Simmons v Esk Shire Council

[4] In the view of one of the appellant's consultants, Mr Chenoweth, the five large closely spaced sheds in their original location, would have been perceived as inconsistent with the character of the rural setting.

[5] Mr Ormenod, an odour expert engaged by the appellant, modelled the odour impacts of the original and changed proposal, which enabled him to plot 'odour unit' (ou) contours radiating from the respective proposals. The 2.5 ou contour represents the "default" odour guideline set by the EPA for this type of emission source. Mr Ormerod pointed out that, with the original proposal, the 2.5 ou contour extended beyond one residence (receptor 4) to reach another (receptor 5). Mr Ormerod thought it was necessary to investigate alternative layouts, particularly because of the likely impact at receptor 4.

[6] The changed proposal involves reducing the number of sheds to four (with a consequent decrease in the capacity of the poultry farm) and splitting them into two locations, 220 m apart, at lower elevations. Two of the sheds (sheds 1 and 2) are to be relatively close to the original location, but with a slightly different orientation and somewhat closer to the eastern boundary of the site. The other two sheds (sheds 3 and 4) are to be in a new location towards the north east corner of the site, which was not previously proposed for development. An additional storm water detention dam is also to be constructed in that area, to capture run off from the surrounds of sheds 3 and 4. There are a range of other measures now proposed, including breaking down the sections of the shed roofs by the use of different colours and planes, to lessen visual impact.

[7] The changes are obviously designed to address areas of concern raised by the consultants. Mr Chenoweth regards the proposed amendments as representing a reduction in visual impacts compared with the original proposal. Mr Ormerod's modelling of the changed proposal shows a reduced level of likely impact for receptors 4 and 5.

[8] For the reasons discussed in Heilbronn & Partners & Ors v Gold Coast City Council [2004] QPEC 80; [2005] QPELR 386 at 392, it is attractive to adopt a generous interpretation of the limits within which an application may be changed, particularly where changes are ameliorative. As was also acknowledged in that case however, the court must respect its jurisdictional limits. Further, in this case, the changes are not ameliorative from all perspectives.

[9] The changes to the proposal bring the development closer to some adjoining properties. The most dramatic change, in this regard, is in the north eastern part of the site where sheds 3 and 4 are proposed to be located. The proposed location of sheds 3 and 4 has aroused, in the owners of one of the adjoining properties to the north (the Boughens), understandable concerns in relation to potential adverse amenity impacts. The Boughens did not lodge a submission in respect of the original proposal, but would now wish to, if they had the chance, having regard to the movement of the sheds from the northern side of the central ridge, to a lower ridge proximate to the boundary of their property.

[10] Mr Chenoweth expressed the opinion that "there is unlikely to be any person affected by the amended proposal who was not affected to a similar or larger extent by the signed application".

[11] In relation to sheds 1 and 2, Mr Chenoweth, in his report, observed

"although those sheds will be closer to the eastern boundary of Lot 637 than in the original application, their lower position in the landform and reduced scale of the platform and number of sheds will substantially reduce their visibility and visual impacts"

[12] In relation to sheds 3 and 4, Mr Chenoweth observed that, compared to the central ridge location, those sheds would be closer to the Minden town, the highway and school, and therefore more exposed to view, but that the platform would be smaller and lower than the original single central ridge location and the reduced scale of the platform and number of sheds would "substantially reduce" the visibility and visual impacts.

[13] In his further affidavit he examined the visual impact of sheds 3 and 4 (and associated works) on the Boughens. His opinion that the sheds, in their amended localitions, would not have any additional adverse visual impacts, was influenced by his assessment that the residence would be screened. He acknowledged that, by reason of their location closer to the boundary, those sheds would be more visible when viewed from the boundary and (depending on tree height and density) from the top of the ridge on the Boughen property. His affidavit did not address the Sunshine Ranch, but given its proximity, it is not unreasonable to expect that these sheds might similarly be more visible from part of that property. The material does not establish to the contrary.

[14] Mr Winders, an environmental consultant engaged by the co-respondents, expressed concerns with respect to odour, noise and the potential for environmental impact from the overflow of the new stormwater detention dam. These issues were examined by the appellant's consultants.

[15] A comparison of the odour contours produced by Mr Ormerod reveals that while the changed proposal would likely have a lower impact on properties generally to the south west, that is not the case elsewhere. Save for very minor encroachments the 2.5 ou contour was contained within the northern, eastern and southern (but not western) boundaries of the site for the original proposal. With the revised layout, that contour extends significantly into properties to the north, east and south east (including to the residence noted as receptor 3 to the south). Similarly, the ou contours for 1 ou and 0.5 ou radiate further from the site to the north, east and the south east.

[16] Even on Mr Ormerod's modelling therefore, the changed location of the sheds has a different impact in terms of odour, with some properties being advantaged and some others disadvantaged.

