Westlink P/L v Lockyer Valley Regional Council [2011] QPEC 96

[1] This is an appeal against the Council's decision of 11 August 2010 to refuse the Appellant's application by Westlink for a Development Permit for:-

Planning and Environment Court of Queensland|2011-06-09

KLR's Position....................................................................................................................39

APPENDIX "A".................................................................................................................................50

APPENDIX "B".................................................................................................................................52

[1] This is an appeal against the Council's decision of 11 August 2010 to refuse the Appellant's application by Westlink for a Development Permit for:-

(a) A Material Change of Use - Electricity Generation Infrastructure;

(b) Environmentally Relevant Activity (ERA) No. 14 - Electricity generation; and

[2] The subject land is located approximately two kilometres north of Gatton, on Ranger Road, Adare with its main frontage to Fords Road. It is roughly a rectangular shaped block containing an area of approximately 70ha. South of its southern boundary on Fords Road is the Warrego Highway. The majority of the site is heavily vegetated with mature trees although the southern area is predominantly cleared of vegetation.[1] A ridge runs generally east-west through the centre of the land[2] and the land sits between two rural residential localities to the east and west. Both town planners called, Mr G Vann for the Appellant and Mr S Craven for the Council, agree that those properties are physically disconnected, well screened and reasonably separated from the site by the topography which rises gently eastward and westward to ridges in the general location of Ewarts Road and Adare Road respectively.[3] The land is included in two of the 12 zones in the planning scheme, the Rural General Zone and the Rural Agricultural Zone. Only a small portion of the south-western corner of the site is included in the latter zone and is not affected by the proposal so the assessment will focus on compliance on the Rural General Zone provisions.

[3] The land is very close to the Warrego Highway with the following land uses in the immediate vicinity[4]:-

(a) The Gatton Gas Compressor Station adjoining the site to the east;

(b) The Gatton Electrical Bulk Supply Substation directly opposite the site, on the southern side of Fords Road;

Those facilities are in the Community Facility Zone under the relevant Planning Scheme For Gatton Shire (Scheme).[5]

The site is subject to an encumbrance easement in favour of Energex for its high voltage transmission lines although no physical infrastructure has been constructed to date. Some 300 metres to the south-east of the site is the Gatton Waste Disposal Landfill with its frontage to Fords Road and the Warrego Highway.[6]

[4] The proposal involves a Natural Gas Fired Electricity Peaking Station to be built in three stages over a 10 year period involving:-

(a) Six natural gas fired turbines and other necessary ancillary equipment and facilities including:-

(i) Electricity switchboard and connection to the electricity grid;

(ii) Gas receiving unit and connection to the Roma to Brisbane gas pipeline;

(b) Building height approximately 30 metres at its highest point (power station exhaust stacks);

(d) Construction of an earth embankment dam to south-west of the proposed power station, to be vegetated with native species to assist in screen views of the plant from the south-west and, provision of a source of water to those plants;

(f) Floor area of approximately 5.8ha (all structures) with the total development footprint of 7ha;

[5] Mr Kelp,[7] called by the Appellant, explained the operation of a peaking power plants as against base load or intermediate plants. A base load station has a high capacity factor and operates 24 hours per day, seven days a week. An intermediate plant has a mid-range capacity factor and generally operates fulltime but may turn down to a minimum load or turn off over night or during weekends. The peaking plant has a low capacity factor, generally only operating during periods of high prices in the electricity market and provides back up if another operating plant breaks down. The normal operating periods for peaking plants is during peak demand periods across summer weekdays. Those peak periods[8] usually occur as a slight peak in the morning when users are cooking breakfast, with industrial loads throughout the day and another peak in the afternoon or evening from air conditioning units, the cooking of evening meals and the like. Peaking plants typically run as short as an hour per day or as long as eight hours depending on the supply/demand in the market.[9]

[6] The application triggered referral to the Department of Environment and Resource Management (DERM) and the Department of Main Roads (DMR) as concurrence agencies and to Energex as an advice agency.[10] Both concurrent agencies approved the application subject to conditions. The DERM conditions govern such matters as:-

(a) The prevention or minimisation of environmental harm;

(b) The implementation of a site-based Management Plan addressing:-

(e) Air quality to ensure no environmental nuisance from dust, particulate matter, odour;

(f) Installation of noise attenuation to ensure no environmental nuisance from noise or the exceeding of noise limits with monitoring requirements included;

(h) Lighting to comply with AS 4282-1997 light nuisance prohibited.

[7] The proposal was the subject of extensive community consultation in accordance with the Appellant's Community and Stakeholder's Consultation Plan[11] which included numerous advertisements, newsletters, meetings, phone calls and a dedicated website.

[8] The Council met on 11 August 2010 to consider the application and a report of its planning officer who recommended approval of the proposal subject to conditions.[12] In the result the Council resolved to refuse the application.[13]

[9] There were seven properly made submissions.[14] Of those, five elected to be joined as Co-Respondents by election. Of those five[15] only the fourth Co-Respondent, Keep Lockyer Rural Inc (KLR), played an active role in the appeal. The first Co-Respondent by election was earlier excused from further participation. KLR is a community-based organisation registered as an Incorporated Association on 13 November 2009.[16] It was registered by Mr Hall who gave evidence. The object of the association as shown on its application form as:-

"Rejection of gas fired power plants within the area of the Lockyer Valley (in particular the Gatton area).

