with s 6.17(2) of the planning scheme.
  1. [308]
    The Overall Outcomes for the Investigation zone include s 6.14(2)(a), which states:[279]

“Uses and works within the Regional Business and Industry Investigation Zone provide regional business enterprise and industry employment opportunities subject to resolution of applicable constraints such as potential amenity impacts on nearby residential areas, mining, flooding and availability of services.”

  1. [309]
    For reasons given in paragraphs [282] to [283] and [297] to [298], it has not been demonstrated the proposed development has resolved applicable constraints associated with the rehabilitation of a former open cut mine.
  2. [310]
    Section 6.15 of the planning scheme applies to the Investigation zone, and in particular, to the ‘effects of development’ in the zone. Section 6.15(15)(d) states:[280]

“Uses and works within Regional Business and Industry Investigation

Areas occur within a comprehensive planning framework that –

…

(d)   provides for the rehabilitation, repair and reuse of former mining lands.”

  1. [311]
    In my view, the findings in paragraphs [282] to [283] and [297] to [298] suggest an approval would render more difficult the achievement of s 6.15(15)(d) of the planning scheme.
  2. [312]
    Non-compliance is also alleged with the Commercial and Industrial Code in Part 12, Division 7 of the planning scheme. 
  3. [313]
    The Overall Outcomes for this Code include s 12.7.3(2)(b), which states:[281]

“Commercial and Industrial uses and works are developed and managed in accordance with acceptable environmental standards.”

  1. [314]
    For the reasons given in paragraphs [282] to [283] and [287], I am not satisfied compliance has been demonstrated with this provision of the planning scheme. These findings indicate there is an unacceptable risk the use cannot be developed in accordance with acceptable environmental standards. 
  2. [315]
    Section 12.7.4 of the Commercial and Industrial Code deals with the ‘effects of development’. Subsection (1) of the provision states, in part:[282]

“The establishment of a commercial or industrial use has no significant detrimental effect on the amenity and general well-being of the area…” 

  1. [316]
    For the reasons given in paragraphs [297] to [298], I am not satisfied compliance has been demonstrated with this provision of the planning scheme. The impact of a contaminated and unrehabilitated site on the amenity and general well-being of the area will by significant and detrimental.
  2. [317]
    Non-compliance with the planning scheme is a reason warranting refusal of the development application. It attracts significant weight in the exercise of the discretion. Non-compliance is the product of three things, namely: (1) the proposed development will have an unacceptable impact on amenity; (2) there is an unacceptable risk the proposed development will give rise to adverse environmental impacts; and (3) there is an unacceptable risk the land would be contaminated, rather than rehabilitated, by the proposed development.
  3. [318]
    Council contend weight should be given to non-compliance with nine (9) focal provisions of the Activity Code.
  1. [319]
    With the findings in paragraphs [282] to [283], [287] and [297] to [298] in mind, I am not satisfied compliance has been demonstrated with the following focal provisions of the Activity Code, namely:
  1. (a)
    Overall Outcome 3(2)(b)(i),[283] which requires development to not have a detrimental impact on the amenity of the surrounding area;
  2. (b)
    Overall Outcome 3(2)(b)(iii),[284] which requires development to not have a detrimental impact on the environment; and
  3. (c)
    Overall Outcome 3(2)(b)(v)[285] and Specific Outcome 4(4)(a) and (b),[286] which requires development to achieve an appropriate rehabilitation outcome in the circumstances.
  1. [320]
    For completeness, it can also be observed that Council contends the proposed development does not comply with Specific Outcome 4(5)(a) of the Activity Code, which requires development to not extend beyond the top of a former mining void. If non-compliance is assumed, this is not a matter of great moment in my view. The evidence demonstrates, and indeed it was accepted, the proposed development would not give rise to adverse impacts on visual amenity. This indicates the non-compliance with Specific Outcome 4(5)(a) is technical in nature and would not have called for refusal of the development application.
  2. [321]
    Given the Activity Code has been repealed, and given an assessment against the document does not assist Lantrak’s case for approval, the TLPIs (and an assessment against the Activity Code), do not, in my view, advance the exercise of the discretion.  The Activity Code will, as a consequence, play no part in the exercise of the discretion.

Further reasons for refusal

  1. [322]
    Council and the Co-respondents press further reasons for refusal beyond those examined above. The reasons require three topics to be examined, namely: (1) resource recovery and sustainability; (2) town planning and community need; and (3) an assessment against the draft Strategic Framework forming part of the Statement of Proposals.

Resource recovery and sustainability

  1. [323]
    The resource recovery component of the proposed development has a capacity of 250,000 tonnes per annum. It will allow for the recycling and re-use of materials, which will be achieved, in part, through crushing, milling, grinding and screening. Examples of the proposed recycling activities include re-processing concrete waste into various grades of aggregate, processing of timber, soil separation and metal processing.[287] Lantrak has recognised experience and expertise in resource recovery.
  2. [324]
    Council was critical of the size of the resource recovery component of the development relative to the size of the landfill. Paragraph 4 of Council’s written submissions is in the following terms (including bold type):[288]

“The proposed resource recovery facility that forms a component of the proposed development has a capacity of 250,000 tonnes per annum, which pales in significance when compared to the proposal to accept 1,000,000 tonnes of waste per annum ‘through the gate’. In circumstances where 75% of waste received on the site will simply be directed straight to landfill without proceeding through a recovery process, the waste recovery facility is a tokenistic add on that does not properly or sufficiently support and promote the principles of ‘zero net waste’, the circular economy or using landfill as a last resort.”

  1. [325]
    I am satisfied the proposed development, to the extent it is able, promotes the sustainable use of a resource. The resource is waste. The recovered waste will be capable of being reused, repurposed, or recycled in the manner anticipated in a ‘circular economy’. A circular economy is described in the Waste Strategy as:[289]

“…one in which products and materials keep circulating within the economy at their highest value for as a long as possible, through reuse, recycle, remanufacturing, delivering products as services, and sharing...”

