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The Corporation of the Synod of the Diocese of Brisbane v Brisbane City Council & Anor[2025] QPEC 11

The Corporation of the Synod of the Diocese of Brisbane v Brisbane City Council & Anor[2025] QPEC 11

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

The Corporation of the Synod of the Diocese of Brisbane v Brisbane City Council & Anor [2025] QPEC 11

PARTIES:

THE CORPORATION OF THE SYNOD OF THE DIOCESE OF BRISBANE

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

and

LION-BEER, SPIRITS AND WINE PTY LTD ACN 008 596 370

(Co-respondent)

FILE NO/S:

1234/24

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

5 June 2025

DELIVERED AT:

Brisbane

HEARING DATES:

17, 18 and 19 February 2025, 29 April 2025, and 1 and 6 May 2025

JUDGE:

Kefford DCJ

ORDER:

The appeal is returned to the applications list for review on 16 July 2025.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where the Co-respondent seeks approval to materially intensify its industrial use – where the Co-respondent seeks approval to intensify its use by introducing an ethanol storage facility to facilitate increased production of alcoholic beverages – where the Council approved the development application – where the Appellant as adjoining neighbour opposes the grant of an approval – whether there is an unacceptable risk to public safety and property from an explosion of the tank chamber containing the ethanol storage tanks – whether the tank chamber is appropriately located – whether the proposed development unduly affects reasonable health expectations – whether the proposed development should be approved in the exercise of the discretion

LEGISLATION:

Planning Act 2016 (Qld) ss 43, 45, 59, 60

Planning and Environment Court Act 2016 (Qld) ss 43, 45, 46, 47

Planning Regulation 2017 (Qld) s 31

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved

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

Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18; [2022] QPELR 235, approved

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied

Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2024] QCA 153, applied

Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, approved

GFW Gelatine International Ltd v Beaudesert Shire Council & Ors [1993] QPLR 342, approved

Gracemere Surveying and Planning Consultants Pty Ltd v Peak Downs Shire Council & Anor [2009] QCA 237; (2009) 175 LGERA 126, applied

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, cited

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved

Onetech Pty Ltd v Shaw [1999] WASCA 289, cited

Pynhall Pty Ltd v Logan City Council [2024] QPEC 11, approved

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied

Ward v The Ritz Hotel (London) Ltd (1992) 1 PIQR 315, cited

Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied

Willis v Endall [2011] WASC 45, cited

COUNSEL:

M Batty KC and J Bowness for the Appellant

B Job KC and M Rodgers for the Respondent

C Hughes KC and L Walker for the Co-respondent

SOLICITORS:

Colin Biggers & Paisley for the Appellant

City Legal - Brisbane City Council for the Respondent

Gadens Lawyers for the Co-respondent

TABLE OF CONTENTS

Introduction4

What is the applicable framework for the decision?7

What are the issues in dispute?8

What are the relevant assessment benchmarks that remain in issue?8

What is the key issue that remains in dispute?11

What is City Plan’s approach to industrial risk?11

What is the character of the subject land and the locality in which it sits?16

What are the parameters of the proposed development?17

What are the key design and construction features of the tank chamber?18

What are the key design and construction features with respect to ventilation?19

What are the key design and construction features with respect to the electrical system?20

What are the key design features of the tanks?20

What are the key design measures for detection of ethanol in the tank chamber?20

What are the key design and construction measures for detection of fire in the tank chamber and the ethanol tanker unloading area?21

What are the key design measures to address ethanol vapour or fire detected in the tank chamber?21

What are the key design, construction and operational measures relating to access to the tank chamber and re-energising of the tank chamber?22

What are the key additional design measures that assist to minimise risk during operation?22

What other risk minimisation measures are proposed prior to commencement of the use?23

What other general observations are pertinent with respect to the proposed development?23

What is the risk issue that requires consideration?24

What is the relevant evidence about risk?24

What are the Appellant’s key contentions about risk?27

Is there an unacceptable risk to public safety and property from a stoichiometric tank chamber explosion?29

How did the evidence of the experts regarding hazard and risk evolve?30

What are the relevant properties of ethanol?33

What is the consequence of a stoichiometric tank chamber explosion?34

What is the likelihood of a stoichiometric tank chamber explosion?37

Conclusion about the risk associated with a stoichiometric tank chamber explosion45

Does the location of the proposed development minimise the risk to public safety and property?45

Does the proposed development comply with separation distance requirements?46

Are there feasible alternative locations for the proposed development?48

Conclusion regarding the location of the tank chamber51

Does the proposed development unduly affect reasonable health expectations?51

Does the proposed development comply with the relevant assessment benchmarks?52

Should the proposed development be approved in the exercise of the discretion?52

Conclusion54

Introduction

  1. [1]
    The land at 185 Milton Road, Milton (“the subject land”) contains the iconic XXXX Brewery that has been used to brew alcoholic beverages for more than 130 years.  The use commenced prior to the town planning laws and regulation.  As such, there is no development approval authorising its commencement.  The use of the subject land to brew alcoholic beverages enjoys the protection afforded to existing lawful uses by successive planning regimes.
  2. [2]
    Version 24 of Brisbane City Plan 2014 (“City Plan”) recognises the existing lawful industrial use of the subject land.  It maps the subject land as part of a designated Strategic Inner City Industrial Area, the Low impact industry zone and the Brewery precinct in the Ithaca district neighbourhood plan area.  Relevantly, in relation to the Brewery precinct, the Ithaca district neighbourhood plan code states:

“This precinct contains a purpose-built brewery of cultural heritage significance.  The brewery is a Brisbane icon and a well-known landmark of the city, with a great physical presence in the locality. …”

  1. [3]
    Although the subject land is in the Low impact industry zone, the overall outcomes for the Brewery precinct in the Ithaca district neighbourhood plan code anticipate that the subject land may be approved for medium impact industry uses where the uses are for brewery purposes. 
  2. [4]
    On 11 December 2020, the Council gave a development permit for a material change of use for medium impact industry.  The Council approved changes to that development permit on 3 June 2021 and 17 December 2021.  Properly construed, the changed development permit authorises the use of the subject land to produce ready-to-drink alcoholic beverages by mixing syrup and ethanol.  The development permit, as changed, is subject to conditions, which stipulate that:
    1. the production of alcoholic beverages by mixing syrup and ethanol is only to occur in conjunction with the existing brewery use on the subject land, and that aspect of the use must cease should the brewery use cease;
    2. the ethanol tanker unloading area is to be designed and constructed to direct spills to underground spill containment tanks that have capacity to contain the largest likely spill;
    3. the underground spill containment tanks are to be fitted with a means of determining the level of their contents;
    4. the underground spill containment tanks are to be emptied by a licensed waste contractor on a regular basis to ensure capacity is maintained in the tanks;
    5. prior to the commencement of the use, certification is to be provided by a suitably qualified Registered Professional Engineer Queensland (“RPEQ”) engineer to demonstrate that the design and construction of the ethanol tanker unloading area, including the underground spill containment tanks, is in accordance with all the requirements of the conditions;
    6. prior to the commencement of the use, certification is to be provided by a suitably qualified dangerous goods consultant or RPEQ engineer to demonstrate that the ethanol pipeline, which is located between the ethanol tanker unloading area and the building containing the syrup process room, has been designed, constructed and located in accordance with Australian Standard AS1940 The storage and handling of flammable and combustible liquids; and
    7. the storage of ethanol is to be limited to 10,000 litres in intermediate bulk containers.
  1. [5]
    On 31 August 2022, the Co-respondent, Lion-Beer, Spirits and Wine Pty Ltd, made a development application to Brisbane City Council (“the Council”) seeking a development permit for a material change of use (“the development application”). 
  2. [6]
    Lion-Beer, Spirits and Wine Pty Ltd seeks approval to materially intensify that part of the existing use that involves mixing flavour syrups with ethanol to produce “ready-to-drink” alcoholic beverages such as seltzers and alcoholic ginger beer.  Relevantly, this practice does not require a brewing process.  To that end, the development application seeks approval for three ethanol storage tanks, each with a capacity of 40,000 litres.  The tanks are to be located within a tank chamber.  The development application also seeks approval for a staff amenity building of approximately 12 square metres.  
  3. [7]
    The composite use of the subject land, i.e., the use for beverage production by brewing and by mixing syrup and ethanol, will produce more than 200,000 litres of beverage per annum.
  4. [8]
    Under City Plan, the “High impact industry” land use definition includes:

“Food, beverages or pet food processing, smoking, drying, curing, milling, bottling or canning works, if producing 200 tonnes or more per annum.”

  1. [9]
    The development application was impact assessable and required public notification.  The public notification attracted only one properly made submission.  That submission was made by the Appellant, The Corporation of the Synod of the Diocese of Brisbane, which is a corporate entity under the Anglican Church of Australia Act 1985 (Qld). 
  2. [10]
    The Appellant owns the land at 233 and 233A Milton Road, which adjoins the western boundary of the subject land.  The Appellant’s land contains St Francis Theological College, which has been operating at that location since 1936. 
  3. [11]
    The Council approved the development application subject to development conditions.  The reasons for its decision and the development conditions are set out in a decision notice dated 29 February 2024.
  1. [12]
    The Appellant has appealed against the Council’s decision.  It opposes approval of the development application.  The Appellant acknowledges that the industrial use on the subject land and the community use on the Appellant’s land have co-existed in harmony for many decades.  Nevertheless, the Appellant contends that approval of the material change of use of the subject land, authorising the introduction of the ethanol storage facility, would result in an unacceptable risk.
  2. [13]
    Ethanol is a flammable chemical that is miscible in water, i.e., it dissolves in water.  The storage of ethanol is hazardous if not managed correctly.  When mixed with air in the right concentration, ethanol vapours can create explosive mixtures.  The consequences of an explosion in the tank chamber are potentially fatal. 
  1. [14]
    At first blush, considering the explosive properties of ethanol, one can readily accept that the proposed introduction of the ethanol storage facility is incompatible with the sensitive uses on the Appellant’s land. 
  2. [15]
    That said, the proper assessment of the proposed development does not end there.  It has long been recognised that this Court must be careful to resist the attractions of avoiding responsibility for allowing a proposal that has been demonstrated to have its risks if not handled carefully: Lane v Gatton Shire Council [1988] QPLR 49 at 51; GFW Gelatine International Ltd v Beaudesert Shire Council & Ors [1993] QPLR 342 at 353.  Proper consideration needs to be given to the nature and extent of the risk and the means by which it is proposed to be addressed: GFW Gelatine International Ltd v Beaudesert Shire Council & Ors [1993] QPLR 342 at 353; Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27 at [535]—[536].  These well-established principles are not challenged in this case.  They are accepted by all the parties.
  3. [16]
    Lion-Beer, Spirits and Wine Pty Ltd bears the onus of establishing that the proposed material change of use should be approved: s 45 of the Planning and Environment Court Act 2016 (Qld).
  4. [17]
    For the reasons that follow, Lion-Beer, Spirits and Wine Pty Ltd has discharged the onus.

What is the applicable framework for the decision?

  1. [18]
    Under s 43 of the Planning and Environment Court Act 2016, subject to ss 46(2) and (5), the appeal proceeds by way of hearing anew.  The Court has a broad discretion in determining the appeal.  It is to be exercised judicially and subject to the limitations in the relevant statutes.  The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 (Qld) provides relevant guidance in that respect.
  2. [19]
    The Court must assess the development application under s 45(5) of the Planning Act 2016 as if it were the assessment manager: Planning and Environment Court Act 2016 s 46(2).  The Court’s decision is governed by s 47 of the Planning and Environment Court Act 2016 and informed by ss 59(3) and 60 of the Planning Act 2016.
  1. [20]
    Sections 45(5)(a)(i) and (7) of the Planning Act 2016 mandate assessment against the assessment benchmarks in a categorising instrument that was in effect when the development application was properly made.  Version 24 of City Plan is such a categorising instrument: s 43 of the Planning Act 2016.  The correct approach to the construction of planning schemes was recently confirmed in Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2024] QCA 153 at [82]–[93].
  1. [21]
    Weight can be given to amendments to City Plan: s 46(2) of the Planning and Environment Court Act 2016 and s 45(8) of the Planning Act 2016.  The parties agree that there are no relevant amendments to be considered in this case. 
  2. [22]
    Pursuant to s 45(5)(b) of the Planning Act 2016 and ss 31(1)(f) and (g) and (2) of the Planning Regulation 2017 (Qld), the assessment must also be carried out having regard to, amongst other things and to the extent that they are relevant:
    1. the development approval for, and the lawful use of, the premises, to which I have made relevant reference in paragraphs [1] and [4] above; and
    2. the common material for the development application.
  3. [23]
    The assessment and decision-making process is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987; Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003; Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321; and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309. 
  4. [24]
    Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793 at 803-13 [35]-[86].  That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328 at 333-7 [12]–[22]. 
  5. [25]
    As is explained in those authorities:
    1. the ultimate decision called for when making an impact assessment is a broad, evaluative judgment that admits of flexibility to approve an application in the face of non-compliance with a planning scheme;
    2. the exercise of the discretion under s 60(3) of the Planning Act 2016 is subject to three requirements, including that it be based upon the assessment carried out under s 45 of the Planning Act 2016; and
    3. the Planning Act 2016 does not alter the characterisation of a planning scheme as a document that reflects the public interest.
  6. [26]
    With that framework in mind, I now turn to identify the issues in dispute.

What are the issues in dispute?

  1. [27]
    The issues in dispute, including the applicable assessment benchmarks, were originally identified by an order of the Court made on 26 July 2024. 
  2. [28]
    At a late stage of the hearing, Lion-Beer, Spirits and Wine Pty Ltd proposed a change to its development application.  There was no opposition to the change.  For reasons given during the hearing, I am satisfied that the change is a minor change and that it was appropriate to permit the trial to proceed based on the changed development application. 
  3. [29]
    The minor change to the development application resolved the earlier dispute about air quality and narrowed the focus of the dispute in relation to the risk posed by the ethanol storage facility and the appropriateness of the proposed use.
  4. [30]
    In addition, after the oral testimony of its experts, the Appellant reflected on the shortcomings of its original case.  In final submissions, it further confined its case.  I commend Mr Batty KC and Ms Bowness for their sound forensic judgment and the Appellant for its responsible approach in this regard.

What are the relevant assessment benchmarks that remain in issue?

  1. [31]
    As I have mentioned, version 24 of City Plan was in force when the development application was treated as properly made. 
  2. [32]
    Under City Plan, the subject land is in the Low impact industry zone and requires impact assessment.  As such, the development application is to be assessed against assessment benchmarks in City Plan, to the extent they are put in issue by parties in the appeal.
  1. [33]
    In final submissions, the Appellant indicates that it now relies on only eight assessment benchmarks.  They are identified in Annexure A to the Appellant’s written submissions.  The Appellant alleges non-compliance with each of them.  It does not concede compliance with the other assessment benchmarks that were previously raised.  Rather, it says that, if the proposed development warrants approval after assessing compliance with the eight assessment benchmarks identified, that outcome would not change by reason of assessment against the other assessment benchmarks.  I again commend Mr Batty KC and Ms Bowness for their responsible approach in this regard.
  2. [34]
    Three of the assessment benchmarks put in issue form part of the Strategic framework.  The Strategic framework sets the policy direction for City Plan and forms the basis for ensuring appropriate development occurs in the planning scheme area for the life of City Plan: s 3.1 1 of City Plan.  The Strategic framework is comprised of:
    1. the strategic intent;
    2. five themes that collectively represent the policy intent of City Plan;
    3. strategic outcomes proposed for development in the planning scheme area for each theme;
    4. elements that refine and further describe the strategic outcomes;
    5. the specific outcomes sought for each element; and
    6. the land use strategies for achieving each of these outcomes: s 3.1 3. of City Plan.
  3. [35]
    The provisions of the Strategic framework put in issue relate to the juxtaposition of industrial and sensitive uses.  They are:
    1. land use strategy L1.4 in s 3.3.3, Table 3.3.3.1, for Element 1.2 – Brisbane’s industrial economy of Theme 1: Brisbane’s globally competitive economy, which states:

“Existing lawful industries continue to operate with certainty and are protected from encroachment by sensitive land uses. Proposed expansions of these industries meet relevant health, safety and environmental standards.”

