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[2018] QPEC 38
General information, not legal advice.
Planning and Environment Court of Queensland
2018-08-20
Glenella Estates P, Mr J
Original judgment source is linked above.
McCullough Robertson for the first co-respondent by election
[1] This proceeding is concerned with an appeal against the decision made by the respondent to refuse the appellant's applications to facilitate the construction of a Major Utility (Solar Farm) on the subject land. For the reasons set out below the orders of the Court are:
2. I will hear from the parties as to any consequential orders.
[2] On or about 2 March 2017, the appellant lodged a number of applications designed to facilitate the development of a Major Utility (Solar Farm) (the proposed development) being a combined development application for a development permit for a Material Change of Use - Major Utility (Solar Farm) and a development permit for a Reconfiguration of a Lot - Long Term Leases (of greater than 10 years). The proposed development envisaged the construction of a solar powered power station expected to generate up to 60 MW which would, it is estimated, produce electricity for the equivalent of around 30,000 households. Consistent with the term of the lease, the life span of the proposed development is 40 years. Subject to final design, its total footprint would occupy approximately 165ha. Key elements of the design include:[1]
[3] The electricity generated would be fed into the Mirani Electricity substation located approximately 800 metres south of the subject land. Thereafter, the electricity generated would be fed into the distribution network. Under the heading "Proposal Description" the proposed development is also described in the following terms:[2]
"Renewable Energy Facility (Solar Power PV Facility) and associated long term lease (greater than 10 years) is proposed ...
The establishment of the facility on the subject site seeks to assist in reaching Australia's Renewable Energy Target, to reduce emissions of greenhouse gasses in proposing a renewable energy facility thus reducing the reliance on coal and gas fired power stations."
[4] The physical appearance of what is proposed is reflected in various plans tendered during the course of the proceedings.[3] More will be said about the details of the proposed development and its contribution to renewable energy below.
[5] The site details and surrounding land uses were described without controversy in the joint expert report (JER) of the town planners, Mr Perkins for the appellant and Mr Ovenden for the respondent, in the following terms:[4]
(a) Lot 18 on C124529 - 75 R McClures Road, Mirani;
(b) Lot 17 on C124511 - L17 Birketts Road, Benholme;
(c) Lot 16 on Cl1483 - L16 Mirani-Mount Ossa Road, Benholme; and
(d) Lot 15 on Cl1501 - L15 Mirani-Mount Ossa Road, Benholme.
The total area of the site is approximately 229 hectares, with a 165 hectare footprint to be utilised for the proposed Mirani Solar Farm. The balance of the site is proposed to be retained for agriculture.
The site is included in the Rural Locality and Rural Zone of the Consolidated Mirani Shire Plan.
The subject site is currently under cane production and a cane tramline traverses Lot 17 on C124511. Remnant vegetation is located on Lot 15 on Cl1501, Lot 16 on Cl1483 and Lot 17 on C124511 along the watercourses of McGregor Creek.
The subject site has external frontages to formed Mirani-Mount Ossa Road and R McClures Road. Mirani-Mount Ossa Road is a State-controlled road. R McClures Road is classified as a Rural Access road under Council's Road Hierarchy and is a gravel road with a section of bitumen seal located in front of the existing dwelling house on the subject site. The lots are separated internally by unformed road reserves.
A covenant ties Lot 16, Lot 18 and temporary road license Lot 1 on RL5442 together in ownership.
The subject site is improved by a dwelling house and farm sheds in the south-eastern corner of Lot 18 on C124529. The existing can farm is serviced by bore water irrigation supply. The existing dwelling house is serviced by rainwater tanks and an effluent disposal system and connected to electricity and telephone services.
14. The site has the following surrounding land uses;
(a) North - Balance of subject lots 15 & 16 - cane farm giving way to vegetated watercourse which separates the subject lots from the greater rural area to the north
(b) South - Cane farms (to east) and treed grazing areas (to the west) separated by cane railway in State Railway Reserve; then rural living lots (approx. 700m); then Benholme Road, Mirani Ergon sub-station & Mackay-Eungella Road; then the greater rural area;
(c) East - Mirani-Mt Ossa Road and R McClures Road; then cane farms to the Pioneer River; then Mirani township (approx. 2.5km)."
[6] I would add to that description that the land is relatively flat and enjoys high levels of cloud-free direct sunlight. That is, it has a high level of solar radiance.
[7] As mentioned above, the lifespan of the proposed development is 40 years. By no later than that period, all structures are to be dismantled and removed and the land is to be returned to its natural state, or in a better condition, to permit it to be returned for use for agricultural purposes. To facilitate this the subject land will be leased by the registered proprietor to the appellant under four 40 year leases (Leases A, B, C and D).[5]
[8] Pursuant to Schedule 2 of the Planning Act (2016) (the Planning Act),[6] the term of the proposed leases means that there has been the "reconfiguring of a lot". It is uncontroversial that this appeal is to be heard and determined under that Act.
[9] I have only included this discussion because of an observation made during the opening by Mr Lyons of counsel on behalf of the appellant. After what could only be described as an extensive analysis and assessment of the proposed development, the relevant offices of the respondent recommended that the development applications be approved subject to conditions.[7] I would pause here to note that no condition was imposed that would have required the appellant to graze sheep over the land. As I understand the evidence, at this stage, the grazing of sheep had not even been contemplated.
[10] In any event, notwithstanding that recommendation, following a meeting of the Economic Development Planning Standing Committee of the respondent held on 8 November 2017, it was resolved that the applications should be refused, the stated reason being:[8]
"[D]ue to concern regarding the loss of Good Quality Agricultural Land (GQAL) and the fact that an over-riding need to place the facility on GQAL land has not been demonstrated." (Emphasis added)
[11] The committee of six split evenly between recommendation and refusal, and it was only defeated after the chair used her casting vote in support of the motion to refuse. The point made by Mr Lyons was that if the chair had exercised her vote in favour of the proposal, the Court might have been concerned with an appeal against an approved development. That circumstance might be of some historical interest, and may even be an unusual outcome. However, in my view, those circumstances in no way assist the appellant in establishing that the proposed development ought be approved by the Court.
Planning Act appeals
[12] Subject to any relevant enabling Act, an appeal to this Court is by way of hearing anew,[9] and the appellant bears the onus of establishing that the appeal should be upheld.[10] In deciding an appeal under the Planning Act the Court has the power to make a range of orders including, not surprisingly, the power to confirm or set aside the decision appealed against.[11]
[13] The above legislative framework would be familiar to anyone who has practiced in this jurisdiction. However, of particular relevance to this proceeding is s 45 of the Planning Act dealing with the assessment of impact assessable development. It is uncontroversial that the proposed development is impact assessable. Pursuant to s 45 sub-sections (6) and (7) any assessment "must be carried out against a statutory instrument or document as in effect when the application was properly made." However, notwithstanding that, in circumstances where the statutory instrument or other document is amended or replaced or the proceeding is decided, the Court "may give the weight that the (court) considers is appropriate in the circumstances...".
[14] Of significance is that the "sufficient grounds" test enunciated in s 326 of the now repealed Sustainable Planning Act 2009 (SPA) is no longer applicable. Pursuant to s 326(1) of the SPA, a decision made about a development application could not conflict with a relevant planning instrument unless:
"(a) The conflict is necessary to ensure the decision complies with a State Planning Regulatory Provision; or
(b) There are sufficient grounds to justify the decision despite the conflict..." (Emphasis added)
[15] Pursuant to s 45(5) of the Planning Act:
(a) Must be carried out -
- (i) Against the assessment benchmarks in a categorising instrument before the development; and
- (ii) Having regard to any matters prescribed by regulation for this sub-paragraph; and
(b) May be carried out against, or having regard to, any other relevant matter, other than a person's personal circumstances, financial or otherwise." (Emphasis added)
[16] Examples of what might constitute "another relevant matter" include:
- A planning need
- The current relevance of the assessment benchmarks in the light of changed circumstances
- Whether assessment benchmarks or other prescribed matters were based on material errors.
