Simmons v Esk Shire Council

[3] The site is described by the appellant's planner, Mr Challenor as located on the foothills of the Little Liverpool Range over 600 metres to the south of the Warrego Highway at Minden at the western end of the formed section of Kerles Road, which is accessed from the highway via Tallegalla Road. It comprises lot 637 of 48.562 hectares and lot 2 of one hectare. They are separated by the dedicated (unformed) extension of Kerles Road (the formed part of which runs east-west) leading back towards the highway. Half way, there is a shorter east west section (the one separating the site from the camp) leading to another north-south section. There is no house on lot 637; there is a manager's residence on lot 2. It is sensible to regard the "site" as lot 637. As Mr Challenor describes, it is traversed by a central ridge with other ridges on both the northern and southern boundaries and two main drainage lines in-between. Some parts are quite steep. The site is elevated, well above the highway. There is higher land in the vicinity. The rectangular site is rather longer north to south than it is east to west. It "tilts" slightly to the east of north. The sheds are proposed to go on a level pad to be located in the middle of the eastern half of the site directly opposite lot 2. The pad will be created by a cut and fill, the cut being to the north and west. The "tilt" of the pad, which runs generally east-west, is towards the south, contrary to that of the site itself. It will provide a substantial manoeuvring area for vehicles at the western end. The sheds will employ "tunnel ventilation" with fans blowing extracted air in concentrated form like the half dozen fans depicted in figure 3 in Mr Simmons' statement (Exhibit 10); it shows the pipes for a system of spraying moisture which should lead to particulates in the expelled air being brought to ground more quickly.

[4] The issues litigated, many others having been raised and identified as issues in dispute in the appeal, were identified by Mr Haydon in his written submissions as:

(a) odour and dust impacts;

(b) water quality impacts

(c) amenity and character impacts;

(d) conflict with the strategic plan contained in the transitional planning scheme; and

[5] It is appropriate that the court note the wide ranging concerns of the adverse submitters. Concerned members of the community who go to the trouble of making submissions are entitled to expect that not only the local government but, if there is an appeal, the court will give them appropriate consideration. So far as the court is concerned, it is constrained by the evidence presented. However, the established practice of putting submissions before the court (a practice which in my opinion should continue) is presumably to ensure that the court is cognisant of community concerns, which are not necessarily going to be opposed to a development. The wide ranging nature of the concerns expressed here, extracted from Exhibit 21, can be indicated under headings such as the following:-

● Air was seen as an important part of the Amenity of the area - will it continue to be clean, pleasant and safe?

● Bushfire risks will be exacerbated by storage of chemicals on site; fire was said to be of particular concern in respect of waste litter from the sheds before its removal from the site.

● Character of the area, now rural, semi-rural or rural-residential (depending on perceptions) is imperilled, the proposed use and buildings being said to be of an industrial or "factory" nature.

● Dust emanating from the site and site-related activities on local roads, the composition and safety of which are uncertain, was a serious concern. There were several references to asthma sufferers.

● Electricity supply is said to be stretched already, and total blackouts frequent after storms; the proposal may make excessive demand.

● Flies, rodents and other vermin including dingoes, said to be a problem in the Shire already, are likely to be attracted by the poultry farm. Flooding of the only access route (said to be capable of lasting for weeks) may isolate the site and aggravate problems of this and other kinds.

● Generator noise from the site (presumably limited to blackout periods) was said in the appellant's documents to affect people at residences within 500 metres, of which Mr Challenor identifies at least three.

● Health risks posed by air-borne and water-borne contaminants are the most widely voiced concern.

● Ipswich subsumed much of the former Moreton Shire in 1995 and, relevantly, much of the Minden Valley, the rest of which went to Esk; Ipswich residents are among those located closest to the site (without being immediate neighbours) and are among the adverse submitters. The proposal could not be approved if applied for in Ipswich; its impacts will be felt there. Unaware in time of the application, the City Council lodged a submission dated 14 October 2004 whose terms conceded it was late. It is part of Exhibit 21 and contains the closest thing the court has to an internal Council planning report on the application.

● Journeys on the narrow back roads and across the Warrego Highway intersection will be more perilous for pedestrians (including schoolchildren walking all the way or using the bus) and for drivers because of the traffic generated by the poultry farm.

● Kerles Road is too narrow and presents particular danger; it is unsealed and flood prone. Dry vine scrub along the road would be lost if widening occurred, to the dismay of the West Moreton Landcare Group Inc and others.

● Land values in the area may plummet. This was a near universal concern, for obvious reasons, but as Mr Haydon noted, there was no evidence about it. So far as I am aware, matters of valuation have not been seen as having relevance in planning contexts.

● Minden township is very close to the site, Minden State School particularly so; the residents and students will bear any impacts of the poultry farm; it was said that the school's air-conditioning deprived it of means of avoiding or limiting some impacts.

● Noise.

● Odour.

● Pollution.

● Quality of life (to quote the Behrendorffs' submission, for one, and acknowledge the tenor of many others) and of the components of it, such as air, water and outlook.

● Roads (given what exists in the area).

● School children and -

● Traffic. Impacts of the development were said by many to present in combination unacceptable risk.

● Usage of water to maintain the proposed poultry farm, from a system that can only provide limited water to the local residences, may be "excessive" (the Behrendorffs again); this allegedly resource-hungry new "Use" was not accepted as a rural use, or appropriate in the area.

● Visual impacts attributable to the size of the sheds in their location are much complained of.

● Water is a subject of concern in various aspects, crucially the impact of particulate emission deposits on rooftops which collect rainwater for the domestic tanks which are depended on for household supply in the area, including for drinking water; surface run-off from the elevated site during storm and high rainfall events may contain contaminants affecting lower lying pastures; this is of particular concern to the Flanagans and the operator(s) of Sonshine Ranch.

