Celledoni v Johnstone Shire Council & Ors

[3] Sugar cane is harvested, transported to sugar mills, crushed and processed in a season (the crushing season) which lasts approximately six months from June to November inclusive each year. The co-respondent has contracts for the cartage of harvested sugar cane and sugar products with the eight sugar mills located north of Townsville to the Mossman Mill in the Far North. The co-respondent's North Queensland fleet consists of approximately 75 prime movers and in excess of 160 trailers. During the sugar season the fleet is disbursed from Innisfail to regional operations in Cairns, Mossman, Ingham and Townsville. The greater part of the fleet stays in the Innisfail area to service the local mills. The vast majority of the transport units operate in what is known as a B-double configuration. This consists of a prime mover towing two semi-trailers with a total length of 25 metres. Attachment D to ex 12 provides photographic illustration of these units. The co-respondent's operations in the Innisfail area which are of most significance to this appeal, consists of the following:-

(a) The transport of harvested sugar cane from the Upper Murray and Kennedy areas to the South Johnstone Mill.

(b) Some raw sugar and molasses are transported to the Mourilyan Bulk Sugar Terminal.

(c) "B" molasses is transported from Babinda to the South Johnstone Mill.

(d) Raw sugar and molasses are transported to Mourilyan Bulk Sugar Terminal.

(e) Molasses is transported from the South Johnstone Mill to stations and industry to be used as cattle feed.

(f) Raw sugar and molasses are transported from the Tully Mill to Mourilyan Bulk Sugar Terminal.

(g) Molasses is transported from the Tully Mill to stations in industry to be used as cattle feed.

(h) Some molasses is transported from the Macknade and Victoria Mills near Ingham to the Mourilyan Bulk Sugar Terminal.

[4] The routes with which the B-double units may travel on are restricted by Main Roads regulation. Exhibit 17 is a map which illustrates the B-double routes and the co-respondent's transport routes in carrying out its major crushing season transport operations in the Innisfail area. During the crushing season the fleet is used 24 hours a day. During the off-season it is substantially under-utilised. Many of the trailers are de-commissioned and even de-registered. Some of the prime-movers are de-commissioned and de-registered. The off-season is used to carry out comprehensive maintenance and repairs on the vehicles. Off-season parking is an important requirement for the co-respondent's operation, as is a location for driver shift changes and regular safety checks during the crushing season. It is obvious that the co-respondent requires a substantial base for its operations.

[5] Historically, the co-respondent's operation was based on Mourilyan Harbour Road just east of the township of Mourilyan. For reasons set out in Mr Wright's statement, which I accept, that site became unsatisfactory and the base was moved to the Innisfail Industrial Estate on the northern outskirts of Innisfail. However, that site is unsatisfactory and inefficient. It is too small. And it is necessary for most of the trucks and trailers, particularly during the off-season to be parked on the site of the Old Goondi Sugar Mill which was de-commissioned some years ago.

[6] It is difficult to envisage a better site for the co-respondent's base than the subject site. It is located on a B-double route upon which most of the Innisfail fleet travel during the crushing season transport operations. Vehicles travelling from the Babinda Mill to Mourilyan Bulk Sugar Terminal and return travel quite close to the subject site and it would be convenient for those vehicles to travel the short distance to the subject site for safety checks and driver changes. At the present time driver changes for vehicles to and from the South Johnstone Mill are carried out at the Mill but that will soon have to cease because the Mill requires the large amount of space to expand its tramway facility.

[7] The proposed operation on the subject land is illustrated at pages 32 and 33 of the Appeal Book Exhibit 1. The main building on the site will be a shed containing an office and a number of service bays. There will also be a small covered refuelling depot. The area around the shed and refuelling depot will have a sealed surface. In the north eastern corner of the site there is an area for employee vehicles to be parked. Along the southern boundary of the site is an area for off-season trailer and tanker storage. It is proposed to landscape around the perimeters of the site. The rest of the interior of the site will be clear and flat. The entry and exit point to the site is on Boogan Road approximately 130 metres from the intersection of Boogan Road and the Bruce Highway.