[17] "Categorising instrument" for the purposes of s 45(5)(a) is:[12]
"a regulation or a local categorising instrument that does any or all of the following -
(a) categorises development as prohibited, assessable or accepted development;
(b) specified the categories of assessment required for different types of assessable development;
(c) sets out the matters (the assessment benchmarks) that an assessment manager must assess assessable development against"
[18] "Local categorising instrument" is:[13]
(b) A TLPI (temporary local planning instrument); or
(c) A variation approval to the extent the variation approval does and of the things mentioned in sub-section (1)"
[19] A local categorising instrument that is a "planning scheme" is a document "setting out integrated State, regional and local planning and development assessment policies for all of a local government area..."[14]
[20] In assessing and deciding a properly made development application concerning impact assessable development, the assessment manager must:[15]
"(3) To the extent the application involves development that requires impact assessment, and subject to sub-section 62, the assessment manager, after carrying out the assessment must decide -
(b) to approve all or part of the application but imposed development conditions on the approval; or
(4) The assessment manager must approve any part of the application for which, were that part of the application the subject of a separate development application, there would be a different assessment manager...
(5) The assessment manager may give a preliminary approval for all or part of the development application even though the development application saw the development permit.
(6) If an assessment manager approves only part of a development application, the rest is taken to be refused."
[21] According to the Explanatory Notes to the Planning Bill 2015,[16] the introduction of section 45 was to avoid what were seen to be difficulties that arose out of the application of s 326 of the SPA which was described as involving a "two part test". It was said:
"The form of the assessment and decision rules under the Bill is designed to address difficulties that arose in administering the old Act, due to the so-called "two part test" for both code and impact assessment. Under that test, an assessment manager's decision could "conflict" with a relevant instrument if there were "sufficient grounds to justify the decision, despite the conflict". In practice, as a result of judicial authority in several cases, this test resulted in a time consuming and unproductive enumeration of supporting and conflicting "grounds", instead of the intended assessment of the merits of the proposal based on established policy, and other relevant considerations to reach a balanced decision in the public interest.
The assessment and decision rules for both code assessment and impact assessment under the Bill dispense with the "two part test"...
Impact assessment under the Bill is an "unbounded" assessment, meaning relevant matters other than those prescribed can also be taken into account, and weighing and balancing "inside the box" as well as factors "outside the box" can take place in reaching a decision...
[I]t is intended the new assessment and decision rules should lead to a renewed emphasis on the quality, rigour, legibility and consistency of policies in planning instruments, and their primacy in determining the outcome of performance-based development assessment."
[22] As to the suggestion that impact assessment under the Planning Act "is an unbounded assessment", while more will be said about s 45 of the Planning Act below, it is appropriate to point out at this stage that the discretion provided pursuant to s 45(5)(b) must be exercised bearing in mind the purpose of any relevant legislation and planning instrument or document.
[23] At the commencement of the proceeding a document headed "List of Issues for Determination" was tendered by consent.[17] That document stated what the real issues requiring resolution were:
"1. Whether, when assessed against the assessment benchmarks, the application should be approved or refused having regard to the impacts its approval would have upon good quality agricultural land (GQAL) and associated primary production.
[24] I consider that to be a fair summary of what was really in issue. In this context, I also agree with the observation of the experts relied on by the appellant and the respondent to address the assessment of the soil qualities of the subject land. In their JER, Mr Thompson for the respondent and Mr Sutherland for the appellant stated: "whether a proposed land use will permanently alienate GQAL on a (sic) site is a key issue in dispute".[18] Indeed in this context, it would not be unreasonable to say that that was apparent to all involved and, in particular, counsel for the respective parties and the expert witnesses relied on. On the day of final submissions, during an exchange between myself and Mr Lyons, counsel for the appellant, I articulated what I saw to be at the heart of the case in the following terms:[19]
"...I would have thought in this case the issues are fairly straight forward. Is it Good Quality Agricultural Land? Answer, yes. Not in contest. Then it's a question of has it been alienated. That brings into play the forty years, the term. Whether the grazing of sheep is animal husbandry. Whether the conservation of sunlight into energy is primary industry. Things of that nature. Then it's a question of, okay, if there has been an alienation, fragmentation etcetera where does the public interest lie? Does it lie in preserving the Good Quality Agricultural Land, or does it lie in the sacrificing of Good Quality Agricultural Land for a use other than agriculture? Now isn't that what this case is all about?"
[25] Mr Quayle, counsel for the respondent, in his final written submissions clearly identified what lay at the heart of this proceeding. In the respondent's written outline of submissions, the following is stated:[20]
"Further, as the case unfolded it became apparent that the central features of the inquiry are these:
Each of those identified question is a number of elements.
Alienation in this context means permanent (in a common sense, non literal context) alienation. If the parcel is permanently alienated, it is a logical and inevitable corollary, that the proposal would be seen as both irreversible and is resulting in the loss of the parcels productive capacity.
The second question is concerned with the level of need for the proposal both in a planning and an economic context..." (Emphasis added)
[26] Having regard to the "list of issues for determination" referred to above, with no disrespect intended at all to Mr Quayle, what were identified as the "central features of the enquiry" ought to have been known before the proceeding commenced.
[27] During the course of final submissions, during an exchange between myself and Mr Quayle the following exchange also took place:[21]
"Right. Well, just before I do break, could I ask you this. It's probably relevant to Mr Purcell. In the event that I were to find conflict with a significant - you know, real conflict as opposed to just minor, if I was to find that there was real conflict for this - an important part of the planning scheme, either planning scheme - and obviously here I am referring to the - those parts of the planning schemes dealing with the preserving or protecting or maintaining Good Quality Agricultural Land, is it necessary for me to then trawl through every other provision of the planning scheme? ..."
While going on to expand on his answer he responded "[i]f - I mean, I am sure the answer is, in short, no..."
[28] I have already referred to what the soil quality experts thought the case was about, but it is also worthwhile noting the observations of the town planners. In their JER under the heading "matters of disagreement" Mr Perkins and Mr Ovenden in eight paragraphs identified what they saw, as town planners, were the real questions that required determination. Those matters are set out in detail below but, it is sufficient to say at this stage that they accurately and fairly focus on what the case was really about. In this context, it is also worthwhile noting that during the course of Mr Perkin's evidence in chief, the following exchange took place:[22]
"Q. Mr Perkins, I don't need to ask you many questions. The joint report is very comprehensive, and the battle lines between you and Mr Ovenden are very clearly established. Just by way of a broad summary, would it be fair to say that in your view the joint report comes down to striking a balance between renewable energy and the importance of GQAL?
[29] Thereafter, it would not be unreasonable to conclude by reference to his evidence that, in his opinion, the town planning JER was much longer than it needed to be,[23] in no small part, because the parties "in their wisdom" had identified a large number of provision of the planning schemes that they contended gave rise to conflict.[24]
[30] By reference to the agreed "bundle of issues"[25] and annexure A of the written submissions on behalf of the respondent, no less than 26 elements of conflict were alleged. As a consequence, the JER of the town planners ran to just over 69 pages, excluding annexure, and no less than 173 pages of written submissions in total (excluding annexure A) - 96 were provided by the parties on behalf of the appellant, 34 on behalf of the respondent, and 43 on behalf of the co-respondent by election. According to Mr Lyons, and I have no reason to doubt him, apart from some preliminary matters and matters of law, the balance of his submissions were necessary to address all of the alleged conflicts. This, of course, also has to be seen in the context of a proceeding where all of the evidence had been completed in four and a half days.
[31] Unfortunate as it is, the reason that I have felt it necessary to refer to these aspects of the proceedings is that I am firmly of the view that a large number of the identified issues in dispute were of little or no real consequence. That is, even if conflict did exist in the context of what was really in issue, they could not have increased the level or add to the seriousness of the level of conflict with the most relevant and important provisions of the planning documents.
[32] While it might once have been able to be said that cases where unnecessary and oppressive allegations of conflict were made were a rare exception to the general rule, unfortunately it seems, at least to me, that that is no longer the case. In this context I endorse what was said by Williamson QC DCJ in Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor[26] where His Honour, after referring to a number of matters under the heading "The Disputed Issues", went on to observe that, under the Planning and Environment Court Rules 2010, the parties were not required to file and serve pleadings and it had long been the practice of this Court to require a party who opposes a development to identify, in writing, the planning scheme provisions it will rely upon to contend that a true dispute exists. His Honour then went on to say:
"This practice provides flexibility for parties, free from the strict requirements of rules with respect to pleadings...