  1. the strategic outcome in s 3.5.1 1.j. for Theme 3: Brisbane’s clean and green leading environmental performance, which states:

“The strategic outcomes for clean and green leading environmental performance are:

j. The release of harmful pollutants is avoided or minimised and the health and safety of residents, business and visitors are protected from exposure to harmful pollutants or industrial hazards.”

  1. land use strategy L2.3 in s 3.5.3, Table 3.5.3.1, for Element 3.2 – Brisbane’s environmental quality and sustainable design of Theme 3: Brisbane’s clean and green leading environmental performance, which states:

“Development involving an interface between a residential use and non-residential use achieves the level of residential amenity specified in an applicable overlay and neighbourhood plan and does not otherwise affect reasonable health expectations.”

(emphasis reflects the Appellant’s allegation of non-compliance)

  1. [36]
    These and other assessment benchmarks in the Strategic framework record city-wide policies that are then implemented through finer-grained planning in City Plan, such as the allocation of land to zones and the assessment benchmarks in zone codes.  In some instances, such as that pertaining to the subject land, finer grained planning at a local level is also provided by the allocation of land to neighbourhood plan areas and in neighbourhood plan codes.  I have referred to relevant provisions in that regard in paragraphs [2] and [3] above.
  2. [37]
    With respect to the finer-grained planning reflected by the zoning and zone code, the Appellant puts in issue compliance with the overall outcome in s 6.2.5.1 2.i. of the Low impact industry zone code.  It states:

“The purpose of the zone will be achieved through the following overall outcomes:

i. Development for an industrial use is located, designed and managed to maintain safety to people and provide a buffer, to avoid significant adverse effects on the natural environment and minimise impacts on adjacent non-industrial land including sensitive uses.”

(emphasis reflects the Appellant’s allegation of non-compliance)

  1. [38]
    The Appellant also takes issue with the proposed development’s compliance with four assessment benchmarks in the Industry code. 
  2. [39]
    The purpose of the Industry code is to assess the suitability of development to which the code applies.  That purpose is intended to be achieved through its overall outcomes.  The Appellant alleges non-compliance with three of them, namely:
    1. the overall outcome in s 9.3.12.2 2.a., which states:

“Development is appropriately located and carefully designed to mitigate the impacts of industrial activities.”

  1. the overall outcome in s 9.3.12.2 2.c., which states:

“Development is compatible with a sensitive use in the vicinity of the development.”

  1. the overall outcome in s 9.3.12.2 2.d., which states:

“Development avoids or minimises the release of harmful pollutants and protects the health and safety of the occupants of a sensitive use or a zone or a zone precinct intended for sensitive uses.”

(emphasis reflects the Appellant’s allegation of non-compliance)

  1. [40]
    Finally, the Appellant alleges non-compliance with performance outcome PO3 in Table 9.3.12.3.A of the Industry code.  It states:

“Development minimises the risk to public safety, property and the environment from technological hazards such as fire, explosion and toxic release and achieves the hazard and risk criteria in Table 9.3.12.3.I.

Note—A preliminary hazard analysis report prepared in accordance with the Industrial hazard and risk assessment planning scheme policy can assist in demonstrating achievement of this performance outcome.”

(emphasis reflects the Appellant’s case about non-compliance)

  1. [41]
    Pursuant to Table 9.3.12.3.I, the relevant fatality risk criteria is 0.5 in a million and the injury risk and property damage criteria is 50 chances in one million per annum.
  2. [42]
    The Appellant contends that performance outcome PO3 of the Industry code is a central provision in this case.  The other parties agree.  So do I.
  3. [43]
    Ultimately, the case was run by all parties on the footing that compliance, or otherwise, with the assessment benchmarks is informed by determination of the Appellant’s key contentions about the risk posed by the proposed development.  I agree with that approach.  It is sensible having regard to the planning provisions that remain in issue.  I commend all Counsel retained in this case for their exercise of sound forensic judgment in this regard. 

What is the key issue that remains in dispute?

  1. [44]
    The real issue that remains to be determined is whether the location and design of the ethanol storage facility poses an unacceptable risk to public safety and property and unduly affects reasonable health expectations.  The Appellant accepts that this is a question of fact. 
  2. [45]
    The Appellant’s case is founded on the proposition that City Plan’s approach to risk is not premised on its elimination.  Rather, it calls for the minimisation of risk posed by an industrial hazard by avoiding avoidable risk.
  3. [46]
    The Appellant advances three key contentions to support its submission that the evidence on this issue is such that the exercise of discretion calls for refusal of the proposed development.  I identify the Appellant’s key contentions in paragraphs [155] to [158] below.
  4. [47]
    Lion-Beer, Spirits and Wine Pty Ltd and the Council each contend that the proposed development does not present an unacceptable risk and that it should be approved.
  5. [48]
    Before turning to address the key contentions, it assists to appreciate:
    1. City Plan’s approach to industrial risk;
    2. the features and character of the subject land and the locality generally; and
    3. the parameters of the proposed development, including how the risk presented by the ethanol storage facility is proposed to be addressed.

What is City Plan’s approach to industrial risk?

  1. [49]
    The Appellant’s position about City Plan’s approach to risk in performance outcome PO3 of the Industry code is supported by consideration of that provision in the context of City Plan and the documents called up by it.
  2. [50]
    The first limb of performance outcome PO3 of the Industry code requires development to minimise the risk to public safety, property and the environment from technological hazards such as fire, explosion and toxic release.
  3. [51]
    The ordinary meaning of “minimise” is “to reduce to the smallest possible amount or degree”: seventh edition of the Macquarie Dictionary.  Determination of what constitutes the smallest possible amount calls for an evaluative judgment.  It is a question of fact and degree that is to be determined by reference to the relevant facts and circumstances: Gracemere Surveying and Planning Consultants Pty Ltd v Peak Downs Shire Council & Anor [2009] QCA 237; (2009) 175 LGERA 126, 134 [30] and [31].
  4. [52]
    The requirement in performance outcome PO3 of the Industry code that development “minimises” risk may be compared with the intention in performance outcome PO1 that development “avoids or minimises” air emissions.  The language of performance outcome PO3 recognises that industrial uses are typically attended with a level of unavoidable risk.
  5. [53]
    The overall outcomes of the Industry code acknowledge that industrial development will bring with it some impacts.  They require that development:
    1. is appropriately located and carefully designed to “mitigate” the impacts of industrial activities: s 9.3.12.2 2.a. of City Plan;
    2. achieves environmental performance of a “satisfactory standard”: s 9.3.12.2 2.b. of City Plan; and
    3. ensures that buildings that are located near sensitive uses can accommodate industrial uses without causing “unacceptable impact” on the amenity of the area: s 9.3.12.2 2.e. of City Plan.
  6. [54]
    The overall outcome in s 9.3.12.2 2.d. of the Industry code uses different language (i.e., “protects” health and safety of the occupants of a sensitive use).  That said, the Industry code provides an indication of the means by which that otherwise subjective intent can objectively be applied, including in performance outcome PO3 of the Industry code.
  7. [55]
    Further, although performance outcome PO3 of the Industry code requires development to both minimise the risk and achieve the hazard and risk criteria in Table 9.3.12.3.I, consideration of the criteria reveals that they deal with the same subject matter.  As such, one might reasonably expect that demonstration of compliance with the criteria will assist in demonstrating that the risk is minimised, and that occupants of sensitive uses are appropriately protected.
  8. [56]
    The note to performance outcome PO3 of the Industry Code states that a preliminary hazard analysis report prepared in accordance with the Industrial hazard and risk assessment planning scheme policy can assist in demonstrating achievement of performance outcome PO3.
  9. [57]
    The Industrial hazard and risk assessment planning scheme policy plays a supporting role for City Plan: ss 1.2 2., 5.3.3 5, 9.3.12.1.1 1 (third note) and Table 1.2.6 of City Plan and s 4(e) of the Planning Act 2016.  It does not contain assessment benchmarks.
  10. [58]
    The purpose of the Industrial hazard and risk assessment planning scheme policy states:

“This planning scheme policy provides information required for a development application and guidance and advice for satisfying assessment criteria for the preparation of a preliminary hazard analysis report. 

Minimising risk of impact from industrial hazards will require new industrial development to implement best available risk management measures.  However, even when best available measures and technologies are applied, risks from some industrial activities cannot be completely eliminated.  Therefore, minimising the impact of industrial hazards on people and the environment will require appropriate separation between sensitive and industrial uses.”

(emphasis added)

  1. [59]
    The planning scheme policy defines risk as “the likelihood of harm occurring from a hazard” (emphasis added).
  2. [60]
    The matters that a preliminary hazard analysis report is to address are set out in s 2 of the Industrial hazard and risk assessment planning scheme policy.  A preliminary hazard analysis report is to:
    1. identify the potential hazards associated with the development;
    2. identify sensitive uses that may be affected by hazards and risks;
    3. analyse each hazard in terms of consequence to people and the biophysical environment and the likelihood of occurrence;
    4. quantify the analysis and estimate the resultant risks to surrounding land uses;
    5. assess the risks in terms of the location, land use planning implications and hazard and risk criteria;
    6. ensure that the proposed safeguards are adequate and that the development will not impose an unacceptable level of risk;
    7. document results of the hazard and risk assessment, including comparison to hazard and risk criteria, and graphical representation of results at gridded receptors; and
    8. describe the best available hazard and risk control measures to be applied by the development to minimise hazard and risk impacts.
  3. [61]
    The identified matters envisage that there will be some likelihood of resultant risks occurring.  They are to be quantified and assessed in terms of hazard and risk criteria, with an eye to determining safeguards that are adequate and do not result in an unacceptable level of risk.  The best available control measures are to be described with the intention that development minimise hazard and risk impacts, rather than remove or avoid them altogether.
  4. [62]
    The preliminary hazards analysis report is to enable the assessment manager to make a judgment about the level of risk involved in a proposal and its acceptability.  It should allow the assessment manager to decide if the level of risk exceeds the hazard and risk criteria and whether the level of risk can be managed.  This is not language that indicates an approach of avoiding all risk.
  5. [63]
    The Industrial hazard and risk assessment planning scheme policy adopts a graded approach to risk assessment.  It sets three levels of analysis.  It requires an analysis and assessment only as far as is needed to demonstrate that the development does not result in sensitive uses being exposed to unacceptable levels of risk due to industrial hazards: s 3.1 1.  Again, this is not an approach that calls for the elimination of risk.
  6. [64]
    In terms of the graded approach:
    1. Level 1 is a qualitative approach based on comprehensive hazard identification to demonstrate that the activity does not pose a significant hazard;
    2. Level 2 supplements the qualitative analysis by sufficiently quantifying the main risk contributors to show that risk and consequence criteria will not be exceeded; and
    3. Level 3 is a full quantitative analysis.
  1. [65]
    A Level 2 partial quantification analysis is only required for a development if Level 1 has identified one or more risk contributors with consequences beyond the site boundaries but with a low frequency of occurrence.  If off-site impacts are demonstrated to be unlikely, compliance with the relevant Australian Standards, industry codes of practice and similar guidelines are considered adequate control measures: s 3.3 3.
  2. [66]
    As I will explain in more detail below, although there were no identified risk contributors with consequences beyond the subject land, Dr Mendham prepared a Level 2 partial quantification analysis to provide the Court comfort about the acceptability of the risk.
  1. [67]
    A Level 2 partial quantification analysis is to:
    1. model the consequences of all events for which hazard identification indicates there could be credible effects beyond the site boundary: s 3.4 3.a.;
    2. estimate the likelihood of each event that detailed modelling confirms would have significant off-site consequences: s 3.4 3.b.; and
    3. assess the results of the preceding steps to confirm that the overall effect of events considered would not cause criteria to be exceeded: s 3.4 3.c.;
    4. be prepared in accordance with Hazardous Industry Planning Advisory Paper No. 6: Hazard Analysis, which was published by the New South Wales Department of Planning in January 2011: ss 3.4 4; and
    5. demonstrate that the risk level performs to the criteria established in Hazardous Industry Planning Advisory Paper No. 4: Risk Criteria for Land Use Safety Planning published by the New South Wales Department of Planning in January 2011: s 3.4 4.
  2. [68]
    Hazardous Industry Planning Advisory Paper No. 6: Hazard Analysis explains that the purpose of a preliminary hazard analysis is to demonstrate that the risk levels do not preclude a development approval: p vi.  The paper also explains that:
    1. a final hazard analysis is anticipated at a later stage, after detailed design: p vi;
    2. the objective of hazard analysis is to develop a comprehensive understanding of the hazards and risks associated with an operation or facility and the adequacy of safeguards: p vii;
    3. “neither quantified nor qualitative analysis should be pursued for its own sake”: p vii
    4. “quantification of all dimensions or risk is not always possible or necessary to enable judgments to be made on sound hazard management”: p 2;
    5. quantified risk results should not be seen as absolute or objective measures nor as the most significant output of the analytical process: p 3;
    6. “Quantification should be avoided where it will not add rigour in the analysis or it is clearly entirely arbitrary”: p 3; and
    7. the hazard identification process involves defining a worst-case scenario, which defines the upper boundary for the range of credible hazardous scenarios.
  3. [69]
    Hazardous Industry Planning Advisory Paper No. 4: Risk Criteria for Land Use Safety Planning explains that risk criteria should account for both the consequences and the likelihood of hazardous events.  This is because criteria based on the consequences of the events in isolation are unrealistic as they ignore the availability of safeguards and may result in the unnecessary sterilisation of land: p 4.
  4. [70]
    A Level 3 full quantitative analysis is required where, relevantly, the Level 2 analysis is unable to demonstrate that the risk criteria will be met.
  5. [71]
    Those matters reinforce the materiality of demonstrated compliance with the identified risk criteria.
  6. [72]
    The Industrial hazard and risk assessment planning scheme policy indicates that preliminary hazard analysis reporting is not the last step in the risk assessment process.  A range of further safety assessment studies are to be undertaken at the detailed design stage: s 3.6.  The Industrial hazard and risk assessment planning scheme policy provides for a final hazard analysis: s 3.6 4.  It anticipates that a safety management system and hazard audit system will be developed to ensure ongoing safety management: s 3.6 5.  The policy explains that regular audits are an essential component of that.  It identifies that a safety management system, which provides for regular audits, is to be finalised before commencement of operations.  Its implementation is to be ongoing: s 3.6 6.  One might reasonably expect that the preparation of reports of this nature would be dealt with through the imposition of reasonable and relevant conditions.
  7. [73]
    Section 5 of the Industrial hazard and risk assessment planning scheme policy introduces the ALARP (as low as reasonably practicable) principle.  Irrespective of the numerical value of any consequence or risk criteria level for risk assessment purposes, new industrial development is to demonstrate the ALARP principle: s 5.1 1.  This does not detract from the significance of compliance with the nominated criteria.  Rather, it calls for demonstration that:
    1. all avoidable risk is avoided to ensure that risk is not introduced in an area where feasible alternatives are possible and justified;
    2. risk is reduced wherever practicable, irrespective of the numerical value of the cumulative risk level from the whole installation;
    3. the consequence of an event is contained within the site as far as practicable; and
    4. if there is an existing high risk, additional risk is avoided as far as practicable.
  8. [74]
    Section 6 of the Industrial hazard and risk assessment planning scheme policy confirms that development and overlay codes in City Plan contain hazard and risk criteria and provides an explanation of the criteria.  It explains that the assessment of that risk provides the basis for compatible land use safety planning: s 6.1 2.  The tolerability or acceptability of risk is influenced by factors other than the physical magnitude of that risk.  Risk criteria are identified as having a quantitative technical basis and account for qualitative community concerns: s 6.1 4.  Where an individual or group of people is exposed to a risk, the acceptability of that risk is that it should be low relative to other known and tolerated risks: s 6.1 6.  For reasons that I explain below, that is an apt description of the calculated risk here.

What is the character of the subject land and the locality in which it sits?