● X represents unknowns, such as what expansion of the poultry farm might occur in the future or what replication on other sites in the area should a precedent be established now.

● The Youngs are the lead co-respondents by election and occupy the house closest to the proposed development (excepting the manager's residence); on any view, theirs (to the west) is the residence most affected by odour and particulate emissions, more so by the original proposal; the Nielsens (to the south) now come close. Their various submissions include a thoughtful one by Professor Young dated 20 August 2004, noting the changes that have happened in poultry production over the years and arguing the appropriateness of regulating it as "industrial factory production". There is no evidence from him in the appeal, which came on while he was incommunicado in the Philippines.

● Zoonoses, being disease organisms capable of moving to humans from other species; concern was also expressed about risks to cattle, including those on the site and elsewhere, and to other avian species such as ones represented in the Friskes' nearby aviculture business which breeds (presumably for sale) rare and exotic parrots ("we have great concerns that air-borne diseases, antibiotics and hormones which the poultry require will settle within our aviaries, contaminating the drinking water and the food").

[6] The effect of s 6.1.28(1) of the Integrated Planning Act 1997 (IPA) is that Mr Simmons' application made under the transitional planning scheme had to be processed under the IPA as one requiring impact assessment and a public notification process. The timely submissions would have been considered by the Council, which rejected the development application. They must now be considered by the court. The late submissions, many of which were supplementary ones from co-respondents by election, add little that is new, apart from that of Ipswich City Council.

[7] The court would be expected to pay considerable regard to common ground reached by experts whose joint reports, in Mr Haydon's submission, have "resolved ... in favour of the proposal" what he calls the "technical issues of traffic, noise and visual amenity impacts". The relevant joint reports and some separate reports bearing on those issues are before the court. The effect of them is that if the proposal goes ahead, conditions can be imposed to deal with the impacts in ways assessed as acceptable. I do not think it follows that the court should ignore traffic, noise and visual amenity impacts. In relation to the third of them, Mr Chenoweth, engaged by the appellant, and Mr van Pelt, engaged by the Council, agreed in writing on 25 August 2005:

"1. The subject land occupies a hillside which is locally visible from viewpoints on surrounding ridges, including some houses in the Two Tree Hill/Stacks Road area, and the proposed three poultry sheds will be seen from these positions.

2. The natural topography of the ridges and foothill spurs, together with patches of vegetation, limit the visibility of the site and proposed sheds from most of the valley and Minden township. However parts of the subject land hillside are visible from nearby houses, from some other houses in the valley and from a section of the Brisbane Valley Highway. Limited views of the sheds will be available from these positions.

3. The character of the valley is rural, with rural residential character along the Two Tree Hill ridge and village character in Minden township. The rural amenity of the area is characterised by visible evidence of rural activities, patterns of trees and pasture, dirt roads and scattered farmhouses, and also by a low level of night-time lighting and the absence of visible urban residential, industrial and commercial development. Rural amenity is also characterised by other non-visual attributes such as privacy, low noise and traffic, and clean air, although rural areas close to highways (such as Minden) experience some traffic noise.

4. The size of the proposed flat platform and the length of the sheds are out of scale with the existing rural surroundings, and require screening and other measures to integrate them within the landscape and to visually break up the built form as viewed from off-site. The visual impacts of the proposed development are capable of resolution with appropriate conditions.

5. The three proposed sheds will be 3 m in height, and buildings of this height are capable of screening by trees around the platform boundaries within a few years of planting, from views at similar or lower elevation. However the sheds will be visible from viewpoints at higher elevations, such as Two tree Hill, and additional measures to visually soften and integrate the long roofs.

6. The proposal to modulate the long roofs by sections of different colour and plane, by the use of shade cloth panels, is an appropriate means of breaking up the visible scale of the long roofs.

7. The batters will be capable of visual integration with the surrounding rural pastures when grassed.

8. The 'Landscape Concept Plan' (Chenoweth EPLA Drawing 058042 LSK-01B dated 9/8/06) is an appropriate response to the issue of screening the sheds and visual integration of the platform and sheds within the local landscape.

9. The potential visual impacts of the platform and sheds are likely to be satisfactorily addressed by the above measures, but the effects of the proposed development on general rural amenity and the perception of that amenity involves not only visual character but also other considerations of noise and odour which are addressed by other experts.

10. The success of the modified planting recommended is strongly dependant on adequate water supply for irrigation and tree management to ensure good growth and plant health. Such outcomes need to be monitored as they form the basis for ongoing successful visual outcomes."

Paragraph 8 replaced the following, from an earlier signed agreement:

"7. The proposed 'Landscape Concept Plan' (Chenoweth EPLA Drawing 048042 LSK-01 dated 7/7/06) is an appropriate response to the issue of screening the sheds, but could be improved, with respect to visual integration of the platform and sheds within the local landscape by:

● Increasing the number of trees between each of the sheds, eg to a continuous double or triple row of planting, and shifting the rows northwards to be closer to Sheds 2 and 3;

● Changing the rows of trees around the base of the batters and along the access driveway to scattered groups or clumps of trees, more in keeping with a rural landscape;

● Grassing the parts of the platform not needed for trucks and access;

● Graphic illustration of the different roof colours and shade cloth panels; and

● Sections showing sight lines from viewpoints including nearby houses."

[8] I do not consider that the foregoing deprives the court of the ability to give some effect to evidence given in the appeal in relation to visual amenity by some of the co-respondents, Mr Flanagan, Mr Nielson and, to a lesser extent, Mr Friske. Each of the sheds will be enormous, compared with anything in the vicinity at present. The trees intended to provide screening, if they flourish, will not be mature enough to achieve their purpose for years.