This flexibility does not mean that parties are at liberty to notify a substantial number of reasons for refusal but are underpinned by an oppressive number of planning scheme provisions. To do so smacks of a "win at all costs" attitude or, alternatively, has the appearance of a scatter gun approach to litigation. Irrespective of which description applies in any given case, the notification of issues in this way may not perform favourably when examined against the professional conduct rules mandating the responsible use of court processes and privilege nor when examined against rule 10(2) of the Planning and Environment Court Act 2016."
[33] It gives me no pleasure to make these remarks and it is certainly not intended to embarrass or be a criticism of the three counsel involved in this proceeding, all of which I have a high degree of respect for. However, I felt it appropriate to emphasise what I had indicated to counsel during final submissions. That is, in the event that I were to identify that a genuine conflict arose with the higher order provisions of the planning scheme or schemes, I did not intend to then trawl through every other allegation of conflict raised.
[34] I would conclude this discussion by noting that during Mr Lyons' closing address he identified a number of initially identified areas of conflict that had been abandoned.[27] By no means the majority of the issues but nonetheless a significant number. As useful as that may be it is, in reality, a case of too little too late. On the positive side though, the parties were able to resolve any outstanding issues concerned with impacts on amenity. Of particular relevance in the context of this proceeding were that visual amenity was no longer an issue and, in respect of any traffic/access issues, their resolution was of such significance that the second co-respondent by election no longer considered it necessary to be a party.
Good Quality Agricultural Land and sheep grazing
[35] For all intents and purposes, the whole of the subject land is classified as Class 3 Good Quality Agricultural Land (GQAL). That is, GQAL with moderate limitations. Historically, the land had been used for beef production up until at least 1985. Since then, all but approximately 40 hectares in the south-eastern corner of Lot 18 (lease area C) had been utilised for cane production. More recently, that 40 hectares has also been used for the production of sugarcane.[28]
[36] The footprint of the solar panels will occupy virtually all of the land that had previously been used for the production of sugarcane.[29] However, the proposed installations do not prevent it from being used for agricultural purposes entirely. While more will be said about this below, it is appropriate to note at this stage that 400+ Dorper sheep would be grazed on the land, including in and among the solar panel installations.
[37] While I accept Mr Sutherland's evidence to the effect that the breeding of sheep for meat production would be capable of generating income, that enterprise is, I am sufficiently satisfied, in reality concerned with providing a means of achieving acceptable land management outcomes. In this context it was said in the JER of Mr Thompson and Mr Sutherland:[30]
"We believe that an appropriate land management condition that restricted mechanical control of wet season excess ground cover ought to be imposed given the trafficability constraints and potential for land degradation and the potential for pest, weed and bush fire conflicts if excess wet season growth is not properly managed.
(Land management) options include: hand mowing/removal of vegetation, land drainage or grazing, preferably by sheep.
The first would be for manual control and manual removal of slashed material.
The second is for a major investment in surface and subsurface drainage networks, hardening of internal tracks etc to permit mechanical controls.
The grazing option would be to use grazing of vegetation by sheep on the Site instead of mechanical slashing (as currently proposed)."
[38] The opinions of Mr Thompson (WT) and Mr Sutherland (NS) as expressed in their JER can be respectively summarised as:[31]
"WT: The project will result in up to 10% of the recent expansion area in the sugar industry being alienated for the lifetime of the solar farm - nominally 40 years. Expansion programs throughout the cane industry have been key components of industry expansion and change in recent times and this area loss due to one application may therefore be of significance. The land being alienated has effectively average quality cane land very similar in ranking to the majority of the Mackay cane lands. Drainage constraints mean that mechanical control of excess grass growth is not recommended. The only form of rural land use that has been identified and that can co-exist on site with solar and ensure land degradation does not result from this project is grazing by sheep which is not an established form of land use in the area. NS: Industries built around agricultural processing expand and contract with time, markets and competition. On this same site in the late 1980's, the Beef Industry faced the same, equivalent contraction with the expansion of sugar. New land uses will come in time. This proposal represents such a use that can co-exist with an agricultural enterprise of grazing. Using ley pastures, grazing would improve the soils over the project lifespan before being returned to broad-acre cropping."
[39] It is unnecessary to canvass in any further detail the evidence of Messrs Thompson and Sutherland. On the whole of the evidence, and in particular that of those two witnesses, I am sufficiently satisfied that:
1. The land affected by the proposed development is GQAL;
2. Up until the mid-1980s the land had been used for grazing and since then has been used for the production of sugar cane;
3. Whether the land is utilised for cane production or the grazing of cattle depends on a number of external factors and, in particular, the demand for and price capable of being achieved for the end product (most probably cane or cattle);
4. The proposed development would not permit either the grazing of cattle nor the growing of sugar cane during its lifetime;
5. While the introduction of sheep grazing might be capable of generating some form of income stream and otherwise offset land management costs, its primary or dominant purpose is for land management. That is, it should be seen more as a part and parcel of the proposed development rather than a separate coexisting agricultural enterprise (this matter is addressed further below);
6. Other than for the grazing of sheep no other alternate form of rural land use could readily co-exist with the proposed development;[32]
7. With appropriate land management practices put in place including, where necessary, the imposition of appropriate conditions, the land would be capable of being returned for agricultural uses as GQAL at the end of the life of the proposed development. In this regard, the appellant is agreeable to a condition that would require it to graze sufficient sheep on the subject land over the entirety of the project so as to ensure appropriate land management outcomes.
[40] During the course of his evidence, Mr Ovenden expressed some reservations about the imposition of a condition concerned with the grazing of sheep. While I understand the basis for his concerns, I am sufficiently satisfied that such a condition could be imposed, managed and policed by the respondent. That is so for the following reasons. First, the evidence of Mr Sutherland on this matter, broadly accepted by Mr Thompson, is supported by the evidence concerning the coexistence of a solar farm and sheep at Gatton[33] and, to a lesser extent, by what is intended in the Southern Downs local government area.[34] Second, while the use of sheep grazing as a means of land management is a recent development, it is clearly a matter acceptable to both the respondent and the appellant.[35] Finally, while the design of the proposed solar panels and supporting structures were raised with Mr Rossiter, the Grid Connection Manager of the appellant's parent company, at no time was it suggested that the proposal could not be developed in a manner that would accommodate the grazing of sheep. It is also of some relevance that at no time was there ever a concern raised by the respondent either in respect of imposing such a condition or regulating it.
[41] Finally, on this topic, I would observe that while the Decision Notice concerning what is proposed in Southern Downs offers some support for the appellant's case, on its own it is not particularly persuasive. As Mr Ovenden pointed out, sheep grazing is a common enterprise in that local government area and the site coverage of the solar panels involved is significantly less than that which would occur in this case.[36]
[42] While there are a number of matters that have to be taken into account in choosing an appropriate site for a solar farm of the magnitude proposed, essential physical features include:[37]
[43] It is uncontroversial that the subject land meets those physical attributes. On the more commercial side of the ledger, other essential features include:
[44] Save for the second last and last matters, there was no serious challenge of the capacity of the subject land to meet all of these criteria. As to the proximity to a substation, there was some evidence, or at least some suggestion, to the effect that the proximity to a substation could extend to between 5 to 11 kilometres. While I can accept that there is no particular distance criteria that must be met, in all cases, I prefer the evidence of Mr Rademaker and Mr Rossiter which was to the effect that to ensure the financial viability of a proposal such as this, ideally the substation should be located at or about two kilometres from the power plant.[38]
[45] Having regard to the evidence of Mr Rossiter and Mr Rademaker, there was little room for doubt that the subject land is ideally suited for a proposal of the type intended. However, during the JER process involving the economists retained by the parties, Mr Leyshon for the appellant and Mr Shimmon for the respondent, Mr Shimmon identified what he considered to be two alternative sites that would not involve such large areas of GQAL. While no sites existed within the former Mirani Shire local government area, two possible alternative sites were identified by him in the broader Mackay Regional Council Local Government Area. They were described as site A, Greenmount and site B, Victoria Planes.[39]
[46] As to site A, it had, I am satisfied, a number of unsatisfactory typographical features including numerous watercourse areas, and areas of environmentally significant vegetation. Significantly, the site was located in an area where it was surrounded by a number of rural residential type lots thus creating the potential for adverse amenity issues arising. Further, the amalgamation of this site would have required the consent of in the order of ten different land owners. The need to secure the necessary consent of so many owners could be likely to give rise to a range of coordination problems.[40]
[47] As to site B, it had a number of physical problems including typographical/landslide issues, had large areas designated as medium bush fire problem areas and some areas designated as high bush fire problem areas, and also had an extensive coverage of environmentally significant vegetation. According to the uncontradicted evidence of Mr Rademaker, the unconstrained area of site B would be too small and had unacceptable network capacity constraints.[41]
[48] Some issue was taken, particularly by the co-respondent, with the appellant's attempt to locate a site that did not require the use of GQAL. In this regard, during final submissions, Mr Purcell said that:
"... there was no evidence to suggest that (the appellant) has undertaken an exhaustive exercise to identify other land for which (sic) this proposed development could occur."[42]
[49] In a very strict sense, that may be correct, but that is not to the point. The unchallenged evidence of Mr Rademaker was that the site selection criteria for solar farms are "stringent"[43] and that during the site selection process, a "range of other sites in the Mackay region were also considered..." and that these investigations the appellant actually looked to see if a site not involving GQAL might be available.[44]
[50] On balance, I consider that there are no realistic alternative sites for a proposal of the type envisaged. In this regard, at no time was it suggested that a project smaller than that proposed would be viable or otherwise ought seriously be considered. While I accept that the making of a profit is a matter of importance to the appellant, that will almost be the inevitable situation in any development application for a commercial use. When considered objectively, I do not consider this to be a case where, as was submitted by the co-respondent,[45] what was sought to be achieved was "... private economic benefit under the guise of public interest or policy..." The locational issues have already been discussed and the public benefit matters are dealt with below.
