Australia: 43/13 Morgan v Toowoomba Regional Council & Ors; Allen v Toowoomba Regional Council & Ors [2013] QPEC 58 (Durward SC DCJ - 1 October 2013)

P&E Court Updates - October/November 2013

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:

  1. 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.
  2. The appropriate air quality assessment methodology was contained in the Feedlot Reference Manual. Odour dispersion modelling was not required.
  3. 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.
  4. 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.
  5. 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.
  6. 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:

  1. 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.