[9] There was no evidence to justify the court's entertaining reservations about the proposal based on noise and traffic impacts as such, although it seems to me legitimate to recall them when the court comes to making assessments about character and amenity. It is established by Broad v Brisbane City Council & The Baptist Union of Queensland [1986] 2 QdR 317, that subjective perceptions of a locality are within the concept of amenity. See 326, per de Jersey J.

[10] Air quality issues relate to particulate emissions (dust) and to odour. It is accepted that uses such as that proposed present potential problems, which may be exacerbated in their impacts on air quality by the concentration of emissions brought about by use of fans. Mr Ormerod, who has vast experience in the field, has used computer modelling to predict odour and dust impacts. He postulates a particular plume, in the composition of which varies according to the mass of poultry in the sheds from time to time. There are about five production cycles possible per annum, with a couple of weeks separating each one from the next during which the shed is cleaned and litter is removed and replaced. During the course of each cycle occurs a cull of half the birds (by then grown to a commercial size) producing a sudden fall in emissions, which then return to something approaching their peak level as the remaining birds develop to their final size. Calculated data for emissions (based on measurements obtained over the years of equivalent flocks) are merged with meteorological data to reveal the anticipated patterns of dispersion by the wind of odours and particulates. Contours for odour and dust dispersion are produced by the computer model used; appropriate contours reveal any exceedence of identified standards.

[11] As to odour, the standard referred to was an Environmental Protection Agency Guideline of general application (that is, paying no regard to whether particular kinds of odour are especially offensive) postulating an "odour annoyance threshold (concentration) guideline: 2.5 OUE/m3, 1-hour average, 99.5th percentile for ground-level sources and down-washed plumes from short stacks (such as poultry sheds)" (see Exhibit 26, page 17). Mr Ormerod's contours indicate that the 2.5 odour unit standard contour falls short of any nearby residence. Ms Richardson was an odour consultant called by the Council. She carried out modelling seeking to predict the consequences of co-incidence of the highest emissions from production cycles and most adverse weather conditions. She demonstrated the potential for many more than the 44 hours per annum of annoying odour accepted by the guideline. It must be recognised that this guideline invites or tolerates annoying odour. The occasional horrendous whiff will be overlooked entirely unless its effect is to bring the average emission for the particular hour (from any particular o-clock to the next o-clock) above the 2.5 odour unit standard. It might be expected that the exceedences permitted by the guideline would be concentrated around particular times of year, especially in summer. The guideline acknowledges that people find odour from poultry farms particularly offensive and emphasises that it should not be taken as establishing a "pass or fail" criterion. The EPA Guideline for odour impact assessment from developments is Exhibit 27, qv at p 8.

[12] Mr Ormerod succeeded in shooting Ms Richardson's work down in flames by establishing that she had used Greenwich mean time, rather than local time (roughly reversing night and day). This has not made him the victor in the argument. The criticisms of his modelling advanced by Ms Richardson and Mr Winders are sufficiently persuasive to preclude the court's accepting it. Quite apart from what strikes me as an inadequate spread of meteorological data (what was used relates to a single 12 month period and commonsense and experience indicate that weather may be very different from year to year),

● No site-specific meteorological data was used, reliance being placed on data from a number of stations more or less remote (which may be preferable to Ms Richardson's use of Brisbane Airport data).

● No attempt was made to model for meat production cycles staged differently throughout the year.

● No allowance was made for any falling short from achievement of "best practice" (which it may be accepted is incorporated in the comprehensive site based management plan and environmental procedures manual devised by Mr McGahan (Exhibit 3)).[1]

● Mr Ormerod's results are entirely theoretical; there has been no testing of them in the field.

● The "Calpuff" modelling employed assumes emissions from a stack, rather than the horizontal emissions produced by tunnel ventilation. Mr Ormerod assumed, as Mr Ure (for the Council) put it in his written submissions, "4 x 19m circular sources vertically stacked on each other, commencing half a metre above the ground and half a metre between each successive hypothetical source". That modelling was criticised as "unreal". In light of the criticisms of Ms Richardson (who performed some tests to generate smoky plumes which could be photographed) and Mr Winders, I am not persuaded by Mr Ormerod's modelling results which were based on there being some vertical momentum and vertical thermal buoyancy. It is not shown that fan forced emissions would be warmer than the outside air and accordingly rise to assist in dispersion.

[13] The modelling does not appear to allow for the unknown effect of the wall of the "cut" which faces about half of the fans. There was some uncertainty as to whether the wall was to be surmounted by an acoustic fence, like the one around the diagonally opposed corner of the pad. The answer appears to be no.

[14] There was controversy regarding whether Mr Ormerod had allowed for the 20% margin of error recommended. His modelling may be seen as conservative in not claiming any beneficial effect from some of the methods Mr Simmons proposes to adopt, such as the moisture spraying and planting of vegetation, which might be expected to alleviate the impacts of emissions.

[15] All of the foregoing must be approached with the understanding that adverse odour impacts may well be suffered even if compliance with EPA guidelines is achieved, as noted. The tolerated exceedences may go above the 2.5 odour unit benchmark by many multiples (Ms Richardson's modelling suggests so). The guideline itself acknowledges that "odorous emissions that are extremely offensive, such as some mercaptans, may also cause odour impact with emissions lower than the guideline value." Mercaptans are an issue here.

[16] The appellant, who bears the onus of proof, has failed to show that the odour impacts are acceptable, or would comply with the EPA guideline. One respect in which Mr Ormerod appears to have taken too sanguine a view of likely odour impacts is the extent to which litter will be kept dry. Moisture has the effect of increasing unpleasant odour, leading Mr Simmons to propose methods of watering poultry which will markedly reduce spillage of water onto litter. Mr Ormerod appeared to be unaware of (and therefore made no allowance for) the spraying of sheds (including ceilings and walls) between cycles when litter is removed, to be carted away in trucks which are loaded by means of conveyors "fed" by bobcats piling the spent litter. No thought has been given to odour impacts of this procedure, which will happen with the shed open, and tunnel ventilation switched off. (Indeed, the evidence showed that all fans would be operating for only part of the full duration of the production cycles.)