[51] As already discussed, notwithstanding the raft of planning provisions raised by the respondent and co-respondent by election, the central issues in this case[46] are whether the proposal would result in the fragmentation and/or alienation of GQAL and, if so, was it in the public interest to approve the development notwithstanding those consequences.
[52] The "matters of disagreement" identified in the JER of the town planners, Mr Perkins and Mr Ovenden, identified the real issues about which they disagreed:[47]
"(a) The degree to which the proposal will lead to the alienation of Good Quality Agricultural Land with the solar farm to have [a] life span of some 40 years, notwithstanding the finding of the Good Quality Agricultural Land experts;
(b) The degree to which the proposal will lead to the fragmentation of Good Quality Agricultural Land through the proposed reconfiguring of a lot;
(c) The extent of and significance of any conflict with the Mirani Planning Scheme;
(d) The extent of and significance of any conflict with the Mackay Region Planning Scheme;
(e) The degree to which the proposal will have an adverse impact on the sugar cane industry;
(f) The degree to which solar power generated by the proposed development would provide benefits not able to be provided by other facilities located elsewhere on the State Grid;
(g) The level of support identified by the Good Quality Agricultural Land Experts; and
(h) Whether there are relevant matters (and in particular) grounds which justify approval of the proposed development."
[53] In deciding the outcome of this proceeding, the consolidated Mirani Shire Plan (MS Plan)[48] is a document to which regard must be had pursuant to s 45(5) of the Planning Act. It was the "categorising instrument" in force at the time the applications were lodged in February 2017,[49] were initially assessed and recommended for approval subject to conditions,[50] then overruled by the standing committee[51] and the purported planning scheme relied on in the Decision Notice of Refusal issued on 15 November 2017. It is not in dispute that the Mackay Regional Planning Scheme (MRP Scheme)[52] is also an instrument to which regard should be had. In this context, while the MS Plan is continually referred to and apparently relied on during the assessment process, the wording of the reasons for refusal reflect that used in Performance Outcome 1 of the Agricultural Land Overlay Code of the MRP Scheme.[53] That scheme replaced the MS Plan in July 2017. In this context, I agree with the observation made by Mr Quayle during his submissions to the effect that insofar as the two planning schemes were concerned, each needed to be carefully considered.[54]
[54] The first four issues identified by the town planners are interrelated and will be dealt with as a separate topic together with the "relevant matters" issue identified in subparagraph (h). The issue raised in subparagraph (g) concerning GQAL has already been sufficiently dealt with.
[55] As to the concern raised in subparagraph (e), the evidence establishes that in reality if the proposed development went ahead, it would have no measurable impact on the sugar industry either at a state or regional level. It is beyond doubt that the sugar industry is a critical element of the economic wellbeing of the local government area and indeed for the state of Queensland.[55] It is also not surprising then that the majority of GQAL in the Mackay local government area is used for the growing of sugar cane. That said, there has been a material decline in the area used for the growing of sugar cane over the last decade. In 2007, approximately 87,691ha were dedicated to sugar cane whereas in 2017, that area had declined to 81,986ha. There would also appear to have been a substantial decline in the areas from which cane is harvested. In 2007 the harvested area was approximately 75,498ha whereas in 2017, that had reduced to 66,942ha. The economists agreed that the reason for any decline in the industry was caused by a combination of factors including:[56]
[56] As a consequence of this decline, the co-respondent by election has introduced incentive programs intended to encourage an increase in the area devoted to cane farming. The expectation is, and history suggests, that those incentives will have a degree of success.
[57] In this context, unchallenged evidence was received from Mr Gill.[57] After dealing with a number of issues including some historical background, operational details and transportation matters, Mr Gill emphasised the need for there to be sufficient GQAL available for cane production where the supply of that product was subject to a number of impacts that could reduce the supply of sugar cane to any mill but, most relevantly to this case, the co-respondent by election. These "impacts" included unseasonal weather (such as natural disasters), disease and pest. Mr Gill also points out that, not surprisingly, the reduction in the supply of cane can lead to consequential reductions in, among other things, the amount of raw sugar produced, the amount of molasses produced, and electricity produced. The latter is a matter that will be addressed in more detail when dealing with the evidence of Mr Hodgson.[58]
[58] Under the heading "loss of Good Quality Agricultural Land" a number of potential negative impacts were identified including:[59]
(i) The risk of introducing unacceptable distance between cane producers and the mill;
(ii) The direct link between the existence of a reliable source of cane and mill viability;
(iii) The potential for serious economic consequences in the event that mills become income poor. These could include reduction in maintenance and consequential impacts on levels on productivity. Reduced profitability. Flow on effects to cane farmers, employees, service providers and the wider Mackay community.
[59] In his statement, Mr Gill stated:[60]
"As the proposed development will result in a commercial solar farm being constructed on what was formally land primarily used for agricultural purposes (more recently cane growing and previously cattle grazing) the proposed development:
(a) does not protect GQAL from non-agricultural uses;
(b) diminishes the productive capacity of land for rural activities;
(c) fragments, alienates or otherwise diminishes the potential productive capacity of land for rural activity; and
Future uses of the site are constrained by development. In particular, the proposed development is expected to last for 40 years which will alienate the land for a significant period of time impacting on cane supply to the Mills.
In addition, Mackay sugar has developed a plan for future investment in evaluating opportunities to its operations at various mill sites over a 20-year period. Loss of cane land will further impact on Mackay sugars potential to plan for and develop those opportunities, which threatens the ongoing sustainability of the industry, as the sugar industry is so integrated."
[60] As a consequence of those concerns, the co-respondent by election provided a third party advice to the respondent opposing approval of the proposed development.
[61] There can be no doubt that the concerns expressed by Mr Gill are both genuinely held and not irrational. In particular, there can be little room for doubt that what he asserts as set out above is largely uncontroversial.
[62] At the end of the day, neither Mr Gill nor Mr Hodgson say that the alienation of the subject land for 40 years would have, or be likely to have, a measurable negative impact on the viability of Mackay sugar or any other mill or associated enterprise.
[63] To again state the obvious, the area of land devoted to the growing of sugar cane and the consequential harvesting of cane is of vital concern to the viability of the sugar mills and the sugar cane industry as a whole. As identified above the area available for cane that would be lost in the event that this proposal went ahead is in the order of 165ha. That constitutes approximately 0.08 per cent of the land available for the growing of sugar cane in the Mackay local government area.[61] There is also evidence that over a number of years the amount of cane left standing after the harvest season (i.e., not harvested for milling) exceeded that capable of being harvested from the subject land.[62]
[64] According to Mr Leyshon, the economist relied on by the appellant, the loss of the subject land would have no "measurable effect on either agricultural output or potential output in the Mackay LGA in general or the production of sugar cane in particular."[63] Mr Shimmon, on behalf of the respondent, not surprisingly did not agree that the land should be lost to the sugar industry. However, for the purpose of this discussion it is not necessary to go into his reasons,[64] as he accepted that the loss of the subject land for cane production would not be likely to have any measurable impact on the optimum output of either cane or sugar production. According to him the loss was more of a "thin end of the wedge" situation.[65] Indeed, that appears to also be the position of the co-respondent on this issue.[66]
[65] The short answer to the concern about any adverse impacts on the sugar cane industry is that it is very unlikely the loss of the subject land for 40 years would have any realistic impact on the industry in a purely economic sense.