  1. [75]
    The subject land has an area of 58,270 square metres.  It is irregular in shape.  It has frontages to Milton Road, Finchley Street, Paten Street and Heussler Terrace, Milton.  Milton Road, Finchley Street and Heussler Terrace each provide vehicular access to the subject land. 
  2. [76]
    As I have noted above, the subject land is improved by the iconic XXXX Brewery.  The built form on the subject land includes several buildings, silos and other structures that are currently used for beverage production (being predominantly beer, but with some ready-to-drink alcoholic beverages).  Ethanol is presently stored in intermediate bulk containers in one of the buildings near the western boundary.
  3. [77]
    The subject land is in Milton, which is a historical suburb of Brisbane.  The suburb’s character is informed by the juxtaposition of significant commercial and industrial activity with residential development and community facilities. 
  4. [78]
    Within Milton, the subject land is part of a node of inner-city industrial facilities that interface with residential areas and community facilities.  The subject land is bounded:
    1. to the north by Heussler Terrace, with detached dwelling houses in the Character residential (infill housing) zone beyond;
    2. to the east by a mix of industrial and other commercial uses addressing Finchley Street that are within the Low impact industry zone;
    3. to the south by Milton Road and the railway line and station, beyond which is a high-density mixed-use area; and
    4. to the west by the Appellant’s land, which is mapped as part of the Community purposes precinct of the Community facilities zone under City Plan.
  5. [79]
    The Appellant’s land contains Old Bishopsbourne, which was the residence of the first Anglican Bishop of Brisbane, and the Chapel of the Holy Spirit.  Both are State heritage listed buildings.  The Old Bishopsbourne has been on the Appellant’s land since the 1860s and the Chapel was constructed in 1912.
  6. [80]
    In addition to the heritage listed buildings, the Appellant’s land includes an educational establishment, being a theological college, the college library, administration buildings, and accommodation for students and staff in the form of six multi-level townhouses and three single-storey flats.
  7. [81]
    The buildings on the Appellant’s land that are closest to the subject land’s western boundary are:
    1. the college library, which is open to the community and contains over 35,000 books and a lecture or function space at the lower level;
    2. the spiritual direction building to the north of the library, which includes an office and two meeting rooms; and
    3. townhouses containing residential accommodation.
  8. [82]
    The Appellant’s land is open to the public.  It is used for functions, school visits, conferences, weddings and funerals.  The area between the boundary shared with the subject land and the library is used as a breakout space during lectures.

What are the parameters of the proposed development?

  1. [83]
    The development application seeks to materially intensify that part of the existing use of the subject land that involves producing beverages by mixing ethanol and syrup.  The intensification is sought to be facilitated using liquid ethanol.  The liquid ethanol is to be stored in a new ethanol storage facility containing three tanks, each with capacity to store 40,000 litres of ethanol. 
  2. [84]
    The ethanol storage facility is proposed to be situated on part of the existing ethanol tanker unloading area near the western boundary of the subject land.  The ethanol storage facility is between 9 and 10 metres in height.  It will sit at a lower ground level than the Appellant’s land.  It is setback a minimum of 3.5 metres from the western boundary and 7.7 metres from the nearest building on the Appellant’s land.
  3. [85]
    The proposed ethanol storage facility will interface with the existing pipework from the existing ethanol tanker facility to facilitate retrieval of ethanol for use in the production of beverages.  It is apparent from the common material that the development application does not only seek authorisation for the introduction of the ethanol storage facility.  It also seeks authorisation to produce ready-to-drink alcoholic beverages by connecting the ethanol storage facility to the existing ingredients store and syrup mixing room and other parts of the brewery.
  4. [86]
    The proposed development involves many design, construction and operational features that are directed to minimising the risk posed to public safety, property and the environment by the proposed storage of ethanol and its use in the beverage production process.  Many of the proposed design, construction and operational features are detailed in the approved drawings and documents referenced in the Council’s decision notice and conditions.  Two approved reports are particularly informative, namely:
    1. the report titled “Project Alpha 2 Tanker Unloading Area and Bulk Ethanol Tank Chamber – Dangerous Goods Report Revision 5” dated 3 August 2023 (as amended in red by the Council on 7 February 2024) (“the approved Dangerous Goods Report”); and
    2. the report titled “Project Alpha Phase 2 Ethanol Tanker Unloading & Storage in Tank Chamber – Hazardous Area Classification Revision 5” dated 3 August 2023 (as amended in red by the Council on 7 February 2024) (“the approved Hazardous Area Classification”). 
  1. [87]
    Other details of the proposed development have been incorporated as part of the minor change application made during the trial.  They are detailed in Exhibit 36.  I identify some of the key risk mitigation features of the proposed development in paragraphs [88] to [120] below. 

What are the key design and construction features of the tank chamber?

  1. [88]
    The ethanol storage facility is an enclosed and roofed blockwork structure, which is referred to as a tank chamber.  The ethanol storage tanks are to be placed together inside the tank chamber.
  2. [89]
    As a minimum, the tank chamber is to be designed and constructed to comply with the requirements of Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids, section 5.13 (Installation Method for Tanks in Tank Chambers).  This requirement, of itself, involves incorporation of stringent measures that are intended to minimise risk. 
  3. [90]
    Australian Standards represent the consensus of professional opinion and the practical experience about sensible, safe precautions: Onetech Pty Ltd v Shaw [1999] WASCA 289 at [17] citing Ward v The Ritz Hotel (London) Ltd (1992) 1 PIQR 315 at 317.  They are reviewed periodically to reflect progress in science, technology and systems.  
  4. [91]
    Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids supersedes AS1940—2004.  It was prepared by Standards Australia Committee ME-017.  That committee was constituted by experts and received the assistance of other expert individuals during the draft’s public comment period.  Committee ME-017 contained representatives from, amongst others, Australasian Fire and Emergency Service Authorities Council, Australasian Institute of Dangerous Goods Consultants, Australian Industry Group, Department of Defence, Engineers Australia, Fire Protection Association Australia, Plastic and Chemicals Industries Association, SafeWork SA, WorkCover NSW, Workplace Health and Safety Qld and WorkSafe Vic.
  5. [92]
    Most of the design requirements for the tank chamber are set out in section 6.3 of the approved Dangerous Goods Report.  Some have been changed by the minor change application.  The design features exceed the minimum requirements in the Australian Standard.  Relevantly, the tank chamber is to be designed and constructed so that:
    1. the tank chamber walls will have a fire resistance level of 240/240/240;
    2. the tank chamber floor will have a fire resistance level of 180/180/180;
    3. the tank chamber roof will have a fire resistance level of 180/180/180 and is to be constructed with hollow-core, precast roof planks and a concrete topping reinforced concrete slab that is at least 150 millimetres thick;
    4. there will be a clear space of at least 1,100 millimetres between tanks, at least 600 millimetres between any tank and any wall of the tank chamber, and at least 2,100 millimetres between the top of any tank and the underside of the tank chamber ceiling;
    5. the doorway to the tank chamber will be protected by an entry door with a fire resistance level of -/120/30 that will ordinarily remain closed and fire shutters on a fusible link with a fire resistance level of -/120/30;
    6. the sill of the doorway will be raised to provide a liquid-tight compound capable of sustaining the hydrostatic load and having a net capacity of approximately 78,000 litres, being a volume well in excess of the largest tank;
    7. in place of the spillage disposal measures described in section 6.3.2 of the approved Dangerous Goods Report, the bund sump in the tank chamber will include a valve to discharge any spillage in the bund to the existing underground spill containment tanks referred to on Drawing SA106 Issue K14.  The bund sump and valve will be designed to be:
      1. (i)
        capable of draining at a rate of at least 11.4 kg/s;
      1. (ii)
        activated on either or both of:
      1. (A)
        detection of liquid by a level switch system (see paragraph [108] below); and
      1. (B)
        de-energisation of the tank chamber; and
    8. the tank chamber will withstand pressure resistance of at least 30 kPa.
  6. [93]
    These design measures ensure that the tank chamber will be fire-rated and act as a radiant heat barrier to neighbouring buildings. 
  7. [94]
    Prior to the commencement of the use, certification is to be provided by a suitably qualified RPEQ engineer or appropriately qualified dangerous goods consultant to demonstrate that the tank chamber has been designed and constructed as proposed.

What are the key design and construction features with respect to ventilation?

  1. [95]
    Each tank will be fitted with a free vent system that facilitates venting via vent lines that penetrate the eastern wall. 
  2. [96]
    There is to be a condenser fitted to the vent lines to condense the ethanol as liquid.  The condensate from the vent lines will drain to the underground spill containment tanks.  The condenser will be designed and constructed to achieve an ethanol reduction efficiency of at least 98 per cent. 
  3. [97]
    The condenser will include a system for monitoring the condenser instruments (including refrigerant supply/return temperature, refrigerant flow and compressor power draw) during the filling process.
  4. [98]
    A control system will be installed that blocks the transfer of ethanol from a tanker to the ethanol storage tanks if the condenser is not operating at the temperature necessary to achieve the required ethanol removal efficiency.
  5. [99]
    The vent lines for the tanks will terminate via a single combined vent outlet.  The outlet will be fitted with a flame arrester and insect exclusion device.  In accordance with recommendations made in a joint report of air quality experts, the vent outlet will be at a height of RL 29.6 and located at the eastern end of the canopy that covers the tanker unloading area.  That location is farther from the Appellant’s land than the originally proposed vent location.
  6. [100]
    All tanks will have a pressure relief or emergency vent that will discharge within the tank chamber.  The tank chamber is a sealed building that has a single ventilation supply duct with a fan at a high level and a single ventilation exhaust duct at low level.  The downstream ductwork will extend beyond the roof of the chamber.  Both ducts will be on the eastern side wall and will be protected with fire-rated shutters that will ordinarily be closed.   

What are the key design and construction features with respect to the electrical system?

  1. [101]
    The tank chamber will contain an equipotential bonding system that electrically bonds and earths all piping, tanks and metal surfaces to eliminate the likelihood of static discharge that is otherwise potentially capable of igniting ethanol vapour. 
  2. [102]
    The electrical system in the tank chamber will be an explosion-protected electrical system designed and constructed in accordance with section 6.1 of the approved Hazardous Area Classification.  This includes a requirement that all electrical equipment is to be designed in accordance with Australian Standard AS60079 Explosive atmospheres, Part 14 – Electrical installations design, selection and erection. 
  3. [103]
    The electrical system will be independently audited and approved by a Queensland Government accredited hazardous area auditor prior to its initial energisation.

What are the key design features of the tanks?

  1. [104]
    The tanks within the tank chamber will be constructed of grade 304 stainless steel.
  2. [105]
    The tanks will contain a volume comparison alarm that measures:
    1. the level of ethanol within the tanks (via a level transmitter); and
    2. the amount of ethanol being transferred into the tanks (via a flow transmitter).

What are the key design measures for detection of ethanol in the tank chamber?

  1. [106]
    The tank chamber will contain ethanol vapour detectors capable of measuring the concentration of ethanol vapour within the tank chamber.  Those ethanol vapour detectors will be self-testing and are to be designed and installed up to safety integrity level 3.
  2. [107]
    The vapour detection system will automatically trigger the activation of:
    1. alarms within the subject land that alert the operators of ethanol concentration exceeding a low-level trigger point;
    2. a ventilation system to restore the concentration of ethanol vapour to within acceptable limits inside the tank chamber; and
    1. a personnel safety lockout system that prevents people accessing the tank chamber until ethanol vapour levels are considered acceptable for entry.
  3. [108]
    A level switch system will be designed to detect liquid within the bund sump and installed in the bund sump as shown on Drawing DA303 Issue C.  It will be designed and installed to safety integrity level 3.

What are the key design and construction measures for detection of fire in the tank chamber and the ethanol tanker unloading area?

  1. [109]
    The tank chamber and the ethanol tanker unloading area will be fitted with a fire detection system that detects the presence of ignited ethanol.  This will trigger an automatic alarm signalling to the Queensland Fire Department and an onsite emergency response.  The fire detectors will be self-testing.

What are the key design measures to address ethanol vapour or fire detected in the tank chamber?

  1. [110]
    The minor change to the development application replaces the internal fixed foam pourers with a water mist fire and explosion suppression system (“the water mist system”)
  2. [111]
    The water mist system will create water particles of an appropriate size to:
    1. dissolve ethanol vapour in the tank chamber; and
    2. extinguish an ethanol fire (in compliance with Australian Standard AS4587:2020 – Water mist fire protection systems).
  3. [112]
    The water mist system will be:
    1. powered from a separate power supply to the tank chamber;
    2. provided with a continuous backup power source (for example, from a diesel generator); and
    3. tested and certified as meeting the proposed requirements prior to the commencement of the use, and the certification will be provided to the Council.
  4. [113]
    The water mist system will activate, and the tank chamber will be automatically de-energised, if any one or more of the following occurs:
    1. the ethanol vapour detectors detect ethanol vapour concentration at, or above, 5 per cent of the lower explosive limit of ethanol;
    2. the level switch detects 100 millimetres of liquid in the bund sump;
    3. the volume comparison alarm for the tanks detects a discrepancy between the volume of ethanol being transferred to the tanks and the volume of ethanol in the tanks;
    4. the fire detectors in the ethanol tank chamber are activated; or
    5. any sensor, detector or switch referred to above is not operating correctly.

What are the key design, construction and operational measures relating to access to the tank chamber and re-energising of the tank chamber?

  1. [114]
    The tank chamber will be fitted with a personnel lockout system that prevents access to the tank chamber until ethanol vapour levels are considered acceptable for entry (as required by section 6.3.3 of the approved Dangerous Goods Report).  The system will deny access if any of the situations in paragraph [113] above occur.
  2. [115]
    The tank chamber will not be re-energised if any of the situations in paragraph [113] above remain present.

What are the key additional design measures that assist to minimise risk during operation?  

  1. [116]
    Signage will be displayed on the tank chamber in a location that is visible to operators, tanker drivers and persons on the internal roadway.  The signage will include warning labels that identify:
    1. danger – no smoking, no naked flames;
    2. the class of the danger, i.e., class 3 – flammable liquids diamond; and
    3. that ignition sources (including electrical devices, tools, mobile phones or other similar devices) are not permitted in any hazardous zone.
  2. [117]
    Also, signage will be displayed at the site entry identifying:
    1. warning – restricted area, authorised personnel only;
    2. the relevant emergency contact names, titles and phone numbers;
    3. the name, address and phone number of the occupier; and
    4. the location, by diagram, of any fixed fire services that have been installed, the drainage system and any emergency stop switches.
  3. [118]
    There will be visible and audible alarms that indicate the status of the tank chamber as healthy or unhealthy.  The “unhealthy” status alarm will be triggered on the occurrence of, amongst other things, any one or more of the following:
    1. there is a power or control failure;
    2. any emergency stop switch has been activated;
    3. a fan has a run signal, but no running is detected;
    4. a liquid level is detected within the sump; and
    5. there is an ethanol atmosphere monitor reading of more than a specified value.

What other risk minimisation measures are proposed prior to commencement of the use?

  1. [119]
    Following the detailed design of the measures identified above, a final hazard analysis is to be prepared in accordance with s 3.6.4 of the Industrial hazard and risk assessment planning scheme policy. 
  2. [120]
    The final hazard analysis is to be submitted to, and approved by, the Council prior to issue of a development permit for building works.

What other general observations are pertinent with respect to the proposed development?

  1. [121]
    The common material for the development application reveals that the proposed development has been the subject of extensive input from experts.  The experts provide a detailed explanation of the proposed development and an assessment of its performance against the many relevant assessment benchmarks in City Plan.
  2. [122]
    As one would expect for a development such as this, the common material reveals that the Council carefully reviewed the development application.  It requested clarification and further details about certain matters.  Lion-Beer, Spirits and Wine Pty Ltd responded to the important issues that were raised by the Council during its assessment, including by refining details of the proposed development.
  3. [123]
    Similarly, Lion-Beer, Spirits and Wine Pty Ltd responded to legitimate matters of concern raised by the expert witnesses retained for this hearing, even those raised late in the trial.  One relevant example of this is the way Lion-Beer, Spirits and Wine Pty Ltd responded to the criticisms about the effectiveness of its proposed measures to minimise risk of a stoichiometric tank chamber explosion.  This is one of the key remaining contentions raised by the Appellant.  I will return to that issue in due course.
  4. [124]
    The risk mitigation measures proposed by Lion-Beer, Spirits and Wine Pty Ltd are extensive and multi-layered. 
  5. [125]
    The effectiveness of the proposed risk mitigation measures can be ensured by the imposition of reasonable and relevant conditions, like those imposed in the Council’s decision notice.  (None of the Council’s conditions were challenged by either Lion-Beer, Spirits and Wine Pty Ltd or the Appellant). 
  6. [126]
    As such, when considering the risk posed by the proposed development, it is reasonable to assume that any approval would be subject to conditions that, at a minimum, require:
    1. the design and construction of the approved use to be in accordance with the approved Dangerous Goods Report and the approved Hazardous Area Classification with such necessary amendments to reflect the minor change to the development application;
    2. the design and construction of the approved use to be in accordance with the details outlined in paragraphs [88] to [120] above; and
    3. certification to be provided by a suitably qualified RPEQ engineer or appropriately qualified dangerous goods consultant prior to the commencement of the use to demonstrate that the approved use has been designed and constructed in accordance with the requirements to which I have referred in paragraphs [88] to [120] above.
  7. [127]
    With the above details of the proposed development in mind, I now turn to assess whether the proposed development poses an unacceptable risk.