The rejection of further development of gas pipelines in the Lockyer Valley area."[17]

[10] KLR has 46 members according to the statement of Mr Hall[18] although the petition attached to his statement is signed by some 409 Gatton residents opposing the proposal.[19] The population of the Gatton township is approximately 6,000.[20]

(a) Is the proposal in conflict with the Scheme with respect to its appropriateness in the Rural General Zone and any visual impact it may have;

(b) Particulate emissions including odour from the proposal and its impacts upon surrounding land uses, water, food production and wildlife;

(e) Future electricity supply issues associated with the future construction of transmission facilities on the easement earlier referred to.

[12] By virtue of the operation of s 819(5) and (6) of the Sustainable Planning Act 2009 (SPA), this appeal is to be heard and decided under the repealed Integrated Planning Act 1997 (IPA) as if SPA had not commenced. As the Scheme does not contain a definition accommodating the proposed power plant, it is thereby an undefined use triggering the Impact Assessment provisions of the Scheme.[21] Accordingly, it is to be assessed against IPA s 3.5.5 and decided in accordance with s 3.5.11 and 3.5.14. The adjacent facilities earlier mentioned, described by Mr Craven, the town planner for the Council,[22] as a small node of public utilities, are matters to which I must have regard.[23]

[13] As to the issue of whether or not the proposal conflicts with the Scheme, the meaning of "conflict" in the context of 3.5.14 has been held[24] to mean "at variance or disagree with". Any such conflict must be "plainly identified" after looking at the Scheme as a whole rather than at isolated provisions.[25]

[14] In the event a conflict is found, the Application cannot be approved unless there are sufficient grounds to justify the decision despite the conflict.[26] Grounds in that context are defined as[27]:-

Grounds does not include the personal circumstances of an applicant, owner or interested party."

[15] The Planners Joint Report[28] identifies the South-East Queensland Regional Plan 2009-2031 (SEQRP) and the Scheme as the relevant planning documents. They summarise the impact of the relevant provisions of those documents in their report.[29] Significantly, they conclude that the SEQRP provides limited guidance on the preferred location for a facility of the type proposed[30] and the Scheme does not contain a use definition to accommodate an electricity power plant.[31] Copies of the relevant provisions of SEQRP and the Scheme are marked respectively Appendix A and B.

Principles governing interpretation of Planning Schemes

[16] The principles relevant to the construction of planning schemes were usefully summarised by Britton DCJ in Westfield Management Ltd v Pine Rivers Shire Council[32] as:

"(a) They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach (ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd [1992] 1 Qd. R. 352 of 360; Yu Feng Pty Ltd v Maroochy Shire Council [1996], 92 LGERA 41 at 73, 75, 78; Harburg Investments Pty Ltd v Brisbane City Council [2000] QPEC 32; [2000] QPELR 313 at 318);

(b) They should be construed as a whole (Luke v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447);

(c) They should be construed in a way which best achieves their apparent purpose and objects (Luke v Maroochy Shire Council & Anor (SUPRA); Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368 at 370; Acts Interpretation Act 1954 s. 14A);

(d) In the light of the proscription against prohibiting development contained in IPA (s 6.1.2 (3));

(e) Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate (Degree v Brisbane City Council [1998] QPELR 287);

(f) A Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved (Lewiac Pty Ltd v Gold Coast City Council [1994] 83 LGERA 224 at 230;

(g) A Strategic Plan should be read broadly and not pedantically (Yu Feng Pty Ltd v Maroochy Shire Council) SUPRA);

(h) Although planning documents have the force of law they are not drawn with the precision of an Act of parliament;

(i) A conflict alone may not have the effect of ruling out a particular proposal (Fitzgibbon's Hotels Pty Ltd v Logon City Council [1997] QPELR 208 at 212;

(j) Implementation Objectives must be read sensibly and in context. They are but a function of the principal objective. The purpose of the objective is better understood by reading all the implementation objectives and understanding the strategy that is inherent. (Jenkinson Pty Ltd v Caloundra City Council [2002] QPEC 22; [2002] QPELR 527 at 528)."

[17] The only expert witnesses were called by the Appellant and the Council.

[18] Town planners Mr Vann (Appellant) and Mr Craven (Council) both found that the proposal conflicted with Planning Scheme Specific Outcome (SOk) for the Rural General Zone on the basis the use proposed is not a defined use and as such is inconsistent with the purpose of the Rural General Zone. As will appear later, I disagree with that conclusion.

[19] Mr Vann made the point[33] that the wording of SOk is used in many of the other Zones within the Scheme rather than being specifically directed to the Rural General Zone. He also made the point that, had the proponent of the proposal been a "public entity", then the proposal would constitute a "special purpose" as defined in the Planning Scheme and would be either Self Assessable or Code Assessable in the Rural General Zone. In other words had a public entity been proposing this development no conflict with the Planning Scheme would exist.