[66] That of course is not the end of the matter. It needs to be borne in mind that GQAL is a limited resource that is not simply, even in this local government area, focussed solely on or concerned only with the growing of sugar cane. As history has shown, land use varies according to economic conditions. The subject land has been used for growing cane to grazing cattle and vice versa depending on the most profitable form of production at any given time. Mr Leyshon's "thin end of the wedge" concerns are, notwithstanding the relatively small area of land involved, neither irrational nor irrelevant. This Court has, on a number of occasions, expressed concerns about the incremental eating away of GQAL. One such example is the observation made by Robin QC DCJ, with which I respectfully agree, in Glenella Estates P/L v Mackay Regional Council & Ors[67] where his Honour said:
"A relevant factor is what is lost with the GQAL. The evidence supports the appellant's contention that what would be lost if the site goes out of production equates to less than 0.1 per cent of the total sugar cane production output in Mackay. It is correct to say that the impact is "barely measurable and...would appear to make no appreciable difference to the likely range of tonnages of sugar cane produced" in the City. That said, the court ought not overlook that death may occur by a thousand cuts, no one of which would cause any concern." (emphasis added)
[67] Consistent with the approach adopted by the town planners and articulated in the parties list of issues for determination,[68] it was common ground that, in the event that the proposed development was in conflict with the planning schemes it could only be approved if it was able to be established that there was an overriding public interest need and no other suitable land.[69] This threshold or test was described by Mr Quayle as the "high water mark" or "meat" of the case,[70] and by Mr Lyons as the "big ticket item".[71] In this context, I also agree with the observation made by Mr Ovenden,[72] where, while acknowledging that the area of land that would be lost in strictly terms of area would be "relatively small", he went on to say:
"As is often the case in matters involving non rural activities locating (sic) on GQAL, the relevant planning consideration is for the incremental alienation of GQAL, particularly for what [would be regarded] as being a long-term alternative land use proposition. The local and regional planning context established under the former Mirani Shire Planning Scheme, the Mackay Regional Planning Scheme and the Mackay, Isaac and Whitsunday Regional Plan 2012, set a high test in circumstances where a development alienates or fragments GQAL regardless of the physical area of land involved."
[68] More will be said about the relevant planning instruments below.
[69] Notwithstanding the fact that it appears in the JER of the town planners, I was not taken to any evidence of either Mr Ovenden or Mr Perkins that specifically addressed or expanded on the area of disagreement raised in subparagraph (f). That said, that is of little relevance in the context of this proceeding in circumstances where the Court had the benefit of the evidence of Mr Rossiter and Rademaker.
[70] As already identified, the subject land is zoned rural that is so under both the MS Plan and the MRP Scheme which came into effect on 24 July 2017. Under the MS Plan the intent of the rural zone is:[73]
"To protect primary production uses and associated infrastructure, land suitable for primary production use, natural resources, natural environmental values and natural landscape, values from incompatible uses (particularly residential uses) or other development and from fragmentation, alienation or degradation." (Emphasis added)
[71] While the term "incompatible use" is not defined, an inconsistent use is defined as "[a] use that does not achieve the desired outcomes specified for a zone."[74] The protection of GQAL as a significant economic resource and the protection of Primary Production from the "encroachment by incompatible development" are recognised as Desirable Environmental Outcomes.[75]
[72] The Overall Outcomes and Purpose of the Rural Locality Code are identified in section 4.2.3 of the MS Plan. Under table 4.2 of that plan, the specific outcomes and probable solutions are identified:[76]
O1 Land capable of use for primary production is used or protected for use accordingly...
S1.1 Land identified as GQAL is used for agriculture, or protected for such use
S1.2 Land suitable for other forms of primary production, including agriculture, aquaculture, animal husbandry and/or forestry plantation is used or protected for use as such...
S.1.4 Land used or suitable for primary production is protected from incompatible development...
O3 Development does not fragment, alienate, result in the loss of or diminish the productive capacity of GQAL....
[73] In assessing development in the Rural Zone under the MRP Scheme, the Rural Zone Code applies.
[74] The purpose of the rural zone under that scheme is to:[77]
(a) provide for rural uses and activities; and
(b) provide for other uses and activities, and
(c) the character and environment features of the zone and
(d) maintain the capacity of land for rural uses and activities by protecting and managing significant natural resources and processes.
[75] Accordingly, the assessment benchmarks (Performance Outcomes and Acceptable Outcomes) are drafted in terms to achieve the zone code purposes identified alone.[78]
[76] As the subject land lies within the "agricultural land overlay" under the MRP Scheme, the Agricultural Land Overlay Coode applies to the assessment of the proposed development.
[77] The purpose of the Agricultural Land Overlay Code is:[79]
"(1) The purpose of the agricultural land overlay is to ensure development on or near agricultural land maintains the productive capacity of the land for agricultural purposes.
(2) The purpose of the code will be achieved through the following overall outcomes:
(a) development that fragments, alienates or diminishes the productive capacity of agricultural land for agricultural purposes is avoided; and
(b) agricultural activities on agricultural land is protected and promoted; and
(c) the full productive capacity of agricultural land for agricultural purposes is not compromised by the location of sensitive land uses that will prevent or constrain current or future farming operations."
[78] Under the heading "Assessment Benchmarks" relevant Performance Outcomes (PO) include:[80]
Development utilizes or maintains the productive capacity of agricultural land for agricultural purposes, unless:
(a) an overriding need in the public interest is demonstrated; and
(b) no alternative site (not on agricultural land) are available." (Emphasis added).
Soil and topographic conditions are rehabilitated to the previous condition upon the cessation of a temporary use on good quality agricultural land."
[79] In respect of PO1 Acceptable Outcomes (AO1.1) include that agricultural land accommodates agricultural activities and uses that are ancillary, support or complement agricultural land, including:
[81] In this context however, in my opinion, an overriding need should not be constructed as requiring evidence of a pressing or overwhelming need. Giving the words their ordinary meaning, and there is no reason not to, a need for one outcome overriding a competing outcome would occur where the former was more important, in the sense of achieving the most advantageous outcome. To perhaps put it another way, where the need for one outcome ought take precedence. As the town planners acknowledged, this required the "balancing of competing interests".[83] As much is in fact recognised in the definition prescribed in the MRP Scheme:[84]
"overriding need in the public interest means:
(a) the overall social, economic and environmental benefits of the development outweigh:
(i) any detrimental effect upon the natural values of the land and adjacent areas;
(ii) any conflicts it has with the policy outcome of the relevant SPP where applicable; and
(b) the development cannot be located elsewhere so as to avoid conflicting with the policy outcome of the relevant SPP where applicable.
The following do not establish an overriding need in the public interest:
(c) uses with relatively few location-based requirements
[82] In reaching that conclusion, I also find comfort in the approach adopted by Quirk DCJ in McCosker v Council of the Shire of Emerald[85] when concerned with proposed non-agricultural development of GQAL under the Local Government (Planning and Environment) Act (1990) and the then applicable SPP, His Honour said in respect of the phrase "overriding need" where used in the SPP:[86]
"Section 4.4 (3A) of the Local Government (Planning and Environment) Act provides that regard must be had to the provisions of this policy when the application is being decided. Nonetheless it retains its status as a policy, and, in its own terms, there must be a balance struck between competing considerations. While recognising that the guidelines set out to provide some assistance in determining whether there is an "overriding need" in a particular case, I do not see the concept as meaning more than a position where the community's interests which are served by the proposal can be seen to outweigh the community's interests in preserving the land for agricultural use."
[83] It is appropriate at this stage to repeat and make a number of findings. First, the subject land is GQAL. Second, as already identified, no alternate site exists. Third, apart from providing feed for sheep the proposed development would prevent, in any sensible sense, the use of the land for agriculture or cropping.[87]
[84] The next matter that requires determination is whether the grazing of sheep on the land can be properly described as constituting animal husbandry and/or primary production. Animal husbandry and primary production are defined respectively in the MS Plan as follows:
"A use of premises for the keeping, breeding, depasturing and/or stabling of any animal, bird, insect or reptile. The term includes dairying, cattle farming, animal breeding and holding yards. The term does not include the keeping of domestic pets where ancillary to a residential use, or intensive animal husbandry, kennels, a stable or a stock sale-yard as separately defined.