  1. [326]
    It can also be observed that the proposed resource recovery component is co-located with a landfill. This has a resource recovery benefit. It allows for one last pass through for material destined for landfill. The last pass permits an experienced operator, such as Lantrak, to determine whether any further material can be recovered, recycled or reused.  A resource recovery facility providing this opportunity, in combination with the experience and expertise of Lantrak, will make a positive contribution to the achievement of recovery targets stated in the Waste Strategy.
  2. [327]
    It was also contended by the refusing parties that the proposed landfill is contrary to contemporary waste management principles, in particular, the concepts of zero net waste and the circular economy. Inconsistency is said to arise because of the size/capacity of the landfill. It is said a facility of this size will act as a disincentive to the achievement of resource recovery targets.
  3. [328]
    In my view, this point is not a strong one. 
  4. [329]
    In the first instance, the proposed development includes a resource recovery component that will contribute to resource recovery targets. This was given too little weight. To this it can be added that Council’s case focused on resource recovery targets applying across Queensland. It was not explained how the proposed development, located in South East Queensland, would cut across the achievement of State-wide resource recovery targets. This, in my view, means the highest the point could be put is that an approval may lead to a circumstance of ‘death by a thousand cuts’. The extent to which it would do so is unknown and, in my view, not a material matter in the exercise of the discretion in this appeal.
  5. [330]
    Putting to one side the scale of the landfill, I am satisfied the proposed use is consistent with contemporary waste management planning. As can be seen from the planning context traversed earlier in these reasons, and the Waste Strategy, contemporary planning recognises the ongoing importance of landfill, even as a last resort;[290] it provides assistance to the resource recovery industry. In this regard, I accept the evidence of three waste industry experts, namely Messrs Schliebs, Kosciusko and Haywood, who agreed in their joint expert report:[291]

“…landfills have a specific role to play in the broader waste management supply chain. Landfills provide a safe place to dispose of wastes which are not able to be recycled, and in doing so support resource recovery facilities to manage their residual wastes…”

  1. [331]
    The asserted inconsistency with contemporary waste management principles also sits uncomfortably with Council’s Statement of Proposals, more particularly, the draft Strategic Framework. An examination of the draft Strategic Framework reveals consideration has been given to contemporary waste management principles, such as ‘zero net waste’ and the ‘circular economy’. With knowledge of these principles, the draft Strategic Framework anticipates that former mining voids included in ‘Waste Activity Areas’ may be filled with, inter alia, non-putrescible waste. This is subject to the appropriate management of environmental and amenity impacts. Relevantly, the land is included in the ‘Waste Activity Area’ where landfill is anticipated.
  2. [332]
    The above discussion assumes the scale of the proposed development is put to one side, with focus on landfill as a use only.  An issue to be determined is whether the scale of the proposed development causes a different view to be formed. In this regard, Council firmly pressed the proposition that the scale of the proposed landfill will not promote resource recovery or recycling. 
  3. [333]
    This point starts from the footing it can be assumed there is a relationship between landfill capacity and the incentive to invest in recycling and the reuse of waste. This proposition was put in these terms in Council’s written submissions:[292]

“…the more landfill capacity approved, the more likely that operators will prioritise dumping over recycling as an increase in supply drives down the cost to dump. Here, a monumental amount of airspace is requested.”

  1. [334]
    This proposition finds support in the evidence. It was supported by Mr Lassen. He is an economist called by Council. During his oral evidence, Mr Lassen said:[293]

“…this is a very large landfill… 44.6 million cubic metres capacity, which would add to existing capacity by the time it comes on stream of say just under a million cubic metres. That’s about 40 per cent increase in the capacity of landfill capacity in south-east Queensland. And if you add that much supply without – even to existing demand that must reduce the price of landfill. That…will have some impact on the preference of sending waste to landfill versus recovery… adding this amount of capacity with the existing demand or even lower demand is going then to push the price down for landfill. And that will work against resource recovery. This is …how I conceive the economics of this proposal.” 

  1. [335]
    A similar point was made by Mr Perryman. During his oral evidence, Mr Perryman said:[294]

“… to add on an extra, well, approximately half addition to the available airspace in SEQ, in my opinion, that would provide an oversupply of airspace and just in terms of supply and demand, that’s likely to lead to a decrease in gate fees as an attempt to attract the waste and knowing that there’s a large void there available to the company…– essentially, by reducing the gate fee at a landfill means …that’s going to attract a greater proportion of the waste…which is likely then to result in reduced resource recovery rates… as the cost of landfill increases, it allows resource recovery facilities to …invest in recovering additional fractions of the waste stream that would previously have been uneconomic to sort out and recover…”  

  1. [336]
    The evidence of Mr Lassen and Mr Perryman is implicit with a balancing exercise. There is balance to be struck between securing a reliable source of landfill airspace supply for the public as against the need to limit such supply to promote investment in resource recovery and recycling. It is unnecessary in this appeal to determine the precise point at which the balance tips one way or another. It is sufficient to say, for reasons given in Austin, I am satisfied the right balance can be struck here provided additional landfill airspace does not exceed a life of 20 years. The proposal goes well beyond this. It has airspace capacity that will last at least 50 years. 
  2. [337]
    For reasons given above at paragraphs [282] to [283], there is an unacceptable risk the proposed landfill, which has a life of at least 50 years, may not be completed in a timely way, or at all. This arises, in my view, because the evidence could not discount that the market, in the long term (beyond 20 years), will be oversupplied with landfill airspace. This would be a consequence of: (1) a declining rate of waste generation per capita; (2) a consequential decline in the volume of waste going to putrescible and non-putrescible landfill; and (3) an increase in available airspace capacity for nonputrescible waste because putrescible waste facilities compete for both waste streams to remain viable. 
  3. [338]
    There is little doubt the proposed development is significant in size and would make a material contribution to the extent of landfill airspace supply in the long term. Once this is appreciated, I can accept there are two risks of relevance to the assessment here, both of which are unacceptable to differing degrees:
  1. (a)
    first, there is a risk the volume of waste diverted to landfill will be insufficient to allow the proposed development to be completed, or completed in a timely way; and
  2. (b)
    second, as a consequence of (a), there is a risk an operator will take steps to divert waste to the proposed landfill at the expense of resource recovery and recycling.
  1. [339]
    Lantrak has not demonstrated, on the balance of probabilities, that the first of these two risks is remote or unlikely to occur. Nor has it demonstrated that the two identified risks will be acceptable in the event an approval is granted subject to conditions.
  2. [340]
    As I said in Austin, there is a sweet spot. Additional supply of private non-putrescible landfill airspace is, in my view, required now. An approval for airspace with a life of up to 20 years is of considerable public benefit. This case, however, involves a landfill that goes well beyond this horizon. An approval would, in my view, sit uncomfortably with the balance desired and discussed in paragraph [336].
  3. [341]
    The Council invites the Court to conclude the proposed development does not promote, and will act as a disincentive, for resource recovery. For the reasons given above, I accept this has been established in part only. It applies to the landfill airspace extending beyond a 20 year horizon. I do not, however, regard this as a reason, which materially advances the refusal case. The strength of the refusal case is to be found in the point there is an unacceptable risk the landfill component will not be completed, leaving future generations to deal with the burden of a legacy site. The unacceptable risk paints the picture of a site that would: (1) not be rehabilitated; (2) be contaminated with a large volume of waste introduced onto the land for financial gain without delivering asserted environmental improvements; and (3) in all probability, require the operation of engineering systems in perpetuity to manage leachate and groundwater.
  4. [342]
    Item (3) above is consistent with an opinion held by Mr Sutherland. He was concerned the proposed development would not reach a point where the landfill is self-sustaining. This is required to, inter alia, demonstrate compliance with condition L4 of the draft EA. This is a symptom of the unacceptable level of environmental risk associated with the proposed development. This point is material and warrants refusal of the development application in its own right.

