Environment and planning – rural activity – rural zone – permissible and existing use – expansion of cattle feedlot from 8,000 SCU to 14,000 SCU - Council approval subject to conditions – issues of odour, dust, noise, landscaping, traffic and roads, compliance with licence conditions and management and operation – whether conditions satisfied neighbourhood concerns – whether particular receptors experience real or perceived adverse impacts - whether adverse impacts would be ameliorated by reconstruction and upgrade of cattle feedlot to Class 1 standard
Local Government (Planning and Environment) Act 1990,
ss 4.13(5), 4.13(5A)
Integrated Planning Act 1997, ss 3.1.7, 3.3.15, 3.3.5, 3.5.11, 3.5.14, 3.5.30, Ch 6 Pt 8
Sustainable Planning Act 2009, ss 494, 495, 819, 820
Environmental Protection Act 1994, ss 4, 14, 18, 19, 22, 73A, 319
Environmental Protection Regulation 1998, s 4, Sch 1
Environmental Protection (Noise) Policy 2008
Environmental Protection (Air) Policy 2008
Reference Manual for the establishment and operation of beef cattle feedlots in Queensland, DPI&F, 2005(Feedlot Reference Manual)
Guideline, Odour Impact Assessment from Developments, EPA (now DERM), 2004 (Odour Guidelines)
Facts: This matter involved two appeals (Morgan Appeal and Allen Appeal) arising from Toowoomba Regional Council's (Council) decision to conditionally approve a development application lodged by the Applicant (Mr Morgan) for the expansion of a cattle feedlot (Kurrawong) on the Darling Downs. Kurrawong had boundaries to Wonga Plains Road and the Quinalow-Edgefield Road. The existing feedlot pens comprised northern pens to the west of Wonga Plains North Road (Northern Pens) and pens to the south of the Quinalow-Edgefield Road and its eastern boundary, the Wonga Plains South Road (Southern Pens). The existing feedlot was designed and constructed prior to the introduction of the Feedlot Reference Manual.
The Morgan Appeal was a conditions appeal by Mr Morgan against some of the conditions imposed by Council. The Allen Appeal was a submitter and merits appeal against Council's approval. A number of submitters elected to join the appeals. In the proceedings, Mr Morgan bore the onus of establishing that the Allen Appeal should be dismissed as well as the onus of proving that the Morgan Appeal should be upheld.
The development of Kurrawong involved an expansion of the existing feedlot from 8,000 single cattle units (SCU) to 14,000 SCU. The proposed development involved an increase in the total number of pens from 93 to 123, an upgrade of the existing Southern Pens to Class 1 design (the highest standard under the Feedlot Reference Manual) and the complete demolition and reconstruction of the Northern Pens to Class 1 requirements. The development also included rebuilding the existing northern sedimentation basin and effluent holding pond and upgrading the existing southern sedimentation basin and effluent holding pond to Class 1 requirements.
Kurrawong was in the rural zone of the 1997 Planning Scheme for the Rosalie Shire Council (1997 Planning Scheme). Lot feeding was listed in the tables of activities for the rural zone as a "purpose for which premises may be used or developed only with the consent of Council (permissible development)." Feed lotting required compliance with the requirements of the Department of Primary Industries (now the Department of Agriculture, Fisheries and Forestry (DAFF).
The Concurrence Agencies (Chief Executive of the Department of Environment and Resource Management (DERM) and the Administering Authority under the Environmental Protection Act 1994 (EP Act)) imposed general and specific conditions that attached to the development approval.
In the Morgan Appeal, the issues were limited at the hearing to those identified in the Notice of Appeal and correspondence between the parties. In the course of the hearing, Mr Morgan and Council reached agreement regarding the conditions the subject of the appeal. However some of these conditions remained in issue with the Co-Respondents.
In the Allen Appeal, the issues in dispute were limited to odour (air quality), traffic, road conditions and dust, landscaping and the further issue of operational competency.
Decision: The Court held, in allowing the Morgan Appeal, subject to conditions and dismissing the Allen Appeal:
- Council could consent to expansion of lot feeding with required setbacks, but must take into account the licensing requirements of DAFF. That too was a reasonable expectation of neighbouring landowners. Feed lotting was a use to which neighbouring land owners must be taken to contemplate the land will be put to.
- The appropriate air quality assessment methodology was contained in the Feedlot Reference Manual. Odour dispersion modelling was not required.
- Application of the S Factor formula method was not only appropriate but the best method in the circumstances of the case. There was adequate separation distances based on that formula method to provide compliance with the Feedlot Reference Manual.
- The condition sought by the Co-Respondents in relation to noise was not reasonably required and would be an unreasonable imposition on the proposed development.
- All that the relevant authorities could do, and all the Court could do, was to ensure that the construction or reconstruction of the cattle feedlot per se would create conditions in which odour generation could, with proper management and operation, be minimised as required by the Feedlot Reference Manual and relevant legislation. No one could, even with the most admirable foresight, predict whether or how a cattle feedlot operation may be operated and managed on a day to day basis.
- There was no reason to refuse the development application. However, it was necessary for it to be conditioned in accordance with Council's and the DAFF's conditions and the amended, renegotiated and new conditions which were resolved in the course of the hearing of the appeals.
The Court held, in awarding costs against the Third Co-Respondents:
- The Third Co-Respondents by Election should pay the costs incurred by each of the parties of and incidental to the introduction of new air quality evidence, limited to the costs associated with those parts of two review proceedings and one hearing date specifically relating to the issue of whether new evidence should be introduced, the costs of and incidental to the consideration of the new material and the costs associated with the further hearing reasonably attributable to the new material.
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