[20] Although not present in this Scheme, Mr Vann said it is not uncommon in Planning Schemes to include a definition of "major utility" in addition to that of "local utility" to address proposals of the type here under consideration. For those reasons Mr Vann concluded that the conflict with Special Outcome (k) was a technical conflict arising only out of a lack of definition. He then set out grounds he thought would be sufficient to justify approval not withstanding the technical conflict.[34]

[21] Mr Vann pointed to the South-East Regional Plan (SEQP) as identifying a regional need for a new large scale electricity generating development and said that it sets expectations that these are likely to occur outside of major centres in south-east Queensland. In this context he considered it reasonable and logical to expect that infrastructure of the type proposed would not be located within the urban footprint but accommodated on suitable land within the regional landscape and rural production area which this land is located.[35]

[22] Mr Craven does not accept Mr Vann's categorisation of the conflict as technical, saying that Planning Schemes routinely made government-run facilities Code or Self Assessable because of an historical legacy of government agencies not being bound by Planning Schemes or a tacit acceptance that they should not be so bound.[36] He was not satisfied that there are sufficient planning grounds to justify the proposal to overcome the essentially character related conflict with the Planning Scheme. He made these points:-[37]

• The site is clearly visible from the Warrego Highway from which travellers obtain an impression of the old Shire's and current Region's Character.[38] Despite the technical distinction between a utility or major infrastructure and industry in a planning sense, the scale and potential impacts are consistent with large scale industry and the proposal should be assessed as such;

• The site is in the Rural Zone (Scheme) and the Regional Landscape and Rural Production Area (SEQRP).

• Although opposite the Warrego highway from the Gatton North Enterprise Opportunity Area, the SEQRP and Planning Scheme set a clear boundary between urban/industrial development south of the highway and rural lands to the north. It is appropriate to limit such intrusion to the southern side of the highway.

• Whilst it is agreed the site is close to a number of utilities which create a de facto semi-industrial precinct, the scale and location of those facilities are not readily perceptible from the highway and they do not have a significant impact on visual character. In contrast the proposal is of a far greater scale, in a more prominent location and poses a more significant compromise to the landscape.

• Whilst it is acknowledged that the facility could be screened, the short and long term and seasonal and daylight effectiveness of screening must be questioned and is likely to be an unsatisfactory bandaid attempt to hide this very large inappropriate sited facility.

[23] Both Mr Vann and Mr Craven agreed that the proposal would not present any significant visual impact from the town centre or people living close by and that the visual amenity impacts related to the view from the Warrego Highway.[39]

[24] The visual amenity experts Mr Hassall (Appellant) and Mr McGowan (Council) prepared two joint reports.[40] In neither report were there any matters of disagreement between them. In the first report of 10 March 2011 they agreed:-

(a) After each did his individual inspection of the subject site and surrounds, that the subject site presents as a rural allotment and is viewed as such from the Warrego Highway for travellers approaching from the west. It cannot be seen by those approaching from the east due to tall open forest vegetation between the Highway and Gatton Electrical Bulk Supply Substation and Gatton Waste Disposal Centre/Landfill Site on Fords Road;

(b) Their initial impression of the site's rural character was modified by closer inspection of surrounding locality to the north, north-east and west including the Gatton Gas Compression Station, Gatton Sewerage Treatment Plant, the Substation and the Landfill. Hence the impression was one of mixed rural and industrial landscape character;

(c) The main issue of visual impact would be for travellers upon the Warrego Highway driving from the west. It is not unusual for non-rural uses to vary the rural landscape from the Highway;

(d) Secondary and more distant views may be obtained from properties and vantage points further to the south/south-west around the outskirts of Gatton although those impacts are likely to be lessened by the greater viewing distances involved. The subject site is not readily visible from other directions due to intervening topography and/or vegetation;

[25] The experts met again and provided their second joint report on 11 April 2011. This report records agreement on the following:-

(a) The photomontage prepared updated the expected views from various vantage points which they agreed were the worst case scenarios. They used two red helium balloons of 900mm diameter tethered to the existing dwelling close to the south-west corner of the proposed platform for the stacks to check available site lines from the vantage points;

(b) The proposed bunds together with the retention of existing vegetation and proposed landscaping will, after seven years, if appropriately maintained, screen most of the proposed built form from the vantage points along the Highway although it is likely that the upper parts of the intake tower and exhaust stacks will not be fully screened.

(c) That the proposal would be inconsistent with the predominantly rural nature of the local area but the impact of the proposal on the rural character and the Highway experience in particular, would not be significant because the range of vantage points is limited. The Highway visual experience comprises views of a heterogeneous mixture of natural, agricultural, retail and other land uses and in the vicinity of the subject site this experience is neither of unspoiled bushland nor iconic farmland;

(d) Power stations and other infrastructure, although significant in scale and not consistent with usual visual preferences, are not necessarily inappropriate in rural setting including the subject site;

(e) The retention of vegetation on the balance of the subject site not being built upon does much to preserve the rural character of the area;

(f) The proposed landscape measures outlined in the Landscape Management and Revegetation Plan will successfully screen much of the proposed built form. Further measures recommended were set out.

(g) The proposal will, as a result of its scale, function and appearance, have some impact on the visual environment but in the mid to long term the extent of the impact on the visual environment will not be significant;

(h) Whilst the power station could not be seen to protect and enhance the rural character or landscape values of the Shire, the proposal would not unacceptably erode the rural character or landscape values. The reminder of the site including 55ha of remnant vegetation would constitute protection of the rural character and landscape values of the Shire.