What is the risk issue that requires consideration?

  1. [128]
    As I have already identified, the real issue in this case is whether the location and design of the ethanol storage facility poses an unacceptable risk to public safety and property and unduly affects reasonable health expectations.  This is a question of fact to be determined:
    1. on the evidence in the case; and
    2. having regard to the Appellant’s contentions about the evidence.

What is the relevant evidence about risk?

  1. [129]
    To assist me with an assessment of the issue of risk, I was provided with evidence from:
    1. Dr Frank Mendham and Mr Peter Mauger, who were retained by Lion-Beer, Spirits and Wine Pty Ltd;
    2. Dr Raghu Raman, who was retained by the Council; and
    3. Mr Richard Robinson and Dr Madhat Abdel-jawad, who were retained by the Appellant.
  2. [130]
    The qualifications and experience of each of the experts differ.  So too did their approach to the issue of risk.
  3. [131]
    Dr Mendham has been involved in dangerous goods, hazardous area design, fire engineering and hazardous land use planning for several decades.  He has extensive practice in the design and commissioning of dangerous goods, explosives facilities, renewable energy installations, hazardous chemicals safety management, hazardous land use planning and hazardous area classification.  He has significant experience in relation to industrial fire and risk, industrial fire protection, and fire protection and detection design.  Dr Mendham also has proven capabilities in safety integrity, reliability engineering, safety in design, environmental risk, human factors analysis and related safety science.  His qualifications include, amongst other things, a Master of Engineering – Fire and Risk Engineering, a Master of Science in Safety, Risk and Responsibility and a Ph.D. in Industrial Fire and Risk Engineering.  Dr Mendham is recognised by the Queensland Government as a dangerous goods consultant and is a Registered Professional Engineer of Queensland in the profession of fire engineering focussing in the industrial sector.
  4. [132]
    Mr Mauger prepared the approved Dangerous Goods Report and the approved Hazardous Area Classification.  He holds a Bachelor of Science (Physics and Mathematics, with a minor in Chemistry) and a Bachelor of Engineering (Honours), specialising in Chemical Engineering.  He is a Registered Professional Engineer Queensland and a Chartered Professional Engineer with Engineers Australia.  Between 2014 and 2020, he was a Chemical College Board Member of Engineers Australia.  Mr Mauger also has a Diploma in Brewing from the Institute of Brewing and Distilling in London, a Certificate in HAZOP (Hazard and Operability Study) and a qualification in Hazardous Area Classification from Competency Training which has been assessed by the Australasian Institute of Dangerous Goods Consultants (of which he is a consultant member).  In addition to his academic qualifications, and before commencing practice as a consulting engineer, Mr Mauger was employed as a brewer and engineer by Fosters Group and worked at the Carlton United Brewery at Yatala (which incorporated the blending and packing of spirits from about 2007).
  5. [133]
    Dr Raman is an expert with 40 years’ experience in process engineering, safety engineering, and risk management, and 30 years’ experience in safety engineering, hazard analysis and risk management in the chemical, oil and gas, dangerous goods transportation and mining and mineral processing industries.  Dr Raman holds many qualifications.  They include, but are not limited to, a Bachelor of Technology (Chemical Engineering), a Master of Science (Chemical Engineering), a Ph.D. in Chemical Engineering, and a Master of Engineering Science (Operations Research).  Dr Raman is also a Certified Functional Safety Expert, CFSE Governance Board and an approved hazard specialist.
  6. [134]
    Dr Abdel-jawad is a gas dynamics expert who specialises in shock waves and explosions.  He has over 15 years’ experience as an engineering consultant and researcher.  For several years he has worked on developing a fundamental understanding of accidental release, fires and explosions, in particular in relation to high temperature gas dynamics, flame propagation, chemical kinetics and supersonic combustion (detonation).  He has a Bachelor of Engineering (Mechanical Engineering) and a Ph.D. in Aerospace Engineering.
  7. [135]
    Mr Robinson is a due diligence engineer.  His experience is in undertaking safety due diligence engineering reviews for a wide range of industries, including with respect to major hazard and dangerous goods assessments and safety cases.  He holds degrees in Philosophy (History and Philosophy of Science) and Mechanical Engineering. 
  8. [136]
    The evidence includes a joint expert report by Dr Mendham, Dr Raman and Mr Robinson regarding hazard and risk, a joint expert report by Dr Mendham, Dr Raman and Dr Abdel-jawad dealing with modelling of the risk, and multiple individual reports by those experts.  The expert reports are supported by other reports and information, including analysis in reports provided during the development application, reports about explosion models generally and about the explosion modelling undertaken by the various experts, papers about hazardous industry planning, and relevant Australian Standards.  During the hearing, the views of the experts were tested through cross-examination.
  9. [137]
    I find the evidence of Dr Raman to be of greatest assistance to me.  His evidence comprehensively addresses all aspects of the issues I am called upon to decide.  He provided cogent explanations for his opinions.  I find all aspects of his evidence to be compelling.  I also find the evidence of Dr Mendham and Mr Mauger to be compelling. 
  10. [138]
    Dr Abdel-jawad provided cogent explanations for some of his opinions.  Other aspects of his evidence were untested, such as the results of his modelling using the exploCD model.  This is because he did not provide the type of detail about the model that would permit its interrogation.  Leaving that to one side, for reasons I explain below, I find Dr Abdel-jawad’s evidence to be of limited assistance.
  11. [139]
    Mr Robinson’s evidence about the acceptability of the risk posed by the proposed development is founded on his approach to assessment of risk.  Mr Robinson is an advocate for a precaution-based approach that effectively involves the elimination of all risk.  As he said in his individual report, he tries “very hard not to discount a potential catastrophic hazard just because it is considered to be rare”. 
  12. [140]
    Mr Robinson sought to justify his approach on the basis that it is supported by the common law, which he claims has been elevated into statute law by the Work Health and Safety Act 2011. 
  13. [141]
    I find the evidence of Mr Robinson that is contained in Hazard and Risk Joint Expert Report No. 1 and his subsequent individual report to be of no assistance. 
  1. [142]
    Mr Robinson’s approach to risk is not the approach called for by City Plan. 
  2. [143]
    City Plan calls for an assessment of risk on a hazard-based approach, requiring the reduction of risk to a level that is “as low as is reasonably practicable”.  A similar approach is adopted in the supporting documents called up by City Plan, including the Industrial hazard and risk assessment planning scheme policy, Hazardous Industry Planning Advisory Paper No. 4: Risk Criteria for Land Use Safety Planning and Hazardous Industry Planning Advisory Paper No. 6: Hazard Analysis.  As such, to the extent that Mr Robinson relied upon the test applicable under the Work Health and Safety Act 2011, he misdirected himself. 
  3. [144]
    It is clear from his cross-examination that this misdirection was deliberate.  He confirmed knowledge of the approach called for under City Plan but said “I happen to disagree rather fundamentally with that approach”: Transcript of Proceedings, The Corporation of the Synod of the Diocese of Brisbane v Brisbane City Council (Planning and Environment Court of Queensland, 1234/24, Kefford DCJ, 29 April 2025) 67.
  4. [145]
    Mr Robinson’s evidence does not persuade me that the hazard-based approach is misconceived.  As Mr Robinson acknowledged, the approach adopted in City Plan is consistent with the dominant approach in Australia in recent times.
  5. [146]
    Another difficulty with Mr Robinson’s approach is its foundation on misconceptions about the Court’s approach in assessing development applications.  In Hazard and Risk Joint Expert Report No. 1, Mr Robinson describes the Court’s approach as follows:

“In my experience, the way the courts assess the situation is to consult post-event expert witnesses as to what could have been done to have prevented the disaster.  Being an expert with the benefit of hindsight is a comparatively straight forward task.  The only time the notion of risk is used in court is when the court is testing to see if the precautions suggested by such experts (with the advantage of hindsight) were reasonable in view of what was known at the time of the decision.”: Exhibit 6 p 17. 

  1. [147]
    This statement by Mr Robinson reflects an ignorance of this Court’s extensive experience in assessing future risk.  This Court is regularly called upon to consider the likelihood that development might pose a risk to people, property, the enviornment and amenity.  The types of risk considered by this Court are many and varied.  Examples include the prospect of danger to life and property in the event of landslip and structural engineering failure; safety risk posed by explosions at a quarry; risk to people’s safety by reason of a proposed traffic design; environmental risk posed by the failure of a liner in landfill; the risk to turtle breeding posed by lighting associated with development; and the risk to amenity of residents posed by the bulk of adjoining development or noise, light or dust emissions associated with development. 
  2. [148]
    Additionally, Mr Robinson’s approach is inconsistent with those well-established principles to which I have referred in paragraph [15] above. 
  3. [149]
    Mr Robinson’s oral testimony was also uncompelling.
  4. [150]
    As Mr Robinson explained in his oral evidence, he does not design systems.  His experience is as a due diligence engineer.  Alone, Mr Robinson’s qualifications do not suggest that he was not qualified to assist.  However, his oral evidence itself left me far from satisfied that he was able to provide relevant assistance on the key issues that I am to determine. 
  5. [151]
    During cross-examination, Mr Robinson was defensive, rolling his eyes and sneering at suggestions that his approach was not appropriate in this case.
  6. [152]
    Mr Robinson’s criticisms of Dr Mendham and Dr Raman revealed a lack of appropriate experience to effectively address the issue of risk other than by advocating for its elimination.
  1. [153]
    In final submissions, the Appellant acknowledged there were threshold difficulties with Mr Robinson’s evidence and disavowed reliance on it other than with respect to a few insignificant matters.
  2. [154]
    For the reasons given above, I do not find Mr Robinson’s evidence persuasive. 

What are the Appellant’s key contentions about risk?

  1. [155]
    Ultimately, the Appellant’s case for refusal is narrow in focus. 
  2. [156]
    In oral submissions, Mr Batty KC submitted that “the Church will either be successful on the chamber explosion or it won’t be successful at all”.  This submission is consistent with the Appellant’s final written submissions prepared by Mr Batty KC and Ms Bowness.  In the Appellant’s summary of why the appeal should be allowed, the Appellant frames the issue for consideration in these terms:

“4.Ultimately, the matters to be considered in this appeal are matters of risk, hazard and consequence.  PO3 of the Industry code is self evidently a central provision in this respect, including the obligation inherent in that provision to minimise explosion risk associated with the proposed development.  The more serious the potential consequences of a hazard, the lower the likelihood of the event occurring should be in order to ensure the level of risk is acceptable.  That is why the relevant fatality risk criteria for an Educational establishment is 0.5 in one million, while the injury risk and property damage criteria are 50 chances in one million per annum, under the Planning Scheme’s numerical hazard and risk criteria.

  1. The fact that the stoichiometric tank chamber explosion is rare (or very rare) in likelihood does not mean it is necessarily acceptable in terms of risk, when the potential consequences of the explosion are catastrophic.  Ultimately, this is a question of fact to be determined by the Court.  The submission of the Appellant is that in the circumstances of this case, especially given the troubled manner in which Lion has conducted its case, the exercise of discretion called for favours refusal of the proposed development.
  2. By comparing Dr Raman’s adopted Blast Effects table from HIPAP 4 at page 34 of Exhibit 6 to Dr Abdel-Jawad’s table of maximum overpressure results at page 25 of Exhibit 29, it is submitted that the consequences of the stoichiometric tank chamber explosion are potentially fatal.  The fatality risk criteria ought to be applied.
  3. The City Plan hazard and risk criteria require that a fatality risk of 0.5 chances in 1 million per year is not exceeded.  Primarily as a result of its fluid design throughout the appeal, the evidence does not establish that the Proposed Development meets that likelihood criterion.  Dr Raman accepted this (T4-53, L30-45 to T4-55, L5).
  4. The level of risk arising from the stoichiometric tank chamber explosion, even by City Plan’s quantitative criteria, is in the submission of the Appellant, unacceptable.
  5. There is also a separate requirement in PO3 for risk to be minimised.  In the submission of the Appellant, there has not been persuasive consideration given to feasible alternative locations for the proposed development on the Brewery Site.  That failure arises from the fact that the current proposal before the Court (given the most recent minor change) is different from the proposal considered by Lion (and its representatives and experts) on this point and because, more generally, the siting of the tank chamber does not minimise the risk of an explosion hazard in accordance with PO3 due to its location on the boundary of the land.  The proposal does not comply with the provisions of the Planning Scheme set out in Annexure 1 to these submissions, which have been narrowed from MFI H.
  6. Due to its non-compliance with applicable assessment benchmarks, the proposed development is inconsistent with the reasonable health expectations of the community. In particular, the residents who live, work and interact within about 8 metres of the tank chamber.  However, the Appellant accepts that this consideration is now “bundled” with consideration of the question of risk (which ultimately determines the appeal overall).
  7. Lion has not discharged its onus.  The Development Application should be refused.”
  1. [157]
    In oral submissions, the Appellant fairly conceded that partial non-compliance with the quantitative criteria in performance outcome PO3 of the Industry code is not, of itself, determinative.  It is a matter that is relevant to the Court’s exercise of the discretion.  The Appellant accepts that whether such a non-compliance should sound in refusal is a question of fact and will depend on the weight given to the evidence and the Court’s conclusion about the acceptability of the risk.  The Appellant’s concession in this regard accords with the approach identified in paragraphs [23] to [25] above.
  2. [158]
    The Appellant’s key contentions call for determination of three factual questions:
  1. Is there an unacceptable risk to public safety and property from a stoichiometric tank chamber explosion?
  2. Does the location of the proposed development minimise the risk to public safety and property?
  3. Does the proposed development unduly affect reasonable health expectations?
  1. [159]
    I now turn to consider those questions.

Is there an unacceptable risk to public safety and property from a stoichiometric tank chamber explosion?

  1. [160]
    The Appellant contends that there is an unacceptable risk to public safety and property from a stoichiometric tank chamber explosion.  This is refuted by Lion-Beer, Spirits and Wine Pty Ltd and the Council.
  2. [161]
    It is common ground that risk is a factor of the likelihood of an event occurring and its consequences.  In this case, the Appellant maintains that both integers are in issue insofar as they relate to a stoichiometric tank chamber explosion.  As such, there are two intermediate questions of fact that inform determination of the issue of risk:
  1. What is the consequence of a stoichiometric tank chamber explosion?
  1. What is the likelihood of a stoichiometric tank chamber explosion?
  1. [162]
    Determination of these two intermediate questions of fact involve consideration of the evidence of Dr Mendham, Dr Raman and Dr Abdel-jawad.  Given my findings about Mr Robinson’s evidence above, it is not necessary to deal extensively with his evidence on these issues.
  2. [163]
    When considering the weight to be given to the evidence, the Appellant has urged me to have regard to the “troubled manner” in which Lion-Beer, Spirits and Wine Pty Ltd has conducted its case.  As such, before turning to each of the intermediate questions of fact, it is helpful to appreciate how the evidence evolved and the circumstances that informed the late change to the development application.
  1. [164]
    In addition, before considering the intermediate questions, it assists to understand the relevant properties of ethanol. 
  2. [165]
    I will briefly address these two matters first.

How did the evidence of the experts regarding hazard and risk evolve?

