PLANNING & ENVIRONMENT COURT OF

CITATION: City Council v Burnett Shire Council & Anor [2004] QPEC 004 PARTIES: BUNDABERG CITY COUNCIL Appellant v BURNETT SHIRE COUNCIL Respondent And ARTHUR SETH PARKER and others Co-Respondents FILE NO: DIVISION: Planning & Environment PROCEEDING: Appeal ORIGINATING COURT: DELIVERED ON: 10 March 2004 DELIVERED AT: HEARING DATES: 2,3,4,5,6,10,11 February 2004 JUDGE: Skoien SJDC ORDER: Appeal to be allowed; adjourn to allow conditions to be agreed CATCHWORDS: Construction of sanitary landfill; amenity, loss of agricultural land; flora and fauna, community well-being COUNSEL: Mr S. Ure for appellant Mr M. Hinson SC for respondent Co-respondents in person, unrepresented. SOLICITORS: Baker, O’Brien & Toll for appellants Conner O’Meara for respondent

Background

[1] This is an appeal by the Bundaberg City Council against the refusal by the Burnett

Shire Council of an application for a development permit for a material change of

use to allow the use of land for a regional municipal sanitary landfill, and

preliminary approvals for associated building work and operational works. 2 3

The Site

[2] The site is on the western side of the , some 20 kilometres south of the

Bundaberg CBD and 10 kilometres south of the Bundaberg City boundary in the

Burnett Shire. It contains 83 hectares and is zoned Rural under the Burnett Shire

Planning Scheme. Until a few years ago, part of the site (about 40 hectares) was

used for sugar cane cultivation. The balance of the site contains some 36 hectares

of remnant vegetation and about seven hectares of non-remnant vegetation. The

term “remnant vegetation” indicates that it has not been modified from its pristine

state, by clearing or otherwise.

[3] The site is bounded to the north by Cedars Road, which is a main road. The

frontage is about 950 metres. To the east it is boarded by the Isis Highway which

is also a main road and that frontage is 1300m. To the south there is a frontage of

400m to Pine Creek Road. On the opposite side of the Isis Highway, that is, to the

east, is the extensive Bingera State Forest. The land in the other directions is

sparsely populated, is primarily used for rural pursuits and is likely to remain so.

[4] The main part of the site slopes gently towards the south-east with a very broad

gully falling to the south east across the centre to a small dam located in the

southern part towards Pine Creek Road. The northern part of the site is the part

which was used for the growing of sugar cane. Along the western boundary is a

steep area traversed by gullies. This area drains to the and although

the balance of the site drains to the Elliot River, the whole site is within the declared

catchment area of the Anderson Barrage on the Burnett River.

The Locality

[5] Rural activities tend to predominate in the area although there are also a

considerable number of rural residential properties. A single storey brick dwelling

is located immediately to the north of the site on the opposite side of Cedars Road. 4

There is also a house on a mango farm on the opposite side of Pine Creek Road to

the south of the site. Other houses are located further to the west on Cedars and

Pine Creek Roads and also on South Bingera Road which links those two roads

about 1km to the west of the site. In all there are probably about a dozen houses

located on Cedars and Pine Creek Roads between the highway and South Bingera

Road and on South Bingera Road itself. A telecommunications tower is located

within the road reserve at the north eastern corner of the site.

[6] Bundaberg has acquired the residential property on Cedars Road which is opposite

the site and also the property which contains a residence and a mango farm on the

southern side of Pine Creek Road as well as a small, vacant triangular parcel of

land which immediately adjoins the site at its south-western corner, which is also

on Pine Creek Road.

The Proposal

[7] The proposal is to establish a regional municipal sanitary landfill (the term for a

modern rubbish dump or rubbish tip), intended to serve the requirements of the

residents of Bundaberg City, Isis Shire, Kolan Shire and Burnett Shire. The

evidence satisfies me that all of those Councils recognise the desirability, even the

ultimate need, to proceed on a regional basis to dispose of waste. Isis would be

prepared to make some use of the proposal landfill in the near future and greater

use of it as time passes. Kolan has indicated that it would use the landfill in the

longer term.

[8] Burnett’s position is less certain. Its Strategic Plan (Objectives 21.1.1 and

Implementation 21.1.2) demonstrates a complete awareness of the modern need

safely and effectively to dispose of waste and the practical desirability of doing this

in cooperation with neighbouring Councils. In this respect the Strategic Plan 5

specifies Bundaberg. In 1999, at a time when this cooperation was quite evident,

Burnett commissioned expert consultants CM Testing Services and Geo-Eng

Australia Pty Ltd to prepare a report on the matter. This report was completed in

November 1999.

[9] The introductory section of the report is as follows:

‘As part of Burnett Shire Council’s overall Waste Management Strategy, CM Testing Service (CM Testing) of Bundaberg in association with Geo-Eng Australia Pty Ltd (Geo-Eng) was commissioned by Burnett Shire Council to establish an inventory of land within the potentially suitable for long-term disposal of domestic/municipal waste generated within the Shire.

The final disposal site may also be considered as a regional waste disposal facility accepting waste from Bundaberg, Isis and Kolan local governments, and as such may be subject to a number of distinct regional considerations.

The initial areas of land considered for landfill siting were primarily located within Burnett Shire, however land within a reasonable distance from the Shire boundary was also assessed in general terms of suitability.

It is important to note that this is a “regional” level identification and assessment of potential waste disposal sites. This study has been carried out as a ‘desk top’ exercise and no detailed on-the-ground investigations have been undertaken in support of the study. Further detailed investigations would be essential as part of necessary follow up work to shortlist potential sites.

Whilst parcels of land have been identified in this study by Real Property Descriptions (RPD), this has been requested as part of the study brief and has been completed for ease of reference.

Although the RPD has been used for the sake of clarity, no intent on behalf of the Council to further investigate or acquire such land is expressed or implied herein.’