[26] In the statements by Mr Hall and Mr Hallas[41] the authors tell of their present idyllic residential environment, which would be changed if the proposal were successful. Mr Hall[42] speaks of the current enjoyment of the sounds, smells and sights of the country and being regularly visited by wildlife including kangaroos, wallabies, hares, quwolls and koalas. At night, he says, the only sound is that of the insects and frogs in his home, which he describes as a haven from the trappings of town or city. The proposal in his view will change the character of the area. Mr Hallas speaks in similar terms and expresses similar opinions. Without in any way doubting the genuine concern held by Mr Hall and Mr Hallas as to the opinions they have expressed, something more than expressions of concern are required to found an allegation of detriment to the amenity.[43] The Court would ordinarily prefer views from residents which find justification and specific concrete likely effects of the proposed development[44]. No evidence of such concrete likely effects has been put before the Court.

[27] Evidence was given for the Appellant by Mr Welchman who provided a report on air quality.[45] As well as that, the issue of air quality was the subject of detailed consideration during the assessment of the Development Application in particular by DERM. That involved an Air Quality Impact Assessment Report,[46] a Site-Based Management Plan[47] which accompanied the Development Application, an Information Request by DERM dated 16 November 2009[48] and a subsequent Addendum Air Quality Impact Assessment[49] ( The DERM of 1 June 2010[50] granted by DERM contains 22 very specific conditions relating to the issue of air quality.[51]

[28] There is no issue between the Appellant and the Council on air quality but the second to sixth Co-Respondents by election raised concerns, which were dealt with by Mr Welchman in his report.[52] He concluded that there was no basis for the concerns expressed. Mr Welchman's report also reported:-

(a) Previous air quality studies conducted by his firm Katestone Environmental Pty Ltd, considered the potential impacts by Dispersion Waddling Assessment and comparison against air quality objectives issued by both state and national regulatory agencies. They considered all air pollutants admitting by gas-turbines that could cause and adverse impact on human health, amenity, agriculture or vegetation;

(b) Those studies were conducted in accordance with the requirements of the Australian and Environmental Regulatory Authorities using approved dispersion models that had been developed by CSIRO[53];

(d) A meteorological database was generated which was representative of the site. A five year period from January 2004 to December 2008 was modelled using data from the Bureau of Meteorology Station at Gatton[55];

(e) The studies used "extremely conservative assumptions" including that the proposal would operate all turbines for 24 hours per day, 365 days per year[56];

(f) The studies of emissions of nitrogen dioxide, particulate matter, sulphate dioxide and carbon monoxide indicate that the predicted ground level concentration of those substances would be low, and "well below both short-term and long-term air quality objectives" for protecting human health, amenity, agriculture and vegetation[57];

(g) The outcomes of his study leading to his current report[58] are consistent with findings of those similar studies conducted by Mr Welchman's firm, and others, in Australia[59]; and

(h) "There are no exceedences of the air quality objectives even when modelled with worst-case operating assumptions"[60].

[29] As Mr Welchman said, Nitrogen dioxide was identified as the air pollutant that was closest to, but still well below the air quality objectives. In his view, the proposal would add, at most (assuming full operation), a level of nitrogen dioxide that was equivalent 9% to 15% of the 1-hour average objective; 0.13% to 0.21% of the annual average objective for human health and 0.24% to 0.39% of the annual average objective for biological integrity at the location of sensitive receptors[61]. There are no exceedences predicted of the relevant EPP (air) air quality objective[62].

[30] As to odour, Mr Welchman's study reported that the level of odour generated by the WPP was low and predicted ground-level concentrations of odour would be well below the DERM Odour Guidelines. Consequently, odour nuisances will not occur as a result of the WPP.[63]

[31] Mr King, the light expert, also dealt with the issue of noise.[64] He conducted his own monitoring and modelling of noise levels and found[65] that the existing level of noise amenity on the northern portion of the site was relatively high. The traffic noise from the Warrego Highway to the south was a significant noise source on the southern portion of the site and surrounding residences during all periods of the day. He noted that local traffic and existing commercial land use were the source of occasional noises at all surrounding residences.

[32] The measured ambient noise levels to the north of the site were shown to be lower than those to the south primarily due to the influence of the intervening ridge line with the Warrego Highway being the primary influence upon acoustic amenity on the southern area. Mr King considered that the proposed location of the power station on the site is well shielded by topography from northern receptors while southern receptors currently have the higher ambient noise levels due to the Warrego Highway and other commercial activities. As to the noise receptors to the east and west, he said they also were afforded topographic screening.

[33] Despite the evidence as to the maximum operation of the power plant of one to eight hours given its peaking role, nevertheless Mr King's modelling was based on worst-case meteorological conditions and applied source levels which he considered overestimated future noise levels of the proposed power station. He also assumed that all noise sources would operate simultaneously and said the noise source levels used were conservative and tended to overestimate the future noise levels at the power plant.[66]

[34] Apart from his own modelling, Mr King reviewed the results of the GHD Noise Impact Assessment Reports lodged with the Development Application which were also modelled on a worst-case scenario as to meteorological conditions which he considered appropriate.[67] Mr King concluded that the proposed power station could operate without causing adverse noise amenity impacts at surrounding sensitive land uses and that the noise would not cause adverse impact to wildlife which will become accustomed to the noise of operation.[68]