  1. [166]
    Initially, the parties only retained Dr Mendham, Dr Raman and Mr Robinson.  Those experts met and produced Hazard and Risk Joint Expert Report No. 1.
  2. [167]
    As part of that joint meeting process, Dr Mendham provided his Preliminary Hazard Analysis dated 17 July 2023 (“the Preliminary Hazard Analysis”).  It forms part of the common material for the development application.  In the Preliminary Hazard Analysis, Dr Mendham analyses the risk associated with seven consequence scenarios.  One of the scenarios was a vapour cloud explosion in the tank chamber.  On Dr Mendham’s analysis, the risk of fatality associated with such an explosion was less than half a chance in 100 million or less than one in 200 million.  Neither Dr Raman nor Mr Robinson criticised any aspect of that analysis. 
  3. [168]
    The experts identified and considered seven additional hazardous incident scenarios that may have an impact on surrounding land uses.  By agreement, they were modelled as part of the joint meeting process.  The fourth agreed scenario involved a spill of ethanol in the tank chamber, ethanol pooling on the floor of the tank chamber, vaporisation of the ethanol and a vapour cloud explosion within the tank chamber with the vents closed. 
  4. [169]
    In Hazard and Risk Joint Expert Report No. 1, Dr Mendham and Dr Raman provided an analysis in support of their opinions that an explosion in the tank chamber causing failure of the tank chamber is not a credible scenario. 
  5. [170]
    As Dr Mendham observed, such a scenario would require a failure of all safety features due to electrical power failure and an ethanol leak from the stainless-steel tanks and a source of ignition and the simultaneous occurrence of all these events.  Leaving aside the improbability of the simultaneous failure of all safety features while there is a leak in the tank, Dr Mendham explains that there is no realistic possibility of an ignition source. 
  6. [171]
    The only possible remaining source of ignition to initiate an explosion in the scenario would be static electricity.  Ignition from such a source is not credible.  That is because there will be a permanently connected equipotential bonding system.  The system connects all metallic surfaces, including the tanks, pipes, and flanges, via bonding cables.  This ensures that there is no potential for a spark discharge from static. 
  7. [172]
    Nevertheless, Dr Mendham modelled a worst-case scenario that assumed, without dissent from Mr Robinson, that between five and 10 cubic metres of ethanal vapour would form near the floor of the tank chamber.  Based on his modelling, Dr Mendham opined that were there an explosion under those conditions, a pressure peak of between 4.5 kPa and 9 kPa could occur for the respective events.  Having regard to the calculations, Dr Mendham opined that the tank chamber was likely to withstand an overpressure consistent with reasonably foreseeable internal explosions.
  8. [173]
    In relation to the modelled worst-case scenario, Dr Raman carried out his own calculations.  He opined that if no action was taken for over two hours, an equilibrium condition would be reached in the tank chamber.  According to Dr Raman, if ignition occurred at that time, it is possible that an explosion overpressure would exceed 14 kPa and damage the tanks and tank chamber.  In his opinion, there would be no effects on neighbouring properties.
  9. [174]
    In Hazard and Risk Joint Expert Report No. 1, Mr Robinson did not dispute the evidence of either Dr Mendham or Dr Raman about the lack of credibility to the tank chamber explosion scenario.  Nor did he dispute the opinions of Dr Mendham or Dr Raman about the containment of the consequences within the tank chamber should an explosion occur.  Mr Robinson opined that a stoichiometric tank chamber explosion was a rare and very unlikely scenario that would require major mechanical engineering fault coupled with a series of management and maintenance failures.  He accepted that, in terms of quantification of the risk, the numerical standard set in City Plan was most likely satisfied. 
  10. [175]
    After the conclusion of the first joint expert meeting, in January 2025, Dr Mendham provided his first individual report: Exhibit 7. 
  11. [176]
    Given the opinions expressed by Mr Robinson in Hazard and Risk Joint Expert Report No. 1, the subsequent individual statement of Dr Mendham addressed the risk that the Appellant’s land might be exposed to overpressure in the order of 3.5 kPa because of an unconfined vapour cloud explosion at the vent outlet.  That issue has now been resolved.
  12. [177]
    In his first individual report, Dr Mendham also further addressed the risk associated with a vapour cloud explosion in the tank chamber.  He noted that it was not a scenario that Mr Robinson required the modelling of in Hazard and Risk Joint Expert Report No. 1.  Dr Mendham reaffirmed his view that any such explosion would be rare.  It would require a major design, construction or maintenance error, coupled with a series of management and maintenance failures.  According to Dr Mendham, this is not a credible scenario.  He says that it is not plausible that a situation will arise where the levels of ethanol in the tank chamber will be sufficient to cause spontaneous combustion.  Dr Mendham explains that this is because of the design of the tank chamber combined with the additional risk management measures.  Nevertheless, to provide comfort to the court, Dr Mendham prepared a Level 2 - partial quantification analysis in accordance with the Industrial hazard and risk assessment planning scheme policy.  It is a report titled “Preliminary Hazard Analysis (PHA) – Level 2” and is dated 24 January 2025 (“the Level 2 Preliminary Hazard Analysis”).  
  13. [178]
    The Level 2 Preliminary Hazard Analysis demonstrates that, prior to the additional risk management measures adopted in the minor change application, the overall effect of all events would not cause the criteria in Table 9.3.12.3.I to be exceeded.  It also demonstrated that “as low as reasonably practicable” principles had been adopted.  Ultimately, it shows that the potential for an internal vapour cloud explosion in the chamber is extremely unlikely. 
  14. [179]
    In the Level 2 Preliminary Hazard Analysis, Dr Mendham included a fault tree analysis that described potential node failures that may lead to an explosion in the chamber.  Dr Mendham used failure frequencies from published data in his likelihood or frequency analysis.  His analysis culminated in an estimated probability of an initiation of a fire and explosion event within the chamber of 3.83 x 10-6 per year (i.e., 3.83 chance in a million per year) before implementation of proposed controls. 
  15. [180]
    The Level 2 Preliminary Hazard Analysis then provided an event tree analysis, which estimated the potential consequences and likelihood of the outcome from the initiation of a fire and explosion event within the tank chamber.  The analysis demonstrated that a fire and explosion event with potential offsite impact has an occurrence probability of 4.85 x 10-9 per annum (i.e., approximately 0.5 in 100 million per year or 0.005 in one million per year).  The estimate assumes a scenario where all engineering controls have failed to mitigate the risk and that a potential for offsite impact exists.  From this analysis, it is reasonable to infer that the individual risk of fatality per year is no more than 0.5 in 100 million per year.  This is because the offsite impact may not result in fatality.
  16. [181]
    Dr Mendham’s assessment of the risk against the “as low as reasonably practicable” criteria had the level of risk in the “broadly acceptable region” (and below the “tolerable region”).
  17. [182]
    Despite the views expressed in the joint expert report about the rarity of an explosion inside the tank chamber, Mr Robinson went on to say in his individual report that the risk of a stoichiometric tank chamber explosion is of greatest concern to him.  He opines that such an explosion represents a potentially catastrophic event that could kill multiple people.  In Mr Robinson’s view, the potentially catastrophic nature of a stoichiometric tank chamber explosion demonstrates that the risk should be reduced to the smallest possible degree by avoiding a tank chamber at all and by locating the tanks away from the boundary or placing them underground.
  18. [183]
    Mr Robinson’s approach focuses on the consequence of a stoichiometric tank chamber explosion.  He offers no independent analysis of its likelihood.
  19. [184]
    When the hearing commenced, Dr Mendham gave evidence about how the introduction of an air quality condenser reduces the predicted overpressure that would occur if there was an unconfined vapour cloud explosion at the vent outlet.  His evidence demonstrated that the Appellant’s land would no longer be affected by unacceptable overpressure.
  20. [185]
    During cross-examination, Dr Mendham was tested on aspects of his calculations.  Part of the calculation was based on information provided to him by Mr Mauger that Dr Mendham did not have with him at the time of cross-examination.  An application was made for an adjournment to provide relevant evidence from Mr Mauger.  The application was uncontested.
  21. [186]
    During the adjournment, the Appellant retained Dr Abdel-jawad.  He met with Dr Mendham and Dr Raman to consider the modelling with respect to an unconfined vapour cloud explosion of vapours discharged from the tank vent.  They also addressed the risk associated with the stoichiometric tank chamber explosion described by Mr Robinson in his separate report.  Dr Mendham, Dr Raman and Dr Abdel-jawad produced Hazard and Risk Joint Expert Report No. 2. 
  22. [187]
    In that report, Dr Mendham, Dr Raman and Dr Abdel-jawad agree that there is no unacceptable risk associated with an unconfined vapour cloud explosion of vapours discharged from the tank vent.  They each provide a cogent explanation for their opinions.  The Appellant no longer pursues this issue. 
  23. [188]
    With respect to the issue of an explosion in the tank chamber, Dr Abdel-jawad opined that the then proposed internal fixed foam pourers would not effectively prevent the formation of an explosive ethanol vapour cloud.
  24. [189]
    Based on Dr Mendham’s proposal to adopt the water mist system as an alternative, it is reasonable to infer that he accepted the legitimacy of Dr Abdel-jawad’s concerns.  The experts consider that alternative in Hazard and Risk Joint Expert Report No. 2.
  25. [190]
    After receiving Hazard and Risk Joint Expert Report No. 2, Lion-Beer, Spirits and Wine Pty Ltd indicated an intention to adopt the further risk minimisation measures identified by the experts.  It eventually made an application for a minor change to its development application in that respect.  Although the application was made very late in the trial process, it demonstrates that Lion-Beer, Spirits and Wine Pty Ltd is committed to adopting all reasonable measures to minimise the risk associated with its proposed development. 
  26. [191]
    In the circumstances, the evolution of the evidence adduced on behalf of Lion-Beer, Spirits and Wine Pty Ltd does not cause me to doubt its reliability, nor do the late changes to the development application.

What are the relevant properties of ethanol?

  1. [192]
    There is no real dispute between the parties about the relevant properties of ethanol.
  2. [193]
    Ethanol is a flammable liquid.  It is non-corrosive.
  3. [194]
    The flashpoint of a flammable liquid is the lowest temperature at which liquid can ignite when exposed to an open flame under specified conditions.  Ethanol has a flashpoint of less than 23 degrees Celsius and a boiling point of greater than 35 degrees Celsius. 
  4. [195]
    The flammable or explosive range of a substance is the concentration range of that substance in air that can burn or explode when ignited.  It is defined by the lower explosive limit and the upper explosive limit.
  5. [196]
    Below the lower explosive limit of 3.3 per cent ethanol to air, the mixture is too lean to burn.  Above the upper explosive limit of 19 per cent, the mixture is too rich to burn.  Between the lower explosive limit and upper explosive limit, the mixture is flammable. 
  6. [197]
    The stoichiometric ratio is the exact ratio between air and flammable gas or vapour at which complete combustion of the flammable vapour takes place.  The stoichiometric concentration of ethanol vapour to air is 6.54 per cent.
  1. [198]
    Given the properties of ethanol, its storage is hazardous if it is not managed correctly. 
  2. [199]
    While burning of an ethanol and air mixture within the flammable range is certain to occur if the mixture is ignited, an explosion resulting in blast effect can only occur under certain conditions, such as confinement of the vapour-air mixture.  The approximate temperature range in which an ethanol equilibrium vapour and air mixture is in the explosive range is between 10 degrees Celsius and 33 degrees Celsius. 
  1. [200]
    Another important property of ethanol is that it is 100 per cent miscible with water, i.e., it dissolves in water.  In that respect, ethanol is very different to hydrocarbon chemicals such as petrol.  Hydrocarbon gas is immiscible with water mist, whereas water mist is capable of dissolving ethanol vapor thereby mitigating the risk of ignition and explosion.

What is the consequence of a stoichiometric tank chamber explosion?

  1. [201]
    In Hazard and Risk Joint Expert Report No. 2, Dr Mendham, Dr Raman and Dr Abdel-jawad used various models to predict the overpressure that would be created by an explosion in four scenarios.  The scenarios were an explosion resulting from ignition of:
    1. an ethanol cloud that occupies the full tank chamber;
    2. an ethanol cloud that occupies 25 per cent of the tank chamber;
    3. an ethanol cloud that occupies 10 per cent of the tank chamber; and
    4. an ethanol cloud with a volume of 10 cubic metres.
  1. [202]
    The models predicted the overpressure that would be generated by such explosions.
  2. [203]
    In considering the potential impact of the explosion, the experts indicated that the overpressure should be considered in conjunction with the pressure design standard for the tank chamber.  As I have already mentioned, the tank chamber is to be constructed to withstand pressure resistance of at least 30 kPa. 
  3. [204]
    The experts agree that the models show that overpressure of greater than 30 kpa will be caused by an explosion associated with the ignition of an ethanol cloud that occupies the full tank chamber, or even 25 and 10 per cent of it.  Such an explosion will result in structural failure of the tank chamber. 
  4. [205]
    Dr Abdel-jawad opines that the modelled results of overpressure demonstrate that there will be property damage on the Appellant’s land in each explosion scenario.  Dr Abdel-jawad’s opinion is founded on an inference that he draws by comparing the results from various models.  Dr Raman and Dr Mendham disagree with this approach and the inference drawn by Dr Abdel-jawad.
  5. [206]
    Dr Raman disputes the efficacy of use of the model for any purpose other than to predict whether the tank chamber will collapse in the four modelled scenarios.  He explains that none of the four models used are appropriate for predicting the damage that will be caused by an explosion.  This is because when the tank chamber walls collapse, there is more room for venting.  If the explosion is vented, the pressure will dissipate because there is more venting room available.  The models also do not account for the extent to which the collapse of the tank chamber will absorb the overpressure from the explosion.  Rather, the models assume that the pressure will continue to build due to an inability to vent.  Dr Mendham gave evidence to similar effect. 
  6. [207]
    Dr Raman does not dispute that in the event of an explosion that causes the tank chamber to collapse, there may be blast effects beyond the extent of the tank chamber.  However, he says that the extent of the blast effects will depend on several variables.  They include the quantity of vapour, the amount of air available for combustion, the size of the enclosure, the area available for ventilation, the extent to which the pressure continues to build after the structural integrity of the tank chamber begins to fail, and the extent to which the collapse of the tank chamber absorbs the overpressure from the explosion.  He says that these matters have not been modelled.
  7. [208]
    I accept the evidence of Dr Raman and Dr Mendham on this issue.  They each provide a cogent explanation about why the modelled results cannot reliably predict the outcomes that follow the collapse of the tank chamber.  Having regard to the evidence of Dr Raman and Dr Mendham, I am not persuaded about the cogency of the inferences drawn by Dr Abdel-jawad.
  8. [209]
    As I have said, the consequences of explosions resulting from ignition of an ethanol cloud that occupies 10 per cent, 25 per cent or the full tank chamber were not modelled.  For present purposes, I am prepared to assume that explosions of that magnitude have the potential to result in fatalities.  However, that is not the end of the matter.  This is because the likelihood of such explosions is disputed. 
  9. [210]
    Before turning to the issue of likelihood, it is appropriate to consider explosions of lesser magnitude. 
  10. [211]
    Dr Mendham accepts that there is a remote likelihood of an ethanol cloud with a volume of 10 cubic metres developing within the tank chamber before the safety design features activate and dissolve the ethanol cloud. 
  11. [212]
    Dr Raman opines that the quantity of vapour that may be involved in an explosion depends on when ignition occurs.  Leaving aside the possibility of an ignition source, Dr Raman says it would take 2.2 minutes for a stoichiometric cloud of 10 cubic metres to form.  He estimates that there would be four minutes between the automatic detection of a leak and the automatic activation of the water mist system.  Dr Raman’s estimate includes an allowance of time for the water mist system to be effective in dissolving the ethanol vapour to prevent ignition.  Dr Raman calculates that a stoichiometric cloud of 18 cubic metres, or four per cent of the tank chamber free volume, could form in that four-minute period. 
  12. [213]
    Dr Mendham and Dr Raman opine that, assuming ignition, an explosion of an ethanol cloud with a volume of 10 cubic metres will produce a maximum overpressure of 11 kPa. 
  13. [214]
    Although Dr Mendham does not accept that a cloud of 18 cubic metres would develop before mitigation measures take effect, he explains that:
    1. a 10 cubic metre ethanol cloud would produce an explosion with approximately 10 kPa overpressure;
    2. a 20 cubic metre cloud would produce an explosion with approximately 20 kPa overpressure; and
    3. a 30 cubic metre ethanol cloud would produce an explosion with approximately 30 kPa overpressure. 
  14. [215]
    Dr Mendham’s evidence is based on FLACS modelling.  The FLACS model is a computational fluid dynamics explosion study undertaken by Gexcon.  A copy of the model was provided during the joint meeting process.  The evidence includes a report that explains the model, its inputs and assumptions and the results produced by it: Exhibit 31.
  15. [216]
    Dr Raman accepts the results of the FLACS model.
  16. [217]
    Based on the results from the FLACS model, overpressures of the magnitude predicted by Dr Mendham and Dr Raman are well below the design specifications for the tank chamber.  For that reason, Dr Mendham and Dr Raman opine that the impact of explosions of ethanol clouds of those volumes will be contained within the chamber and will not impair the integrity of the tank chamber.  I find the evidence of Dr Mendham and Dr Raman to be compelling.
  1. [218]
    Dr Abdel-jawad disagrees.  Based on modelling that Dr Abdel-jawad undertook using exploCFD, he opines that a 10 cubic metre ethanol cloud would produce an explosion with approximately 37 kPa overpressure.  He also says that even if the overpressure is less than the design pressure for the tank chamber, it is not clear that the tank chamber will maintain its structural integrity because of the duration of the overpressure impulses.
  2. [219]
    Dr Abdel-jawad did not provide a copy of the exploCFD model.  After the evidence of Dr Mendham and Dr Raman had concluded, Dr Abdel-jawad provided an affidavit in which he explains that he did not provide the original model files during the joint meeting process because the other experts did not request them.  This explains why neither Dr Mendham nor Dr Raman address the results of the exploCFD model in Hazard and Risk Joint Expert Report No. 2.  
  3. [220]
    In his affidavit, Dr Abdel-jawad indicates that he can produce the original model files.  His offer to do so was made immediately prior to him being called to give evidence, after Dr Mendham and Dr Raman had already given evidence.  This explains Dr Mendham and Dr Raman’s inability to assist the Court with the differences between the results predicted by the FLACS model and the exploCFD model during their oral evidence. 
  4. [221]
    The relevant exploCFD model files are not in evidence before me.  Nor do I have a report explaining how the model works and the inputs to it, such as that provided by Gexcon in relation to the FLACS model. 
  5. [222]
    In the circumstances, it is difficult to accept that I should give any, let alone material, weight to Dr Abdel-jawad’s evidence about the results of his modelling: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, 729-30 [59]-[60], 733 [68], 743-4 [85]. 
  6. [223]
    It is unnecessary for me to dwell on these difficulties.  Even if I were to accept all Dr Abdel-jawad’s evidence about the consequences, I am persuaded that the risk is such as to warrant refusal given my findings below about the likelihood of the scenarios that were modelled.  I now turn to deal with that issue.