[17] The appellant has been equally unsuccessful in his endeavour to persuade the court that dust emissions from the proposal should be regarded as acceptable, or impacts to do with surface water run-off. Mr Edmiston was an impressive (and entertaining) scientist called by Mr Everson, for the co-respondents by election. He challenged Mr Ormerod's views regarding the acceptability of dust emissions and Mr McGahan's in respect of surface run-off. It is the dust underlying the serious concerns felt for health of human occupants of the immediate area (particularly, given their dependence on tank water collected from rooves). No-one knows what is the composition of particulate emissions likely to be generated with any certainty. The fears held by adverse submitters are reasonable in the circumstances. Mr Edmiston identified scientific support for them. He was castigated by Mr Haydon (for the appellant) for introducing new scientific references from the witness box, which had not been disclosed earlier. He was not given the opportunity to go into any detail, or to supply further references. I am not sure that any restriction was appropriate, given that he was responding to assertions in late "response report" material from the other side critical of his original work and of the scientific and like papers identified in that work. Somewhat theatrically, Mr Edmiston in the witness box demonstrated by producing a bag and a bottle of chicken manure quantities that might fall in a year on a roof without concerning Mr Ormerod, and get into drinking water. To underline his point, he stirred a spoonful or so into a glass of water, which no-one in court offered to taste. Mr Edmiston readily conceded that the "dry" items (which were not tendered) were collected from a poultry farm (egg-producing) next to which he had lived for 17 years, without ill-effects. This, of course, does not establish that he has faced no risk of harm. His real point, with which I agree, is that there is a world of difference between his situation of voluntarily embracing a certain amount of risk and that of the co-respondents by election who are having new risks thrust upon them involuntarily in the interests of the appellant.

[18] As regards water run-off, the appellant has his own concerns about the quality of it. There are two dams on the site, one located at higher elevation than the proposed sheds, the other at lower elevation. The cattle on the site will be denied access to the lower dam, which will receive surface run-off from the inside and outside of the sheds, and their surrounds. Mr McGahan's design is intended to ensure that no polluted run-off can leave the site, that any overflow from the lower dam will be "polished" so as to cause no concern. The water in that dam is intended to be used on the site to irrigate the vegetation to be established on and around the pad - not only for purposes of screening the sheds from view, but also for the purpose of providing another barrier to emissions, notably particulate emissions, confining them to an extent within the site. (This was another of the appellant's proposed measures to alleviate emissions problems which Mr Ormerod did not consider in his work - the effect being that he may have overestimated emissions moving off the site.) I find myself inclined to agree with Mr Edmiston that no confidence can be reposed in the proposed arrangements for dealing with surface run-off, given that heavy rainfall events may frustrate them. At the least, Mr Edmiston's evidence dissuades me from accepting Mr McGahan's optimistic view.

[19] The development application was made under the Planning Scheme of the Council of the Shire of Esk gazetted on 19 June 1992 and amended in 1995 and 1996, Exhibit 11. Section 6.1.30 of IPA required the application (as it does the appeal) to be decided by reference to s 4.13(5A) of the Local Government (Planning and Environment) Act 1990 whereby the application must be refused if:

(a) the application conflicts with any relevant Strategic Plan or Development Control Plan; and

(b) there are not sufficient planning grounds to justify approving the application despite the conflict.

It was not suggested that there are "planning grounds" as referred to in (b). A need for the product may have been accepted as helpful in Singh v Beaudesert Shire Council [2003] QPELR 16; see [26]-[27]. There the successful appellant had been forced away from his established location by encroaching development. There was no evidence or claim of need (which Judge Quirk was prepared to assume in Singh).

[20] The conflict asserted against the appellant relates to the 1992 scheme (the superseded scheme); also there is conflict with the current Esk Shire Planning Scheme of 25 November 2005. The superseded scheme in Part 1 Strategic Planning Provisions describes preferred dominant land uses in s 1.3, of which the relevant one is:

"1.3.9 RURAL - The rural category, which is coloured light brown, covers a substantial part of the Shire. The rural designation, in association with the other preferred land use designations is intended to provide a clear definition between the land needed, or most suitable for urban expansion or rural residential expansion and that required to ensure the retention of viable rural areas in order to support the Shire's rural/agricultural economic base. The area contains a mixture of conservation constraints including prime agricultural land, flood liable land, steep land unsuitable for intensive development, areas of significance suitable for flora and fauna, conservation and potential forestry reserves. Proposals for development within this designation and within five hundred (500) metres of the Roma-Brisbane natural gas pipeline are required to consult with the owner of the pipeline on the nature of the proposed development before making application to the Council for approval to build or develop.

The predominant uses within the rural sector will be animal husbandry and agriculture where soil conditions and topography are appropriate. However there are areas which may be suitable for other uses such as recreation and tourist facilities. These may be considered, subject to detailed planning, provided that such development is not in direct conflict with the statement of objectives.

It is not anticipated, nor is it intended that any land included within the rural designation be excluded from that category for any form of residential-based development; other than that designated for urban expansion or rural residential expansion, during the life of this Planning Scheme."

Pertinently, in s 1.8, where one finds the Rural Area Objectives, is,

"Objective 1.8.2

1.8.2.1 To maintain and preserve the amenity and character of rural areas.

Implementation

1.8.2.2 The existing amenity and character of rural areas shall be protected by application of the provisions and intent of the rural zones under the Planning Scheme and other implementation criteria included in this Part.