[35] The only expert evidence on the issue of light came from Mr King who said[69] the development could be designed and operated so as not to cause adverse lighting amenity impact of sight. Mr King also gave evidence that the concern expressed by Mr McGowan[70] as to light spillage from the platform and illumination of intake towers or exhaust stacks would be suitably addressed.[71]

[36] D. Greg Miller provided a comprehensive report on Risk Assessment and Management Study.[72] His doctoral thesis was on Health and Environmental Risk Assessment: Process, Application and Resolution.[73] His conclusions[74] addressed the following risks:-

• Fire and explosion from a serious gas leak or rupture

• Diesel pool fire from leakage or spillage inside a bund

• Potential and rupture of a gas pipeline traversing the site from site activities

• Possible off site impacts involving nearby facilities (gas compressor station, landfill facility, recycling facility and electricity substation), the Warrego Highway and a future industrial development at North Gatton adjacent to the Highway

• The on site risks of individual fatality or injury from flash fire or jet fire resulting from rupture of the supply gas pipeline under full load to the power station

• Off site risks to residents from those same sources.

• Risk of individual fatality or injury from rupture of a gas pipeline on site

• Risk of individual fatality from a turbine enclosure fire

• Off site risks for nearby residences from fire, heat radiation, blast over pressure, flammable gas clouds and toxic gas cloud effects

• Risk of a traffic accident on the Warrego Highway from a major gas pipeline rupture

• Risk of a high threat of flammable vapour cloud or heat radiation flux from a jet fire following a rupture of a gas pipeline on site

• Propagation of fire risk from a major pipeline rupture in the form of heat radiation effects

• Control of heat radiation from any fire propagation near the fire plant

Dr. Miller concluded that, in the context of the results of risk assessment and risk management practices, the proposed gas fired plant (peak load) is not a new or particularly dangerous technology and that the risks involved in the project were low level and within acceptable risk levels for land use safety. In his view, the issue of risk would not justify the refusal of the Development Application and the low levels of risk should be contrasted with the community benefits flowing from the supply of electricity from the proposed plant.

[37] Mr Kelp for the Appellant was the only expert to give evidence on need and public benefit. He is a specialist in electricity, gas and renewable energy markets. In his report[75] he gives an explanation of the National Electricity Market focusing on the Queensland Market. This National Market commenced in 1998 following the dis-aggregation of vertically-integrated government owned electricity authorities into separate generation, transmission distribution and retail businesses in each State.[76] In his view gas is a favoured fuel by the Queensland Government evidenced by its Queensland Gas Scheme setting targets for the use of gas fired generation of electricity.[77] The 18% target to be achieved by 2020 has in his view already been exceeded. Whereas he sees the introduction of a carbon pricing policy resulting in the Queensland Gas Scheme being phased out, he says it is unlikely such a policy would have a material impact upon electricity market outcomes.

[38] He sees the proposal as contributing towards meeting the increased electricity demand throughout Queensland. The key benefits of the site in terms of efficient power development include co-location of fuel inputs and power off-take.[78] As a result of the site being adjacent to both an electricity bulk supplier sub-station and a gas compressor station on a major gas transmission pipeline (Roma to Brisbane pipeline) he sees the situation as quite rare for both fuel supply off-take from the pipeline and electrical connection to both occur at the same location relatively close to a major load centre. The result is minimal connection infrastructure is required thus offering a significant comparative advantage over other sites which require either a lateral pipeline for delivery of gas or an electricity line for connection to the sub-station.

[39] Mr Kelp sees community benefits flowing from the project being manifested in direct employment by the creation of up to 200 jobs during construction phase and 10 full-time positions during ongoing operations. He says that each of the three proposed stages of development will provide similar instruction workforce job opportunities and may add slightly to the ongoing personnel requirements at an operational level.

[40] Apart from the direct benefits he sees indirect employment benefits by increased local economic activity both during construction phase and ongoing operational phase. He adopts estimates carried out by the Appellant's environmental experts[79] that around 30% of the total capital costs of the project will consist of goods and services purchased within Australia with a portion of this sourced locally within the Lockyer Valley/Toowoomba/Ipswich regions for such items as:-

• Construction on ancillary buildings and facilities

• Installation of electrical equipment and other ancillary plant

• Transport, food and accommodation and other consumables

[41] In Mr Kelp's view his proposal would add to south-east Queensland's electricity generating capacity and lower the likelihood of blackouts. He says that the increase in transmission capacity in south-east Queensland will reduce the capital expenditure required to bring power from south-west Queensland to the south-east Queensland load centre, reducing capital expenditure and lowering transmission costs for Queensland electricity consumers. Further Mr Kelp says that local generation will tend to reduce the loss factors that affect local electricity costs.

[42] Mr Kelp's conclusion is that the subject site is favourably located with adjacent connections to both natural gas for fuel and a sub-station for electrical take-off and that from an electricity market perspective there would be few sites throughout Queensland offering as many synergies and opportunity for low cost gas fired peaking plant development as this one. His view is the proposal would have benefits for the local community as outlined above and in an increase in reliability and electricity system security, lowering loss factors and potentially lowering electricity and renewable energy costs for local consumers.