[8] The Planning Scheme for the Johnstone Shire came into effect on 20 June 2005 pursuant to the provisions of the Integrated Planning Act 1997 as amended. The subject land is in the Rural Zone (Rural Precinct). The Rural Zone covers most of the land in the Shire outside Innisfail and other residential areas and is split into two precincts, the Rural Use Precinct and the Rural Conservation Precinct. Land in the Rural Use Precinct is described as "predominantly cleared land and includes good quality agricultural land suitable for agricultural use including growing fruit, vegetables and sugar cane crops and improved pastures as well as more marginal rural land suited to grazing and agro-forestry".

[9] Relevant purposes of the Rural Zone are as follows:-

1. Protect good quality agricultural land from fragmentation through 30 hectares minimal lot size except where it is associated with an established or substantially commenced rural service industry.

2. Protect good quality agricultural land from alienation.

3. Protect the use of good quality agricultural land for rural production through separation of incompatible uses.

6. Minimise the impacts of development on existing land uses.

7. Maintain the rural amenity and character of the existing rural landscape which is dominated by extensive areas of rural production and natural areas.

The provisions of the Planning Scheme relating to the Rural Zone contains an assessment framework table for the assessment of development applications. There are five categories, namely:-

A rural service industry for which the co-respondent applied requires impact assessment. I have doubts as to whether the co-respondent's proposal fits neatly within the definition of rural service industry in the Planning Scheme. It possibly fits better within the definition of "transport facilities". Nothing turns on this because it is accepted that proper public notice was given and the detailed nature of the co-respondent's proposal exposed in the application materials. It is of no consequence because transport facility also requires impact assessment.

[10] As may be observed, emphasis is given in the stated purposes of the Rural Zone to protect good quality agricultural land. The subject land is included in the description 'good quality agricultural land' in the relevant Planning Scheme map. Further, it is agreed that the subject land factually fits that description. It is used for the growing of sugar cane. Because of this there is an issue between the the parties as to the relevance of State Planning Policy 1/92: Development and the Conservation of Agricultural Land. So far as is relevant, section 3.5.5 of IPA provides as follows:-

(1) This section applies to any part of the application requiring impact assessment

(2) If the application is for development in a Planning scheme area, the assessment manager must carry out the impact assessment having regards to the following -

(b) The Planning Scheme and any other relevant local planning instruments

(c) If they are not identified in the planning scheme as being appropriately reflected in the planning scheme -

(i) State Planning Policies or parts of State Planning policies.

[11] Schedule 1 of IPA sets out the detailed process for the making of Planning Schemes. So far as is relevant s 18 of Schedule 1 provides as follows:-

(a) advises the local government under subsection (4) and

(b) is satisfied each of the following are appropriately reflected in the proposed Planning Scheme -

(i) State Planning Policies or parts of State Planning Policies.

(5A) The minister must also advise the local government that he or she is satisfied under subsection (5)(b).

In my view it is clear that these provisions are intended to provide a process whereby a State Planning Policy may be identified in the Planning Scheme as being appropriately reflect in the Planning Scheme pursuant to subsection 3.5.5(2)(c). On the forward page of the Planning Scheme the following appears:-

The Minister for Environment Local Government Planning and Women has identified the following State Planning Policies as having been appropriately reflected in the Planning Scheme:

• State Planning Policy 1/92; Development and the Conservation of Agricultural Land.

[12] In my view therefore State Planning Policy 1/92 is "identified in the Planning Scheme as being appropriately reflected in the Planning Scheme". According to subsection 3.5.5(2), the assessment manager must only have regard to a State Planning Policy if it is not so identified. In my view, therefore, neither the respondent council nor this Court is required to or should, look beyond the contents of the Planning Scheme itself and have regard to the contents of State Planning Policy 1/92. However, I accept that the process of assessing the impact of the proposed development on the subject land requires the co-respondent to establish an overriding need for the proposed development to be established on the subject land in light of the stated purposes of the Rural Zone.

[13] It is appropriate that I explain my views about the approach to this question of overriding need. I reject the notion that any significant guidance is to be gained from the words of judgments in cases dealing with applications to alter a Planning Scheme by way of rezoning under pre-IPA type Planning Schemes. That whole concept arose because some uses and developments were prohibited uses in the zone in which the relevant land was classified. Under IPA and IPA schemes there is really no such thing as a prohibited use. Even a use or development which is classified as impact assessable (inconsistent) is not a prohibited use.