1.8.2.3 Council recognises that there are a variety of opportunities throughout the Shire for the establishment of facilities in association with traditional rural land uses. The appropriateness of the form and intensity of any development permissible in the rural areas shall be assessed in accordance with the intent and provisions of the preferred dominant land uses under this Part and the intent of zones under the Planning Scheme. In considering any development in a rural zone, Council may impose conditions to ensure that the existing amenity of the location is maintained."

The objective and first implementation paragraph were relied on by those resisting the appeal.

[21] Part 2 of the superseded scheme provides definitions of terms descriptive of the purposes of development which under "Rural" are:

Poultry farm, found on that list, is defined as "premises used or intended for use for business or commercial purposes for the breeding, keeping and feeding of poultry for sale, exchange or egg production, where the number of birds kept exceeds twenty (20)". In respect of that use, the scheme failed to recognise changes in production methods. By contrast, a piggery became "intensive" should there be twenty or more pigs and lot feeding "intensive" unless there were "less than fifty (50) head of livestock, at an equivalent animal density of more than twenty-five (25) sq m per animal". In the Table of Development, named uses are listed either in column III (Purposes for which buildings or other structures may be erected or used or for which land may be used without the consent of the Council) or column V (purposes for which buildings or other structures may not be erected or used or for which land may not be used). All other purposes come within column IV (Purposes for which buildings or other structures may be erected or used or for which land may be used only with consent of the Council). Column III contains Piggery (non-intensive) on sites of at least 5 hectares and Poultry run (domestic), also, subject to special conditions such piggeries on smaller sites and Lot feeding (non-intensive).

[22] Poultry farm is thus a consent use falling within Column IV. Table 6.8.2 contains special conditions or requirements for particular development, including:

Buildings and other structures to be not less than:-

1. Two hundred (200) metres from any part of a Residential, Rural Residential or Village zone existing at the date of commencement of that use.

2. Thirty (30) metres from a residential

building, natural watercourse or road.

3. Fifteen (15) metres from any other boundary of the land

4. Shall not be established on land the area of which is less than ten (10) hectares

1. Buildings or other structures and enclosed yards in which poultry may roam are to be not less than fifteen (15) metres from any dwelling, shop or place where food for human consumption is stored or kept or prepared, or within six (6) metres of any roadway or within one (1) metre of a property boundary.

2. Places where poultry are kept are to consist of a weatherproof structure for the roosting or sheltering of such poultry together with any enclosure yard in which poultry may roam.

3. Places where poultry are kept are to be maintained at all times in a clean and sanitary condition.

4. A person is not to keep or allow to be kept poultry in such a manner as to cause nuisance or to be injurious or prejudicial to health.

[23] The appellant's proposed poultry farm complies with all of the requirements specified for that use in the superseded scheme, Council consent apart. Those requirements fall far short of standards now prevailing (in Singh, where, significantly, Mr Ormerod and Mr Winders found common ground and agreed on a draft protocol for the odour performance criteria, the separation distance under the planning scheme had become 700 metres); the drafters presumably gave no thought to poultry farms exceeding the benchmark of 20 birds as massively as Mr Simmons' plans (and like proposals) do. As will be seen, the 2005 planning scheme imposes tougher requirements, which Mr Simmons' proposal does not comply with. Of course, his entitlement is to have the application assessed under the law prevailing at the time when he made it. See s 4.1.52(2)(a), which goes on to permit the giving of "weight to any new laws and policies the court considers appropriate." My view is that this appeal should fail even if no reference is made to the 2005 planning scheme; if reference is made to it, it tips the balance much further against the appellant. I might interpolate at this point that I agree with Mr Haydon's contention in his submission of 18 September 2006 that the authorities presented by Mr Ure after the hearing in support of a supposed principle that the longer new planning arrangements have been in force, the greater the weight that should be accorded to them, do not support that principle.[2]

Is there conflict with the 1992 Strategic Plan?

[24] Mr Haydon's argument that no conflict existed included reference to the relevant zone intent:

"RURAL A ZONE

3.2.6 To provide for and preserve areas which are used, or are suitable for use, for primary production and to ensure the continuing viability of farm enterprises by allowing a wide range of rural pursuits. To restrict the number of non-rural activities that may be conducted in such an area and to curtail the rate of the subdivision of land by providing large minimum allotment sizes under the Subdivision of Land provision within Part 11. The zone is also intended to cover those parts of the Shire which do not have any agricultural value but which, nevertheless, need to be preserved in their natural state. The retention of these lands in the Rural A zone is required to preserve the rural amenity of the Shire. Development proposals over land in this zone, but in close proximity to other zones, will be assessed on their impact on the activities within the adjoining zone."

[25] Understandable as they may be from other points of view, arguments that modern, intensive, large-scale meat production methods are not rural activity have not found favour in the court. In Yamauchi v Jondaryan Shire Council [1998] QPELR 452 at 457 Senior Judge Skoien said:

"Raising of pigs is a traditional use of land, doing so in intensive piggeries is not. An intensive piggery is a relatively recent form of farming and one which is the subject of some public disapproval on humanitarian and environmental grounds. So far as this Court is concerned, of course, environmental considerations are of prime importance. On the other hand, provided the activity is lawful, private views on humanitarian issues are ignored. But the unusual rural nature of intensive animal husbandry such as the proposed piggery is recognised in the Planning Scheme (Pt 6) by its insistence on minimum separation distances and areas. And in this actual case the unusual nature is emphasised by the very large opposition to it by the objectors, the petitioners and those who have elected to become respondents to this appeal."