What is the likelihood of a stoichiometric tank chamber explosion?

  1. [224]
    It is common ground that:
    1. both the consequences and the likelihood of a potential hazard are relevant to the assessment of risk; and
    2. City Plan does not call for avoidance of all risk: rather, it seeks the minimisation of risk and the avoidance of avoidable risk. 
  2. [225]
    As I have mentioned already, the Industrial hazard and risk assessment planning scheme policy defines risk as “the likelihood of harm occurring from a hazard” (emphasis added).
  1. [226]
    That begs the question: what is the evidence adduced by the Appellant that raises an issue about the likelihood of a stoichiometric tank chamber explosion?
  1. [227]
    As I have already identified, Mr Robinson’s evidence focuses on the consequence of a stoichiometric tank chamber explosion.  He gave limited evidence about the likelihood of such an event. 
  2. [228]
    With respect to likelihood, Mr Robinson opines that the scenario is rare but possible.  His opinion is not founded on an analysis of likelihood.  Rather, in terms of the possibility of an explosion, Mr Robinson’s opinion is founded on the fact that an ethanol tank fire occurred in 2004 at Port Kembla in New South Wales and an ethanol explosion has occurred in the United States of America. 
  3. [229]
    Mr Robinson did not provide any information that allows an assessment of the comparability of the systems in place at those facilities with that proposed here.  He also did not provide any details as to the cause of the events to which he referred. 
  4. [230]
    The most assistance provided by Mr Robinson was the reference details for the article he consulted with respect to the ethanol explosion in the United States of America.  It is reasonable to infer from the contents of that article that, prior to the explosion, the facility did not have systems such as those proposed here. 
  5. [231]
    In my view, Mr Robinson’s opinion that a stoichiometric tank chamber explosion on the subject land is possible is speculative and uncompelling.  Mr Robinson offers no credible evidence to support his opinion.
  6. [232]
    Like Mr Robinson, Dr Abdel-jawad’s evidence focusses on the consequence of an explosion.  In his modelled scenario, Dr Abdel-jawad assumes the simultaneous occurrence of:
    1. an ethanol leak from the stainless-steel tanks; and
    2. a source of ignition.
  7. [233]
    Dr Abdel-jawad did not analyse the likelihood of the scenario that he modelled, i.e., the likelihood of a leak or a source of ignition, let alone the likelihood of both occurring simultaneously. 
  8. [234]
    Dr Abdel-jawad took no issue with the calculations provided by Dr Raman in the Hazard and Risk Joint Expert Report No. 2 or those provided by Dr Mendham in his Preliminary Hazard Analysis or his Level 2 Preliminary Hazard Analysis.
  9. [235]
    The absence of meaningful consideration of the likelihood of the scenario was highlighted during Dr Abdel-jawad’s cross-examination by Mr Hughes KC, when the following exchanges occurred:

“Can I ask you a number of other questions. Well, you might – may or may not be able to assist. If you can’t, please don’t hesitate to stay within your lane. In terms of corrosion, which you’ve considered, it’s clear that stainless steel has a resistance to corrosion considerably greater than carbon steel; correct?‑‑‑Yes. Correct. But – but corrosion isn’t the only way that the release can happen, right?

No. No, I’m ‑ ‑ ‑?‑‑‑So it could be ‑ ‑ ‑

Just bear with me, would you?‑‑‑Sure.

Construction errors and welding failures. You’re not suggesting that there wouldn’t be a very high level of supervision of any welding and construction of this proposal should it be approved by her Honour?‑‑‑I have been in, um ‑ ‑ ‑

Sorry, you haven’t answered the question. You can say whatever you like ‑ ‑ ‑?‑‑‑Okay.

‑ ‑ ‑ but answer the question. You’re not suggesting that her Honour should assume there won’t be a high level of supervision of the construction and welding activities should this development be approved?‑‑‑I’m not suggesting that but errors could ‑ ‑ ‑

Thank you?‑‑‑ ‑ ‑ ‑ still happen.

Thank you. In terms of the – in terms of this assumption of a – the modelling based on a 10 metre diameter hole, that’s four inches. Ten millimetres, I should say, is, in the old money ‑ ‑ ‑?‑‑‑Less than an inch, right?

Less than inch?‑‑‑Yeah.

And what’s going to cause that, do you know?‑‑‑Uh, anything could cause that. It could be a dropped object. It could be a, um – uh, anything. I mean, there’s a ‑ ‑ ‑

Okay?‑‑‑ ‑ ‑ ‑ there’s a whole bunch of – we – we – I didn’t look into the, sort of, scenario that’s going to cause the hole. We just look at the consequences of the hole because they do happen for a variety of reasons.

So it could be anything? You can’t ‑ ‑ ‑?‑‑‑I mean, it could be a variety of things, okay?

It could be a variety of things?‑‑‑Yep.

It could be something being dropped?‑‑‑Yeah, a cropped object, a collision, an accident, uh -uh, uh, yeah.

A dropped object?‑‑‑Bad maintenance – bad maintenance.

Yeah?‑‑‑Yeah. Unintentional bad maintenance.

A dropped object fracturing or penetrating the stainless steel tank; is that what you’re saying or ‑ ‑ ‑?‑‑‑It depends on how heavy the object is, right? And how ‑ ‑ ‑

And a collision. What, you’re not talking about a vehicular collision or – what are you talking about the ‑ ‑ ‑?‑‑‑Yeah, it could be a vehicular collision, right?

Inside this – the tank? Inside the ‑ ‑ ‑?‑‑‑Yeah.

‑ ‑ ‑ tank chamber?‑‑‑I – to be honest, I didn’t consider these – uh, these lead-up scenarios because there’s a – there is a different one for every accident, so ‑ ‑ ‑

Yes. And ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ you know, don’t want to ‑ ‑ ‑

‑ ‑ ‑ in fact, you didn’t assess the probability of this happening, did you? You assessed the consequences of there being a ‑ ‑ ‑?‑‑‑Correct. Correct.”

(emphasis added)

  1. [236]
    The potential causes of a leak proffered by Dr Abdel-jawad are not plausible.  That lack of plausibility is demonstrated by the evidence given by Mr Robinson during cross-examination by Mr Job KC, wherein the follow exchanges occurred:

“Okay. And in terms of the hazard scenarios in – that were mentioned in the joint report, but you’ve set them out in your separate report, for example, at paragraph 19, and you told us there that they were in decreasing order of consequence?‑‑‑Yes.

The first one being the vapour cloud explosion in the chamber. For ethanol chamber to be released inside the chamber, there must be event pipe failure between the tank and the roof, correct?‑‑‑Or a leak from the tanks.

And the possibilities for the pipe failure include corrosion of the pipe, correct?‑‑‑Yes.

A leak between the tank and pipe connection?‑‑‑Some mechanical failure, yes. 

Yes. An impact failure on the vent pipe; for example, from maintenance work?‑‑‑Something like that, yes.

Or overpressure from a blockage?‑‑‑Yes. And I just found another one when I was checking something in the last couple of days ‑ ‑ ‑

Right. And in terms of corrosion, the first one I mentioned ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ we’re dealing with stainless steel here, aren’t we?‑‑‑Yes, I believe so.

And it’s by its nature not vulnerable to corrosion, is it?‑‑‑Much less, yes.

Well, it’s not – it’s much, much less than, what, carbon steel?‑‑‑Carbon steel, things – stuff like that.

Right. So considerably less than carbon steel?‑‑‑Mmm-hmm.

Right ‑ ‑ ‑

HER HONOUR: Was that a yes? You need to speak your answers?‑‑‑I’m sorry. Yes, it should be considerably less than carbon steel.

MR JOB: And just apropos that, you were in evidence when Dr Rahman gave his evidence today?‑‑‑Yes.

And he indicated that his fault tree was based upon carbon steel rather than stainless steel?‑‑‑Yes.

And so you agree with him that the likely risk of a failure of stainless steel would be considerably less than what he applied?‑‑‑I would expect so, yes.

Right. In terms of the stainless steel and corrosion, the nature of ethanol is also that it’s non-corrosive, correct?‑‑‑It’s a solvent. It’s not corrosive as an acid sense or anything like that ‑ ‑ ‑

Yes?‑‑‑ ‑ ‑ ‑ It’s a – it’s OH, so it’s a – it’s an alcohol.

Yes. And in terms of corrosion still, there would be maintenance checks you would expect to be conducted ‑ ‑ ‑?‑‑‑I would anticipate, yes.

And despite the stainless steel and the non-corrosive properties of ethanol, if corrosion was in fact to occur, you would expect that in this facility it would be detected and dealt with?‑‑‑The – there are detectors in there, and if they’re well maintained they should detect it, yes.

Yes. Part of the workplace health and safety regime that you champion?‑‑‑Yes.

All right. And the scale and nature of the brewery and its operation is that you would expect it to have very good systems of maintenance and the like?‑‑‑Ah, I can’t comment, but one would imagine so. I don’t know.

In terms of the leak scenario, the vent connections, the whole system would be leak tested after installation?‑‑‑One would expect it to be tested, yes.

Yes. And once tested, none of these assembled parts are interfered with, correct?‑‑‑One would expect not, but things happen.

Right. And if they – what are you saying “Things happen”; someone breaks into the chamber or ‑ ‑ ‑?‑‑‑No, like, the case that the – the [indistinct]. I was just looking up something on the weekend, and I just noticed ‑ ‑ ‑

You’re very keen to tell us about what you looked up on the weekend, but you haven’t told us about that previously in writing?‑‑‑No.

In terms of the leaks, there again would be maintenance regimes?‑‑‑One would hope so, yes.

Yes. And as to the maintenance, there wouldn’t be maintenance work, for example, during the course of an ethanol transfer from a tanker, would there?‑‑‑I wouldn’t have thought so.

No. And if there’d been some impact on the pipes or the tanks or whatever from a maintenance activity that was occurring at other times, you’d expect that investigation of that and corrective actions to be taken before more ethanol is received, for example?‑‑‑I – I obviously can’t comment on the nature and the way in which Lion conducts their business, but a reputable organization would do that.

Yes. Again, consistent with the workplace due diligence regime that you champion?‑‑‑Yes.

Yes. And the same is true of the blockage scenario; it would require something to be clogged, which would be not a realistic scenario given the periodic maintenance and the monitoring and the like?‑‑‑I can’t answer that ‑ ‑ ‑

Right?‑‑‑ ‑ ‑ ‑ Strange things happen.”

(emphasis added)