[14] The co-respondent's proposed development in this case is impact assessable. In the Rural Zone, the mere fact that it is impact assessable does not, of itself, give rise to an obligation on the part of an applicant to demonstrate an overriding need for the development on the subject site. Impact assessment requires no more and no less than the assessment of the impact of the proposed development in light of the relevant provisions of the Planning Scheme. If a particular development is consistent with the provisions of the Planning Scheme the need is not an issue at all even if the Planning Scheme requires impact assessment. Assessing the consistency of a particular development on a particular site with the Planning Scheme is included in the process of impact assessment.

[15] Usually the issue of overriding need will only arise at all if the initial impact assessment of a proposed development against the Planning Scheme discloses an inconsistency. In light of the above, in my view, the availability of other land in a zone in which a proposed development might be said to be consistent or more consistent, is likely to be of less critical importance than was the case of an application to amend a Scheme by rezoning. In some instances it may not be relevant at all. It must be borne in mind that no local authority in preparing a Planning Scheme starts with a blank canvas. The allocation of a zoning description to a parcel of land or a group of parcels of land will often be substantially determined by the types of uses and developments which are already there and in the vicinity. Also, the zoning of land may be very much influenced by the zone in which land was classified under a previous planning scheme. The local authority cannot anticipate every possible use of development which might come along. The fact that a particular use or development might be consistent with a particular zone or more consistent with a particular zone than any other, does not necessarily mean that all or any land, bearing that particular zonal classification, is in the best or most suitable location for the particular use or development.

[16] By way of hypothetical example, the banana industry, which is carried on extensively in the Innisfail area, employs lots of casual labour, many of whom are not permanent residents. Such labourers need to be accommodated. Supposing an astute businessman decided and was able to demonstrate the need for a new dedicated hostel or boarding house or some such facility to provide accommodation to casual farm labourers. Such a development, by its very nature, would be most consistent with a Residential Zone permitting relatively high density residential developments. However, these are only found inside towns. It could well be that a better and more efficient location for such a development would be close to the farms upon which the occupants of the development would be working. That is likely to be the Rural Zone. Under the respondent council's IPA scheme it could be classified as Budget Accommodation, Multiple Residential or perhaps it would not even fall within any of the specific developments listed in the Rural Zone assessment framework table. Under those circumstances its impact would be assessed and if, taking all relevant factors into account, the development itself was compatible with the scheme it would, and should, be approved.

[17] Finally, on this point, there are degrees of inconsistency. In determining the question of whether or not there is an overriding need, it is necessary to assess the degree of inconsistency with the Planning Scheme. If the degree of inconsistency is trivial or minor there is no requirement that the need for the development be overwhelming or compelling, or urgent, or some such other similar description. What is required is that the need outweigh the inconsistency. If the inconsistency is minor then only a modest degree of need must be demonstrated so long as it is sufficient to outweigh or "override" the inconsistency. In my view, all of the above observations are supported by the underlying philosophy of planning schemes introduced pursuant to the provisions of the Integrated Planning Act 1997 as amended.

[18] In written submissions Mr Morzone for the appellants has outlined additional conflicts with other provisions of the Planning Scheme arising out of the fact that the subject land is good quality agricultural land. Firstly, he refers to Part 3 - Desired Environmental Outcomes. He specifically refers to the following:-

5. the economic base of the Shire is expanded through:

• Maintaining the predominant role of agriculture.

7. a quality efficient and integrated passenger and freight transport system (cycling, walking facilities, public transport, roads, rail, port, air) is provided that supports the settlement patterns, minimises environmental impacts and meets the needs of urban and rural communities.

Mr Morzone submits that paragraph 3.1.2.7 is against the proposed development because the proposed development will not protect, sustainably manage, or efficiently use the natural resource of the land being good agricultural land. I am quite unable to read this meaning into paragraph 7. Paragraph 7 is concerned primarily with encouraging "a quality, efficient and integrated passenger and freight transport system". As I will explain later, in my view, the proposed development is quite consistent with paragraph 3.1.2.7 because it result in a more efficient use of road transport facilities for the transport of the sugar cane and sugar products carried in large volumes by the co-respondent.

[19] Mr Morzone also relies upon specific outcome S5 of s 4.2.2 the Rural Zone Code. It provides:-

Lots are retained at a viable size to ensure the long term agricultural viability of the land.