[10] The report methodology first excluded land that had the following characteristics:

• Wetlands • Land liable to flooding in a 1 in 100 year event • Groundwater Recharge areas • Marine and Coastal reserves • Critical Habitat for flora and fauna • Archaeological and culturally significant areas • National Parks and Wilderness areas • Areas Subject to Cyclone Storm Surge • The close proximity of a significant water course or drainage path 6

• Areas associated with adverse geological features (i.e. fault lines) • Areas defined as class A Agricultural land’

[11] The report then nominated the following desirable attributes as characteristics that

would make land suitable for waste disposal.

• Predominantly of a clay soil type, which inhibits the downward migration of surface or impounded water and leachate • Reasonably close to a major road network • Located as to be accessible for use as a regional facility • Of an area of not less than 50 hectares or combinable with neighbouring land to attain at least 50 hectares.’

[12] These preliminary processes resulted in 24 potential sites being shortlisted. These

24 sites were identified by Site Codes A to X, and included (Site Code U) the

subject site. Each of the 24 sites was then assessed against the following

weighted criteria.

‘1. susceptibility to major flood or storm surge 2. wetlands I conservation areas 3. archaeological or Culturally Significant area 4. proximity to a Water course or drainage path 5. Adverse geological feature or recharge area 6. Class A agricultural land 7. Depth to Watertable 8. Road Access 9. Soil Permeability 10.Flora/Fauna’

[13] As a result of the processes described above, the report details the following

conclusions and recommendations.

‘As a result of the preliminary screening and by using a numerical method to rank sites according to the defined criteria, twenty-four (24) sties were identified as potential waste disposal sites, and are presented in the Table in Appendix A.

Of these sites, the eight highest ranking were identified and subjected to hydro-geological interpretation which indicated that Sites U, W and X, located south of the Burnett River, are all located within silty clays and within or close to bedrock outcrop. Sites N, O and P, located north of the Burnett River, are within an area that is generally more sandy than the first group of sites. Site A is located within bedrock outcrop and is ranked highly against most criteria. It is located adjacent to a major transport route, but is less accessible to Isis Shire than sties U, W and X. 7

Whilst at this stage Site U is considered to be preferred in terms of site geology, hydrogeology and access to major roads, etc., further detailed investigation of the eight highest ranking sites would be essential as part of a next phase of study to obtain site specific information prior to shortlisting to 2 or 3 preferred sites.’

As I have noted the site with which I am concerned is Site U.

[14] Burnett’s apparent willingness to cooperate fully with Bundaberg, somewhat

mysteriously (so far as the evidence disclosed) came to a halt in about 2001.

Perhaps the fact that Bundaberg’s interest in this site raised a good deal of local

opposition had something to do with it. Perhaps it was related to the fact that more

modern disposal techniques demonstrated that the life of Burnett’s existing landfills

was much greater than had previously been believed. Anyway, as is obvious,

Burnett refused Bundaberg’s application to use this site for a landfill. However, I

consider it to be obvious that should this landfill proceed Burnett would, in due

course, make use of it and that use would be likely to increase.

[15] Bundaberg has approximately 60% of the population of the region, and would

produce a corresponding amount of waste. It has a pressing need for a new

landfill, its current one having an estimated life span of 3.7 years. There is no

possibility of a new one being established in Bundaberg City because there simply

is not a suitable site within the city limits.

[16] Bundaberg proposes, on the site, over 100 metres of buffering to the landfill on the

western, southern and eastern sides. On the northern side, there is to be extensive

buffering at the undisturbed north western portion. A landscaped mound of some

350 metres length is to be constructed along the Cedars Road frontage and on the

north-eastern corner, existing vegetation will be supplemented with buffer planting.

The site entry is such that trucks can have direct access to the landfill from the Isis

Highway without passing any houses. The access point is approximately 300

metres along Cedars Road from the highway. 8

[17] The public is not to be admitted to the landfill. All waste will come from Council

transfer stations. It is intended by Bundaberg that waste will be sorted at its

existing transfer station at University Campus Drive and then will be transported,

partially compacted, to the subject site in semi-trailers. There will be approximately

14 vehicles per day maximum.

[18] The landfill is to be divided into cells and sub-cells. Each sub-cell is to contain

about two hectares. One sub-cell at a time will operate and only a small portion of

that will be open at any given time. Waste is to be deposited in the cell,

compacted, and then covered with soil. No waste is to be exposed overnight. The

base of the cells will be lined either with 900mm of prepared compacted clay and/or

(depending on discussions with the Environmental Protection Agency and Burnett)

a high density polyethylene liner. As each cell is completed and a new cell is

opened, the completed cell is to be capped with clay, topped with topsoil and

revegetated. The details of all of this are of course at this stage largely conceptual.

Should the appeal succeed the process will then involve the formulation of

conditions by Bundaberg, Burnett and interested State Government Departments

and Instrumentalities which will regulate the development and conduct of the

landfill.

The Application

[19] The Burnett Shire Planning Scheme is a Transitional Planning Scheme so the

provisions of s.6.1.30 of the Integrated Planning Act (IPA) apply. Under the Local

Government (Planning and Environment) Act 1990 (“P&E Act”), the establishment

of a landfill on the site, which is in the Rural Zone, would have required a consent

application to be made. Consequently, pursuant to s.6.1.30(3)(b) of IPA, the

application must be decided under s.4.13(5) and (5A) of the P&E Act.

[20] Section 4.13(5A) of the P&E Act provides:

“(5A) The local government must refuse to approve the application if: 9

(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.

and pursuant to s.4.1.50(1) of IPA, Bundaberg bears the onus of proof.

[21] Since the application was rejected, the proposal has been amended to meet some

concerns which had been raised about odour.

