Insights

In brief

The case of Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47 involved an appeal in the Planning and Environment Court commenced by Wattlevilla Pty Ltd against the Western Downs Regional Council's decision to refuse a development application on land located in Jimbour East for the following:

  • a material change of use for an extension to an abattoir (being a noxious industry); and 
  • an environmentally relevant activity, processing, not including rendering, 1000t to 5000t of meat in a year.

The court had to consider a number of issues including:  

  • the lawfulness of the existing abattoir;
  • the appropriateness of the proposed development having regard to the size, dimensions and location of the subject land, and its impacts on the amenity, ambience and character of the locality, adjoining premises and Jimbour Station Road;
  • the extent of conflict between the proposed development and the council's Wambo Shire Planning Scheme, and if the conflict could be justified by sufficient grounds.

The court determined that the abattoir was not a lawful use, and the proposed development was in significant conflict with the council's planning scheme and there were no sufficient grounds to warrant an approval of the proposed development despite such conflict.  As such the appeal was dismissed.

The court determined that the existing abattoir was not a lawful use

The council and Russell Pastoral Company contended that the existing abattoir was an unlawful use in that:

  • the existing abattoir was above the scale and intensity of the historic use as a slaughter house or abattoir;
  • no development approval had been issued in respect of the existing abattoir.

The court in finding that the abattoir was unlawful determined that:

  • historically, no town planning permit had ever been granted over the subject land authorising the use of an abattoir;
  • with the introduction of the Local Government Act 1936 and the council's superseded planning scheme, provision was made to allow for existing non-conforming uses to be carried out on the subject land provided the use did not materially change;
  • the evidence before the court suggested that the operation of the abattoir had materially changed over time;
  • it appeared that in the year 2006-2007, a material change of use had occurred and consequently, Wattlevilla was required to obtain a development approval from the council to legalise the use.
  • Impacts on amenity from measurable sources such as noise and air quality were not to be simply determined by the evidence of experts whose joint opinions were nonetheless important for the court's consideration

In considering the impact of the proposed development, the court had particular regard to the noise and air quality impact, and its impact on the visual amenity and landscape. 

The court observed relevantly that:

  • In relation to the area of noise, the expert witnesses agreed on more appropriate noise control and management measures to protect the locality specifically the uses at Jimbour House and the objectors' premises. Wattlevilla accepted all of the conditions proposed by the experts.
  • In relation to the area of air quality, the expert witnesses also agreed on further conditions in relation to the design and management of the proposed development. Wattlevilla accepted all of the conditions proposed by the experts.
  • In relation to surface water, ground water and effluent disposal, the expert witnesses agreed to a set of conditions to be imposed on the proposed development.  Wattlevilla accepted all of the conditions proposed by the experts.  
  • In relation to flooding, it was resolved over the course of the joint expert meeting process.

Based on the findings during the joint expert meeting process, Wattlevilla asserted that in its view, such matters were no longer in contention.  However, the council and Russell Pastoral Company maintained their respective views that despite the expert witnesses reaching agreement, the proposed development was still in conflict with the council's planning scheme in relation to the discrete issues of noise and air quality. 

The court accepted the view of the council and Russell Pastoral Company, and in doing so, noted that impacts on amenity from measurable sources such as noise and air quality were not to be simply determined by the evidence of experts whose joint opinions were nonetheless important for the court's consideration.

The court determined that the proposed development conflicted with the council's planning scheme

The court determined that the proposed development was in conflict with the council's planning scheme.  In doing so the court determined that:

  • the concept of amenity was wide and flexible and not necessarily determined by reference to the evidence of experts alone, and accordingly, the standard of amenity that residents were entitled to enjoy or expect uses to be assessed objectively having regard to the planning scheme and its intent for the development of that area;
  • the planning scheme would reasonably lead residents to an expectation that there should be no amenity impacts as a consequence of the proposed development; 
  • whilst non-rural activities were contemplated in the rural zone in which the subject land was located, the rural zone code sought to protect the amenity of the locality;
  • the proposed development represented a highly prominent visual feature because of the size of the complex, proximity to the road frontage and the character of the use;
  • the proposed development was significantly in conflict with the provisions of the council's planning scheme, generally relating to operating hours, delivery of goods for non-rural activities, design location and setbacks, lack of separation distances between adjoining uses, landscaping and rural character.

The court determined that there was no need which would warrant an approval of the proposed development

The court considered whether there were sufficient grounds to warrant an approval of the proposed development, in particular whether there was sufficient need which would warrant an approval.  The court determined that such need would be decided from the perspective of the community and not that of the applicant for a development, its competitors or objectors. 

In this regard, the court determined that Wattlevilla had not demonstrated any community need for the proposal, as the benefits in relation to employment, infrastructure and economics were minimal.     

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.​

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