I should say in relation to this particular matter, there is no evidence at all to suggest that the excision of 3.07 hectares from the larger lots will affect the long term agricultural viability of those lots.

[20] Mr Morzone also relies on some parts of Division 2 - Strategic Framework in Part 1, the Introduction to the Planning Scheme. He relies upon the following in s 1.2.2:-

• Maintain the predominant role of agriculture whilst increasing diversity within and between economic sectors.
• Manage the natural resources of the Shire in such a way to protect and enhance their permanent viability and value for the lasting benefit and enjoyment of future generations while maintaining economic and social development.
• Preserve and enhance the character of urban, natural and rural areas, including the striking scenic landscape, the relaxed and friendly lifestyle and the strong sense of community identity, which typifies the Shire.
• Foster the efficient, safe and convenient movement of people and goods within the Shire and beyond.

In my view the second and third dot points have no discernible relevance one way or the other to the proposed development. I will deal with the first dot point in conjunction with other provisions relied upon concerning the role of agriculture and, in particular, good quality agricultural land. The fourth dot point, in my view, favours the proposed development because as I will explain later, it contributes to "the efficient, safe and convenient movement of goods within the Shire and beyond."

[21] There is no dispute that the 3.07 hectares upon which the proposed development is intended to be sited, is good quality agricultural land. It grows sugar cane. There is no evidence to suggest that it is viably capable of being used for any agricultural purpose which would be more productive than the growing of sugar cane. It is possible that that land might be suitable for the growing of bananas. But there is no evidence to suggest that growing bananas on 3.07 hectares of land is likely to be economically more productive than growing sugar cane. In light of the many thousands of hectares given over to agriculture in the Johnstone Shire, in my view, the excision of 3.07 hectares will in no meaningful way undermine the clear planning intent of the respondent's scheme to preserve good quality agricultural land for agricultural purposes. Nor will it in any material way undermine the intent of the scheme to maintain the predominant role of agriculture. The loss of 3.07 hectares of land to agricultural production will in no material way affect the predominant role of agriculture in the Shire. Having said that, I accept that there is a degree of inconsistency with the Planning Scheme in regard to its stated intentions concerning good quality agricultural land but it is a minor inconsistency. Under those circumstances, in my view, only a very modest overriding need has to be demonstrated in order to favour approval of the proposed development in respect of that particular issue.

[22] In respect of this issue of overriding need I have no hesitation in accepting that the economic needs of the co-respondent are of no relevance. However, the fact that the co-respondent might gain some economic or financial benefit from the approval of the proposal is no basis for undervaluing the community need. The first and most obvious community need arises out of the fact that the co-respondent's operation provides an important and major service to the sugar industry which is a major industry in the Shire and the region. A significant number of people in the Shire rely upon the sugar industry for their economic wellbeing, whether they be farmers, farm labourers, harvesting contractors, contractors' employees, sugar mill employees or small businesses providing ancillary services to the sugar industry, such as farm machinery, sales and repair businesses. The sugar industry makes a significant contribution to the economic wellbeing of small businesses and small business employees in Innisfail and other towns. In my view, it must be better for the community if the co-respondent's operation can be carried out more efficiently.

[23] I don't suggest for a moment that there will be some tangible benefit to most people in the community in terms of efficiency simply by establishing the co-respondent's base on the subject site. However, I am able to illustrate one example whereby that will be so. The co-respondent carries cut cane from the Upper Murray and Kennedy areas (to the south) to the South Johnstone Mill for crushing. It is common knowledge that the value of sugar cane lies in its commercial content of sugar (CCS). Sugar cane is a species of grass and it begins to dry out once it is cut. As it dries out, the CCS declines. It is therefore important to get the cut cane from the farm to the mill and into the crushing process as quickly as possible. This poses no problems at present because driver changeovers presently take place at the South Johnstone Mill at the time of the delivery of a load of cut cane. However, the evidence which I accept discloses that that is not going to last. The area which is available for use at the South Johnstone Mill for truck manoeuvring and driver changeovers will shortly become unavailable because the Mills proposes to use that land to upgrade its internal cane tramway system. If the co-respondent were to establish its base in the Innisfail Industrial Estate on the northern side of Innisfail, as is suggested by the appellants, the trucks involved in transporting the cut cane from the south would have to travel the extra distance into and through Innisfail township to the Industrial Estate for the driver changeovers to be effected. This will have the effect of increasing the time it takes for the trucks to get back to Upper Murray and Kennedy for the next load of cut cane.