  1. [237]
    As for the likelihood of an ignition source, Dr Abdel-jawad says that a water spray, mist or deluge system can enhance explosion likelihood and increase the severity of explosions.  He opines that they can lead to ignition and increased overpressure.  According to Dr Abdel-jawad, at the very least, several industry leaders urge the testing of these systems on a case-by-case basis.  He opines that, given the proposed system has not been tested, it will be ineffective and quite likely even damaging.
  1. [238]
    I do not accept Dr Abdel-jawad’s evidence in this respect.  His criticism is based upon literature to that effect but, as he conceded in cross-examination, the literature relates to hydrocarbon gases rather than ethanol.  The latter is 100 per cent miscible in water, whereas the former is not.  As Dr Mendham explains, that is a fundamental difference.  Dr Abdel-jawad ultimately accepted the difference and conceded that the water mist system may work. 
  2. [239]
    I do not share Dr Abdel-jawad’s residual concern that the water mist system is untested.  I prefer the evidence of Dr Mendham and Dr Raman in this regard.
  3. [240]
    During cross-examination, Dr Mendham explained that there is a critical difference between a water mist system and a water deluge system like that considered in some of the literature referred to by Dr Abdel-Jawad.  He says a water deluge system involves droplets of water that spray from an outlet on the roof.  In contrast, a water mist system produces much smaller water particles, more in the order of half the thickness of hair.  Dr Mendham likened water mist to the steam from a kettle.  Water mist is very dense.  It would fill the tank chamber like a fog.  Dr Mendham explains that the technology is not new, but it is evolving, with smarter and better methods for delivery being developed. 
  4. [241]
    A similar view was expressed by Dr Raman in Hazard and Risk Joint Expert Report No. 2.  In response to Dr Abdel-jawad’s concerns about the effectiveness of the water mist system, Dr Raman explained that deluge systems discharge large amounts of water with relatively large droplet sizes.  They are used in fire suppression.  By contrast, a water mist system, especially a high-pressure system, produces fine water droplets or mists with a higher surface area to volume ratio.  He says that a water mist system is used for both minimising ignition probability and fire suppression.  Dr Raman identified professional literature that provides qualified support for the suggestion that there are potential benefits to injecting water mist to mitigate explosion hazards in a compartment.  The literature indicates that benefits include the cooling of potential ignition sources and an increase in ignition energy required to ignite a fuel-air mixture.  To be effective, the water droplet sizes must be small.  Further, when considering the potential effectiveness, like Dr Mendham, Dr Raman considered it material that, unlike hydrocarbon gas, ethanol is 100 per cent miscible with water mist.  Ultimately, Dr Raman says that he expects that a water mist system would “knock down” the ethanol vapour into solution.
  5. [242]
    The Appellant submits that the evidence of Dr Mendham and Dr Raman demonstrates that there is insufficient detail on the water mist system to show that the proposed development is appropriate.
  6. [243]
    It has long been recognised by this Court that full detailed design is often left for later, once the Court has decided that a proposed development should proceed.  However, in some instances, the details are critical.  The degree of detail and certainty required will depend upon the type of approval sought and the matters of relevance that the decision maker is called upon to assess in granting or withholding approval in the particular case: Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, 775; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 371; Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18; [2022] QPELR 235, 249 [62].
  7. [244]
    In this case, the information should be sufficient for a judgment to be made about whether, on the balance of probabilities, an appropriate water mist system can be designed and installed such that the grant of a development permit so conditioned is not futile. 
  8. [245]
    During cross-examination, Dr Mendham and Dr Raman accepted that the design of the system is critical and will need to be purpose designed and tested.  That said, they provided cogent explanations as to why they considered the water mist system was appropriate and would be effective.  Their evidence satisfies me that the technology is sufficiently evolved that an appropriately conditioned approval is not futile.
  1. [246]
    The untested nature of the system is sufficiently addressed by those aspects of the proposed development identified in paragraphs [111], [112], [119] and [120] above.  The imposition of conditions reflecting these aspects of the proposed development will ensure that construction of the tank chamber will not occur, and the use will not commence, unless the water mist system is tested and certified as fit for its intended purpose. 
  2. [247]
    Given the difficulties with the evidence adduced by the Appellant identified above, in my view the evidence is insufficient to raise a stoichiometric tank chamber explosion as a credible scenario.  As such, a requirement to quantify the risk for the purpose of demonstrating achievement of the hazard and risk criteria in Table 9.3.12.3.I. in the Industry code would be entirely arbitrary.  In my view, properly construed, performance outcome PO3 of the Industry code does not necessitate the modelling of consequences of scenarios that lack credibility: see relevant context in this regard in paragraphs [49] to [74] above. 
  3. [248]
    In any event, the evidence of Dr Raman and Dr Mendham comfortably persuades me that there is no unacceptable risk by reason of a stoichiometric tank chamber explosion.  There are three noteworthy aspects of the evidence in that respect.
  4. [249]
    First, I accept the evidence of Dr Mendham and Dr Raman that there is no credible risk of a stoichiometric tank chamber explosion causing damage outside the tank chamber: see paragraphs [167] to [173], [175] to [181], [208] to [217], and [240] to [246] above.  The features of the proposed development identified in paragraphs [83] to [126] above are such that:
    1. there is no credible risk of a leak occurring in the tank chamber; and
    2. even if there was a leak, the risk will be minimised by the proposed water mist system such that the effect of any explosion will be contained within the tank chamber; and
    3. there is no credible risk of an ignition occurring in the tank chamber.
  1. [250]
    The second noteworthy aspect of the evidence is Dr Mendham’s first individual report to which I have referred in paragraphs [175] to [181] above.  Although Dr Mendham’s Level 2 Preliminary Hazard Analysis was based on the proposed development before the minor change on 1 May 2025, during cross-examination, Dr Mendham opined that the changes to the proposed development improved it from the risk perspective.  Dr Mendham explained that, in terms of risk, the water mist system was certainly no worse than the earlier foam suppression system and, in his view, it would be better.  I accept his evidence in this regard.  It is supported by the evidence of Dr Raman about the water mist system, which I also accept.
  2. [251]
    The third aspect of the evidence that I find compelling is Dr Raman’s calculation of the likelihood of an explosion in the tank chamber.  In Hazard and Risk Joint Expert Report No. 2, Dr Raman sets out, in detail, the sequence of events that would be necessary to lead to an explosion because of an ethanol leak from a tank or from pipework.  He also details an additional scenario, namely a tank vent pipe rupture and release during tanker unloading.  Dr Raman’s sequence of events demonstrate the breadth and depth of the mechanisms and controls incorporated in the proposed development to avoid those consequences occurring.
  3. [252]
    Following his explanation of the sequence of events, Dr Raman explains his methodology for the estimation of the size of a pool of spilled ethanol in the tank chamber.  Dr Raman’s evidence demonstrates that the drainage rate into the bund sump would exceed the leakage (even for a hypothetical 50-millimetre hole) and therefore a pool of ethanol would be confined to the path between the leak source and the sump.  Dr Raman’s calculations demonstrate that the pool diameter would not grow or spread.
  4. [253]
    Dr Raman identifies two evaporation mechanisms from which he calculates an evaporation rate.  His calculation of the evaporation rate was revised from that provided in Hazard and Risk Joint Expert Report No. 1 to address belated criticisms made in Mr Robinson’s individual report.
  5. [254]
    Dr Raman then calculated the time taken to reach a stoichiometric concentration for 20, 30 and 40 degrees Celsius.  In so doing, he noted that a 100 per cent stoichiometric concentration of the tank chamber would not be reached.
  6. [255]
    Following this, Dr Raman detailed his calculation of the response time from the time of detection of ethanol vapour in the tank chamber to the filling of the tank chamber with water mist.  His calculation shows a detection time of approximately four minutes.  That period accounts for the response time taken by the various components of the vapour detection system.  It allows for the time from leak source to drain point; the response time for the gas detector; the time taken for confirmation of a leak from flow or level discrepancy alarms; the time taken for the leaked ethanol to reach the sump and accumulate to the extent that it would activate the liquid level sensor in the sump and the associated alarm; and the time taken before automatic activation of the water mist system.  On Dr Raman’s calculations, in the four-minute response time, an 18 cubic metre stoichiometric mixture may form in the tank chamber.  That represents only 4 per cent of the tank chamber free volume as the total volume of the chamber is 460.4 cubic metres.
  7. [256]
    Dr Raman also undertook a fault tree analysis for the events in which he assumes failure of the various protection layers.  A fault tree analysis is a method for representing the logical combinations of various system failures leading to an ethanol stoichiometric vapour cloud explosion in the tank chamber.  The fault tree analysis is informed by the sequence of events described by Dr Raman.  He advises that after a detailed design where instruments are selected, it will be possible to obtain reliability data from the manufacturer.
  8. [257]
    There was conservatism in Dr Raman’s calculation.  He explains that for vapour detection, multiple detectors are proposed.  For his analysis, he assumes failure occurs by the failure of a single detector.  This is conservative as the likelihood of all detectors failing is much lower than that of one detector.  Dr Raman describes that likelihood as very low.  Additionally, Dr Raman adopts failure rates based on available data for steel pipes rather than stainless-steel pipes.  As he explains, the failure rate for stainless-steel is below that of steel, given its higher resistance to corrosion. 
  9. [258]
    Based on that conservative approach, Dr Raman calculates the event frequency to be 1.46 x 10-6 per annum (i.e., 1.46 per million per annum) for an explosion from a leak from the tank or pipework scenario, and 1.5 x 10-6 (i.e., 1.5 per million per annum) for an explosion from a tank vent pipe rupture and release during unloading.  Dr Mendham described Dr Raman’s assessment as fairly consistent with his own.
  10. [259]
    This evidence from Dr Raman was not challenged and I accept it. 
  11. [260]
    There are various features of the proposed development that further reduce the risk from that calculated by Dr Raman (i.e., approximately 1.5 per million per annum).  They are detailed in paragraphs [83] to [126] above, particularly those that were introduced in the application for minor change.  They include:
    1. an ethanol vapour detector that is capable of measuring the concentration of ethanol vapour, which is to be designed and installed up to a safety integrity level 3;
    2. a level switch system that is to be installed in the bund sump shown on Drawing DA303 Issue C, which is to be designed and installed up to a safety integrity level 3;
    3. a volume comparison alarm that measures the level of ethanol in the tank and the amount of ethanol being transferred into the tanks; and
    4. a water mist system designed to Australian Standard AS4587-2020, which is to activate in response to detection systems.
  12. [261]
    Having regard to the combination of Dr Raman’s calculations, the conservative nature of his calculations and the various features of the proposed development that further reduce the risk, I consider it reasonable to infer that the proposed development achieves the hazard and risk criteria in Table 9.3.12.3.I of the Industry code.  With the benefit of all of Dr Raman’s evidence, including his oral evidence, I understand that such an inference is the basis of Dr Raman’s opinion that there is compliance with performance outcome PO3 of the Industry code.

Conclusion about the risk associated with a stoichiometric tank chamber explosion

  1. [262]
    For the reasons provided above, I am comfortably satisfied that:
    1. a stoichiometric tank chamber explosion that has effects beyond damaging the tanks and the structural integrity of the tank chamber is not a credible hazardous scenario;
    2. the likelihood of a stoichiometric tank chamber explosion that has effects beyond damaging the tanks and the structural integrity of the tank chamber is so remote that a requirement to quantify the risk to demonstrate achievement of the hazard and risk criteria in Table 9.3.12.3.I. in the Industry code would be entirely arbitrary; but, in any event,
    3. the evidence is sufficient for me to conclude that the proposed development achieves the hazard and risk criteria in Table 9.3.12.3.I of the Industry code; and
    4. there is no unacceptable risk posed by a stoichiometric tank chamber explosion.

Does the location of the proposed development minimise the risk to public safety and property?

  1. [263]
    As I have recorded in paragraph [156] above, the Appellant alleges that the proposed development does not minimise the risk to public safety and property as required by performance outcome PO3 of the Industry code. 
  2. [264]
    The Appellant’s case for refusal with respect to this allegation is founded on two propositions, namely:
    1. the tank chamber does not comply with the separation distance requirements in Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids; and
    2. Lion-Beer, Spirits and Wine Pty Ltd has not demonstrated that it has considered feasible alternative locations for the proposed development on the subject land. 
  3. [265]
    I now turn to consider each of these issues.

Does the proposed development comply with separation distance requirements?

  1. [266]
    The Appellant contends that the proposed development does not minimise risk as the tank chamber does not comply with the separation distances required in Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids.
  2. [267]
    Australian Standards are not statutory instruments under s 7 of the Statutory Instruments Act 1992 (Qld) to which the principles of statutory construction might apply.  They are documents that have been compiled and published by the corporate entity, Standards Australia International Ltd.  (That entity has previously been recognised by the Supreme Court of Western Australia as an independent, not-for-profit organisation recognised by the Australian Government as the peak non-government standards body in Australia: Willis v Endall [2011] WASC 45, [26].)  Australian Standards represent the consensus of professional opinion and the practical experience about sensible, safe precautions: Onetech Pty Ltd v Shaw [1999] WASCA 289 at [17] citing Ward v The Ritz Hotel (London) Ltd (1992) 1 PIQR 315 at 317. 
  3. [268]
    The Appellant relies on the evidence of Mr Robinson to support its contention of non-compliance with the separation distances required in Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids. 
  4. [269]
    Mr Robinson did not raise any issue regarding separation distance in Hazard and Risk Joint Expert Report No. 1.  He only raised the issue in his separate report.  By reference to Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids, Mr Robinson identifies the interpolated separation distance required by Table 5.4 of the Australian Standard to be 8.66 metres.  The Appellant says that the proposed development breaches this standard.  The proposed development is located approximately 7.7 metres from Ms Linda Burridge’s townhouse on the Appellant’s land.  It is even closer to the open community space on the Appellant’s land, which area immediately adjoins the boundary.
  5. [270]
    There is no dispute that the Appellant’s land is a protected place for the purpose of Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids.
  6. [271]
    Dr Mendham and Dr Raman opine that the proposed development complies with the separation distance requirements when measured from the boundary.
  7. [272]
    According to Dr Raman, Mr Robinson’s analysis overlooks or ignores the requirements in s 3.8.1 of Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids, which states:

“Separation distances may be measured in a horizontal plane around the end of any intervening vapour barrier, provided that the barrier complies with the following:

  1. For separation from protected places and on-site protected places, such a vapour barrier is also a firewall.
  1. Building walls may be treated as firewalls or vapour barriers provided that they qualify as such.

…

Firewalls and vapour barriers may be used to achieve the separation distances in Tables 4.1, 4.2, 5.3 and 5.4 to protected places, public places and security fences.”

  1. [273]
    The term “vapour barrier” is defined in s 1.4.73 of Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids as:

“A wall or other barrier constructed and placed with the object of preventing the passage of vapour from any one place to another.”

  1. [274]
    The term “firewall” is defined in s 1.4.26 as:

“A wall or other barrier having a specified fire resistance level, constructed and placed for the purpose of preventing the spread of fire.”

  1. [275]
    The term “fire resistance level” is defined in s 1.4.24 as:

“The grading period, in minutes, determined in accordance with AS 1530.4 for—

  1. structural adequacy;
  1. integrity; and
  1. insulation,

and expressed in that order (e.g. 60/60/30).”

  1. [276]
    As I have mentioned in paragraph [92] above:
    1. the tank chamber walls will have a fire resistance level of 240/240/240;
    1. the tank chamber floor will have a fire resistance level of 180/180/180; and
    2. the tank chamber roof will have a fire resistance level of 180/180/180.
  2. [277]
    Having regard to those features, I accept the evidence of Dr Raman that the tank chamber is a firewall and a vapour barrier. 
  3. [278]
    In those circumstances, Dr Raman says that the measurement of the separation distance is to be undertaken around the intervening vapour barrier, i.e., it is measured to the door to the tank chamber. 
  4. [279]
    In support of his approach, Dr Raman explains that the purpose of separation distances is to control the potential for vapour to disperse and find an ignition source.  The measurement of the separation distance around the wall to the door is consistent with that purpose.
  5. [280]
    The aid prepared by Dr Raman demonstrates that, adopting that calculation method, the separation distance is 24 metres, which is compliant with Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids. 
  6. [281]
    I prefer the evidence of Dr Raman to that of Mr Robinson and the approach of the Appellant.  Dr Raman’s explanation for his opinion is compelling.  It reveals an intimate understanding about the consensus of professional opinion and practical experience regarding sensible, safe precautions reflected in Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids.  The same cannot be said of Mr Robinson’s evidence.  Having listened to his evidence, I am not persuaded that Mr Robinson has any relevant experience with the proper application of Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids.  Rather, he appears to have reached his opinion based on a layman’s incomplete reading of the Australian Standard.
  1. [282]
    I am satisfied that the proposed development complies with the separation distances required in Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids.

Are there feasible alternative locations for the proposed development?

  1. [283]
    The Appellant contends that avoiding all avoidable risk requires the investigation of alternative locations.  It says that Lion-Beer, Spirits and Wine Pty Ltd has not properly investigated feasible alternatives on the subject land.  As such, the Appellant says that the siting of the tank chamber on the western boundary of the subject land does not minimise the risk as required by performance outcome PO3 of the Industry code.  The Appellant also says that this failure by the Lion-Beer, Spirits and Wine Pty Ltd sounds in non-compliance with the other assessment benchmarks relied on by the Appellant that call for development to be appropriately located. 
  2. [284]
    In support of its contentions, the Appellant says the Hazardous Industry Planning Advisory Paper No. 4: Risk Criteria for Land Use Safety Planning provides relevant guidance in s 2.2, wherein it states:

“Irrespective of the numerical value of any risk criteria level for risk assessment purposes, it is essential that certain qualitative principles be adopted concerning the land use safety acceptability of development.  The following qualitative criteria are appropriate whether making zoning decisions, assessing the risk implications of a development project of a potentially hazardous nature or the locational safety suitability of a development in the vicinity of a potentially hazardous installation:

  1. All ‘avoidable’ risks should be avoided.  This necessitates the investigation of alternative locations and alternative technologies, wherever applicable, to ensure that risks are not introduced in an area where feasible alternatives are possible and justified.
  1. The risk from a major hazard should be reduced wherever practicable, irrespective of the numerical value of the cumulative risk level from the whole installation.  In all cases, if the consequences (effects) of an identified hazardous incident are significant to people and the environment, then all feasible measures (including alternative locations) should be adopted so that the likelihood of such an incident occurring is made very low.  This necessitates the identification of all contributors to the resultant risk and the consequences of each potentially hazardous incident.  The assessment process should address the adequacy and relevancy of safeguards (both technical and locational) as they relate to each risk contributor…”

(emphasis reflects that added by the Appellant)

  1. [285]
    The Appellant also relies on s 2.4.1 of Hazardous Industry Planning Advisory Paper No. 4: Risk Criteria for Land Use Safety Planning, which relevantly states:

“In assessing the tolerability of risk from potentially hazardous development, both qualitative and quantitative aspects need to be considered.  Relevant general principles are:

  • the avoidance of all avoidable risks;
  • the risk from a major hazard should be reduced wherever practicable, even where the likelihood of exposure is low;
  • the effects of significant events should, wherever possible, be contained within the site boundary; and
  • where the risk from an existing installation is already high, further development should not pose any incremental risk.”
  1. [286]
    The Appellant says that Lion-Beer, Spirits and Wine Pty Ltd has focussed on the use of operational management measures, rather than increasing separation distance to attempt to minimise the explosion risk.  The use of operational measures and separation distance to minimise risk are not mutually exclusive.  The Appellant says that the features proposed by Lion-Beer, Spirits and Wine Pty Ltd should have been used in conjunction with an increased separation distance.
  2. [287]
    The choice of location of the facility is dealt with by the evidence of Mr Horn, the Group Operations Director of Lion-Beer, Spirits and Wine Pty Ltd.
  3. [288]
    Mr Horn provided a statement setting out six design options that were considered by Lion-Beer, Spirits and Wine Pty Ltd.  Two of the options involved locating the tanker unloading facility and the ethanol storage facility on the east side of Bellevue Street, farther from the Appellant’s land.  Those options involved lesser construction costs and located the tank cluster at least 56 metres from the Appellant’s land.
  4. [289]
    In terms of the location that is now proposed, Mr Horn says:

“Although the proposed location results in an increased cost of construction for the tank chamber, it was considered by the Co-Respondent to be the most appropriate option given that it allowed for appropriate operation of the Tanker Unloading Facility.”