[43] Mr Dalton gave evidence for the Appellant. He has managed the development of power generation and other infrastructure projects in Asian, Australia and Europe over the past 25 years and his particular areas of experience and expertise include:-

• Management of major power generation development projects from concept phase through to full feasibility assessments and financial investigation decision;

• Negotiation of key contracts to facilitate delivery of major power generation projects;

• Negotiation of key contracts for power generation projects including power station, fuel supply agreements and transmission connection agreements;

• Management of diverse cross-functional project development and construction team.[80]

[44] He provided a report addressing three issues:-

• Future electricity supply and impacts should Powerlink exploit its easement to the north of the subject site for the take-up of electricity generated by this proposal;

• The potential gas supply, connection and electricity connection options for the proposal; and

• The gas and electrical connection benefits presented by the location of the proposal.

[45] As to the first dot point, I do not regard that as an issue relevant to this matter. The easement is an existing easement and will be exploited subject to compliance with all necessary requirements of the law.

[46] He explained that the Queensland electricity industry comprises three distinct interconnective sectors Generation, Transmission, and Distribution. Powerlink Transmission and Energex (Distribution) both have networks near the proposed site. He said Energex had indicated it intends to upgrade its present single circuit 110 kV distribution network to a double circuit network. As to the timing of this Mr Dalton said an improvement in the general economic outlook for southeast Queensland and the southeast Queensland western corridor is likely to result in increased load growth forecasts in the region. Couple that with the provision in the SEQRP for a large industrial estate north of Gatton, he considered those factors had the potential to increase electricity loads in the region and on the existing Energex distribution network. For those reasons he said the upgrade of the Energex network could be expected to be introduced in the future.[81]

[47] As to the Appellant's future access to gas from the Roma to Brisbane pipeline close by Mr Dalton included in his report a letter of 12 November 2009 from the APA. Group the owner of the pipeline confirming discussions with the Appellant were underway in relation to the future connection of the proposal to the pipeline. Obviously any such connection will depend on the success of this appeal and any agreement reached between the parties.

[48] Mr Dalton concluded that peaking power generation of the type proposed requires access to gas, gas transport (e.g. a gas pipeline and an electricity network capacity for example distribution or transmission networks and substations. Locating generation assets close to a major load centre lowers the cost of infrastructure for electricity connection and minimises electrical losses associated with electricity transportation to the load centre. In his view, those factors in combination will result in a lower cost of delivered electricity.

[49] Mr Dalton said it was unusual to find all of those resources co-located in close proximity to a major load centre, as is present here.

[50] Although no issue arises in relation to the Scheme Biodiversity Code for completeness I mention the evidence of Mr Moffitt an ecologist. He reviewed the background ecological assessments, undertook his own investigations and inspections and concluded that:-[82]

(a) the vegetated northern portions of the subject site supported regional ecosystems listed as Leased Concern under the Vegetation Management Act which ecosystems remain common and widespread at the regional, sub-regional and local scales. The southern portion of the site which has been cleared and which will support most of the proposed development is of comparatively lower ecological value. The site's constituent flora species are identified as Leased Concern under the Nature Conservation Act or are exotic species;

(b) the northern portions of the site will provide habitat for a wide range of fauna species three of which are of conservation significance but none of which are likely to be significantly affected by the proposed development. The establishment Blue gum woodland habitat offset in the detention basin is an important mitigation measure. The remaining species known from the locality are unlikely to upset the site or will use a small non-critical component of it;

(c) DERM's approval demonstrates that the project achieves the purpose of the Vegetation Management Act particularly the prevention of loss and biodiversity and the maintenance ecological processes;

(d) the proposal complies with the Gatton Planning Scheme Biodiversity Code; and

(e) as southeast Queensland seeks to accommodate the growth envisaged by the SEQRP, balances between conservation and development will been necessarily made. The proposal is appropriately located with respect to the Site's ecological values and is compliant with relevant environmental planning legislation.

Is the proposal in conflict with the Planning Scheme?

[51] The Council relies on the following provisions to support its position that there is a conflict with the Scheme are:-

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

(2) The overall outcomes sought for the Rural General zone are the following:

(a) The Zone is to provide for agricultural production, other rural activities and the maintenance of the Shire's landscape quality that is important to the overall character of the Shire.

(b) Closer settlement, particularly urban and rural residential development, is not consistent with the Zone, in accordance with the SEQ Regional Plan."

The specific outcome sought for the Rural General zone are the following:-

(e) Rural service industries may be appropriate where complying with the purpose of the code.

(f) a range of other recreational, educational or tourism related uses is supported in the zone, where:

(i) the intensity and scale of the use does not reduce the amenity or operational effectiveness of neighbouring property;

(ii) there are no adverse impacts on the natural environment, including

A vegetation or other features identified as having significant ecological value; and

(iii) there are no impacts on the equality of the visual landscape as uses involving only limited buildings or structures that are designed, sited and on a scale consistent with the natural environment and landscape features;

(vi) the site is connected to the Shire road network and urban centres by roads capable of accommodating the type and volume of traffic likely to be generated; and

(v) the site has access to an appropriate water supply, liquid and solid waste disposal systems and electricity supply adequate for all on-site purposes.

(k) All other defined uses and other not defined uses, not specifically identified in Table 1 are not consistent with the purpose of the Zone." (emphasis added)

(e) The rural character, significant natural features, cultural heritage and landscape values of the Shire are protected and enhanced."

"Economic Development and Natural Resource Management

(l) A strong and diverse economic base is promoted that builds upon the Shires established rural strengths, its natural resources, its landscape character, and its location on strategic transport routes; and provides a broad range of employment opportunities.