[22] The original proposal is depicted in the environmental impact statement which was

lodged with Burnett. The reduced proposal is depicted in exhibit 4, figure 5, sheet

3. The leachate pond has been relocated to the south-eastern corner of the landfill,

and the footprint of the landfill has been reduced from 14 sub-cells to 12. This has

reduced the area of the landfill and moved its southern boundary substantially to

the north.

[23] Although, as I have said, IPA specifically applies certain provisions of the P&E Act

in deciding the fate of the appeal, the appeal process itself is dictated by IPA,

including s.4.1.52(2)(6) which provides that the Court:

“(b) must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.”

[24] “Minor change” in this context is not defined by the Act, although in Schedule 10

the following definition is found:

‘Minor change’, for a development approval, means a change to the approval that would not, if the application for the approval were remade including the change – (a) require referral to additional concurrent agencies, or (b) cause development previously requiring only code assessment to require impact assessment; or (c) for a development requiring impact assessment – be likely, in the assessment manager’s opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allow.”

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[25] Quirk DCJ dealt with this situation in Carillon Development Limited v Maroochy

Shire Council and Birch, Carroll & Coyle Limited & Ors (2000) QPELR 216. At 217

His Honour said:

“[9] Although the definition in Schedule 10 is specifically applicable to development approvals, it would, in my view, be incongruous not to take a comparable view of the concept of ‘minor change’ in the interpretation of s.4.1.52. Some support for such an approach may be found in ss.3.2.9 and 3.2.10 which deal with changes that may be made to an application before it is decided by the planning authority. Section 3.2.10(c) focuses upon the likelihood of any change to an application attracting ‘a submission objecting to the thing comprising the change’.

[10] By reason of s.4.1.43 (particularly in (3)) above the decision of an appeal of this kind is taken to be the decision of the planning authority. It would be reasonable to suppose that the legislature would intend a consistent approach to changes to any proposal during the approval process.”

[26] I am satisfied that the changes would not be likely to attract an adverse submission

that was not provoked by the proposal in the original form. Significantly, and

importantly, none of the parties takes any point with respect to the change. It is

appropriate that the appeal be decided on the basis of the amended application.

[27] The application involved three concurrence agencies (Department of Main Roads,

Environmental Protection Agency and the Department of Natural Resources and

Mines), so pursuant to s.3.3.5 of IPA referral coordination of the information

request was required. Referral coordination was also triggered by the fact that the

development is of the type nominated in Schedule 6 to the Integrated Planning

1998 Regulation (see s.12 of the Regulation). The Department of Primary

Industries, as a third party advice agency, was also asked to contribute to the

consideration of the application.

[28] The concurrence agencies examined the material contained in the application and

a coordinated information request was issued by Burnett to Bundaberg. Extensive

material in response to the information request was provided by Bundaberg and its

consultants. Although pursuant to IPA the concurrence agencies may require the 11

assessment manager to refuse an application, all of the concurrence agencies

advised Burnett of conditions of approval. No concurrence agency directed that the

application be refused.

[29] Eighty-nine submissions were made to Burnett which, after considering those

submissions, by letter dated 5 November 2002 refused the application.

The Issues

[30] The issues in the appeal can be broadly set out as follows:

1) Effect on the existing residence immediately opposite the site on Cedars Road

by virtue of visual amenity impact, dust and odour;

2) Odour;

3) Dust;

4) Noise;

5) Traffic;

6) Ground water quality;

7) Surface water quality;

8) The Strategic Plan - Conflict with the aims, intents and goals of the Strategic

Plan as they relate to productive agricultural land, community well-being,

amenity, flora and fauna.

9) Conflict with State Planning Policy No. 1/92 – Development and Conservation

of Agricultural Land.

Cedars Road Residence

[31] This issue has disappeared as a consequence of the acquisition of the residence

by Bundaberg. Bundaberg will submit to a condition that it retain this property

during the life of the landfill. 12

Odour

[32] On the uncontradicted evidence of Mr Ormerod, the odour expert who gave

evidence on behalf of Burnett and the evidence of Dr Venz, the expert who gave

evidence on behalf of Bundaberg I accept that no unacceptable odour to any

relevant receptor would arise as a consequence of this proposal.

[33] The co-respondents argued that the relevant receptor should be taken to be the

entire area of land of any nearby residence, that being the curtilage of that

residence. That is not what is meant by “curtilage”, which is a yard immediately

surrounding the residence. See Grasso v Stanthorpe Shire Council (1996) QPELR

107 at 109.

Dust

[34] I also accept the uncontradicted evidence of Mr Ormerod and Dr Venz that there is

no issue with respect to dust which would warrant the refusal of this proposal.

Noise

[35] I accept the uncontradicted evidence of Mr Ormerod and of Mr Rumble that there

would be no adverse noise effects on amenity such as would warrant refusal of this

proposal.

Traffic

[36] I accept the uncontradicted evidence of Mr Holland that there are no traffic matters,

of safety, capacity or amenity, which would warrant refusal of this proposal.

Ground Water Quality

[37] Both experts (Mr Morphett and Mr Hair) concluded that the landfill could be

operated with no adverse effect on the ground water quality of the area. I accept

this evidence, there being no evidence to the contrary. 13

Surface Water Quality

[38] The evidence of the expert, Mr Jones, was uncontradicted and I am satisfied that

there are no surface water quality issues which would warrant the refusal of this

proposal. In fact, Mr Jones was of the view that this was an excellent site for a

landfill from the surface water quality perspective, as, in essence, it forms a

discrete catchment, and the presence of the dam on the site guarantees the

availability of any water which might be required for use by the proposal.

