In brief
The case of Douglas Phipps and Others v The Chief Executive, Department of Local Government, Infrastructure and Planning and The Chief Executive and Another; Douglas Phipps and Others v Somerset Regional Council [2018] QPEC 5 concerned two appeals to the Planning and Environment Court. The first was against the Council's refusal of a development application for a development permit for a material change of use (Intensive Animal Industry – poultry farm with 700,000 birds in 14 sheds) and an environmentally relevant activity. The second appeal was against the decision of the Chief Executive of the Department of Agriculture and Fisheries to refuse the environmental authority.

The proposed development was for the establishment of eight poultry sheds, each housing up to 50,000 birds as well as to increase the number of birds in the existing six sheds from 41,000 to a maximum of 50,000 each.

The main issue in the appeals was the potential of the proposal to cause an odour nuisance to the sensitive receptors, being the occupants of dwellings within the broader area.

The Court assessed the proposed development against the relevant planning instruments and found that the proposed development would likely cause an undue odour impact. Consequently, the Court dismissed both appeals.

Compliance with the planning scheme

The Court examined the proposed development for compliance with the relevant provisions of the planning scheme, namely the Strategic Framework, the Rural Zone Code, the Intensive Animal Industry Code and the High Impact Management Area Overlay Code.

In respect of the Strategic Framework, the Court noted that in respect of air and noise, the planning scheme sought "the maintenance of a high quality air and noise environment consistent with the natural/rural values of the region, the protection of the amenity enjoyed by sensitive land uses and the natural environment more generally".

The Court suggested that if the proposal was found to cause significant odour nuisance then it would be counter to the objective sought to be achieved in the strategic outcomes.

In respect of the Rural Zone Code, the Court noted that the proposed development will be in conflict with the provisions of the code where the proposal is found to be detrimental to the amenity of the area by reason of odour.

In respect of the Intensive Animal Industry Code, the Court noted that the purpose of the code included that the use not cause environmental harm or nuisance by way of air quality, and avoids any potential adverse effects on the amenity and character of the locality or nearby sensitive uses.

The relevant acceptable outcome, A01.5, which is specific to poultry farms, required compliance with an odour criteria of 2.5 OU, 99.5 per cent, one-hour average for a sensitive land use site in a Rural Zone.

Compliance with the relevant State Development Assessment Provisions

The Department of Infrastructure, Local Government and Planning was a concurrence agency for the development application made to the Council and was required to assess the proposed development against the relevant State Development Assessment Provisions.

The Department alleged conflict with a number of provisions of that module, in particular PO3, which relevantly provided that the activity be "designed and managed to minimise adverse effects on the amenity of the surrounding community".

The Department alleged that such a provision would be "offended in the event that the development application were found to have an undue and adverse impact upon amenity by reason of excessive odour".

Compliance with the regulatory requirements

The Chief Executive of the Department of Agriculture and Fisheries as the assessment manager for the development application for the environmental authority was required to assess the proposed development against the regulatory requirements, having regard for the matters in section 176(2)(b) of the Environmental Protection Act 1994 which relevantly included the standard criteria.

The regulatory requirements ultimately required the activity to be operated in a way that protects the environmental values of air by not discharging air contaminants that have an adverse effect on the environment.

The Department submitted that to the extent the evidence establishes that the proposal would likely cause a significant adverse odour impact, the development application should be refused.

Court found that the proposed development would likely cause an undue odour impact

In determining whether the proposed development would cause an adverse odour impact, the Court heard evidence from air quality experts called on behalf of the Appellant and both Departments.

The Court also considered the modelling prepared in the course of the application assessment process but noted that it was, by peer review, found to be "wanting". For example the modelling used a K factor input value of 1.5 when the accepted practice was to use a K factor of 2.2. The model also did not take into account the full number of birds that were sought to be accommodated in the proposal.

It is noted that the Appellant did not seek to rely on this modelling in the course of the trial, but rather sought to cast doubt upon the accuracy of any modelling at all and suggested that it was unfair and not in the public interest to apply the results of the odour modelling to the development application.

The experts for both Departments relied upon revised odour dispersion modelling which showed that the odour criteria would be exceeded for 26 sensitive land uses in proximity to the site and concluded that the proposed development would cause an odour nuisance.

The Court considered several assumptions in respect of the model including the planting of vegetative buffers and the impacts of an existing poultry farm immediately to the north of the subject site but ultimately accepted the evidence of the experts for the Departments and found that the proposal would likely cause an undue odour impact.

The Court further considered that there was insufficient need for additional chicken sheds in the area and that the economic benefits of the proposal were not sufficient to warrant overlooking the odour impacts of the proposal.

The Court consequently dismissed both appeals.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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