(m) Sustainable industrial development is promoted with the concentration of industry activities encouraged in the centres of Gatton and Withcott achieving benefits of co-location, infrastructure availability and protection from inappropriate development."

[52] Focusing on Overall Outcome 4.11(2)(a) above which the Council says is the only one relevant, it identifies the three uses the Code provides for, agricultural production, other rural activities and the maintenance of the Shires landscape quality. The Council says that the proposal, when tested against each of those three criteria, fails on each, because it is not agricultural production, it is not a rural activity and it does not maintain the Shires landscape quality which the Council says is important to the overall character of the Shire. Further, the Council argues, neither of the DEOs set out above support the proposal. According to the Council the proposal does not protect and enhance the rural character and landscape and is not an industry contemplated by the Scheme namely one that builds upon the Shires established rural strengths, natural resources, landscape character and its location on strategic transport routes.

[53] As to the enhancement and maintenance of the rural character, landscape values and landscape quality the subject of the above DEOS, the Council argues that those concepts involved go beyond mere visual amenity. Referred to a statement by Thomas J in Broad v Brisbane City Council[83] where he said:-

"...some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect that can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce. All counsel agreed that the provision of a funeral parlour was a good example of an institution which, whilst discreet in its conduct and relatively small in its production of physical consequences, would be likely to have an effect in the way of 'atmosphere'. Whether this described as prejudice or otherwise does not matter. It is a recognisable and normal enough perception of the ordinary residents."

[54] The Council pointed to the matters agreed by the visual amenity experts Mr Hassall and Mr McGowan in their second joint report[84] namely:-

(a) That the proposal will be inconsistent with the predominantly rural nature of the local areas[85];

(b) That the proposed landscape measures in the Appellant's Landscape Management and Revegetation Plan will successfully screen much of the built form after seven years, but it is likely that the upper parts of the intake towers and exhaust stacks will not be fully screened[86] and;

(c) Further measures including finishing surfaces with visually recessive colours and no illumination of intake towers and exhaust stacks should be taken to reduce impacts to acceptable levels[87];

(d) While the proposal could not be seen to protect and enhance the rural character or landscape values of the Shire as required by DEO (e), it would not unacceptably erode that character or values[88];

(e) Retention of the remainder of the site would constitute protection of the rural character and landscape values of the Shire[89]; and

(f) The proposed development would, because its impact on the visual environment in the mid to long term will not be significant, adequately enable the maintenance of the Shires landscape quality[90].

[55] According to the Council the above matters go solely to visual amenity but do not establish and absence of conflict with the Scheme. The opinions of those experts that the proposal will adequately enable the maintenance of the Shires landscape quality in sub paragraph (f) above gives insufficient regard to the intangible aspects of amenity discussed by Thomas J in Broad.

[56] Finally the Council said that the evidence of Mr Craven should be accepted in preference to that of Mr Vann and relies on his conclusions[91] that:-

(a) As land uses go power stations especially of the scale proposed are as large a facility as faced by a Planning Scheme or the South-East Queensland Regional Plan though it is not surprising that the Planning Scheme for the Gatton Shire does not anticipate a facility of this size;

(b) Both the Scheme and the SEQRP make strong statements about protecting rural landscape;

[57] KLR also submitted that the evidence of Mr Craven should be preferred to that of Mr Vann. In the view of KLR, the absence from the Scheme of any provision relating to such a use as is proposed is consistent with the maintenance of landscape quality and the importance of the overall character of the Shire. The inference the Court should draw, according to KLR, is that the Council has carefully considered the scale of industry that it desires to have in the rural region and deliberately limited the size and scale of that industry. In short, the absence of a defined use for a proposal of this type is the result of a considered and deliberate decision. It points also to paragraph 4.60(1)(f) dealing with development in the industrial Zone and says that the proposal would be in conflict with that Zone for the same reason it says it is in conflict with the Rural General Zone, that is because of the operation of Special Outcome (k) in that latter Zone.

[58] KLR's argument supported that of the Council in relation to the conflict with the rural character and landscape of the Shire namely that the proposal would constitute a conflict with the Scheme. Despite proposed landscaping measures to reduce visual impact, KLR says there will remain a marked detrimental impact on the amenity of the local area.

[59] KLR argues that Mr Kelp in dealing with need failed to address any particular need of the Gatton community to the location of this power plant at this particular site. It pointed to Mr Kelp's evidence that there was no problem with the current supply of electricity in Gatton[92] and to Mr Dalton's evidence that, even if Energex upgrades its 110KV power network adjacent to the site, the Gatton Bulk Supply-Station will remain capable of delivering no more than 36MW of electricity to the Gatton community[93]. That represents 3.6% of the total projected 1000MW generation capacity of the proposed development. Aligned with that point is KLR's argument on electrical off-take. It referred to Mr Dalton's evidence that the current 110KV network of which the Sub-Station is a part would only be able to off-take 204MW[94] representing 20.4% of the Appellant's Plant's total proposed capacity of 1000MW. With planned upgrades Energex, according to Mr Dalton, the present 110KV network will off-take 385MW[95] representing 38.5% of total capacity. If there is an entire network upgrade that off-take of 385MW will increase to 645MW[96] according to Mr Dalton, some 64.5% of that total proposed capacity.