  1. [290]
    The Appellant submits that Lion-Beer, Spirits and Wine Pty Ltd should not gain a benefit from the fact that previous approvals were obtained to set up the tanker unloading facility in its current location. 
  2. [291]
    In addition, the Appellant submits that there is no persuasive evidence that the options that are farther from the Appellant’s land are not feasible, as opposed to simply not preferred by Lion-Beer, Spirits and Wine Pty Ltd.  According to the Appellant, Mr Horn’s statement does not prove that all reasonably practicable measures have been taken to reduce the risk, or that risk reduction measures that have been rejected are grossly disproportionate in cost to the risk reduction achieved.
  1. [292]
    Implicit in the Appellant’s submissions is an assumption that the location of the tanker unloading facility was chosen without considering the ramifications for the later location of the ethanol storage facility.  The Appellant did not require Mr Horn for cross-examination, and this was not put to him. 
  2. [293]
    I am not persuaded that the option selected involves gaining a benefit from electing to pursue approval for the tanker unloading facility in its current location. 
  1. [294]
    The evidence before me indicates that the ethanol tanker unloading facility and the building containing the syrup mixing room were proposed as an initial stage of “Project Alpha”.  The ethanol storage facility is another stage of that project. 
  2. [295]
    In the circumstances, I am not prepared to infer that the location of the ethanol tanker unloading facility was chosen without considering the feasibility of alternative locations for either the whole project or aspects of the project such as the ethanol storage facility.
  3. [296]
    In any event, even if I were to draw the inference invited by the Appellant, that is not the end of this matter.  Dr Mendham also gave evidence on this issue.
  4. [297]
    Dr Mendham opines that the proposed location and design of the tank chamber is the best location in the best format and meets the requirement to avoid avoidable risk.  During cross-examination, Dr Mendham provided a cogent explanation about the greater safety risks associated with alternative locations on the subject land.  Other considerations that inform the appropriateness of the location include the safety associated with the extent of manoeuvring required of the tankers delivering ethanol and proximity to other hazards on the subject land.  I found Dr Mendham’s evidence on this issue to be persuasive.
  5. [298]
    The evidence of Dr Mendham alone satisfies me that the alternative locations are not appropriate.

Conclusion regarding the location of the tank chamber

  1. [299]
    Whether the location of the ethanol storage facility, including its minimal separation from sensitive uses, is appropriate is a question of fact and degree.  The question is to be determined in the context where City Plan and the supporting documents called up by it collectively recognise that elimination of risk is unrealistic.  It calls for an evaluative judgment to determine whether the adopted separation is appropriate in all the circumstances. 
  2. [300]
    I accept the evidence of Mr Mewing that the interface between industrial and non-industrial uses is capable of being managed by either separation or the management of the interface between uses through design.  The location of uses that give rise to risk proximate to sensitive uses is not extraordinary. 
  3. [301]
    In this case, the separation distance should be viewed in its relevant context.  There is an existing, long-standing interface between a lawful industrial use on the subject land and the adjoining sensitive use on the Appellant’s land.  It is reasonable to expect the subject land to continue to be used for industrial uses.  Further, as I mentioned in paragraph [3] above, although the subject land is in the Low impact industry zone, City Plan anticipates that the subject land may be approved for more intensive industry uses.
  4. [302]
    The circumstances here also include the adoption of sophisticated design and use of extensive risk mitigation measures, as well as compliance with the separation distances under Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids.
  5. [303]
    In the circumstances, I am comfortably satisfied that the proposed development is appropriately located.

Does the proposed development unduly affect reasonable health expectations?

  1. [304]
    The Appellant contends that the proposed development will unduly affect reasonable health expectations and, as such, is contrary to those assessment benchmarks identified in paragraphs [35](c), [39](b) and [39](c) above, namely land use strategy L2.3 in s 3.5.3, Table 3.5.3.1, for Element 3.2 of Theme 3 of the Strategic framework and the overall outcomes in ss 9.3.12.2 2.c. and d. of the Industry code.
  2. [305]
    The Appellant’s allegations are founded on its proposition that the location of the proposed development does not minimise the risk to public safety and property as required by performance outcome PO3 of the Industry code.  That proposition underpins the Appellant’s case that the location of the tank chamber near the boundary is not compatible with the sensitive uses on the Appellant’s land.
  3. [306]
    The Appellant concedes that if the Court is satisfied that the proposed development complies with performance outcome PO3 of the Industry code, then there is no remaining planning reason for refusal.  However, it says that if there is some non-compliance with performance outcome PO3 of the Industry code, then the proposed development would unduly affect the reasonable health expectations of those occupants of the sensitive uses on the Appellant’s land.
  4. [307]
    Considering my findings above, it is unnecessary to further address this issue. 
  5. [308]
    For reasons already given, I am satisfied that the proposed development complies with performance outcome PO3 of the Industry code and that it will not unduly affect reasonable health expectations.  It complies with the assessment benchmarks in land use strategy L2.3 in s 3.5.3, Table 3.5.3.1, for Element 3.2 of Theme 3 of the Strategic framework and the overall outcomes in ss 9.3.12.2 2.c. and d. of the Industry code.

Does the proposed development comply with the relevant assessment benchmarks?

  1. [309]
    For the reasons provided above, I am satisfied that the proposed development complies with each of the assessment benchmarks that remain in issue.

Should the proposed development be approved in the exercise of the discretion?

  1. [310]
    All parties agree that the outcome of this case is dependent on the view of the Court on the issue of risk.  It is also common ground, and I accept, that the approach to be adopted in examining risk is informed by the principles summarised by His Honour Judge Williamson KC in Pynhall Pty Ltd v Logan City Council [2024] QPEC 11 at [51], wherein His Honour observed:

“[51]Having regard to the above decisions, and those set out at paragraph 41 of Council’s written submissions, a number of propositions of general application can be distilled with respect to an examination of risk.  The propositions are as follows:

  1. caution, and a careful approach, is appropriate where matters of public safety are involved;
  1. the presence of risk does not, in and of itself, call for a nervous approach or intolerance;
  1. the attractions of avoiding responsibility for allowing a proposal which has an element of serious risk, while only too obvious, must be resisted because to adopt such an approach would be superficial and an abrogation of the judicial function;
  1. the standard to which the Court must be satisfied that a development will not be a source of unacceptable risk is the civil standard, namely a degree of persuasion of the mind according to the balance of probabilities; and
  1. the assessment of risk and its acceptability calls for an examination of:
  1. the nature and extent of the risk; and
  1. the means by which the risk is proposed to be addressed.”
  1. [311]
    As I have explained above, the Appellant advances three propositions that are fundamental to its case for refusal, namely:
    1. there is an unacceptable risk to public safety and property from a stoichiometric tank chamber explosion that will result in effects beyond the failure of the tank chamber;
    2. the location of the proposed development adjacent the Appellant’s land does not minimise the risk to public safety and property because:
      1. (i)
        the separation distance between the tank chamber and the Appellant’s land does not meet the requirements of Australian Standard AS1940:2017 The storage and handling of flammable and combustible liquids;
      1. (ii)
        there are alternative feasible locations on the subject land; and
    3. the proposed development will unduly affect reasonable health expectations.
  2. [312]
    With respect to the third proposition, the Appellant’s case was founded on an assumption that the Court would make some findings consistent with the first two propositions advanced by the Appellant.
  3. [313]
    For reasons explained above, the evidence comfortably persuades me that none of the Appellant’s concerns are established. 
  4. [314]
    The observations of His Honour Judge Quirk in GFW Gelatine International Ltd v Beaudesert Shire Council & Ors [1993] QPLR 342 at 353 are apposite in this case.  His Honour observed:

“The onus of showing that the application for town planning consent should be approved of course rests with the Applicant, but this is not to say that in a proposal yet untried, the complete absence of any likely future difficulty must be demonstrated.  It is essential that it be shown that the relevant procedures and their likely impact on the environment are properly understood by the Appellant and its expert consultants and that there is a capacity to deal with any difficulty that might arise in a way which will preclude unacceptable results.

The results that are achieved are all important and the means whereby these results are achieved are less so.  While there should be no uncertainty at all about the standards that are called for, there is more room for flexibility regarding the way in which these results are attained.  Lessons will be learned in practice and there will, no doubt, be advances in technology.  As I have already said, the proposed Environmental Management Plan is of considerable importance in this context and I accept that, prior to the commencement of the proposed use, the form of this Plan be carefully settled to the satisfaction of the appropriate authority.”

  1. [315]
    Lion-Beer, Spirits and Wine Pty Ltd has persuaded me that it and its expert consultants properly understand the nature of the risk, its likely impact, applicable standards, and the relevant risk management measures and procedures. 
  2. [316]
    Lion-Beer, Spirits and Wine Pty Ltd’s response to the issues belatedly raised by Dr Abdel-jawad with respect to the foam suppression system shows that there is capacity to responsibly respond to any difficulty that might arise in a way that will preclude unacceptable results. 
  3. [317]
    On the evidence given in the appeal, I am satisfied that the proposed development, with all its risk management features, can be carried out in a responsible manner that affords protection to the community’s interests. 
  4. [318]
    As such, having considered the nature and extent of the risk and the way the risk is proposed to be addressed, I am comfortably satisfied that the risk will be appropriately addressed by the grant of a development permit subject to conditions.  The conditions included in the Council’s decision notice will require refinement to reflect the changed development application and to ensure the incorporation of each of those features identified in paragraphs [83] to [120] and conditions of the type referred to in paragraph [126] above.
  5. [319]
    The Council may also wish to consider the imposition of conditions of the type mentioned in paragraph [72] above.

Conclusion

  1. [320]
    Lion-Beer, Spirits and Wine Pty Ltd has discharged the onus.  
  2. [321]
    In due course, the Council’s decision will be set aside and replaced with a decision to approve the development application (as changed) subject to conditions. 
  3. [322]
    To facilitate the preparation of a suite of conditions, I will return the appeal to the applications list for review on 16 July 2025.  The appeal will remain on that list unless and until a dispute arises about conditions of approval.
Close

Editorial Notes

  • Published Case Name:

    The Corporation of the Synod of the Diocese of Brisbane v Brisbane City Council & Anor

  • Shortened Case Name:

    The Corporation of the Synod of the Diocese of Brisbane v Brisbane City Council & Anor

  • MNC:

    [2025] QPEC 11

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    05 Jun 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003
2 citations
Jump To
Cite 1 - [2021] QPELR 1003
Cite 2 - [2021] QPELR 1003
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
2 citations
Jump To
Cite 1 - [2020] QCA 257
Cite 2 - [2020] QCA 257
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16
2 citations
Jump To
Cite 1 - [2019] QPEC 16
Cite 2 - [2019] QPEC 16
Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793
2 citations
Jump To
Cite 1 - [2019] QPELR 793
Cite 2 - [2019] QPELR 793
Austin BMI Pty Ltd v Ipswich City Council [2023] QPEC 27
2 citations
Jump To
Cite 1 - [2023] QPEC 27
Cite 2 - [2023] QPEC 27
Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18
2 citations
Jump To
Cite 1 - [2021] QPEC 18
Cite 2 - [2021] QPEC 18
Barro Group Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 235
2 citations
Jump To
Cite 1 - [2022] QPELR 235
Cite 2 - [2022] QPELR 235
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
2 citations
Jump To
Cite 1 - [2020] QCA 253
Cite 2 - [2020] QCA 253
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
2 citations
Jump To
Cite 1 - [2021] QPELR 987
Cite 2 - [2021] QPELR 987
Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2024] QCA 153
2 citations
Jump To
Cite 1 - [2024] QCA 153
Cite 2 - [2024] QCA 153
Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPEC 51
2 citations
Jump To
Cite 1 - [2010] QPEC 51
Cite 2 - [2010] QPEC 51
Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 750
2 citations
Jump To
Cite 1 - [2010] QPELR 750
Cite 2 - [2010] QPELR 750
GFW Gelatine International Limited v Beaudesert Shire Council & Ors (1993) QPLR 342
4 citations
Jump To
Cite 1 - (1993) QPLR 342
Cite 2 - (1993) QPLR 342
Cite 3 - (1993) QPLR 342
Cite 4 - (1993) QPLR 342
Gracemere Surveying and Planning Consultants Pty Ltd v Peak Downs Shire Council [2009] QCA 237
2 citations
Jump To
Cite 1 - [2009] QCA 237
Cite 2 - [2009] QCA 237
Gracemere Surveying and Planning Consultants Pty Ltd v Peak Downs Shire Council & Anor (2009) 175 LGERA 126
2 citations
Jump To
Cite 1 - (2009) 175 LGERA 126
Cite 2 - (2009) 175 LGERA 126
Lane v Gatton Shire Council (1988) QPLR 49
1 citation
Jump To
Cite 1 - (1988) QPLR 49
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
2 citations
Jump To
Cite 1 - (2001) 52 NSWLR 705
Cite 2 - (2001) 52 NSWLR 705
Makita (Australia) Pty Ltd v Sprowles (2001) NSWCA 305
2 citations
Jump To
Cite 1 - (2001) NSWCA 305
Cite 2 - (2001) NSWCA 305
Murphy v Moreton Bay Regional Council [2019] QPEC 46
3 citations
Jump To
Cite 1 - [2019] QPEC 46
Cite 2 - [2019] QPEC 46
Cite 3 - [2019] QPEC 46
Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328
3 citations
Jump To
Cite 1 - [2020] QPELR 328
Cite 2 - [2020] QPELR 328
Cite 3 - [2020] QPELR 328
Onetech Pty Ltd v Shaw [1999] WASCA 289
3 citations
Jump To
Cite 1 - [1999] WASCA 289
Cite 2 - [1999] WASCA 289
Cite 3 - [1999] WASCA 289
Pynhall Pty Ltd v Logan City Council [2024] QPEC 11
2 citations
Jump To
Cite 1 - [2024] QPEC 11
Cite 2 - [2024] QPEC 11
Trinity Park Investments Pty Ltd v Cairns Regional Council [2021] QCA 95
2 citations
Jump To
Cite 1 - [2021] QCA 95
Cite 2 - [2021] QCA 95
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309
2 citations
Jump To
Cite 1 - [2022] QPELR 309
Cite 2 - [2022] QPELR 309
Wilhelm v Logan City Council [2020] QCA 273
2 citations
Jump To
Cite 1 - [2020] QCA 273
Cite 2 - [2020] QCA 273
Wilhelm v Logan City Council & Ors [2021] QPELR 1321
2 citations
Jump To
Cite 1 - [2021] QPELR 1321
Cite 2 - [2021] QPELR 1321
Willis v Endall [2011] WASC 45
2 citations
Jump To
Cite 1 - [2011] WASC 45
Cite 2 - [2011] WASC 45

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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