During the course of 2021, the Planning and Environment Court heard three appeals against decisions of the Ipswich City Council to refuse applications for three separate waste projects. The decisions were heard consecutively by His Honour Judge Williamson KC. Two appeals were dismissed and the other was allowed. In this alert, we look back at the decisions and extract key learnings from the judgments.
Given this article covers three cases it is not short, however, it is worth reading in full because skilling up on the latest from the P&E Court is never a ‘waste’ of time.
In a series of cases before the court, various activities and their associated implications have come to the forefront:
|
Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors |
Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors |
Austin BMI Pty Ltd v Ipswich City Council & Ors |
Activities applied for |
Using a former coal mine as a waste facility comprising resource recovery, landfill and ancillary uses |
Increase the lateral and vertical extent of an existing waste management facility that has been operating since the mid to late 1990s |
Using a former coal mine as a waste facility comprising resource recovery and landfill |
Parties |
• Lantrak Property Holdings (Qld) Pty Ltd (appellant);
• Ipswich City Council (respondent);
• the Chief Executive, Department of State Development, Manufacturing, Infrastructure and Planning (co-respondent by election); and
• a number of submitters (co-respondents by election) |
• Cleanaway Solid Waste Pty Ltd (appellant);
• Ipswich City Council (respondent);
• Powerlink Queensland (co-respondent by election);
• the Chief Executive, Department of State Development, Manufacturing, Infrastructure and Planning (co-respondent by election); and
• two submitters (co-respondents by election) |
• Austin BMI Pty Ltd (appellant);
• Ipswich City Council (respondent);
• the Chief Executive, Department of State Development, Manufacturing, Infrastructure and Planning (co-respondent by election);
• Cleanaway Solid Waste Pty Ltd (co-respondent by election); and
• Haenke No.3 Pty Ltd (co-respondent by election) |
Proposed operating life |
50 years |
5 to 10 years |
14 to 18 years |
Properly made submissions |
250 |
320 |
137 |
Level of assessment |
Impact assessable |
Impact and code assessable elements |
Impact and code assessable elements |
Outcome |
Dismissed |
Dismissed |
Allowed and His Honour will hear from the parties regarding conditions |
The issues
Lantrak
- Whether it has been demonstrated the environmental impact and risk of the proposed development is acceptable?
- Whether it has been demonstrated the proposed development will rehabilitate the land?
- Whether the proposed development will have an unacceptable impact on amenity (in an intangible sense)?
- Whether findings in relation to questions 1, 2 and 3 demonstrate compliance with the planning scheme and Activity Code?
- Whether the proposed development will act as a disincentive for resource recovery and is inconsistent with contemporary waste management policy?
- Whether there is an economic, community or town planning need for the proposed development?
- Whether the proposed development satisfies the need test stated in the draft Strategic Framework attached to the Statement of Proposals
Cleanaway
- Whether it has been demonstrated that the environmental impacts and risks of the proposed development are acceptable?
- Whether the impacts of the proposed development in amenity terms will be acceptable?
- Whether there is compliance with those parts of the planning scheme and Activity Code going to the acceptability, or otherwise, of environmental and amenity impacts?
- Whether the proposed development will sufficiently promote resource recovery?
- Whether the proposed development is ‘sustainable development’?
- Whether there is an economic, community or town planning need for the landfill component of the proposed development?
- Whether an approval would delay the rehabilitation of the land and its redevelopment for uses anticipated by the planning scheme?
- Whether an approval of the proposed development would be contrary to planning principle having regard to the above issues?
- Whether compliance is demonstrated with those parts of the planning scheme and Activity Code informed by the above issues?
- Whether there are relevant matters that favour approval in the exercise of the discretion
Austin BMI
- Whether the land is appropriate for a waste landfill, assessed on a first principles basis?
- Whether the proposed development is inappropriate in terms of landfill design?
- Whether the proposed development is inappropriate in terms of environmental performance?
- Whether the proposed development will have unacceptable amenity impacts?
- Whether the development complies with the planning scheme?
- Whether the development complies with the Activity Code in the 2018 and 2020 Temporary Local Planning Instruments?
- Whether the development complies with State Code 22?
- Whether there is a need for additional landfill airspace?
- Whether the proposed development would act as a disincentive to recycling and resource recovery?
- Whether there are further matters supportive of an approval?
- Whether the development application should be approved or refused in the exercise of the discretion under s 60 of the Planning Act 2016 (Qld) (Planning Act)?
The judgments
Lantrak
In assessing the environmental impact and risk of the proposed development, His Honour said, at [197], that, save for two qualifications, he was 'satisfied the evidence led by Lantrak established, in theory, the proposed development could be conditioned so it is designed, constructed, operated and maintained to preclude adverse environmental impacts' (His Honour's emphasis added). However, at [224], His Honour elaborated that 'To convert theory into reality, Lantrak’s case requires the Court to be satisfied, inter alia, that:
- the engineering control systems and management measures proposed to manage environmental impacts can be implemented and maintained to preclude adverse results for at least five to six decades; and
- the landfill, once started, will be completed'.