This case is similar to Yamauchi in presenting an appropriate occasion for applying the precautionary principle in circumstances of uncertainty about the health and odour impacts of a proposed development. Judge Quirk in Singh, given the state of the expert evidence, was not faced with similar uncertainty. Pertinently, he said at 19:

"[22] The Respondent, in its case, sought to make the point that there was some conflict with the Town Planning Scheme and strategic plan. Any suggestion that poultry farms are inconsistent with the intent of the rural zone is a little unrealistic in that the use was, until only two years ago, an as-of-right use in the zone. While one can understand the tightening of controls by making the use a discretionary one, the contention that it is not really a use which is rural in nature is tenuous to say the least. It is but another instance of primary production.

[23] If the controls which the Council seeks to put in place (e.g. the 700 metres separation distance to the boundary) are maintained, it is difficult to see where such uses might locate. The suggestion that such farms are more in the nature of a 'rural industry' runs contrary to the expressed intent of the rural industry zone. As mentioned, poultry farms are already present in numbers in the shire. Other uses which have a potential to displease adjoining residents (e.g. kennels, stables, mushroom farms, piggeries, lot feeding of cattle, dairies, extractive industries) must also be seen potentially at least, as part of the rural fabric. The stated intent of the Rural Zone includes an indication that 'uses in this zone should generally be compatible with primary industry activity'. The proposal is clearly consistent with this stated intent.

[24] It is true that the strategic plan, in its rural area objectives, mentions the importance of tourism and the Shire image. Objective four requires that developments be unobtrusive and fit with the dominant rural character. It also requires the minimisation of building bulk through variation in building form and landscaping so as to achieve lower impact on the character of the area. I am satisfied on the evidence that the proposal will not conflict with these objectives."

[26] Apropos par [23], it does not appear that poultry farms of the kind proposed are characteristic of Esk Shire; for practical purposes Mr Simmons' would be the first one. The "other uses which have a potential to displease" do not feature here either. I do not think there is an obligation on Esk or any other local authority to facilitate new proposals for intensive chicken meat production by its planning arrangements. There are good reasons for the approach now being implemented that such ventures are not welcomed as neighbours. Mr Simmons told the court of the requirements of poultry abattoirs that birds be brought in from locations within 90 minutes travelling time. It may be that expansion of the industry requires abattoirs in new locations. Apropos par [24], the Esk strategic plan in 1.8.2.1 and 1.8.2.2 appears to go further than seeking to maintain and preserve some generic "rural" amenity and character. What is to be preserved is the "existing" amenity and character of rural areas. Notwithstanding the acceptance of intensive poultry farming as a "rural" use and the support which 3.2.6 accordingly supplies (see also the reminder that "local residents cannot expect a rural environment to be absolutely free of odours and dust which are part and parcel of rural life which nowadays can encompass intensive animal husbandry" in Murphey v Beaudesert Shire Council [2002] QDC 292; [2003] QPELR 270 at 277), in my opinion regard must be had to the character and amenity of the general locality of the site, as it exists. That is not necessarily fatal to the proposed development; Mr Chenoweth and Mr van Pelt agreed that, by the standards of practitioners in their field of expertise (if not for those who will have to live close to it or look at it), any conflict could be alleviated to an acceptable level by the measures they endorsed. (This is not the only relevant field of expertise.)

[27] In considering whether there is conflict with the strategic plan, it is useful to identify the existing character; this, in my opinion, although rural within the Shire's planning categories, is in reality semi-rural, even rural residential. The area is relatively closely settled. Within a two kilometre radius of the proposal (rendered relevant by the 2005 planning scheme) there exists a potential for 165 dwelling units to establish. See Exhibit 32 and p 253 of the transcript. There are (some of them close to the proposal) a plethora of what the Council's planning expert, Mr Ryter called excision blocks. Historical planning arrangements permitted the excision of small residential blocks from larger parcels. That possibility has been taken advantage of to a considerable extent. Only a handful of properties in the vicinity satisfy the current minimum standard for rural blocks of 40 hectares. These considerations indicate to me that there will be a greater population of local residents to be troubled by the unpleasant impacts described as part of rural life in cases like Singh and Murphey. A whole range of impacts on the notional population ought to be considered, although it is not necessary to rely on those in respect of which the experts have agreed that otherwise concerning impacts can be managed acceptably by imposition of conditions.

[28] It may be accepted that a developer has a reasonable expectation that Council approval for a consent use will be forthcoming unless there are special circumstances, such as that impacts of the proposal off the site cannot be managed acceptably by imposition of conditions likely to be complied with in practice. The appellant has not demonstrated, as s 4.1.50(1) requires it to do, that this can be achieved, given the strategic plan provision giving rise to conflict, and the wide view to be taken of "amenity" in the context of the "existing character and amenity" being protected. It does not appear that any kind of intensive animal husbandry has ever happened in this area. There may be other areas where the rural character is of that kind.

[29] The precautionary principle is relied on in the health aspect, and, to an extent the odour aspect. It may be noted that similar caution was not thought appropriate in light of the accepted evidence in Singh and that a case must be made on the evidence for applying the precautionary principle. It is not enough simply to invoke it. See Telstra Corporation Limited v Pine Rivers Shire Council [2001] QPELR 350, at 363 ff. A court cannot lightly brush aside concerns backed by scientific evidence (albeit challenged evidence) about the safety of drinking water. There are also concerns about unknown risks from particulate emissions that might be ingested by breathing. A proper regard for people's amenity requires a cautious approach to odour issues, as well.