Town planning need

  1. [343]
    The planning scheme does not require Lantrak to prove there is a need, in a town planning sense, for the proposed development. The existence, or absence of need was, however, advanced as a relevant matter, and for two different purposes. Council advanced the absence of need as a reason for refusal. Lantrak advanced the existence of need as a matter supportive of approval.
  2. [344]
    It is well established the demonstration of need in a town planning sense involves the identification of a latent unsatisfied demand, which is either not being met at all, or is not being adequately met by the planning documents in their present form. Jurisprudence of the Court has built upon this statement over time. It has been said:[295] (1) need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire; (2) a thing is needed if its provision, taking all things into account, improves the physical well-being of the community; (3) need does not connote a pressing urgency but relates to the well-being of the community; (4) a use would be needed if it would, on balance, improve the services and facilities available in a locality. It must always be remembered that statements of this kind inform an assessment of need. They are not to be treated as a checklist to be considered and favourably answered in every case.[296]
  3. [345]
    As a matter of general principle, need involves an assessment of public interest and public benefit. It is to be examined from the perspective of the community and not that of the applicant, commercial competitor, or objectors.
  4. [346]
    The weight to be given to need in an assessment is not fixed and turns on the circumstances of the case. This was recently confirmed in Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168 at [30]. Bowskill CJ observed:

“As the authorities make clear, the assessment of “need” in this context is a flexible process, informed by the principles discussed in cases like Isgro v Gold Coast City Council [2003] QPELR 414 (referred to by the primary judge at [34]), but not constrained by those principles as though they were a “checklist” that must be ticked off by a decisionmaker in every case. As the court said in Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350 at [20], “need is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority was to take into account.”” 

  1. [347]
    A significant part of the evidence was directed towards the issue of town planning need and associated waste industry considerations. This was no doubt informed by my findings in HPC Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors [2020] QPELR 534, [149] to [195]. In that appeal, I held there was sufficient landfill airspace capacity for South East Queensland, assessed between 10 to 19 years of supply. This finding, and evidence consistent with it, was relied upon by Council to contend there is no latent unsatisfied demand for additional landfill airspace capacity in South East Queensland.
  2. [348]
    Having regard to the matters traversed in paragraphs [740] to [750] of Austin, I am not prepared to act on the findings I made in HPC to determine the need issue in this appeal.  The facts of this case require the issue to be looked at afresh, particularly given: (1) the significant differences in airspace capacity between this proposal and the one in HPC; and (2) the significant body of evidence in this appeal, which I did not have before me in HPC.
  3. [349]
    Starting from the premise that need is a relative concept to be given weight as the circumstances require, it is my view the circumstances here suggest the adopted planning controls provide the key to unlock the dispute about need between the parties.
  4. [350]
    There is no controversy that:
  1. (a)
    the planning scheme includes the land, and surrounding area, in a Regionally Significant Business and Industry Area designation, consistent with higher order planning articulated in the SEQRP 2017;
  2. (b)
    the planning scheme recognises at least one impediment or constraint to the achievement of a Regional Significant Business and Industry Area in Willowbank – land within the Investigation zone of the RSBEIAL is degraded as a consequence of, inter alia, former mining activities;
  3. (c)
    the planning scheme recognises there is a need for, and expressly encourages, the rehabilitation of degraded land in the Investigation zone where the land is included;
  4. (d)
    the planning scheme, consistent with the SEQRP, includes the land in a Regionally Significant Business and Industry Area where, inter alia, special industries are anticipated and supported, subject to meeting stated qualifications – the stated qualifications do not include a requirement to prove need for the proposed development; and
  5. (e)
    there is a clear policy directive underpinning an extant need for considerably more waste recycling and recovery uses in South East Queensland.
  1. [351]
    In my view, these matters, taken in combination, establish the planning scheme has made express provision for a particular town planning and community need of relevance to this appeal. The need is two-fold: (1) for land, including the subject land, to be rehabilitated for use in an appropriate manner; and (2) for land, including the subject, to be used for an industrial purpose, such as a ‘special industry’. The planning scheme makes provision for this two-fold need to be met on the land, subject to stated criteria/qualifications. The planning purpose and associated public benefit in doing so is obvious enough. It is to achieve Council’s forward planning intent, which involves the land forming part of an area of regional importance for economic growth. It is a Regionally Significant Business and Industry Area.
  2. [352]
    The evidence establishes the need recognised, and made provision for, by the planning scheme exists today – there is an obvious need to rehabilitate the land. In such circumstances, the issue of need is not of great moment, in and of itself, for the refusal case. The issues of greater importance to the refusal case are: (1) whether the environmental and amenity impacts of the proposed development can be appropriately managed; and (2) whether the proposed development can deliver the rehabilitation of the land as sought by the planning scheme. For reasons given above, the scale of the proposed development, as distinct from the proposed use, has not performed favourably in these respects.
  3. [353]
    To support a different conclusion, Council invited the Court to act on three points: (1) that the land will be rehabilitated under the Mining EA for mining activities, which is the appropriate outcome; (2) the rehabilitation required by the Mining EA is superior to the proposed development; and (3) an approval would result in a significant oversupply of landfill airspace capacity, which is inconsistent with the existence of a town planning and community need. 
  4. [354]
    Assuming items (1) and (2) are resolved in favour of Council, I do not accept this requires a different view to be reached in relation to the importance of need for the refusal case. In my view, the existing rehabilitation obligations confirm: (1) there is a need to rehabilitate the land for future uses; and (2) no clear method, or completion time, is prescribed for the rehabilitation of the land and void.
  5. [355]
    Turning to the oversupply point, I am not persuaded this has been established. There is a need for private non-putrescible landfill airspace in South East Queensland now, and for the next 15 to 20 years. Beyond this, the common waste and need evidence demonstrates there is significant room for uncertainty as to: (1) the extent of supply of landfill airspace in South East Queensland to meet this need; and (2) the impact of that supply on landfills that can receive only non-putrescible waste at this time. The common waste and need evidence did not, as a consequence, demonstrate the oversupply point beyond the 20 year horizon is without merit.
  6. [356]
    It does not, however, follow from this that there is no need for landfill airspace in South East Queensland. Lantrak has demonstrated:
  1. (a)
    there is a need for private non-putrescible landfill airspace to serve South East Queensland now and for the next 20 year period;
  2. (b)
    the adopted planning controls recognise there is a need to rehabilitate the land; and
  3. (c)
    the adopted planning controls recognise that both needs may be met on the land, subject to compliance with specific development requirements.
  1. [357]
    These factors, taken in combination, assist the case in favour of approval rather than refusal. They are entitled to weight in the exercise of the discretion and demonstrate a general need, rather than a need for the proposed development.