At [282-283], His Honour considered that '…it has not been demonstrated the proposed landfill, once started, can be completed either in a timely way, or as proposed’ and concluded that 'the proposed development would involve an unacceptable level of environmental risk. This warrants refusal of the development application in its own right'.
At [374], His Honour concluded that 'The point that has caused me greatest concern is the scale of the proposed landfill. In short, the 50 plus year capacity is, on the evidence, too great. The scale of the use underpins why I have concluded the proposed development:
- 'is an unacceptable risk in environmental terms;
- would not lead to the rehabilitation of the land in a timely way, if at all;
- is an unacceptable risk in terms of legacy issues, which has the potential to unfairly burden future generations;
- would have a significant and detrimental impact on amenity (in an intangible sense); and
- does not comply with the planning scheme'.
His Honour considered, at [379-380], 'whether this [was] an appropriate case to approve the development in part, or subject to conditions'. In deciding to refuse the appeal, His Honour gave the following reasons:
- '[Lantrak] did not seek approval for a landfill with a life in the order of 20 years;
- [Lantrak] did not invite the Court to approve the development in part;
- [Lantrak] is not precluded from making a fresh development application'.
Cleanaway
Cleanaway has an existing waste management facility. At [57], His Honour noted that 'The evidence revealed that Cleanaway’s management of the existing facility is poor' and, at [220], 'The evidence did not establish that a solution has been identified and implemented for each and every one of these difficulties to preclude adverse results’.
His Honour held, at [221-222], that it was relevant to consider Cleanaway’s past performance to determine whether, in the context of future performance, it has the capacity to deal with an operational difficulty on the land in a way that will preclude unacceptable results.
At [222], His Honour found that the evidence going to past performance:
- 'confirms the land has a number of constraints impacting on the successful operation of a landfill that is unable to gravity drain and is reliant on engineering solutions to prevent leachate migrating to, and contaminating, the receiving environment;
- confirms the management of known constraints (in the context of a landfill that does not have the benefit of gravity drainage) is difficult, even for a large and well known operator;
- suggests conditions imposed on relevant authorities, despite best intentions, have not precluded poor management practices, nor, to adopt the words of Judge Quirk, have they precluded ‘unacceptable results’;
- indicates there is a need for Cleanaway to significantly improve its approach to the management of the land and the existing use; and
- makes good the proposition that there is a relationship between non-compliance with conditions of an authority, such as an EA, and increased environmental risk'.
At [400-402], His Honour noted that 'The findings I have made with respect to amenity and environmental impacts are, in my view, symptomatic of development that is of an inappropriate scale for the particular circumstances of the land and its surrounds. The non-compliances with the planning scheme identified above are not technical, textual or of no planning consequence. The non-compliances sound in adverse amenity impacts. They also involve an unacceptable level of environmental risk. The non-compliances with the planning scheme are serious in nature'.
At [446], His Honour concluded that 'The evidence establishes the land is constrained. It has not been demonstrated the proposed landfill extension can be undertaken in a manner that appropriately co-exists with those constraints. This manifests in three ways: (1) as an unacceptable risk of environmental impact; (2) in the form of adverse amenity impacts; and (3) material non-compliance with the planning scheme and State Code 22'.
His Honour held these to be 'compelling reasons for refusal' and that 'items (1) and (3) are sufficient to warrant refusal of the development application in their own right'.
Austin BMI
In Austin BMI, at [235], His Honour identified a theme of the submissions that 'the proposal should be refused because it serves to perpetuate, wrongly, the notion Ipswich is a dumping ground for waste generated by, and for the benefit of, other communities'. At [238], His Honour stated that he did not accept the submissions as a reason for refusal for reasons including that:
- the emissions could be dealt with appropriately by conditions;
- other amenity impacts were not supported by evidence;
- the planning scheme and later expressions of planning intent anticipate waste disposal facilities and promote the rehabilitation of degraded sites such as the land the subject of the appeal; and
- the submissions did not take into account the character and amenity of the locality which is already influenced by existing development of the kind proposed.
At [790], His Honour considered that 'the resource recovery component is an integral part of the proposed use. It is co-located with the landfill, which has recognised benefits and represents a significant investment in resource recovery and recycling (in the order $19 million). This investment is not tokenistic.
The facility, in combination with the experience and expertise of Austin, will, in my view, make a positive contribution to the achievement of resource recovery targets in South East Queensland'.
At [854], His Honour was satisfied that 'an approval, granted subject to conditions, aligns with the planning scheme' which 'attracts significant weight in the exercise of the planning discretion' and 'is a compelling feature of the case in favour of approval'. At [861], His Honour quoted and agreed with Judge Quirk's words in Mackay v Brisbane City Council [1992] QPLR 65 that 'one would need strong reasons for refusing a development application which on its face is consistent with the intent and requirements of the relevant provisions'.
Key learnings
Landfill
His Honour remarked in Austin BMI, at [10], that 'All communities, irrespective of their size and composition, generate waste. Waste can take many forms, including putrescible or non-putrescible. There has been an appreciable shift in community attitudes towards the responsible management of waste, including its reuse and final disposal. Whilst this shift is undoubtedly a positive thing, it will still be necessary to direct a proportion of the waste generated by a community to landfill for disposal; not all waste is suitable for recycling, recovery, reuse or repurposing. In such circumstances, it can be said with confidence that landfill facilities are, and will remain, necessary pieces of community infrastructure'.