The growing, production or extraction of natural or biological resources or similar productions. The term includes agriculture, aquaculture, forestry, mining, quarrying, animal husbandry and the like."
[85] Under the MRP Scheme animal husbandry is defined to mean the use of premises for:[88]
"(a) producing animals or animal products on native or improved pastures or vegetation; or
(b) a yard, stable, temporary holding facility or machinery repairs and servicing, if the use is ancillary to the use in paragraph (a)."
[86] Examples of animal husbandry include cattle studs, grazing of livestock and non-feedlot dairying. Animal keeping, intensive animal husbandry, aquaculture, feedlots and piggeries are not included within the definition of animal husbandry.
[87] Clearly the primary intended use of the land is for the development of an intensive solar farm. The extent and level of intensity of the proposed use is reflected in a number of the plans tendered.[89] In this context, I also accept the evidence of Mr Thompson and Mr Ovenden to the effect that there is, in reality, no sheep production industry in the local government area and, as Mr Ovenden said, the running of 400 or more sheep was "purely about maintenance of grass on the site..."[90] I agree.
[88] In this context the following exchange took place between Mr Lyons and Mr Ovenden:[91]
Q: Yeah. Now, even if generating solar energy is not primary production, if we graze sheep on the land, it's used for primary production?
In my view, that reference to "animal husbandry" has to be considered in context. It is tolerably clear that when making that concession Mr Ovenden was proceeding on the basis that the "grazing" of sheep was in the context of it being a productive and sustainable activity in its own right.[92] The evidence from Mr Sutherland concerning the likely income which might be generated from the grazing of sheep on the land left it far from certain that that use would result in any commercial return, let alone any meaningful commercial advantage to the appellant other than in cost savings associated with having to maintain the land by mechanical uses.
[89] Finally, had there been any intention on the part of the appellant to involve itself in any form of primary production including any form of animal husbandry, one might have expected something to be said about it by Mr Rademaker. Other than referring to the fact that the appellant, clearly in the context of meeting any such condition imposed by the respondent, would be "agreeable" to keeping and grazing sheep on the land.[93]
[90] The above discussion should make it clear that I have some sympathy for the argument that, when look at objectively, to describe the grazing of sheep in the context of what is proposed as being animal husbandry would involve the "torturing" of the meaning of those words.[94]
[91] That said though, when regard is had to the wording of the MS Plan and of the MRP Scheme, it is difficult to avoid the conclusion that it satisfies the definition of animal husbandry for both schemes. It involves the "use of premises for the keeping...of any animal" for the MS Plan and the "grazing of livestock" in the MRP Scheme.
[92] Accordingly, I am sufficiently satisfied that the proposed development is not in conflict with specific outcome O1 of the Overall Outcomes Purpose of the Rural Locality Code of the MS Plan.
[93] During the course of his cross-examination, it was suggested to Mr Ovenden that the generation of solar energy might be a form of primary production. That proposition was put on the basis of the definition of primary production in the MS Plan and, in particular, the reference to "the growing production or extraction of natural or biological resources or similar products..."[95] The generation of solar energy is not primary production. To construe that terminology where used in either planning scheme to include the generation of solar energy would, with all due respect, be nonsensical. To be fair to Mr Lyons, in closing addresses he volunteered that this was not his strongest point.
[94] Another divergence of significance between the town planners was whether the proposed development would result in irreversible impacts on the subject land. That arises out of State Planning Policy 2017 (SPP17) where, when dealing with the state interest of agriculture, it is stated:[96]
"(2) Agricultural land classification...is protected for sustainable agricultural use by:
(a) avoiding fragmentation of ALC...land into lot sizes inconsistent with the current or potential use of the land for agriculture
(b) avoiding development that will have an irreversible impact on [GQAL]..." (Emphasis added).
[95] Based on the evidence primarily of Mr Thompson and Mr Sutherland, I am sufficiently satisfied that the proposed use would not have irreversible impacts. At the expiration of the term of the leases and the removal of the infrastructure the land will be GQAL, and potentially be in a superior state than it originally was. Accordingly, with the imposition of appropriate conditions, no conflict would arise in respect of PO3 of the Agricultural Land Overlay Code of the MRP Scheme.[97]
[96] That, of course, is not the end of the matter, as under both planning schemes a primary objective is to preserve and maintain the productive capacity of GQAL for agricultural purposes. In this context, while the proposed use may not cause irreversible harm, in my opinion, its intended use for 40 years could not in any sensible or realistic way be construed as maintaining, protecting or utilizing the land for agricultural purposes. To adopt the terminology used in s.4.2.3(2)(ii) of the Overall Outcomes and purpose of the Rural Locality Code, the proposed development is an incompatible development in that it would restrict the existing and potential primary production capacity of the land.[98] Or, to use the words in Specific Outcome O3 of the MS Plan, the productive capacity of the GQAL has been diminished.
[97] In its current state, the land has the potential to produce sugar cane and beef, both recognised agricultural uses in the local government area. Should the proposed development go ahead, neither of those uses are available for 40 years. Instead, for the next 40 years, its potential to accommodate any agricultural use is "diminished" or "restricted" to the grazing of sheep, a completely foreign use in the area.
[98] For the reasons discussed, the land is not being used or protected for agriculture. Quite the contrary, the land is being put to an incompatible use. I consider that the proposed development is, at face value, in material conflict with Specific Outcome 3 of the Rural Locality Code of the MS Plan and, Performance Outcome 1 of the Agricultural Land Overlay Code of the MRP Scheme.[99]
[99] In the "Strategic Intent" of the MRP Scheme the intention to prevent the "loss" and fragmentation of GQAL by protecting it from incompatible uses is expressly identified.[100] Whether the leasing of the land for 40 years amounted to the loss of GQAL was the source of considerable debate. Specific Outcome O1 of the MS Plan under the heading "incompatible development" provides:[101]
"Development does not fragment, alienate, result in the loss of or diminish the productive capacity of GQAL or other land suitable for primary production or associated infrastructure."
[100] It is uncontroversial that the proposed development would not result in the fragmentation of GQAL beyond that that already exists (i.e. four separate parcels) and, for the reasons already given it would not result in the loss or diminish the productive capacity of the land.
[101] A similar purpose is identified in the Agricultural Land Overlay Code of the MRP Scheme which relevantly provides under s 8.2.2.2(2)(a): "the purpose of the code will be achieved through the following overall outcomes: (a) development that fragments, alienates or diminishes the productive capacity of agricultural and for agricultural purposes is avoided..."
[102] The concept of alienation is also dealt with in SPP17 where, when dealing with the state interest of agriculture, it is identified that GQAL is to be protected for sustainable agricultural use by:[102]
"(a) Avoiding fragmentation...into lot sizes inconsistent with the current or potential use of the land for agriculture;
(b) Avoiding development that will have an irreversible impact..."
[103] The evidence establishes that the proposed development would not cause any irreversible negative impacts to the land and the issue of fragmentation has already been dealt with.
[104] Unsurprisingly, it is submitted on behalf of the appellant that the occupation of the land being limited to 40 years will not result in "permanent alienation of good quality agricultural land as the solar farm is limited in time and if grazing is to occur there would be no alienation at all".[103] The issue of grazing has already been dealt with.
[105] Clearly that the land will be available for agricultural purposes at the end of the 40-year term means there has been no permanent loss of the land for agricultural purposes. During final submissions Mr Lyons equated a permanent loss as being a loss that is "forever",[104] in a strict sense that can be accepted however, in my view, in the context of this proceeding that is not conclusive. As I have already identified, in the JER of Mr Thompson and Mr Sutherland, they recorded that a key issue was whether or not the proposed development would "permanently alienate GQAL." They considered that "permanent alienation occurs when the use impedes the land being cropped for a period longer than 50 years."[105] In reaching that conclusion, reliance was placed on the now repealed Strategic Cropping Land Act (2011), where it was prescribed that a temporary use of land was one conducted on the land for a period of less than 50 years.
[106] While I can accept that in the particular circumstances of a case guidelines such as this might be of some use,[106] I do not consider them to be particularly helpful here. It is not only legislation that no longer has any statutory force, but even more relevantly, it was legislation introduced to deal with matters well removed from those involved in this proceeding. Also in this context, I accept the submission made to the effect that there appears to have been no particular science or basis for the choosing of 50 years.