Statement of Proposals

  1. [358]
    For the reasons given in paragraph [177], an assessment against the Statement of Proposals (and attached draft Strategic Framework) is unnecessary. Such an assessment would attract little weight and, in my view, would not warrant refusal of the development application in any event. 

Matters raised in support of approval

  1. [359]
    Lantrak relies upon the following matters in support of an approval:[297]
  1. (a)
    there is, and will remain for the life of the proposed development, a need for development of the nature proposed in circumstances where not all waste will be processed through the resource recovery activity;
  2. (b)
    the proposed development will rehabilitate the site by returning it to, as nearly as is practicable, pre-mining conditions, such that it may integrate with the surrounding locality, in circumstances where:
  1. (i)
    the obligation upon the miner to undertake such rehabilitation is unclear but, in any event, using clean earthen fill to rehabilitate the void would be an inefficient use of a valuable resource; and 
  2. (ii)
    absent approval of the proposed development, there are few other uses the land may be suitable for in its present condition; 
  1. (c)
    following completion of the proposed development, an area of land will become available that is suitable for non-residential uses, such as community facility (recreation) uses, which will better integrate with the development form expected in the locality at that time;
  2. (d)
    the proposed development will result in improvements to the Cunningham Highway / Ipswich-Rosewood Road intersection and the Ipswich-Rosewood Road / Haigslea-Amberley Road / Rosewood Road intersection, which will be of benefit to the local community and other road users; 
  3. (e)
    the current size and condition of the land means it is suitable for very few uses other than that proposed by Lantrak;
  4. (f)
    were the site not developed for the proposed development, it would: 
  1. (i)
    remain visually unattractive;
  2. (ii)
    result in poor hydraulic outcomes for the land and surrounds, and in particular groundwater will be drawn into the existing void, and the void will capture rainwater and overland stormwater flow that would otherwise enter the locality’s catchment; 
  3. (iii)
    result in poor ecological outcomes for the land and surrounds, particularly having regard to the potential for water contamination within the existing void;
  4. (iv)
    be unsuitable for other uses identified as appropriate for this location under the planning scheme; and 
  5. (v)
    result in adverse impacts to the operation of RAAF Amberley Air Base, because of the propensity of a rehabilitated water storage area to attract avian fauna which cause or contribute to bird strike hazard; 
  1. (g)
    there is a need for the proposed development, and its approval would:
  1. (i)
    result in increased choice, convenience and competition for uses of its type; and 
  2. (ii)
    support employment and economic growth in the locality, and would contribute to the delivery of major construction projects of State and public interest in South East Queensland; 
  1. (h)
    the site represents a logical location for the proposed development, and it is well located and reasonably proximate to waste sources and to recipients of recovered materials processed on the land, and it adjoins appropriate road infrastructure; 
  2. (i)
    the proposed development will incorporate high-quality resource recovery processes, thus encouraging the reuse and recycling activities; 
  3. (j)
    the proposed development will not be plainly visible from publicly accessible areas, and it will establish significant vegetated screening buffers which will enhance the visual amenity of the site and surrounds; 
  4. (k)
    the development will not result in any unreasonable off-site amenity impacts to sensitive receptors or unreasonable adverse environmental impacts; and 
  5. (l)
    the Department of Environment and Science has given Lantrak Waste Management (Qld) Pty Ltd an Environmental Authority to undertake the proposed development (but the parties recognise this is subject to the Council’s allegation that conditions imposed upon the grant of the EA referred to in paragraph 4(h) above cannot, in all probability, be complied with). 
  1. [360]
    I am satisfied the evidence establishes the matters advanced in subparagraphs (d),[298] (h),[299] (i)[300] and (j)[301]; they can be accepted without qualification and are supportive of approval.
  2. [361]
    With respect to subparagraph (a), I do not accept the contention is consistent with my findings set out above, namely that there is a need for development of the kind proposed for a period up to 20 years. The evidence does not demonstrate this need will persist for the life of the development.
  3. [362]
    For reasons given in paragraphs [282] to [283] and [287], I do not accept the starting premise for subparagraphs (b), (c) and (f) has been established. There is, as I have already said, an unacceptable risk the proposed development will not rehabilitate the land in a timely way, or at all. I would also add I do not accept subparagraph (f) as it is stated in any event. It commences from the premise that only the proposed development can deliver the identified benefits identified in (i) to (v). This is a significant overstatement and the evidence does not, in my view, provide a sufficient basis to advance it. It has not, for example, been established the same land use of a smaller scale, which is promoted by the planning scheme, is unable to deliver the points advanced in (i) to (v).
  4. [363]
    I accept subparagraph (e) has been established. A review of Mr Reynolds’ evidence, who is a town planning witness called by Lantrak, explains why the current size and condition of the land means, in practical terms, it is suitable for a limited number of land uses. One use for which it may be suitable is that proposed.
  5. [364]
    I do not accept subparagraph (g) in the terms stated. It assumes a need has been demonstrated for the proposed development and benefits would flow to the community from the proposed development. For reasons given above, I accept there is a need for a period up to 20 years. It is limited to a need for development of the kind proposed. I also accept an approval for development of the kind proposed, but smaller in scale, would: (1) result in increased choice, convenience and competition for uses of its type; (2) support employment and economic growth in the locality; and (3) would contribute to the delivery of major construction projects of State and public interest in South East Queensland.
  6. [365]
    For reasons given above, I am not satisfied subparagraph (k) has been established. 
  7. [366]
    With respect to subparagraph (l), it is correct, as a matter of fact[302] that the Department of Environment & Science gave Lantrak an Environmental Authority to undertake the proposed development. The point is double edged for Lantrak. First, it can be said the authority is supportive of approval and can be given weight in the exercise of the discretion.  In isolation this is not however a weighty or decisive factor. The converse side of the same coin is that the EA does not support approval. The evidence suggests there is an unacceptable risk the proposed development will, in all probability, be unable to demonstrate compliance with condition L4 of the document. With these matters in mind, it is my view that, on balance, the decision to give the draft EA can be given weight in the exercise of the discretion but does not advance the case for approval or refusal in any meaningful way.