[24] I can now deal more fully with the suggestion on behalf of the appellants that there is no need for the proposed development because there is land of sufficient size available in the Innisfail Industrial Estate to house the proposed development. I am satisfied that there is land of such a size within the Innisfail Industrial Estate. However, I am not satisfied that it is available for sale, although I suppose it might be said that if the co-respondent were willing to pay an appropriate price, it would become available. But that is not the point. In my view, the establishment of the proposed development in the Industrial Estate would make the operation much less efficient than establishment on the subject land. The joint report of Mr Norling and Mr Rafferty (exhibit 10) discloses that establishment of the proposed development on the subject site would produce a reduction in annual travel of about 53,000 kms when compared to the existing situation. Relocation to the Innisfail Industrial Estate would involve an increase in annual travel of about 31,000 kms when compared to the existing situation. Mr Morzone submits on behalf of the appellants that the proposed development would represent a reduction of 84,500 kms of truck movements compared with the Innisfail Industrial Estate. It is submitted, and I accept, that this is only a very small proportion of total number of kilometres travelled by the co-respondent's vehicles in a year. However, it is by means a negligible saving. That saving, whilst having economic benefit to the co-respondent, also has general community benefits in that it reduces the consumption of fuels and makes a contribution, albeit small, to reducing wear and tear on the roads.

[25] However, in my view, the subject site, as compared to the Innisfail Industrial Estate, has much greater and more immediate benefits to the Innisfail community by a significant reduction in vehicle movements through Innisfail. And that is so even if I accept that Mr Rafferty's calculations of truck movements somewhat overstate the average situation. At the moment the Bruce Highway runs through the centre of Innisfail. In Innisfail township it carries a heavy traffic load of vehicles travelling to and from the south of Innisfail, including significant numbers of heavy vehicles which also includes B-double semi-trailers. The streets of Innisfail, which constitute the Bruce Highway, also carry significant volumes of local traffic. They also carry pedestrian traffic including people crossing the streets.

[26] In my view, the relevant comparison to be taken into account is not between the present situation and the situation which would exist if the proposed development were established in the Innisfail Industrial Estate but the situation which would exist by comparing the establishment of the development on the subject site as compared to its establishment in the Innisfail Industrial Estate. If the proposed development were established on the subject site driver shift changes and safety checks on trucks operating to the south of Innisfail will be carried out on the subject site. That occurs twice a day with two 12 hour shifts. That would mean that vehicles carting cane from Upper Murray and Kennedy to the South Johnstone Mill would never have to go through Innisfail. Vehicles carting raw sugar and molasses to the Mourilyan Bulk Sugar Terminal would never have to go into Innisfail. Vehicles carrying raw sugar and molasses to the Mourilyan Bulk Sugar Terminal would never have to go into Innisfail. Vehicles carrying molasses from the Macknade and Victoria Mills near Ingham to the Mourilyan Bulk Sugar Terminal would never have to go through Innisfail. Unless some other location can be found in which to carry out the driver changes and safety checks twice a day, all of those vehicles would have to travel through Innisfail to the Innisfail Industrial Estate and back out through Innisfail to their transport routes. Therefore, unless some other suitable location can be found for driver changes and safety checks, none of which are suggested in the evidence, location of the proposed development at the Innisfail Industrial Estate will cause a substantial increase in B-double traffic movements through Innisfail. I cannot say exactly how many movements that will be. I cannot say what percentage increase in existing traffic that will be. However, I am satisfied that the location of the proposed development on the subject site will provide significant community benefits by avoiding an increase in the movement of heavy vehicles through the centre of Innisfail. I am also satisfied that those benefits well outweigh the very modest benefits of retaining 3.07 hectares of sugar cane land in agricultural production.