[17] I appreciate that, in Mr Ormerod's view, the levels for the disadvantaged residences are insignificant, since all are within the 2.5 ou "default" guideline, but I do not consider that to be a complete answer. First, the question to be determined is whether the proposed change is "minor", rather than whether the different impacts of the changed proposal are acceptable. Secondly, people's sensitivities to a given odour are not necessarily uniform. Thirdly, Mr Ormerod's observations about the 2.5 ou contour relates to the position of the houses (receptors) on the nearby properties. The modelling shows that, in the case of the changed proposal, the 2.5, 3.5 and 5 ou contours spill out beyond the northern boundary of the subject site to the adjacent properties. While those contours do not reach the residential buildings on those properties, it is an impact which may well be unwelcome.

[18] In this regard, the property adjoining the Boughens is that of the Sunshine Ranch, which is operated by the Christian Brethren Ministries' Limited. The property is used for school and church camps and excursions. The buildings on the property have the capacity to cater for about 150 people. Although the modelling suggests an impact bellow 0.5 ou at the nominated receptor, activities take place across the site, including in the southern part of the site, proximate to the common boundary with the subject site where the predicted levels are higher. A master planning exercise is being carried out for further development. The Christian Brethren Ministries Limited, which purchased the site subsequent to public notification, is not a party to the appeal, but is opposed to the proposal.

[19] Mr Wirpenius, a noise expert, concluded that not only would the overall noise impact on the Boughen's premises be acceptable, but that it would be smaller than for the original proposal. The latter conclusion however, appeared to be on the assumption that the original proposal would not have involved a control now volunteered in conjunction with the changed proposal, namely that the pick up of trailers loaded with birds and the transportation of those trailers be limited to between 6am and 10pm. Mr Wirpenius' affidavit does not address the differences in noise impact between the original and changed proposals for any specific property other than the Boughen premises. In his view the likely impact on the Boughen premises would be acceptable.

[20] The Boughens expressed a concern about dust. The Site Based Management Plan contains provisions designed to minimise dust emissions and complaints, but the material does not compare the potential for dust impacts from the original and changed proposal.

[21] Mr McGahan's evidence was to the effect that the stormwater detention basins were so designed as to render the risks of which Mr Winders spoke, as 'negligible'.

[22] Despite the evidence of the consultants engaged by the appellant, I remain unpersuaded that the changes are only minor. The changed application involves a substantially different layout which brings two of the sheds much closer to adjoining premises to the north and north east, owned by those who are not parties to the appeal, and adds an additional detention basin in that locality. The change is perceived to be sufficiently significant to have altered the attitude of the Boughens, who did not object to the original proposal. Further, the changed layout will be accompanied by a change to the likely impacts of development. The change is ameliorative for some, but not others. That is particularly demonstrated by the changes in the predicted odour impacts, even on the modelling of the appellant's consultant.

[23] While the changed application might, at least on the view of the appellant's consultants, represent an overall improvement (and be acceptable), that is not determinative of the minor change issue. I find that the appellant has failed to demonstrate that the change is a minor change within the meaning of s 4.1.52(2).

[24] It was submitted, by Counsel for the appellant, that s 4.1.5A provided an avenue for continuing the appeal notwithstanding the provisions of s 4.1.52. It was pointed out that the impacts of the changed proposal would be subject to close scrutiny on the hearing of the appeal. In this regard, it was noted that almost all of the nearby residents were not only submitters but also parties to the appeal, with the opportunity to fully ventilate their concerns in the context of a hearing. It was further submitted that those few who were not parties, such as the Boughens and the current proprietors of the Sunshine Ranch, could either be called as witnesses in the case or could, if they so wished, be added as parties to the appeal (something the appellant would not oppose). In this way the rights of potentially affected residents could be protected consistently with avoidance of the time and cost which would be associated with the appellant having to make a new application.

[25] That submission has its attractions from a practical perspective, but I do not consider that s 4.1.5A can, or should, be used in that way. Section 4.1.5A is a general provision which, in effect, permits the court to deal with a matter, as it considers appropriate, where "the court finds a requirement of this Act... has not been complied with", and is satisfied of the matters set out in sub section (1)(b). Section 4.1.52(2)(b) is, on the other hand, an express prohibition on the court considering a change to the application which is not minor. There is, at this point, no requirement of the Act which has not been complied with. The non-compliance is that which would arise, on the part of the court, if, notwithstanding a finding that the change is not minor, the court was nevertheless to consider the changed application, contrary to the provisions of s 4.1.52(2)(b). I do not consider that the purpose or effect of s 4.1.5A, which applies where "the court finds a requirement... has not been complied with" is to invest the court with a discretion to prospectively exempt itself from acting in accordance with s 4.1.52(2)(b).

[26] The preliminary issues are determined in the following way:

1. The amended proposal, described in the Site Based Management Plan served on 27 February 2006, is not a "minor change" for the purposes of s 4.1.52(2)(b); and

2. The application for an order pursuant to s 4.1.5A is refused.