Exercise of the discretion

  1. [367]
    The case for approval has significant merit. 
  2. [368]
    Significant merit is derived principally from the following four matters.
  3. [369]
    First, the planning context traversed in these reasons for judgment demonstrates the proposed land use is anticipated on the land by the planning scheme. This is a matter to which weight should attach in the exercise of the discretion.
  4. [370]
    Second, the evidence establishes the proposed land use can be conditioned to ensure it does not have unacceptable visual amenity or hard amenity impacts (noise, dust and odour). This is a matter to which weight should attach in the exercise of the discretion.
  5. [371]
    Third, the common waste and need evidence establishes there is an existing need for private non-putrescible landfill facilities in South East Queensland. The strength of the need is significant. This is so once it is appreciated: (1) facilities of this kind represent important pieces of community infrastructure for South East Queensland and will be exhausted in the near future; and (2) the exhaustion of private nonputrescible landfill airspace in South East Queensland will, on the balance of probabilities, lead to adverse economic consequences for the community. This, taken in combination with paragraph [370], gives rise to a matter of planning importance in the exercise of the discretion.
  6. [372]
    The strength of the need here is not reduced, in my view, by the approval that will follow in the Austin appeal. I am satisfied that approval, if acted upon, would not meet all of the demand for private non-putrescible landfill airspace in South East Queensland. There is room for two. The presence of two landfills would ensure there is competition and choice for the community. This is a matter of public interest.
  7. [373]
    Fourth, there is a demonstrated need for the type of resource and recovery facilities proposed to service South East Queensland. This, taken in combination with paragraph [370], is a matter of import in the exercise of the discretion.
  8. [374]
    The point that has caused me greatest concern is the scale of the proposed landfill. In short, the 50 plus year capacity is, on the evidence, too great. The scale of the use underpins why I have concluded the proposed development:
  1. (a)
    is an unacceptable risk in environmental terms;
  2. (b)
    would not lead to the rehabilitation of the land in a timely way, if at all;
  3. (c)
    is an unacceptable risk in terms of legacy issues, which has the potential to unfairly burden future generations; 
  4. (d)
    would have a significant and detrimental impact on amenity (in an intangible sense); and
  5. (e)
    does not comply with the planning scheme.
  1. [375]
    I am far from persuaded that a combination of: (1) the matters supportive of approval (discussed in paragraphs [359] to [366]); (2) partial compliance with the planning scheme; and (3) the four points traversed in paragraphs [369] to [373] above; provide a sound town planning basis to approve the proposed development in the face of paragraph [374](a). This position does not improve when all of the points in paragraph [374] are considered.  It has not, as a consequence, been demonstrated the development application should be approved. This, in my view, is the appropriate result once it is appreciated an approval:
  1. (a)
    would not result in the efficient and orderly delivery of infrastructure; and
  2. (b)
    would give rise to an unacceptable risk of inequity between present and future generations.
  1. [376]
    In the ordinary course, the appeal would now be dismissed, and the development application refused. This, however, is not an ordinary case. 
  2. [377]
    The type of development proposed here represents important infrastructure to service South East Queensland, for which there is a demonstrated need and:
  1. (a)
    is anticipated on the land by Council’s planning scheme; 
  2. (b)
    but for its scale, has the potential to comply with the planning scheme and TLPIs (including the associated Activity Codes); and 
  3. (c)
    but for its scale, could be conditioned to appropriately manage its environmental and amenity impacts. 
  1. [378]
    The factors in paragraph [377] satisfy me an approval for an integrated waste facility of the kind proposed on the land would represent a balanced decision in the public interest where: (1) the development receives the same waste volume per annum as that proposed, but the landfill component is finished in less than 20 years; and (2) the height of the landform resulting from filling activity, and the extent of environmental rehabilitation, are commensurate with that proposed; and (3) conditions are imposed on the approval consistent with the evidence I accept with respect to the management of environmental and amenity impacts.
  2. [379]
    Given the private and public expense involved in this development application and appeal, and given the nature of the proposed development for which there is a demonstrated public need and public interest, I gave consideration to whether this is an appropriate case to approve the development in part, or subject to conditions. Ultimately, I was not persuaded either course should be adopted for the following reasons.
  3. [380]
    Lantrak:
  1. (a)
    did not seek approval for a landfill with a life in the order of 20 years;
  2. (b)
    did not invite the Court to approve the development in part;
  3. (c)
    is not precluded from making a fresh development application that is consistent with paragraph [378].
  1. [381]
    To this it can be added that the plans of development, and proposed staging, do not lend themselves to approval in part. The plans indicate the void is to be filled north to south. The proposed staging gives effect to this intention. On close inspection, I was unable to identify a stage of the proposed development where the points in items (1) and (2) of paragraph [378] could be achieved. To achieve the outcome envisaged requires significant amendment to the plans of development. This is not a task for the Court exercising an appellate function. It is a task best left to Lantrak and its consultants to pursue, if it so wishes. This should occur free from the exigencies of litigation. 
  2. [382]
    For these reasons, the appeal will be dismissed, and the development application refused.

Disposition of the appeal

  1. [383]
    It is adjudged that:
  1. 1.
    The appeal is dismissed.
  2. 2.
    The appellant’s development application is refused.

Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors [2023] QPEC 25

 

Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors [2023] QPEC 25

Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors [2023] QPEC 25

Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors [2023] QPEC 25

Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors [2023] QPEC 25

Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors [2023] QPEC 25

Footnotes

[1] Ex.8.010, p. 13, entry for 13 December 2018 and Ex.2.076 and 2.077.

[2] The other appeals are Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27 and Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26.

[3] Ex.14.019.

[4] Ex.15.002, para 10.

[5] s 43, Planning and Environment Court Act 2016.

[6] s 45(1)(a), Planning and Environment Court Act 2016.

[7] Ex.1.001, p. 13 and Ex.8.010, p. 6, para 12.

[8] Ex.8.010, p. 6, para 14.

[9] Ex.8.010, p. 6, para 16.

[10] Ex.8.010, p. 6, para 15.

[11] Ex.8.010, p. 6, para 15.

[12] To the extent depicted in the green hatched area on Ex.1.001, p. 18.

[13] Ex.8.010, p. 30, para 84c).

[14] Ex.9.001, p. 6, Plates 1 and 2.

[15] Ex.1.001, p. 15.

[16] Ex.1.001, p. 15.

[17] Ex.8.010, p. 6, para 14.

[18] Ex.1.001, p. 25, Section B1, comparing Chainages 40 and 1140 with Chainages 660 and 680.

[19] Ex.8.006, p. 10,

[20] Ex.8.007.1, p. 8, s 2.3 and Ex.8.006, p. 10.