Amenity

[39] The amenity of a country area is varied. It encompasses beauty and tranquillity but

it also involves noise and smells which are sometimes quite intrusive. I must say

that I find it difficult to see how a properly managed modern sanitary landfill on this

site would offend the reasonable sensibilities of local residents, or others who

simply pass by. Farmers are robust people. From time to time they are exposed to

noise, unpleasant smells, dead animals, dangerous chemicals, etc. I doubt they

would be troubled by the knowledge that a modern landfill is nearby. The evidence

has established that they are most unlikely to be adversely affected by noise,

odour, dust or traffic generated by the landfill, nor is there any real likelihood of

adverse consequences to the quality of surface water or groundwater. Nor, with

proper management, do I see any real threat of animals becoming a nuisance

because of the landfill. I am satisfied (on the evidence of Mr Holland) that it is most

probable that the natural scrub along the frontage with the Isis Highway will remain

intact so it is unlikely that the landfill will be seen at all from the highway, and if it is,

only in glimpses. When revegetated the site will be more visually attractive than it

is now.

[40] The aspect of amenity which has given me the most concern has been the

possibility of nuisance from wind blown litter. Ultimately I have decided that, while 14

its possibility cannot be denied, the way in which the landfill is to be operated, with

only a small section of rubbish actually exposed (and that only during working

hours) and with conditions laying down strict requirements about anti-litter fencing,

the possibility will be remote. So far as Dr Zyp’s genuinely held concerns for the

health of her stud goat herd are concerned I am also satisfied that the protective

features I have mentioned will be re-inforced by the considerable buffer of natural

vegetation between the landfill and her boundary fence. It cannot be guaranteed

that no litter will blow onto her land but I consider that to be unlikely. And I bear in

mind that even now there is the possibility that her property could receive wind

blown litter, if the wind should be strong enough, from the road or from nearby

properties.

Flora and Fauna

[41] The landfill is to be divided into twelve sub-cells, each of about two hectares and

will be developed progressively, one sub-cell at a time progressing from north to

south. As one is fully filled it will be capped with a layer of compacted clay, then

covered with about two metres of top soil. It will take more than 14 years before it

is necessary for any of the remnant vegetation in the southern portion of the site to

be cleared. By this time, some eight of the two hectare sub-cells will have been

filled, capped and revegetated. The evidence is that such revegetation can be with

trees and scrub native to the area. So during the operational life of the landfill, and

to a greater extent upon its completion, the environmental values of the site will be

positively enhanced compared with its present degraded state.

[42] At the outset, large areas of the site outside the footprint of the actual landfill area

will have native vegetation planted or retained, for example, to enlarge the existing

vegetation on the escarpment on the western boundary of the site, the area to the

north-west which is to contain clay and top soil stockpiles, the vegetated mound 15

and landscaping which is proposed on the Cedars Road frontage as well as the

planting to occur on the north-east and eastern boundaries.

[43] The Strategic Plan contains provisions which are obviously designed to protect and

preserve the ecology of the Shire. They include Aim 5, Intent 1.1.3(4), Goals 1 and

7 of s.1.1.5 and ss.23.1.1 and 23.3.1 with the implementation provisions of

s.23.1.2.

[44] Melaleuca cheelii and Cupaniopsis shirleyanan respectively listed as rare and

vulnerable plants are on the site. They will be propagated and planted in the

vegetated buffer areas. That can be done without difficulty and will increase the

stock of these trees. A small amount of native vegetation will be cleared for the last

sub-cells to be operated but a substantial part of that footprint will be over the

disturbed non-remnant vegetation connecting the existing degraded cane land with

the proposed sedimentation pond (which currently exists) at the south of the site.

In my opinion this loss of vegetation will be more than compensated by the

opportunity to plant about 40 hectares of native vegetation on land which is

currently under ratoon cane and is weed-infested. Importantly, it is intended to

plant on top of the completed cells the tree Allocasuarina littoralis, the food tree

which sustains the glossy black cockatoo, listed as vulnerable, which inhabits the

area generally and the site specifically.

[45] It was suggested the site has some corridor value. The view of Dr Olsen was that

the site in fact presents as an “environmental cul-de-sac” being a protrusion on

what possibly could be a north-western corridor running between Bingera Forest to

the Burnett River, north of the subject land.

[46] There is actually little acceptable evidence that the land is being used as a corridor.

Mr Barden has seen fauna crossing the roads, but that occurrence must surely be

commonplace wherever a road abuts habitat. In any event the conclusion I make 16

on the corridor issue is based on the aerial photographs and the maps. It is, I

suppose, possible to trace a corridor heading east-west between the State Forest

and the Burnett River. The site, in its degraded state, acts as a break in that

corridor, creating two narrow corridors. Although the landfill, when in operation, will

temporarily perpetuate the existing break and will temporarily move that break,

progressively, to the south, the revegetation will progressively revegetate the break

at its northern end and will widen the corridor permanently.

[47] In any event, it seems to me that irrespective of what the existing corridor values, if

any, may be, they will not greatly be disturbed by the landfill operation and

ultimately will be enhanced by the proposal. The area to the north-west on the

escarpment where the elf skink (classified “rare”) was sighted, will not be disturbed

in any way. The green-thighed frog (classified “rare”) was seen at the junction of

the vegetation and the cane land towards the north-west corner. The vegetative

buffer in this area will be enhanced and widened, which would suggest that even

more habitat would be provided for this species. I cannot conclude that the habitat

of either of these animals, or for that matter, of other native animals will be

threatened to any effective degree.

[48] During the use of the last five sub-cells there will be some loss of food trees for the

glossy black cockatoos (classified “rare”), but I accept the evidence of the fauna

experts Mr Debus and Dr Ingram that this will not have any major detrimental

impact on the population in the locality. Their evidence was that the glossy black

cockatoo can comfortably cohabit with the sort of activity one would expect at a

landfill. The only evidence to the contrary was that of Mr Chenoweth, whose

qualifications are not in fauna.

[49] Finally, after all of the expert evidence has been digested, I cannot see that the

habitat of any rare or vulnerable plant or animal will be interfered with to the extent

that it will be lost to the area. There will be sufficient available habitat not just on 17

this site but available nearby for animals to accommodate to the use of the landfill

and progressively that habitat will be enlarged actually to improve the available

habitat. Important plants will actually be propagated on the site.

