Planning & Environment Court of Queensland
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PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bundaberg 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: Brisbane 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 Isis Highway, 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 Burnett River 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 Bundaberg Region 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.