[21] Ex.8.006, p. 10.

[22] Ex.13.021, p. 1, para 4.

[23] Ex.1.001, p. 25, Section B1, Chainage 660, Existing surface (m).

[24] Ex.13.005, EPML00826713, which took effect on and from 22 July 2016.

[25] The EA applies to the area depicted on page 42 of exhibit 13.005. It is an area 1,340ha, covered by 12 mining leases (Ex.14.009, p. 4, Table 1.1). An aerial photograph suggests three mining leases apply to the land the subject of this appeal, namely ML 4677, ML 50093 and ML 4689 (Ex.14.009, p. 5, Figure 1.2).

[26] Ex.13.005, p. 18, Condition C15.

[27] Ex.8.007.1-8.007.6.

[28] Ex.13.005, p. 18.

[29] Ex.13.005, p. 19.

[30] Ex.13.005, p. 19.

[31] Ex.13.005, p. 19.

[32] Ex.13.005, p. 17.

[33] Ex.13.005, p. 17, Condition C11(c).

[34] Ex.13.005, p. 17, Condition C11(d).

[35] Ex.13.005, p. 17, Condition C11(e).

[36] Ex.8.010, p. 9, para 23(b)(v).

[37] Ex.14.009, p. 9.

[38] Ex.14.009, p. 13.

[39] Ex.14.009, p. 15.

[40] Ex.14.009, p. 17.

[41] Ex.13.005, p. 5.

[42] Ex.1.001, p. 14.

[43] Ex.8.010, p. 10, para 26.

[44] Ex.6.017, p. 2719, Condition G5.

[45] Ex.6.017, p. 2714.

[46] Ex.8.010, p. 11, para 30.

[47] Ex.8.010, pp. 11-12, para 31 and Ex.9.005, para 54.

[48] Affidavit of S R Reynolds (Court Doc. 283), Sheet 3, para 7.1

[49] Ex.6.017, p. 2732, Condition L4.

[50] Ex.1.001, p. 37.

[51] Ex.1.001, p. 39.

[52] Affidavit of S R Reynolds, exhibits, p. 19.

[53] Ex.9.005, para 66.

[54] Ex.8.008, p. 37, para 210 and p. 45, para 264.

[55] Affidavit of S R Reynolds, exhibits, p. 19.

[56] Ex.1.001 and exhibited to the Affidavit of S R Reynolds. The plans were the subject of a minor change application during the hearing. Having regard to the affidavits of S R Reynolds, DJ Bristow and R Huntley, I was satisfied the changes made to the development application were a ‘minor change’ as defined in the Planning & Environment Court Act 2016.

[57] Ex.9.005, paras 1-3.

[58] Ex.9.005, para 47.

[59] Ex.13.021, paras 4 and 5.

[60] Ex.1.001, p. 27.

[61] T9-52, L8 and onwards.

[62] Ex.8.006, p. 9.

[63] T9-58, L1-12.

[64] As discussed by Dr Schiers in Ex.9.014 and Ms Taft at Ex.13.007, Attachment 1.

[65] Ex.1.001, p. 27 read with revised side liner detail at p. 28.

[66] Ex.1.001, p. 28; compare with Ex.9.015, pp. 33 and onwards.

[67] T9-57, L5-13

[68] As discussed by Dr Schiers in Ex.9.014 and Ms Taft at Ex.13.007, Attachment 1.

[69] T10-54, L30 to T10-55, L6.

[70] Ex.9.014, p. 22, para 9.1.

[71] T29-77, L22-23.

[72] Ex.13.002 and Ex.9.018, Attachment 1, Technical Memorandum No.8a.

[73] Ex.9.018, p. 73.

[74] Ex.13.002.

[75] Ex.13.002, p. 6.

[76] Ex.1.001, pp. 19 and 28.

[77] Ex.13.007, p. 14.

[78] Ex.13.007, p. 15.

[79] Ex.9.018, p. 7, para 4.2.3.

[80] Ex.8.005, pp. 11-14 and Ex.9.018, p. 7, para 4.2.4.

[81] Ex.8.005, p. 15, para 5.

[82] Affidavit of D J Bristow (Court Doc. 280), para 7.

[83] Ex.9.018, p. 7, para 4.2.5.

[84] Ex.1.001, p. 20.

[85] Ex.8.006, p. 12.

[86] Ex.9.018.

[87] Ex.9.018, p. 7, para 4.2.7.

[88] T11-93, L41-43.

[89] Ex.9.018, p. 22, para 5.6.2.

[90] Ex.9.018, p. 7, para 4.2.7.

[91] Ex.9.018, p. 8, para 4.2.19.

[92] Ex.6.017, p. 2739.

[93] T28-29, L35 to T28-30, L2

[94] Ex.9.018, p. 7, paras 4.2.8-4.2.11.

[95] Ex.6.017, p. 2731.

[96] Ex.1.001, p. 27.

[97] Ex.9.001.

[98] T8-16, L18-25.

[99] T8-16, L37-38.

[100] Ex.1.001, p. 39.

[101] Affidavit of W J Moffitt (Court Doc. 284), paragraph 7.1.

[102] Ex.6.017, p. 2732.

[103] Ex.9.007, p. 7.

[104] Ex.8.010, p. 12.

[105] YQ Property, per Henry J at [59].

[106] Abeleda, per Mullins JA (as her Honour then was) at [53] and [58]..

[107] Abeleda, per Mullins JA at [42] and [54].

[108] Ex.5.003 – the only reference to the Code is at p. 4, para (iii). The provisions of the Code are not highlighted in yellow, which identifies focal provisions for Council’s case (see footnote 1).

[109] Ex.14.022.

[110] Ex.8.010, p. 13, entry beneath 13/12/2018.

[111] Ex.12.002-12.007.

[112] Ex.2.076, p. 1785.

[113] Ex.2.076, pp. 1628 and 1631.

[114] Ex.2.077, p. 1913.

[115] Ex.2.076, p. 1594.

[116] Ex.2.076, p. 1581.

[117] Ex.2.076, p. 1602.

[118] Ex.2076, pp. 1627; a similar view is expressed at p. 1630.

[119] Ex.2.076, p. 1871; a similar view is expressed at Ex.2.077, p. 2011.

[120] Ex.2.077, p. 1909.

[121] Ex.2.077, p. 2185.

[122] Ex.2076, p. 1635.

[123] Ex.2.076, p. 1771.

[124] Ex.2.076, p. 1615; a similar view is expressed by Mr Dainer at Ex.2.076, p. 1624.

[125] For example the evidence of Mr Tonkin with respect to the risk of bird strike and the traffic, noise and air quality evidence.

[126] It also likely to represent the life of three to four future planning schemes.