[30] While the foregoing discussion points to refusal of the appeal, if the conclusion about conflict with the strategic plan were in error, there would arise for consideration the role of the 2005 planning scheme. That planning scheme divides the Shire into three zones, Rural, Town and Village, of which the first is the relevant one. Section 4.4 deals with uses consistent or inconsistent with the outcomes sought for the zones:

"(1) Column 1 of table 1 identifies the following:

(i) uses that are exempt in each zone;

(ii) self assessable or code assessable uses considered to be consistent with the outcomes sought for each zone; and

(iii) impact assessable uses which comprise development which may or may not be suitable for a site, depending on the individual circumstances of the proposal, but which are potentially consistent with the outcomes sought for each zone. In some instances there is reference to circumstances where these uses are considered to be inconsistent with the outcomes sought for a zone.

(2) Other uses not identified in Column 1 of table 1 (including any use that does not fall within a definition included in schedule 2) are generally considered to be inconsistent with the outcomes sought for a zone and are subject to impact assessment."

[31] The rural zone contains precincts, described in 4.11:

"¾ Arable Agricultural Precinct (which contains 75% of the arable lands in the shire often with access to some degree of irrigation water);

¾ Rural Pursuits Precincts (which contains less than 10% of the arable land resources of the Shire, are close to major service centres and corridors and have evolved non commercial forms of rural living uses);

¾ Sub-catchment Valleys Precinct

¾ Catchment Precinct"

The proposal constitutes an "intensive animal industry" as defined:

"the keeping of animals, birds or reptiles in a confined area with predominantly introduced water and feeding (as opposed to grazing), including, but not limited to:

- feedlots and dairies

- piggeries

- poultry farm - for lots with an area less than or equal to 2ha - 20 birds and; for lots with an area greater than 2 ha - 1000 birds where enclosed or more than 4000 birds per ha where free range;

- emu and ostrich farms

- other animals

- bees"

Column 2

Assessment category

Column 3

Relevant assessment

Criteria - applicable code

Intensive animal industries (inconsistent use where located in the rural pursuits or arable agricultural precinct)

Rural Zone Code

Intensive Animal Industries Code

"Division 5 - Assessment criteria for the Rural Zone

4.13 Rural Zone Code

The provisions in sections 4.14-4.16 of this division comprise the Rural Zone Code.

4.14 Compliance

(1) Development that is consistent with the overall and specific outcomes in sections 4.15 and 4.16 complies with the Rural Zone Code.

(2) Table 1 (in Division 4) lists those uses considered to be or have the potential to be consistent with the outcomes sought for the Rural Zone.

(3) Other uses not identified in table 1 (including any use that does not fall within a definition included in schedule 2) are considered to be generally inconsistent with the outcomes sought for the Rural Zone.

4.15 Overall outcomes and specific outcomes for the Rural Zone Code

(1) The overall outcomes are the purpose of the Rural Zone Code.

(2) The overall outcomes sought for the Rural Zone are as follows:

...

(c) development is to maintain or enhance the rural amenity, character, environmental and landscape values of these areas;

(d) buildings and structures are designed and sited to be compatible with the rural character of the surrounding areas;

(e) where rural land adjoins areas designated for non-rural uses, appropriate buffer areas are to be provided within a development site;

...

(3) Overall outcomes for each of the precincts of the Rural Zone are:

...

(b) Rural Pursuits:

¾ beef cattle breeding and grass fattening (animal husbandry as defined in the scheme) on cleared land occurs but with non-commercial rural uses dominating;

¾ amalgamation of land identified as Agricultural Land Class A, B or C1 (as identified on MAP OM1A) occurs to achieve viable farm holdings."

[32] The Intensive Animal Industry Code includes the following:

"6.44 Overall outcomes for the Intensive Animal Industry Code

(1) The overall outcome is the purpose of the Intensive Animal Industry Code.

(2) The overall outcome of the Intensive Animal Industry Code is to ensure establishment of sustainable animal industries that:

¾ avoids or mitigates any potential adverse effects on the amenity and character of the area or nearby sensitive uses;

¾ does not cause environmental harm or nuisance.

(3) The provisions of this code apply to impact assessable development which is a material change of use for the purposes of intensive animal industry.

6.45 Specific outcomes and probable solutions

SO1

Buildings, pens, other structures and waste treatment and disposal areas are to be located, constructed and managed such that the maximum number of animals intended to be kept on the land can be accommodated without creating significant adverse environmental and amenity impacts

PS1.1

All proposals for new or expanding intensive animal industries are to conform to the minimum separation distances and minimum site areas as nominated in table 1

OR

PS1.2

Development complies with separation distances contained within relevant State Government guidelines46

____________________

46 The current State Government guidelines are 'Separation Distances for Queensland Piggeries" and the "Reference Manual for the Establishment and Operation of Beef Cattle Feedlots in Queensland.'"

It will be noted that there are no applicable State Government guidelines. Table 1 commences:

Table 1: Separation distances47 and site areas for intensive animal industries

47 For the purposes of this table, separation distances are to be measured from the buildings, pens, manure storage areas and effluent treatment and disposal areas

The proposal falls far short of complying with the separation distances in the first four instances. I cannot accept Mr Challenor's robust view that "although in conflict with certain provisions of the current planning scheme, the proposal, subject to the resolution of the matters under investigation by other experts, is considered to be acceptable and unlikely to prejudice the implementation of the main objectives of the current planning scheme in any way." That view is hard to reconcile with his identification of separation distances from the closest houses to the north, east, south and west as 400 metres, 400 metres, 350 metres and 550 metres respectively. He places considerable reliance on the continuation of grazing of cattle on the balance of the site. I am in difficulty in appreciating the relevance of this factor. At page 243 Mr Challenor said of the proposal that "it certainly is an inconsistent use in accordance with the rural pursuits precinct, in accordance with the provisions of the (current) scheme, but that obviously doesn't preclude the consideration of the use on the basis of its specific circumstances ... the specific impacts that it's likely to give rise to. In other words, for it to be considered on its merits." In cross-examination (p 250 ff) he seemed to be somewhat resistant to the notion that categorisation of the use as "inconsistent ... where located in the rural pursuits ... precinct" made the assessment more rigorous. It seems to me inevitable that it would do so. It should do so. I would think the proposal close to unsupportable under the 2005 planning scheme in the absence of compelling evidence that management of impacts would produce outcomes more or less equivalent to the separation distances indicated.