[27] This particular application, in my view, demonstrates precisely the general point I made earlier about overriding need. I have no doubt that the proposed development would sit comfortably and consistently within the industry zone which applies to the Innisfail Industrial Estate. However, the proposed development, whilst a critical part of the co-respondent's transport operation, is not the major part of it. The major part of the co-respondent's operation involves the transport of sugar cane and sugar products to and from locations throughout and beyond the Shire. In light of where the bulk of those operations are actually carried out the Innisfail Industrial Estate, whilst appropriately zoned, is in a location which is much less suitable to the proposed development than the subject land.

[28] Originally the appellants raised an issue that the proposed development could not adequately deal with stormwater management and flood mitigation. However the experts are sufficiently agreed that I am satisfied that appropriate conditions can be imposed in relation to those matters.

[29] The principal remaining issue raised by the appellants is the allegedly adverse effects that the proposed development will have on the rural amenity of the area in general and their own amenity in particular. As to the general rural amenity in the vicinity of the subject land, in my view it is somewhat illusory. The subject land fronts the Bruce Highway which carries quite heavy traffic including heavy vehicles. Further, the subject land is only a short distance to the south of Mourilyan township. Whilst Mourilyan is only a small town it is obviously very urban in its character. The southern side of Innisfail, which is a large town, is only a few kilometres further to the north. Between Mourilyan and Innisfail there is a large service station on one side of the highway and a caravan park on the other side of the highway.

[30] No doubt the fields of sugar cane both to the south and the north of the subject site, provide some degree of tranquillity. However, sugar can farming is not a broad acre operation. Further, it is highly mechanised. Therefore as one drives along the Bruce Highway south and north of the subject land the cane fields are regularly broken by farm residences and, perhaps more significantly to the issue of rural amenity, large farm sheds for the housing of the extensive farm machinery used in cane farming and for the maintenance thereof. Further, the co-respondent is willing and enthusiastic about providing substantial landscaped screening of the working area of the proposed development.

[31] Similar considerations apply along south Boogan Road. It is only a short drive to the urban area of South Johnstone which is dominated by the heavily industrialised operation of the South Johnstone Sugar Mill. Along the drive once again the fields of cane are regularly broken by homes and farm machinery sheds. In addition there is a major farm machinery manufacture and repair operation carried out in a very large shed immediately fronting Boogan Road on its southern side. Boogan Road also carries considerable traffic including heavy vehicles. It is a B-double route. For part of its length it carries transport vehicles travelling to and from the Atherton Tablelands and beyond from Townsville and points south. It is also of relevance that the location of the proposed development on the subject site is unlikely to cause any significant alteration to traffic movements along the Bruce Highway and along Boogan Road by the co-respondent's own vehicles because they already travel those routes anyway and would also travel those routes if the proposed development were located in the Innisfail Industrial Estate.

[32] Finally, I turn to the concerns of the appellants for their own amenity. I am satisfied that their concerns are genuinely held. However, for the reasons I have already outlined to the extent that their amenity can be described as rural amenity it is substantially compromised already. The appellants' house and the accommodation unit beside it are located even closer to the southern side of Mourilyan township than the subject land. The residences themselves are very close to the carriageway of the Bruce Highway. In my view, it cannot be doubted that their amenity is substantially compromised by traffic noise. They themselves carry out banana farming on their land which involves pretty intensive operations including frequent spraying of chemicals including aerial spraying. As I have said the location of the proposed development on the subject land will not result in any increase in traffic and therefore traffic noise on the Bruce Highway or Boogan Road. The number of traffic turning movements into and out of Boogan Road will not materially change so that there will be no increase in headlight glare from vehicles turning into and out of Boogan Road. I am satisfied the proposed entrance/egress point to the proposed development is sufficiently far away from their residences that they will not be adversely affected by the movement of slow moving vehicles into and out of the subject land.

[33] The co-respondent is willing to construct a two metre high earth wall around the site. This partly relates to stormwater control and flood mitigation. However, the co-respondent is willing and interested to extensively landscape this earth wall. Earth walls are also notoriously common as being very effective at preventing noise from escaping. I am satisfied that the construction of a two metre high earth wall with extensive landscaping will effectively insulate the appellants from noise, light and vision arising out of activities which will take place on the subject land. In my view, however, it would appropriate to include a condition relating to the earth wall and landscaping as a condition of approval to appropriately protect the appellants' amenity in that regard. Subject to that condition being finalised I propose to dismiss the appeal.