[127] T2-20, L28-30 and T2-27, L4-7.

[128] Ex.3.001, p. 1-3, s 1.1. Nothing turns on this for the same reason stated at paragraph [123] of Austin and [108] of Cleanaway.

[129] Ex.3.001, p. 1-11, s 1.11.

[130] Ex.8.010, p. 114 (Dark purple area, central to planning scheme area).

[131] Ex.3.001, p. 1-12, s 1.12(1)(c).

[132] Ex.3.001, pp. 1-161.

[133] Ex.8.010, p. 18, para 42 b).

[134] Ex.3.001, p. 1-14, s 1.13.

[135] Ex.3.001, p. 1-14, note 1.13A.

[136] Ex.8.010, p. 18, para 42 a).

[137] Ex.3.001, p. 1-72.

[138] Ex.3.001, p. 1-71 and p. 1-73.

[139] Ex.3.004.

[140] Ex.3.001, p. 1-29.

[141] Ex.3.001, p. 1-66.

[142] Ex.13.020, p. 11, para 42.

[143] Ex.3.001, p. 1-28.

[144] Ex.3.001, p. 1-67.

[145] Ex.3.001, p. 1-69.

[146] Ex.3.001, p. 1-28 and 1-29.

[147] Ex.3.001, p. 1-66.

[148] s 2.1.3(b), IPA.

[149] Ex.3.001, p. 1-26, s 3.1(1).

[150] Ex.3.001, p. 1-26, s 3.1(2).

[151] Ex.3.001, p. 1-28, s 6.6(2)(d) and (i).

[152] Ex.3.001, p. 1-30, s 6.7(2)(c).

[153] Ex.3.001, p. 1-66, s 6.14(2)(a).

[154] Ex.3.001, p, 1-67, s 6.14(2)(j).

[155] Ex.3.001, p. 1-66, s 6.14(2)(e).

[156] Ex.3.001, p. 1-66, s 6.14(2)(f)(i).

[157] Ex.3.001, p. 1-66, s 6.14(2)(f)(ii).

[158] Ex.3.001, p. 1-66, s 6.14(2)(d).

[159] Ex.3.001, p. 1-67, s 6.14(2)(k).

[160] Ex.3.001, p. 1-76 and 77.

[161] Ex.3.001, p. 1-123, s 12.7.3(2)(a)(i).

[162] Ex.3.001, p. 1-123, s 12.7.3(2)(a)(ii).

[163] Ex.3.001, p. 1-123, s 12.7.3(2)(a)(v).

[164] Ex.3.001, p. 1-123, s 12.7.3(2)(a)(vii).

[165] Ex.3.001, p. 1-124, s 12.7.3(2)(a)(xii).

[166] Ex.3.001, p. 1-124, s 12.7.3(2)(b).

[167] Ex.3.001, p. 1-124, s 12.7.4(1).

[168] HPC Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors [2020] QPELR 534 at 551, [86].

[169] Ex.3.001, p. 1-193.

[170] Ex.3.001, p. 1-25.

[171] Ex.3.001, p. 1-221.

[172] Ex.3.001, p. 1-224.

[173] Ex.3.001, p. 1-230.

[174] Ex.3.001, p. 1-224.

[175] Ex.3.001, p. 1-203, s 3.1.

[176] Confirmed by s 3.1 of the Guideline.

[177] Ex.3.001, p. 1-203, s 3.1.

[178] Ex.3.001, p. 1-204, s 3.1.2.

[179] s 23(3), PA.

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

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

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

[183] Ex.3.002, p. 2-11, s 2.1.

[184] Ex.3.002, p. 2-10.

[185] Ex.3.002, p. 2-19.

[186] Ex.3.002, p. 2-19.

[187] Ex.3.002, p. 2-2 and p. 2-11.

[188] Ex.3.002, p 2-5 and p. 2-14.

[189] Ex.3.002, p. 2-2 and p. 2-11.

[190] Ex.3.002, p. 2-2 to 2-3, s 3.2, and pp. 2-11 to 12, s 3.2.

[191] Ex.3.002, p. 2-2, s 3.2, item 1 and p. 2-11, s 3.2, item 1.

[192] Ex.3.002, p. 2-4 and p. 2-13.

[193] Ex.3.002, p. 2-4 and p. 2-13.

[194] Ex.3.002, p. 2-4 and p. 2-13.

[195] Ex.3.002, p. 2-9 and p. 2-18.

[196] Ex.3.002, p. 2-6, s 2(1) and p. 2-15, s 2(1).

[197] Ex.3.002, p. 2-6, s 3(2)(a) and p. 2-15, s 3(2)(a).

[198] Ex.3.002, p. 2-6 and p. 2-15, s 3(2)(a); p. 2-7 and p. 2-16, s 4(2); and p. 2-9 and p. 2-18, Column 1, Buffer Area.

[199] Ex.3.002, p. 2-7 and p. 2-16.

[200] Ex.3.002, p. 2-7 and p. 2-16.

[201] Ex.3.002, p. 2-7 and p. 2-16.

[202] Ex.3.002, p. 2-8 and p. 2-17..

[203] Ex.3.003.

[204] Ex.3.003; p. 3-20, s 3.5.4.4 – referring to ‘circular economy’ and the waste management hierarchy where landfill is a measure of last resort.

[205] Ex.3.003, p. 3-21, s 3.5.4.4(5)(a)(i)..

[206] Nerinda Pty Ltd v Redland City Council [2019] 1 Qd R 523, [10]-[12] and footnote 9.

[207] Ex.14.022, para 8(a).

[208] Ex.13.020, para 10.

[209] Ms Taft, Dr Schiers, Mr Salmon, Mr Huntley, Mr Bristow, Mr Hair and Mr Moffit.

[210] Ex.5.003, para 4(a) to (h) and (j) and Ex.14.022, pp. 24-53.

[211] T10-54, L45 to T10-55, L6.

[212] T9-63, L31-46.

[213] T9-81, L19-22.

[214] T9-81, L23-33.

[215] Ex.8.007.1, pp. 2-3.

[216] Ex.1.001, p. 36.

[217] T28-40, L22-30.

[218] T28-58, L28-31.

[219] T28-58, L33.

[220] T28-58, L33-46.

[221] T28-76, L27 to T28-77, L26.

[222] T28-44, L44-45.

[223] T28-44, L28-42.

[224] Restricted transcript: T8-20, L40 to T8-21, L10.

[225] By way of illustration only, the rate of development and change in the design of liners can be seen in Cleanaway at paragraphs [24] and [25].

[226] T28-26, L11-16.

[227] T28-6, L45-46.

[228] T28-27, L1-5.

[229] Restricted transcript: T7-34, L36-47.