[107] My Lyons placed significant emphasis on the fact that the proposed use is for a fixed term and therefore, is not a permanent use. While it can be accepted that the proposed development will not cause the land to be lost forever for agricultural purposes, for all intents and purposes, it will nonetheless be "alienated" in the sense that its ability to be used for its highest and best uses or natural uses has been for an extensive period diverted to a combination of public utility and lower order agricultural uses. The terms alienate or alienation in the context of what is in issue in this proceeding do not require permanence. In this context, I also consider the evidence of Mr Ovenden, while clearly not determinative, to have force:[107]
"Look. I agree, and, your Honour, I think it's important that you - from a planning perspective - that you look at the practical reality of this. The overarching state interest for agriculture on this very page, on page 30 of the State Planning Policy talks about that agriculture depends on a - or - sorry, that agriculture depends on a [indistinct] to support the long term viability and growth of the agricultural sector. So we're talking about long term viability. I think it would be - from my perspective and when you look at the sustainable use argument - sustainable agricultural use, sort of, preface to that discussion on irreversible impact, in my opinion long-term is a significant period and 40 years is a significant period for land to be taken out of agricultural production. And for me, from my perspective, it's as good as being permanent given the variables that play over that period."
[108] Before concluding this aspect of the proceeding, there is one further matter that I feel I should address. To the best of my recollection, no party took me to any definition of "temporary use". While none exists in the MS Plan, under the MRP Scheme a temporary use is defined to mean one that is "...carried out on a non-permanent basis..."[108] Apart from stating the obvious, this definition, even if it were relied on, would not assist the respondents in my opinion for the reasons canvassed when dealing with the concepts of alienation and productive capacity.
[109] Given the above conclusions regarding conflict, I do not consider it necessary to turn my mind to all of the other provisions of the planning schemes identified in either the JER of the town planners or those remaining of the "bundle of issues" initially identified by the parties. Having established such a significant extent of conflict with the higher order provisions of both planning schemes, no purpose would be achieved by such an exercise.
Other relevant matters and benefits of the proposed development
[110] That material conflict exists with important aspects of the planning instruments is not the end of the matter. The benefits that would arise if the proposed development went ahead must be taken into account, as a "relevant matter" under s 45(5) of the Planning Act. In this context, it is also highly significant that SPP17, unlike its predecessor SPP07, specifically recognises as a matter of state interest the development and supply of renewable energy. SPP17 relevantly provides:[109]
"All of the following state interest policies must be appropriately integrated in planning and development outcomes, where relevant...
(4) The development and supply of renewable energy at the regional, local and individual scale is enabled in appropriate locations."
[111] At first blush, the use of GQAL might not be thought to be an appropriate location. However, as already addressed, there are a number of critical factors that determine where solar farms such as that proposed can be located. In this context, the Draft Guidelines for Local Governments[110] makes it tolerably clear that in certain circumstances the use of GQAL for renewable energy purposes would be appropriate.
[112] While no one particular state interest takes priority over another, the Draft Guidelines for Local Governments, which were designed to assist local governments in their role as, among other things, the assessment manager for large-scale solar farm applications. The draft guidelines clearly contemplates that, in certain circumstances, it might be necessary to have to balance the competing interests of protecting of GQAL and the development of large-scale solar farms. The guidelines recognise the relevant factors that go into determining whether or not a site is appropriate for a solar farm or not. They also recognise that solar farms will typically be located in rural areas. Under the heading "Meeting the State Plan - Making Requirements" it is said:[111]
"...The SPP does not prioritise one state interest over another, so solar farms should not necessarily be prioritised over other land uses. Local government plan-making should balance the merits of supporting solar farms and any potential impacts against the economic, environmental and community aspirations for the local government area." (Emphasis added)
[113] It is also of significance in that part of the guidelines that while the use of GQAL ought to be avoided wherever possible, in certain instances it is recognised that the development of a solar farm could be a "competing land use" for such land.
[114] In the context of competing land uses, Mr Ovenden in the JER, while recognising that there were a number of significant benefits associated with the development of a solar farm, considered they were not sufficient in this case to warrant approval. According to him:[112]
"...[T]hese are not sufficient grounds to warrant approval of the proposal. It is acknowledged that planning scheme for the former Mirani Shire considered as part of the planning assessment of the proposal, does not reflect the 2016 and 2017 SPP, but neither of those state policies on where the priority lies between promoting renewable energy and protecting GQAL. The recent released draft State guideline on solar farms does to some extent recognise that GQAL is a competing land use and that solar farms should be appropriately located having regard to local interests. The guidelines used the example of avoiding GQAL, Important Agricultural Areas and land with other constraints such as biodiversity."
[115] Before turning the identified benefits associated with the proposal development, while by no means a decisive factor, it is relevant to bear in mind that unlike many applications that come before this Court, the development of this proposal would not result in any negative amenity impacts. As Mr Lyons pointed out, that does not occur very often when large scale developments are involved. However, whilst the fact that there are no negative amenity impacts is a matter in favour of the proposal, it is by no means determinative given the nature and extent of the conflict involved here.
[116] There are both significant economic and wider community benefits associated with the proposed development.
[117] Turning to the economic benefits, the evidence of the economists leads me to conclude that, while in the long term, the economic benefits to the Mackay local government area of either use would be roughly equal, there would be significant economic benefits during the construction phase of the solar farm. The evidence is that construction would take up to 12 months and would create up to 100 jobs. Based on his experience with the development of a solar farm at Moree, Mr Shimmon was of the view that, during that construction phase, the economic benefits to the local community could be expected to be significant.[113] That tends to tip the direct economic benefits to the Mackay district in favour of the proposal but only just.
[118] Of more significance though, is the benefit to the wider community, which includes the subject local government area, in increasing the efficiency and the reliability of the electricity supply and distribution network and the potential to place downward pressure on the cost of supply to consumers. According to Mr Rademaker, benefits of the proposal development, as a consequence of providing an additional source of renewal energy generation, will:[114]
"(i) maximise the use of the Mackay region's existing electricity grid's capacity;
(ii) contribute to satisfying the locality and region's projected electricity demands;
(iii) contribute to the reliability of and a cost-effective electricity supply network; and
(iv) provide investment in distributed generation within a regional part of Queensland to:
A. reduce costs associated with electrical losses and maintenance of the distribution network; and
B. improve the resilience of the electricity network protecting against outages."
[119] Evidence about increasing the reliability of supply, the reduction of losses and potential to put downward pressure on the price paid by customers for electricity was also given by Mr Rossiter but it is not necessary in my view to repeat his evidence.
[120] It may well be, as pointed out by the co-respondent, that there is no "pressing need" for the proposal and no suggestion that the citizens of the Mackay region would be "deprived of power" if the project did not proceed.[115] That however, is not to the point. The unshaken evidence of Mr Rossiter and the unchallenged evidence of Mr Rademaker satisfies me that the proposed development would in all likelihood make a meaningful and positive contribution to the electricity supply and demand equation.
[121] On this topic, the unchallenged evidence of Mr Hodgson was that Racecourse Projects Pty Ltd (Racecourse Projects) also generated renewable energy using "bagasse", a by-product of the sugar extraction process. Racecourse Projects is the largest single grower and supplier of sugarcane to Mackay Sugars Mackay district mills. His evidence was that Racecourse Projects was capable of "exporting" electricity into the electricity networks. However, "generally" the electricity generated is needed for internal purposes.[116] While Mr Hodgson's evidence can be accepted, I do not consider it denigrates to any real extent from the evidence of Messrs Rademaker and Rossiter to which I have referred and accepted.
[122] The capacity of Racecourse Projects to supply electricity into the wider network pales beside that that would be capable of being generated by the proposed development and, in any event, that company's capacity is limited by the extent of its own internal demands and, at least recently, by internal problems including "operational issues."[117] While the evidence on this topic is far from clear, it would appear that the economists were able to identify one financial year when the Racecourse Mill plant had been able to make a meaningful contribution to Mackay's electricity demand/consumption, at least in more recent times.[118]
[123] Of more relevance though, is that the ability of the Racecourse Mill's plant to export electricity into the wider network in no way would inhibit he proposed solar farm's ability to also export electricity into the network,[119] thus realising the potential benefits concerning reliability and pricing decreased above.