[33] The proposal brings an enormous change to the existing character and amenity of the Minden Valley (specifically to that part of it located in the Esk Shire and south of the Warrego Highway) about which the 1992 Strategic Plan has something to say.

[34] Actual Council consent to a "consent" use, even where there is a reasonable expectation of it, cannot be regarded as automatic. Section 4.13(5A) requires the Council (now the court) to take into account the considerations in the preceding sentence. Consent should never be withheld capriciously or for irrelevant reasons (e.g. for purely political reasons). The prospects of rendering concerning impacts acceptable by conditions must be explored by the decision-maker. It cannot be demonstrated here that conditions would have that effect. This is what the appeal was all about. The relevant factors cannot be stated exhaustively here. I would say they would include that the proposal cuts across the planning arrangements of the adjoining local government area(s) for the same general area of the Valley. If reference is made to the similar cutting across the new planning arrangements for Esk, the point is strengthened. The existing amenity stands to be compromised or jeopardised in the face of a supervening planning scheme which would prevent that happening.

[35] For reasons given above, I find it unnecessary to determine what weight should be given to the 2005 planning scheme. I note Mr Haydon's reference as guidance about the meaning of "appropriate" in s 4.1.52 of IPA to Mitchell v The Queen [1996] HCA 45; (1996) 184 CLR 333 at 346 (applied in Singh at [7]):

"The phrase 'considers ...appropriate' indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper."

I have been intrigued about the impact (if any) which the planning schemes of Ipswich and Laidley Shire, which also has a boundary very close to the site, ought to have in the application. There was no argument about this in the end. In the case of Ipswich, at least, it appears that relevant planning arrangements were more "advanced" in respect of poultry farms in the area than those in Esk under the superseded planning scheme. The proposal could not have been approved in Ipswich City.[3] It bodes to have impacts within Ipswich City which would not be tolerated from a development located within the city. It may be regrettable that there seem to be no mechanisms in place to inform local governments of development applications which might affect their own people in respect of sites located just outside the local government area. There can be no doubt that in a case such as the present, the court may look at impacts on land and people in Ipswich. The greater degree of harmony between the Esk 2005 scheme and the Ipswich planning regime prevailing at the time of Mr Simmons' development application may well represent a consideration in an appeal like the present one, making it "appropriate" to give some added weight to the 2005 scheme in recognition of its bringing Esk into line with regimes in adjoining local government areas.

[36] The appeal should be dismissed and the appellant's development application refused.

[1] A related concern was the temptation managers of the operation might succumb to to ignore or minimise unsatisfactory readings at monitoring locations on the site boundaries rather than recording and reporting them accurately.

[2] Longginou v Maroochy Shire Council & Ors (1982) QPLR 300 at 304; Vaccari v Council of the Shire of Widgee & Anor (1990) QPLR 190 at 192 D-G-; Fogg, Land Development Law in Queensland, page 101, 102.

[3] Reliance upon it is not necessary for resolution of this appeal, but it is instructive to note the plea of Ipswich (from Exhibit 21):

"In Ipswich, the surrounding predominant zoning is Rural C (Rural Living) Zone. The primary intent of the Rural C Zone is to cater for rural living opportunities close to rural or urban service centres, in this case being the townships of Marburg (in Ipswich) and Minden (Esk). In relation to new uses and works, the specific outcomes of Rural C zone require that:

Non residential uses and works do not have a significant detrimental impact on the amenity of nearby residents or the surrounding area, including through the -

(i) operation of machinery or equipment;

(ii) emission of odours, noise, dust, wastewater, waste products, light, electrical interference or otherwise; or

(iii) generation of traffic (including dust) travelling to or from the use.

The area of Ipswich within close proximity to the subject is relatively constraint free and it is likely that it will be subdivided down to blocks ranging from five (5) to six (6) hectares as other rural holdings in Ipswich are consolidated. As a result of this anticipated closer settlement pattern, poultry farms (defined as Intensive Animal Husbandry in Ipswich) are considered to be inconsistent development. It is unlikely that, given the extent of area over which impacts generated by poultry farms extend, the proposal would comply with the above detailed Specific Outcome to not detrimentally impact on the amenity of nearby residents or the surrounding area. This is further by assessment of the proposal against the Intensive Animal Husbandry Code. The below table compares the proposed buffer/setback distances as proposed and as required by the Ipswich and Esk schemes.

Distance to nearest Residential, Rural Residential or like zone

Distance to dwellings not associated with the use

*Note: data about the Esk Scheme is taken from the proposal report.

As can be seen from above table the proposal complies with the Esk Planning Scheme requirements, which appear to be less stringent that the requirements of the Ipswich Planning Scheme. However, the proposal does not comply with the Ipswich requirement to be located further than 2000 metres from the nearest residential or rural residential zone. The boundary of Ipswich appears to be approximately 900 metres from the subject site, meaning that there are rural residential type zoned lots well within the required 2000 metres preferred separation distance. The nearest residence in Ipswich is located approximately 1090 metres from the subject site. The location of the site within the 2000 metre setback raises a significant possibility that the level of amenity impacts, from sources such as odour and dust, will exceed reasonable limits for sensitive receptors. As such, those Ipswich residents nearest the proposed site could expect to suffer adverse impacts on their amenity if the proposal were to proceed in its current form. Under the Ipswich Intensive Animal Husbandry Code, to restrict the buffer distance to within Esk Shire Council area the number of birds would need to be reduced to a maximum of 1000."