[230] T29-22, L39-44.

[231] T28-42, L37-43.

[232] T28-59, L10-16.

[233] 48 Stuart Pty Ltd (atf 48 Stuart Unit Trust) v Brisbane City Council [2017] QPELR 133, [19](c).

[234] IB Town Planning Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 534, [222].

[235] FG-10, pp. 44-45.

[236] Ex.10.006, p. 9, para d).

[237] T29-81, L34-39.

[238] Ex.8.005, p. 23, para 16.

[239] T28-44, L8-20.

[240] T29-20, L11-17.

[241] T28-27, L8-26.

[242] Ex.13.020, p. 15, paras 55-57.

[243] Ex.13.020, p. 15, para 56.

[244] T3-35, L35-44.

[245] Ex.13.020, p. 15, para 57.

[246] Ex.9.011, p. 5, paras 16 and 17.

[247] Ex.9.011, para 15, pp. 4-5.

[248] Ex.13.020, p. 15, para 55.

[249] For example, FG-1, p. 13, para 49; it is suggested the industry is at the beginning of a paradigm shift.

[250] Ex.13.009, p. 2.

[251] Ex.13.009, p. 6.

[252] Ex.13.009, p. 13.

[253] Ex.13.009, p. 7.

[254] Ex.13.009, p. 10.

[255] Ex. FG-1, p. 73 onwards.

[256] Ex.13.020, p. 15, para 55(a).

[257] Ex.13.020, p. 15, para 55(a).

[258] Ex.13.020, p. 15, para 55(c).

[259] FG-1, p. 128, s 8.7.1 and p. 133, s 8.7.2.

[260] FG-1, p. 130, Figure 8.38, excluding the BMI Stapylton facility.

[261] FCFG-3, p. 5, Table 1.

[262] FG-1, p. 119, Figure 8.32 and p. 121, Figure 8.34.

[263] FG-1, p. 117, Figure 8.30.

[264] FG-1, p. 128, Figure 8.37.

[265] FG-1, p. 96, para 444.

[266] FG-1, p. 37, para 156 and p. 96, para 447.

[267] FG-1, p. 37, para 156, corrected by Exhibit CFG-3; Restricted Transcript: T5-83, L37 to T5-84, L6.

[268] CFG-3, p. 5-6.

[269] FG-1, pp. 119-120, para 578.

[270] FG-1, p. 120, para 579.

[271] FG-1, p. 121, Table 8.2 and p. 120, para 581.

[272] FG-1, p. 119, Figure 8.33.

[273] Ex.13.020, p. 17, para 68 and p. 18, para 69.

[274] Highlighted in yellow on Ex.5.003.

[275] Ex.5.003, p. 4, para 5(a).

[276] Ex.3.001, p. 1-77.

[277] Ex.3.001, p. 1-28.

[278] Ex.3.001, p. 1-28.

[279] Ex.3.001, p. 1-66.

[280] Ex.3.001, p. 1-69.

[281] Ex.3.001, p. 1-124.

[282] Ex.3.001, p. 1-124.

[283] Ex.3.002, p. 2-6 and p. 2-15.

[284] Ex.3.002, p. 2-6 and p. 2-15.

[285] Ex.3.002, p. 2-6 and p. 2-15.

[286] Ex.3.002, p. 2-7 and p. 2-16.

[287] Ex.9.005, pp. 12-13, para 66.

[288] Ex.14.022, p. 4.

[289] Ex.13.009, p. 8.

[290] See Austin at paragraphs [792] – [802].

[291] Ex.FG-1, p. 9, para 19.

[292] Ex.14.022, p. 12, para 29.

[293] Restricted transcript: T8-27, L1-20.

[294] Restricted transcript: T7-35, L5-26.

[295] Isgro v Gold Coast City Council [2003] QPELR 414.

[296] Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168, [30].

[297] Ex.5.003, pp. 5-6.

[298] For reasons given in paragraph [73].

[299] For reasons given in paragraph [39].

[300] For reasons given in paragraph [36].

[301] For reasons given in paragraph [42].

[302] For reasons given in paragraph [32].

Close

Editorial Notes

  • Published Case Name:

    Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors

  • Shortened Case Name:

    Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors

  • MNC:

    [2023] QPEC 25

  • Court:

    QPEC

  • Judge(s):

    Williamson KC DCJ

  • Date:

    20 Jun 2023

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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Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
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Austin BMI Pty Ltd v Ipswich City Council [2023] QPEC 27
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Cite 2 - [2023] QPEC 27
Cite 3 - [2023] QPEC 27
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
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Brisbane Wharves and Wool Dumping Pty Ltd & Ors v Brisbane City Council & Anor (1994) QPLR 1
2 citations
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Cite 2 - (1994) QPLR 1
Broad v Brisbane City Council[1986] 2 Qd R 317; [1986] QSCFC 27
1 citation
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Cite 1 - [1986] 2 Qd R 317
Cleanaway Solid Waste Pty Ltd v Ipswich City Council [2023] QPEC 26
3 citations
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Cite 2 - [2023] QPEC 26
Cite 3 - [2023] QPEC 26
IB Town Planning Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 534
1 citation
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IB Town Planning v Sunshine Coast Regional Council [2022] QPELR 791
1 citation
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Cite 1 - [2022] QPELR 791
Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350
1 citation
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Cite 1 - (2001) 116 LGERA 350
Isgro v Gold Coast City Council (2003) QPELR 414
3 citations
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Cite 1 - (2003) QPELR 414
Cite 2 - (2003) QPELR 414
Cite 3 - (2003) QPELR 414
Nerinda Pty Ltd v Redland City Council[2019] 1 Qd R 523; [2018] QCA 146
2 citations
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Cite 2 - [2019] 1 Qd R 523
Stuart Pty Ltd v Brisbane City Council [2017] QPELR 133
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Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309
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Urban Design and Planning Pty Ltd & Anor v Ipswich City Council & Ors [2020] QPELR 534
3 citations
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Cite 1 - [2020] QPELR 534
Cite 2 - [2020] QPELR 534
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Wilhelm v Logan City Council & Ors [2021] QPELR 1321
2 citations
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Cite 1 - [2021] QPELR 1321
Cite 2 - [2021] QPELR 1321
Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168
3 citations
Jump To
Cite 1 - [2022] QCA 168
Cite 2 - [2022] QCA 168
Cite 3 - [2022] QCA 168

Cases Citing

Case NameFull CitationFrequency
Austin BMI Pty Ltd v Ipswich City Council [2023] QPEC 272 citations
Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2023] QPEC 442 citations
Cleanaway Solid Waste Pty Ltd v Ipswich City Council [2023] QPEC 262 citations
1

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