[50] So I see nothing in Bundaberg’s proposal which is in conflict with the provisions of

the Strategic Plan which are designed to protect the local native flora and fauna.

Nor do I see any conflict with other legislative provisions.

The Strategic Plan

The Law

[51] On the interpretation of the Strategic Plan I adopt the summary of judicial

statements collected by Wilson SC, DCJ in Stariha v Redland Shire Council & Anor

(2003) QPELR 3, at p7:

[18] The correct approach, is I think, appropriately summarised in Harburg Investments Pty Ltd v Brisbane City Council per Skoien SJDC:

‘(31) It is appropriate to set out some recorded judicial comments in relation to the application of statements planning documents, which include Strategic Plans:

(a) It is seldom appropriate in matters such as these to rely on any specific statement of intent or of aims or objectives in the planning documents as determinative. It is rare that an express imprimatur or injunction can be found in them for a particular proposal. Almost invariably a diligent search of the planning documents can unearth in such statements passages which appear to argue for or against the proposal but generally speaking it would be unwise to place too much weight on such a passage. The planning documents, while they are given the force of law by s.2.15(9) of the Local Government (Planning and Environment) Act 1990 (see now s.2.1.23 of IPA) are not drawn with the precision of Acts of Parliament and the statements of intent or of aims or of objectives are intended to provide guidance in the difficult task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular proposal should be approved or rejected. So such statements should be read broadly. Degee v Brisbane City Council (1998) QPELR 287 at 289.

(b) A Strategic Plan only sets out broad desired objectives and not every objective in the plan has to be met before the proposal of an applicant may be accepted (see Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224 at 18

p.240); the interpretation of the Strategic Plan ought to involve a ‘common sense approach’ (see ZW Pty Ltd v Hughes & Partners Pty Ltd (1992) 1 Qd R 352 at p.360); in interpreting a Strategic Plan the document should not be read too narrowly; it should be read broadly rather than pedantically; and one should adopt a sensible practical approach (see Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 4 at p73, 75 and 78; to enliven the provisions of s.4.4(5A) (of the P&E Act) a conflict must be plainly identified and, in any event, such a conflict alone may not have the result of ruling out a particular proposal (by virtue of s.4.4(5A) (see Fitzgibbons Hotel Pty Ltd v Council (1997) QPELR 208 at p.212)”.

and further, per Robertson DCJ in Cornerstone Pty Ltd v Caloundra City Council &

Anor (Appeal No 17 of 2003, 20 August 2003):

‘[34] In interpreting a planning scheme, the Court should take a common sense approach; and, the particular document should not be read too narrowly but, rather, broadly (rather than pedantically) and in a way which adopts a sensible, practical approach.

[35] These statements reflect long settled principle in relation to the judicial approach to planning schemes. In Pacific Seven v City of Sandringham (1982) VR 157 at 163 it was said:

‘Planning is a difficult exercise with flexibility an essential ingredient. Those entrusted with its implementation should bear in mind that neither individual or community interest is served by resource to exotic legalism. Whetting the saliva of lawyers with one hand on the guillotine can only frustrate rather than meet the ends of justice, and the expressed intention of the legislature in the field of planning. Whatever be the consequence of legal points which fall to be decided, every endeavour should be made to deal with the substance of an application for permission to use or develop land in a certain way with maximum expedition and fairness.’

It is also well established that when there is a conflict between the zoning of a site and the planning objectives and designation in a forward planning document (such as a strategic plan or DCP) it is the zone that ought to prevail as it is the zone (in transitional planning schemes) which determines development rights.”

8(a) Strategic Plan conflict – productive agricultural land

[52] Section 1.1.2 of the Strategic Plan sets out the following “basic aims”, the relevant ones being:

“Aim 1 To maximise the usage (sic) of existing and planned urban infrastructure and cater for the demands for urban expansion within the wider Bundaberg District while at the same time placing emphasis on the objectives of Aims 2, 3 and 4.

19

Aim 3 To preserve and protect the Shire’s rural lands to support the region’s economic base and ensure that such rural lands remain available for primary production free of urban constraints and intensive subdivision.

Aim 4 To promote sound economic development and diversification of industries appropriate to the Shire as a means of establishing a healthy regional economy and prosperous community.

Aim 5 To promote development which is ecologically sustainable and which will:

• Enhance individual and community well being and quality of life by encouraging development that safeguards the welfare of current and future generations; • Protect biological diversity and maintain essential ecological processes and life support systems on which the community relies.

[53] Section 1.1.3 sets out the following statements of intent:-

“(1) To balance the need for urban expansion with the need to protect productive agricultural areas;

(4) To adopt a long-term management perspective to ensure that all the Shire’s resources are protected, managed and utilised in a sustainable manner for the benefit of current and future generations.”

[54] Section 1.1.5 sets out the following goals including:-

“(1) To protect and promote the economic, social and environmental well-being of the Shire through the sustainable use and/or development of land, water and other natural resources.

(2) To maximise the opportunities to conduct a wide range of viable rural land uses within the Shire.”

[55] The Strategic Plan identifies the site as falling mostly in the Rural (General Areas)

preferred dominant land use (“PDLU”) and a small part (in the south western

corner) in the Rural Protected PDLU.

[56] In s.2.6.1 the Rural (General Areas) PDLU designates those parts of the Shire:

“… … not required at this time for other preferred dominant land uses or which are primarily used for livestock production. This rural area also includes land which is not suitable for more intensive development because of environmental, topographical, soil quality or flooding constraints and drainage problems. Other areas have been included because of the absence or inability to economically 20

provide basic services considered essential for the various land use designations set out in this Plan.

It is not anticipated, nor intended that land within this category should be required for any of the other preferred dominant land uses detailed in this Section. Whereas it is accepted that selected areas may be suitable for development, such areas are intended to be retained as either a buffer zone for intensive agricultural pursuits, a protected area needed to retain the biological diversity of the Shire, or in other cases as a land bank for future development needs.

