Insights

In brief - Change of use approval primarily challenged on air quality and odour concerns

In the case of Morgan v Toowoomba Regional Council & Ors and Allen v Toowoomba Regional Council & Ors [2013] QPEC 58, the Planning and Environment Court heard two appeals relating to a development approval for a material change of use for the expansion of a cattle feedlot on land located at Irvingdale. The issues for the court to determine primarily related to air quality, odour emissions and operational competency.

In one appeal, the developer, Peter Morgan, appealed against the conditions imposed by the Toowoomba Regional Council under the development approval. In the other appeal, David Allen, a submitter, appealed against the council's decision to approve the development.

The court dismissed Mr Allen's appeal and allowed Mr Morgan's appeal subject to conditions. The court also awarded costs against Mr and Ms McInnerney for the introduction of additional new evidence during the hearing.

Conflicting methodologies used by parties to argue separation distance between feedlot development and other uses

In deciding whether the proposed development adversely impacted on the air quality and odour emissions on other uses in the area, the court had to resolve conflicting methodologies in respect of determining the appropriate separation distances between those uses.

The developer, Mr Morgan, contended that:

• the appropriate separation distances should be ascertained by applying the "S Factor" method set out in the "Reference Manual for the Establishment and Operation of Beef Cattle Feedlots in Queensland". prepared by DPIF, and dated 2005 ("Feedlot Reference Manual");

• the Feedlot Reference Manual had been successfully used at a number of other feedlot sites in most states in Australia; and,

• when adopting the "S Factor" method the results indicated that the development, subject to relevant conditions, complied with the requirements of the Feedlot Reference Manual and provided for adequate separation distances between the proposed development and other uses in the area.  

The submitter, Mr Allen, contended that:

• odour modelling should be carried out and relied upon when determining the appropriate separation distance between the proposed development and other uses in the area;

• odour modelling had been supported by a number of research documents and was applied in the case of Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112

• the results of the odour modelling indicated that the required separation distances between the proposed development and uses in the area were significantly exceeded.

Feedlot Reference Manual accepted by court as appropriate method to assess adverse impacts

The court found in favour of the methodology adopted by the developer on the basis that:

• Mr Allen's approach contained three distinct errors relating to:

• wind direction and movement resulting from errors in topography;

• the configuration, size and dimension of the manure stockpile to be located on the site;

• the size of cattle pens;

• the objective of the Feedlot Reference Manual was to limit any adverse impacts and unreasonable interference with the amenity of neighbours to cattle feedlots;

• the proposed development would meet the requirements prescribed under the Feedlot Reference Manual and therefore, should meet the reasonable expectations of the residents in the area; and

• there would be no adverse air quality and odour impacts provided the proposed development be conditioned in accordance with the council's draft conditions of approval and draft conditions imposed by the Department of Agriculture, Fisheries and Forestry (as refined over the course of the hearing). 

Operational competency and capacity to comply with approval conditions called into question

The operational competency of Mr Morgan and his management team was called into question by Mr and Ms McInnerney and Ms Reimers in the Allen appeal.

Mr and Ms McInnerney and Ms Reimers contended that in the existing feedlot operation, Mr Morgan had not been able to comply with the conditions of his existing development approval. Consequently there was no certainty that Mr Morgan would comply with any approval of the proposed development granted by the court.

In support of their contentions, Mr and Ms McInnerney and Ms Reimers sought to rely on a number of complaints that had been made to the council in respect of the operations of the existing feedlot operation.

In response Mr Morgan submitted that:

• the complaints were not relevant to the determination of the appeals as they related to the existing feedlot operations;

• the complaints resulted from the existing stockpile of manure which had already been removed; and

• the complaints had not been independently validated. 

The court, although accepting the evidence of Mr and Ms McInnerney and Ms Reimers noted that:

• some aspects of the material put forward was strictly inadmissible and consequently no weight was given to it;

• the existing feedlot operations commenced prior to the introduction of the Feedlot

• Reference Manual and hence at that time, it was unclear as to the appropriate operating and maintenance procedures to follow;

• Mr Morgan, upon being advised of the complaints, took steps to deal with those complaints; and

• no serious action was taken against Mr Morgan by the council or the Department of Environment and Heritage Protection in respect of the existing facilities.

Conditions imposed by the council deemed to satisfy concerns raised by the submitters

Prior to the hearing of the appeals, a set of draft conditions of approval was agreed to by the council and Mr Morgan, which were refined over the course of the hearing to address the concerns and issues of Mr Allen and the submitters who had elected to join the appeals.

In this regard, the court noted that:

• the traffic, roads, noise, dust and landscaping issues had been resolved over the course of the hearing and consequently were not the subject of determination; and

• the issues associated with air quality and odour were appropriately addressed in the council's draft conditions of approval and draft conditions imposed by the Department of Agriculture, Fisheries and Forestry (as refined over the course of the hearing).

Costs awarded against Mr and Ms McInnerney for the introduction of additional new evidence

The court also awarded costs against Mr and Ms McInnerney for introducing new evidence during the hearing.

In the course of the hearing, Mr and Ms McInnerney sought leave from the court to introduce new evidence by their air quality and odour expert in respect of the appropriateness of the odour modelling.

Consequently, Mr and Ms McInnerney were ordered by the court to pay the costs incurred by each of the parties of and incidental to the introduction of the further evidence.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

Related Articles