[60] KLR also points to other evidence of Mr Dalton[97] that the output of the proposed plant might be limited to 600MW; also that each of the proposed Powerlink 500KV Transmission Network, Powerlink existing 330KV Middle Ridge to Greenbank Transmission Network and the existing Powerlink 375KV Tarong to Middle Ridge Transmission Network would be capable of off-taking the entire proposed 1000MW capacity of the proposed plant. That evidence of Mr Kelp and Mr Dalton were good reasons, in the view of KLR, why the proposed plant is unnecessary and approval should not be given.

[61] Further, it argues, Mr Dalton's evidence[98] that he was not aware of any current plans to upgrade the Sub-Station, again founds the inference that there is no present demand for a higher volume of electricity.

[62] KLR identified what it sees as a conflict between the evidence of Mr Kelp and Mr Dalton's. It says that Mr Kelp suggested that electricity supply to Gatton might be made cheaper by the close proximity of the proposed plant to Gatton having regard to Margin Loss Factors[99]. In contrast, KLR says, Mr Dalton's evidence was that the Margin Loss Factors were calculated by reference to the distance between the power generator and the south pine node, rather than the proximity of a consumer and the power generator[100]. So proximity is, on that argument, not a factor of benefit.

[63] KLR next points to the Appellant's Development Application[101] which concedes that there are other sites available and that other projects are being considered to increase the electricity supply. KLR says that there will inevitably be locations where the conflict with the Planning Scheme is not major, as it here is, and perhaps even with no conflict at all. On that issue KLR also points to the evidence of Mr Kelp that there are five times as many generation proposals are formulated than are actually required and that only 10 to 20% of them ever come to fruition[102].

[64] KLR disputes the benefit of the co-location of the proposal with existing facilities and says that that is a minor benefit outweighed by the conflict with the Scheme.

[65] The Appellant points to the following statement in the joint report of the planning experts:-[103]

"The Planning Scheme does not incorporate specific provisions for development of this type or scale. In this context, the planners consider that the nature of the conflict with the Planning Scheme is by virtue of the absence of specific policy direction on the uses of this nature, rather than an explicit intent of the Planning Scheme to prevent development for electricity infrastructure in this Zone."

[66] The Appellant also relies on the fact that had this been a proposal to be undertaken by government, its corporation or agency, would have fallen within this "special use" definition which includes a public utility and would have been Code Assessable. As I have already said, Mr Vann considers that relevant to the issue whether a conflict exists. Mr Craven[104] says the provision is not usual as Planning Schemes routinely make government-run facilities Code or Self Assessable, not in recognition of their lack of impact but because of an historical legacy of government agencies not being bound by Planning Schemes or a tacit acceptance that they should not be so bound.

[67] The Appellant relies upon three authorities[105] in support of its argument that the mere identification of use as "non consistent" (or words of a similar type) does not result in it being in conflict with a Scheme. I take this submission to mean that it does not automatically so result, but can in appropriate circumstances, result. The point made however is that, rather than there being any automatic default to a conflict situation, the Court must consider the Scheme as a whole to arrive at a conclusion as to whether or not a conflict exists. I agree with that submission.

[68] The Appellant then points to Table 1 in the Scheme[106] in Column 1 of which are set out a range of uses not identified as being inconsistent with the Specific Outcomes of the Rural General Zone as provided for in s 4.12(k). It identifies the following which it says substitutes a remarkable range of uses which would not be inconsistent with uses which could be the subject of a Material Change of Use Application in the Rural General Zone.[107] They are:-

(a) Special Purposes (such as ambulance station; cemetery; crematorium; community hall and centre; fire brigade; "government purposes"; hospital; public utility or "statutory authority purposes");

(b) Animal Product Processing Industry (being land used for "adding value to animal products including processing animal skins, meat or other food products including pet food, and includes a abattoir";

(c) Educational Establishment including academies, colleges, schools and universities and ancillary accommodation on the site;

(d) Extractive Industry including crushing and screening and other processing;*

(e) Intensive Animal Industry including feed lots, piggeries, poultry farms, kennels and catteries;

(f) Local Utility including any public undertakings by Council, other agency or organisation providing community infrastructure including the conveyance of water, sewerage and storm water drainage; reticulation of electricity or gas; collection of garbage and public transport facilities, including railways;

(j) Telecommunications Facility including any line equipment tower antenna or other structure;

*Extractive industry also includes winning and treatment of gravel, rock, sand, soil, stone or other similar material including ripping, blasting, dredging, storage, loading, cartage and treatment of extractive materials that may involve crushing, screening, washing, blending, grading or other treatment processes. (emphasis added)

[69] The Appellant makes the point that in reading the provisions relating to the Rural Zone as a whole, it is clear that, while the Zone may well be intended principally to function as an area to support agriculture, the Scheme recognises that land within the Zone may well be developed for any number of intensive purposes some of which will involve impacts and built form not necessarily consistent with the residential amenity. Against that background the Appellant argues that it would be impossible to say that any approval of a use other than for agriculture would be in conflict with the Rural General Zone.

[70] As to the alleged conflict with the Overall Outcomes of the Zone the Appellant points to Overall Outcome 4.11(2)(b) which identifies urban and rural residential development as not consistent with the Zone and makes that point that the proposal in question is not a category identified as "not consistent" with the Zone.

At a glance

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Judgment (238 paragraphs)

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