Council recognises that land in this category may not be suitable for agricultural purposes but by the same extent may also be unsuitable for other purposes such as residential development. The highest and best use of some land in this category may be its existing natural state. ”

[57] The Rural Protected PDLU in s.2.5.1 designates areas –

“… … intended to be protected for primary production purposes. Land so designated is predominantly agricultural land but it also includes areas which are considered important in maintaining the integrity of rural enterprises which utilise a range of land types.

“Rural Protected” land includes all land which has been identified as good quality agricultural land in accordance with State Planning Policy 1/92 – Development and the Conservation of Agricultural Land and Planning Guidelines for the identification of Good Quality Agricultural Land.

These areas are primarily intended to be used for intensive agricultural and horticultural purposes. Unless a proposed use is promoted for the area by provisions contained elsewhere within this Strategic Plan, Council will only consider the development of Rural Protected land for other purposes if the proposed use is ancillary to, and compatible with, the use of the land for rural production.

…………..

The land use designations are intended to provide a clear definition between the land needed, or most suitable for urban expansion, and that required to ensure the ongoing viability of the Shire’s rural/agricultural economic base. It is therefore not anticipated, nor is it intended that land included within the “Rural Protected” designation should be excluded from this category for any form of development, unless otherwise provided for within this Plan.

[58] From the above (and other provisions of the Strategic Plan) it is obvious that land in

the Rural Protected PDLU is to be more jealously protected than land in the Rural

(General Areas) PDLU. As noted in para [55] above most of the site (including the

land where cane was grown) is in the latter designation and only a small part in the 21

former designation (which is under remnant vegetation). However the second

paragraph of s.2.5.1 (see para [57]) introduces the provisions of s.2.2 of the

Guidelines to State Planning Policy 1/92 (“SPP 1/92”) which are:

“2.2 Four classes of agricultural land have been defined for Queensland … Class A land in all areas is considered to be good quality agricultural land. In some areas, Class B land (where agricultural land is scarce), and Class C land (where pastoral industries predominate) are also considered to be good agricultural land.”

[59] The evidence of Mr Hall, the expert agronomist called by Bundaberg was that 8-10

hectares of the site at the northern end can be classed A, most of the balance class

B and a little class C. Mr Hall considered that the Class B land was only suitable

for irrigated agriculture, with limitations. The soil is fragile, subject to erosion and

compaction by machinery and he had concerns about its long term sustainability.

With those limitations he considered it suitable only for cane. All in all he was of

the firm view that the site could not be put economically to agriculture.

[60] Class B land is classed as good agricultural land only where agricultural land is

scarce. From my many visits to the greater Bundaberg area, from the various

maps which were tendered and from my inspection of the site and much of the

surrounding area I would not consider agricultural land to be scarce whether that

scarcity is measured on the local scale or the larger regional scale. However to err

on the side of caution I propose to regard the site as falling within the Rural

Protected PDLU.

[61] Objectives for Rural Protected Areas include:

“5.1.1 To protect and preserve productive and potentially productive agricultural land for sustainable primary industry use.

and their implementation provisions include:

“5.1.2 The land designated as Rural Protected on the Strategic Plan Map includes the more significant areas of good 22

agricultural land in the Shire. The designated areas generally exclude locations where development for non- urban residential has already alienated future potential for rural use and includes areas considered by Council to be suitable and available for sustainable rural production;

5.1.3 In areas designated for Rural Protected, the Council will encourage the retention of such areas for primary industry purposes or purposes which are compatible with agricultural activities by limiting opportunities for incompatible development and the encroachment of urban development;

5.1.4 The land designated Rural Protected on the Strategic Plan Map will be maintained for rural purposes by the Council. Applications for development for other than that which is provided for in this plan will generally be refused by the Council.

5.1.9 If, however, due to unforeseen circumstances it can be demonstrated that other suitable land is not available and it can be shown that the particular development will be of significant benefit to the shire and its residents, Council may consider such a development within the rural protected category. Provided that, such consideration shall not be extended to any development for residential or low-density residential purposes.

Council when considering such developments will give consideration to the following –

(1) the possible impact on present and future agricultural practices in the area;

(2) the level of traffic to be generated by the facility is satisfactory to Council and compatible with the road standard existing or to be provided by the facility;

(3) disposal of waste from the site on a basis satisfactory to Council;

(4) the impact on the surrounding amenity of the area and whether any impact is limited to a level which is considered satisfactory to Council;

(5) other matters particular to the type of development being proposed.

5.1.10 Where non-rural development is approved in accordance with the Strategic Plan adjacent to or within a rural protected area Council will require appropriate buffer areas which may incorporate natural or man-made features to be incorporated within the development. …”

23

[62] It cannot be said that any of the above provisions absolutely turn their backs on the

possibility of non-rural uses in the Rural Protected Areas. The third and fourth

paragraphs of s.2.5.1 (which I have listed in para [57]) concede that an acceptable

non-rural use may be found by reference to other provisions in the Strategic Plan.

Section 5.1.1 emphasises rural uses, but s.5.1.4 provides for refusal of non-rural

uses only “generally”. Importantly, s.5.1.9 is a clear provision that in proper

circumstances such a use can be permitted and provides the considerations which

will apply. I note the qualification that this occurs in “unforseen circumstances”

when “other suitable land is not available”, and the requirement that the particular

development will be of “significant benefit to Burnett and its residents”.

[63] Mr Hall’s evidence was that, at least in the current economic climate relating to

sugar cane, a farmer could not make a living on the site. It is conceivable that the

site could be a useful addition to another cane farm but, despite the active

participation in this appeal of cane farming co-respondents, no evidence was led

about that. Nor was there any evidence of some alternative profitable agricultural

production. I am conscious of the onus of proof on this appeal but the lack of any

concrete suggestion of economic agricultural use of the land cannot be ignored.