[124] While Mr Hodgson also expressed concerns about the potential to lose income by the loss of the ability to export electricity into the wider network, no attempt was made to quantify that loss. Given the issues to which I have referred, I find that to be an unconvincing matter and certainly one that is greatly outweighed by the wider public interests identified above. His concerns about the supply of cane have already been addressed.[120]
[125] Turning then to the broader community benefits, both Mr Ovenden and Mr Perkins acknowledged the desirability in meeting national and state renewable energy targets. However, the wider community benefits extend beyond that. Solar farms not only result in more competition in the electricity generation/supply market but does so in a way that reduces greenhouse gas emissions by reducing reliance on coal-fired power stations. The evidence of Mr Rademaker which I accept, in this context, is:[121]
"Through the development of the Mirani Solar Farm, as with all its projects, ESCO is seeking to provide the following broad environmental, economic and social benefits to the local and wider community:
(a) assisting Australia to meeting its binding international renewable energy obligations
(b) assisting Australia and Queensland to meet their respective renewable energy and emissions reduction policy commitments and legislative obligations
(c) contributing to the expansion of Queensland's renewable energy sector through private sector investment in utility scale solar projects
(d) reducing greenhouse gas emissions by reducing reliance on coal-fired power stations for electricity production, which will have related climatic benefits for the local region, Queensland and Australia..."
[126] A number of submissions on the aspect of the appellant's case were made against it. The more significant could be summarised as follows:[122]
[127] As I understand these submissions, while it is accepted that in the broader sense there are clearly recognisable and beneficial outcomes associated with the development of renewable energy sources, these benefits need to be scrutinised very carefully when considering the clear and direct negatives occurring at the local level.
[128] In this context, it was submitted on behalf of the respondent:[123]
"At the state level, on any fair view, that need such as it is, remains abstract, both in a practical and temporal sense and one the entire state, along with the rest of the country has. But accepting it exists, the question becomes, will this proposal meet it in any way which is material - in this context material must mean, of such significance as to make the use of GQAL tolerable? The answer to that question, the respondent submits, is that it will not. That is, fundamentally so for two reasons which are related. First, the need remains abstract and policy driven: seen through a Mackay region lens, it must be of very low weight. Secondly, and critically, the respondent submits, it is a need which is already being firmly addressed by the solar development industry - that is, the need is met, so, in the context of this appeal, does not exist or exists on a di minimis scale." (Footnotes omitted).
[129] While these submissions in combination might have a degree of force, they are not persuasive in the circumstances of this case. That is so for a number of reasons. First, they clearly understate the evidence of Mr Rossiter and Mr Rademaker, which I have accepted, about the potential benefits that would be generated were this project to go ahead. Second, they understate the importance of the State interest of developing renewable energy sources.[124] Third, they fail to sufficiently have regard to the evidence concerning the absence of any negative impacts on the sugar industry or any other element of this local government area, that would result from the alienation of this land for 40 years. The "thin edge of the wedge" can only go so far and not far enough in the circumstances in this case.
[130] Ensuring the protection of GQAL is a matter of significance as the evidence referred to identifies. That said, in performing the balancing act that I am required to do, I have reached the conclusion that I am satisfied that the proposed development ought to have been approved. To use the language of the MRP Scheme, I am satisfied that there is a need for this proposal that over-rides the need to protect GQAL and there is no alternative site. My conclusions might have been otherwise had there been evidence of the loss of this GQAL having an economic impact that might have affected the viability of the sugar mills in the region and otherwise involved a risk of a material negative impact on the economy of the local government area, but that is not the case. On balance, I consider the benefits associated with the proposal, should it proceed, outweigh the temporary loss, albeit for 40 years, of the subject land. In that sense, to adopt the language used in PO1 of the Agricultural Land Overlay Code, there is an overriding need in the public interest and no alternative site available. In this context, that the land will eventually be returned to GQAL pool and that there are no adverse amenity impacts associated with the project are not irrelevant considerations.
[131] It was uncontroversial that in the event of genuine conflict, a balancing exercise was required. Whether the balance was as finely balanced as the co-respondent seemed to see it is a matter about which reasonable minds may differ.[125] In any event, on the totality of the evidence, I am comfortably satisfied that the balance lies in favour of allowing the appeal.
[132] It follows that I consider that the decision of the planning committee to refuse the development applications was wrong and must be set aside. In reaching this conclusion I am all too aware of the advantage the Court has had both in respect of the extent of the evidence advanced for and against the proposed development and the level of assistance received by the legal representatives of the parties.
[133] For the reasons given I am satisfied that the appellant has established that the appeal ought be allowed. Accordingly, the orders of the Court are:
2. I will hear from the parties as to any consequential orders.
[6] The Planning Act (2016) together with the Planning and Environment Court Act (2016) (the PEC) have replaced the now repealed Sustainable Planning Act (2009).
[20] Written submissions on behalf of the first co-respondent, paras [21]-[23].
[21] T6-41 ll 43-47; T6-42 ll 1-7. (See also T6-5).
[26] [2018] QPEC 34 at [47]- [48].
[27] 12 or 13 allegations of conflict were no longer being pressed.
[30] Exhibit 5, page 3, paras [29]-[33].
[35] Evidence of Mr Rademaker who was not required for cross-examination. Exhibit 10, para [54].
[36] Only 30% site coverage. See Exhibit 32, para [6].
[37] Uncontradicted evidence of Mr Rademaker, Exhibit 10, pages 6-8. Also the evidence of Mr Rossiter, Exhibit 11.
[38] Evidence of Mr Rossiter, T3-17 ll 18-47; T3-28 to T3-29.
[40] Exhibit 10, page 14; Exhibit 25; Exhibit 26.
[45] Written submissions on behalf of the first co-respondent, para [208].
[47] Exhibit 9, pages 68-69, para [252]. See also Exhibit 5, page 2, para [20].
[55] See Exhibit 16A, page 33, "Strategic Intent".
[56] Exhibit 8, paras [16] to [21].
[57] Mr Gill is the general manager (commercial and legal) for the co-respondent by election.
[58] The senior project engineer for the respondent.
[66] Written submissions on behalf of the first co-respondent, para [45(d)].
[67] [2010] QPEC 132 at [65].
[69] Exhibit 16B, page 218, Agricultural Land Overlay Code PO1. See also submissions on behalf of Mirani Solar Farm Pty Ltd at pages 87-96; respondent's trial submissions at pages 25-33; written submissions on behalf of the co-respondent at pages 42-43.
[71] Submissions on behalf of Mirani Solar Farm Pty Ltd, paras [283]-[284].
[83] Exhibit 9, page 67, para [246]; T 5-9 ll 11-29 per Mr Ovenden; T 4-25 ll 25-33 and T 4-34 ll 16-23 per Mr Perkins.
[86] (1996) QPELR 113 at [116]. See also Yu Feng Pty Ltd v BCC & Ors [2007] QCA 382; (2007) 156 LGERA 399 at paras [24]-[26].
[87] Agriculture is defined in the MS Plan, Exhibit 13, page 116.
[94] Respondent's trial submissions at para [87].
[97] A matter accepted by Mr Ovenden. T5-15 L 30 to T5-16 L 1.
[100] Exhibit 16A, page 33; Exhibit 13, page 2.
[103] Submissions on behalf of Mirani Solar Farm Pty Ltd, page 56, para [238(b)].
[106] E.g. Vidler v Fraser Coast Regional Council & Anor [2011] QPEC 18.
[112] Exhibit 9, page 66, para [244].
[115] Written submissions on behalf of the co-respondent, paras [182] to [188].
[116] Exhibit 19, paras [6] to [11].
[118] Exhibit 8, page 27, para [99].
[119] Exhibit 11, page 8, para [42].
[121] Exhibit 10, page 18. See also the evidence of Mr Perkins in Exhibit 9, page 65.
[122] Respondent's trial submissions pages 26-30; written submissions on behalf of the co-respondent, pages 36-40.
[123] Respondent's trial submissions, para [67]; written submissions on behalf of the co-respondent, paras [199]-[208].
[124] E.g. State Planning Policy 2017; Exhibit 17, page 54.
[125] Written submissions on behalf of the co-respondent, paras [12] and [209].
Mirani Solar Farm Pty Ltd
Mackay Regional Council [2018] QPEC 38
(2007) 156 LGERA 399