And in Lantrak, at [98], 'it [was] said in many submissions that landfill is not ‘rehabilitation’'. However, His Honour held, at [99], that he was 'unable to agree with this assertion. Filling a former mining void, such as that here, with non-putrescible waste can lead to the rehabilitation of land…This is, however, subject to an important qualification; the end result must be a self-sustaining landform'.
Assessment framework
On the assessment framework for impact assessable development, His Honour observed in Lantrak, at [88], Cleanaway, at [103], and Austin BMI, at [112], that:
- ‘the ultimate decision called for when making an impact assessment under ss 45 and 60 of the PA is a ‘broad evaluative judgment’;
- in contrast to its statutory predecessor, the discretion conferred by s 60(3) of the PA admits of more flexibility to approve an application in the face of non-compliance with a planning scheme;
- the exercise of the discretion under s 60(3) of the PA is subject to three requirements, including that it be based upon the assessment carried out under s 45; and
- the PA does not alter the characterisation of a planning scheme – it remains a reflection of the public interest'.
Compliance with the planning scheme
His Honour’s comments in Austin BMI regarding significant weight being given to compliance with the planning scheme, as extracted above, should be noted.
His Honour stated in all three cases that the planning scheme is a reflection of the public interest. In Austin BMI, at [114], His Honour stated that ‘a planning scheme is not the only source of information about the public interest’ given that:
- ‘the PA, unlike its predecessor, does not mandate refusal of an impact assessable application where there is conflict with a planning scheme – the planning scheme no longer has assumed primacy in the assessment process;
- no provision in the PA suggests assessment benchmarks are the only source for discerning the public interest for an impact assessment; and
- the assessment and decision-making framework permits the assessment manager to consider a broad range of ‘relevant matters’ (s 45(5)(b)) in the exercise of the planning discretion, including matters from which the public interest or planning policy may be discerned – it is an examination of the assessment benchmarks and, where appropriate, relevant matters, that permit the decision maker to reach a balanced decision in the public interest’.
State Development Assessment Provisions
In all three cases, His Honour noted that there was ‘uncertainty as to whether the State Development Assessment Provisions are a mandatory consideration or a relevant matter to which regard may be had in the assessment and decision making process’ (Lantrak, at [93], Cleanaway, at [107], and Austin BMI, at [120]). Ultimately, His Honour considered that it was unnecessary to express any concluded view on this for the purpose of deciding the appeals.
However, Her Honour Judge Kefford considered this question in detail in Archer & Anor v Council of the City of Gold Coast & Ors [2022] QPEC 59 (Archer) at [34] to [72], [76], [87] to [95], [101], and [464]. In Archer, Her Honour considered that, for impact assessment, compliance with the State Development Assessment Provisions is a relevant matter against which development may be assessed.
Town planning need
His Honour stated in Austin BMI, at [734], that 'The planning scheme does not require Austin BMI to prove there is a need, in a town planning sense, for the proposed development’. Although not required, it was advanced in the appeal as a relevant matter in identifying whether the requisite need exists, His Honour identified, at [736], that 'the demonstration of need, in a town planning sense, involves the identification of a latent unsatisfied demand, which is either not being met at all or is not being adequately met by the planning documents in their present form'. On need, His Honour found in Lantrak, at [344], and in Austin BMI, at [737], that:
- 'need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire;
- a thing is needed if its provision, taking all things into account, improves the physical well-being of the community;
- need does not connote a pressing urgency but relates to the well-being of the community;
- a use is needed if it would, on balance, improve the services and facilities available in a locality'.
Interestingly, in Lantrak, at [372], His Honour noted that 'The strength of the need here is not reduced, in my view, by the approval that will follow in the Austin [BMI] appeal. I am satisfied that approval, if acted upon, would not meet all of the demand for private non-putrescible landfill airspace in South East Queensland. There is room for two. The presence of two landfills would ensure there is competition and choice for the community. This is a matter of public interest'.
This comment may provide comfort to those considering whether to apply for a new landfill development application.
Compliance with approvals
His Honour’s comments on compliance are interesting.
In Lantrak, at [231], His Honour stated that 'Ordinarily, this Court assumes, in the context of a merits appeal, conditions imposed on any approval would be complied with… This is not to say a different view may never prevail'. At [232], His Honour said that he was not persuaded to 'depart from the ordinary course' based on the technical evidence as the staged approach to implementing control measures was held to 'preclude adverse results for the life of the proposed use'.
In contrast, in Cleanaway, His Honour determined that, based on the evidence, compliance with proposed conditions could not be achieved. At [316], His Honour held that 'non-compliance with conditions increases the level of environmental risk' and, on the facts, 'an unacceptable risk of non-compliance with conditions intended to manage adverse environmental impacts' was established.
If you would like to know more about these judgments or P&E Court appeals, please get in touch with us.