[64] To state the notoriously accepted obvious, the sugar industry in Queensland is in a

parlous state and the emphasis now seems to be on reduction of scale,

consolidation and possible diversification. To argue that every hectare of cane

producing land should be preserved to provide for a resurgence of the halcyon past

would be to defy the evidence. That is especially so if the land in question is a

small area of moderate quality land at the extreme end of the catchment of the

nearest mill.

[65] In a rural Shire like Burnett it is not surprising that the Strategic Plan emphasises

the protection of rural land but the statements which make that emphasis cannot,

as King Canute is said to have tried to do, prevail over reality. Regrettable as it

may be to many, this site is no longer a valuable piece of agricultural land and it is 24

most unlikely that it ever will be again. So a responsible planning authority should

consider such alternative uses for it as the provisions of the Strategic Plan permit.

[66] That consideration must take place in an actual, existing context. At this stage

Burnett does not need a new landfill; Bundaberg does. In 3.7 years Bundaberg will

have nowhere to put its waste and a city in that situation will be unliveable. I reject

the suggestion that Bundaberg would be able to make use of an existing landfill in

Burnett, at Bargara, for reasons to which I will return.

[67] This reference to need does not introduce a new issue into the appeal. I am not

speaking of “need” in the traditional planning sense of something which on balance

improves the quality of life of relevant residents (see for example Roosterland Pty

Ltd v BCC (1986) APAD 58 at 60). Actually, it is not really so much a question of

need as of community well-being, which is an identified issue in this appeal.

[68] The important thing to bear in mind is that if Bundaberg City should become

unliveable, the residents of Burnett Shire will suffer greatly. The city and the shire

have a symbiotic relationship. Bundaberg City relies on Burnett Shire for much of

its economic and social values. Burnett people support Bundaberg’s commerce.

In return Bundaberg provides for Burnett’s residents the huge infrastructure that

only a ’s size can provide: wide-scale shopping, professional

services, government offices, schools, hospitals, airport, etc.

[69] So the need of Burnett residents for this landfill is arguably just as urgent as that of

the need of Bundaberg residents. Emphasising the point is Burnett’s recognition

that a landfill should be a regional matter (see para [8] above). In the light of these

considerations Burnett should have been especially careful to assess all matters

relevant to Bundaberg’s application to it. Virtually all of the technical matters have

now disappeared because the consultant experts have decided that there is

nothing to debate. 25

[70] What then to make of the apparent and obvious cautions expressed by the

Strategic Plan and the fact that, if the landfill is to be established on the site, about

40 hectares of reasonably good quality agricultural land will be lost.

[71] First, it is important to bear in mind the context of Bundaberg’s application, that is,

its urgency and importance not only to Bundaberg but also to Burnett and indeed to

the entire region of which Bundaberg City is the hub. Second, there is the lack of

importance which this area of agricultural land bears to Burnett because of its

modest size, its marginal quality and its lack of productive capacity. Third, one

must bear in mind the statements of principle of interpretation of planning statutes

which I have set out in para [51] above, and to ask oneself what is the overall thrust

of the Strategic Plan, rather than to concentrate on isolated statements in it.

[72] In my view one need look no further than the “basic aims” of the Strategic Plan

which I have set out in para [52]. They state the obvious, that the Strategic Plan

aims at promoting the growth and the health (bodily, economically and ecologically)

and well being of the Shire within the Bundaberg district. One may ask how those

aims could be achieved if the context set out in paras [68]-[69] is ignored. In my

view they could not be. As to the specific cautions expressed in the Strategic Plan,

the fulfilment of the basic aims of the Strategic Plan would clearly provide the

promotion referred to in the third cited paragraph of the Rural Protected PDLU and

would satisfy the qualification which ends the fourth cited paragraph (see para [57]

above). It can also be seen from the findings I have made on the identified issues

of the appeal that the five considerations appended to s.5.1.9 (para [61] above)

have been satisfactorily met.

[73] At this point it is convenient to deal with SPP 1/92 which is made relevant by the

second paragraph of the Rural Protected PDLU, cited in para [57] above. The

policy, like the Strategic Plan, proceeds on the basis that:

“The Queensland Government considers that good quality agricultural land is a finite natural and state resource that must be conserved and managed for the longer term. As a general aim the exercise of 26

planning process should be used to protect such land from those developments that lead to its alienation or diminished productivity.”

Section 1.1 requires local governments and this Court to have regard to the policy

when carrying out their planning functions.

[74] However SPP 1/92 qualifies the general aim in appropriate cases. Thus:

“4.6 Cases will arise where local authorities have to consider development proposals on good quality agricultural land. In such instances, a ‘key’ principle should be whether an overriding need in terms of benefit to the community can be demonstrated for the development at that particular location.

I see the matters I have discussed already as demonstrating an “overriding need

in terms of benefit to the community” and this is supported by a provision of the

Planning Guidelines for SPP 1/92 which sets out tests for determining whether an

overriding need has been proven:

“4.14 State Planning Policy 1/92 cites the example of a tourist development that could provide the opportunity to diversify the economic and employment base of an area and support a growing State industry. A mining proposal is likely to offer similar advantages locally, as well as providing significant export revenue for the State as a whole. Finally, major infrastructure (for example, roads, railways, aerodromes and dams) usually have specific siting/location requirements that might require the loss of some good quality agricultural land.”

[75] Finally, there is a requirement in Guidelines for SPP 1/92:

4.15 These examples should not be regarded as a justification for every proposal involving such developments. Each proposal should still be assessed on its merits to determine the degree of community advantage.”

[76] This provision mirrors provisions contained in the Strategic Plan. Each of them

concedes that the general prohibition on the loss of quality agricultural land is not

absolute but may in proper cases be relaxed. However each requires the local

government to consider whether “other suitable land is not available” (Strategic

Plan s.5.1.9) and an assessment on the merits (SPP 1/92, s.4.15). Was there an

assessment of this site on the merits? Was no other suitable land available?

Counsel for Burnett and the co-respondents urged me to determine these 27

questions contrary to Bundaberg. Bundaberg, of course, pointed to the

investigations which I have described in paras [8]-[13] above as justifying the

opposite answer. Further, Bundaberg points to the subsequent scientific tests and

the expert evidence given in this appeal as confirmation of the selection of this site

(or to put it another way, as proving compliance with s.5.1.9 of the Strategic Plan,

set out in para [61] above).

[77] In a perfect world and if blessed with unlimited finances, Bundaberg would have

subjected all of the other land identified by the Burnett investigation to the full

barrage of expert scientific scrutiny which ultimately it applied to this site. Whether

any of them would have been found to have been better suited than this site is

impossible to say with absolute certainty, but I doubt it because as Mr Ryter

(Bundaberg’s consultant planner) said, it is very rare to have, in a case involving

such a sensitive subject as a landfill, such unity of opinion among the experts and

support from them as this appeal has demonstrated. That strongly suggests that

the finding of a better site was an unlikely result.

[78] But it may not be necessary to go so far as that. No planning scheme demands

perfection. If the Burnett scheme did that, Bundaberg would have been required to

investigate fully not just the 28 Burnett sites but all of the land in the Burnett Shire

and, arguably, in the neighbouring shires of Isis and Kolan too. That task would

have taken a very long time and involved an immense cost. No applicant can be

required to go to these lengths. I note that Quirk DCJ was of a similar view in

Logan & Ors v Burnett City Council (1997) QPELR 18 at 20.

[79] Mr Hinson SC for Burnett, submitted that the evidence has revealed the actual

availability of a landfill and thus has actually established that the site is not the only

available suitable site. The suggested landfill is one currently operated by Burnett

at Bargara. At the very least, he submitted, the Bargara landfill is available to take

enough Bundaberg waste to reduce the urgency of Bundaberg’s need for a new

landfill and to permit time for proper evaluation of other available sites. 28

[80] I do not accept that the Bargara landfill can properly be described as “available” as

s.5.1.9 requires or as establishing that there is alternative land of poor agricultural

quality (s.4.12 of the Guidelines to SPP 1/92).

[81] I accept Mr Ure’s submission on behalf of Bundaberg that it is most probable that

an application for material change of use would be necessitated if waste in any

meaningful quantity were to be diverted to the Bargara landfill from the existing

Bundaberg landfill. The Bargara landfill is close to the highly sensitive Mon Repos

turtle rookery and a school. It is in the vicinity of a large number of residences. It is

not as central as the site of this appeal nor is traffic access as convenient and non-

controversial. So it is likely that the material change of use application would be

hotly contested by submitters, with an appeal being a likely outcome. All of this

would not just be costly but lengthy and the possible result would be failure,

needing a complete re-start. Bundaberg does not have the time and money to

spend on this. So I am of the opinion that the Bargara site does not qualify as

“available” nor “alternative”, nor as a temporary solution to Bundaberg’s need.

[82] Thus, strict compliance with the Burnett Scheme was, in my view, impossible. But

if that is an incorrect finding and the proposed landfill is in conflict with the Strategic

Plan, by selecting the preferred site from the Burnett investigation and establishing,

as it has, that the site has no disabling features, Bundaberg has satisfied me on the

balance of probabilities that the conflict is very minor indeed. On the other hand

the contribution to community well being which the landfill will bring about is very

large, one might say overwhelming. There are no other negative planning aspects

of any real consequence. It follows that I am satisfied that there are sufficient

planning grounds to justify approving the application despite such conflict.

Submissions of co-respondents

[83] The many co-respondents to this appeal were not legally represented but at

different times Mr and Mrs Doughty and Mrs Amsler conducted their case. Each of 29

them had clearly worked hard at their task by reading widely, consulting various

agencies and of course they used their local knowledge. In the upshot I have

decided that their efforts were unsuccessful and I think I should, briefly, say why.

[84] Cases such as this appeal are required by law to be decided on the evidence led at

the hearing. Where a witness gives evidence on a point and the evidence is not

contradicted by other evidence (or is obviously unreliable) then in general there is

no reason why that evidence should be rejected. Indeed it would be wrong to

reject it unless there be some compelling reason to do so. That is true whether it is

lay evidence of a fact or evidence given by an expert of the conclusion or opinion

which he/she reaches, using his/her expertise, from given facts.

[85] Evidence is not contradicted simply by asserting that it is not true or is mistaken or

(in the case of expert evidence) that there is a body of expert opinion to the

contrary. It is contradicted by calling witnesses to give the contradictory evidence

so that the opponent has the ability to cross-examine those witnesses. In such a

case the Court must then decide which witness is acceptable and which is not.

[86] In this appeal the plain fact of the matter is that much of the expert evidence was

not contradicted by other expert evidence, nor was any other valid reason

advanced to reject it. Where there was actually evidence to the contrary I have

attempted to explain why I here preferred one over the other.

[87] It is appropriate also to make some further comments about the specific concerns

raised by the submitters that their lifestyles would be adversely affected by this

landfill. First, the landfill, before it can be begun and throughout its life, will be

subjected to conditions imposed by Burnett, many of them at the instance of an

expert Queensland Government Agency. Second, complaints can be directed to

those agencies and to Burnett should it be thought that Bundaberg’s conduct of the

landfill breaches the conditions. Life, as someone once famously observed was 30

not meant to be easy. That especially extends to those who live on the land as

those of us who have done so will understand. The life of country people probably

involves and requires a greater “give and take” attitude than is required of their city

cousins.

Conclusion

[88] The appeal will be allowed but for now I adjourn it to allow the parties time to

negotiate all proper and necessary conditions.