Was the community given a fair deal when Redland City Council approved an 18 months extension for development of the chicken poo power plant at Mt Cotton?
The Council’s handling of this contentious matter leaves many questions unanswered, such as:
- Have local residents been dealt with fairly?
- Why did Council not oppose the 2011 extension application during the court case?
- Did Council act properly in deciding to grant the latest extension?
Have local residents been dealt with fairly?
This project was first proposed by Cleveland Power Pty Ltd more than 10 years ago. It resulted in 332 objections out of 333 submissions during the public consultation process. People were concerned about odour, health impacts and environmental issues. Proximity to Mt Cotton State School was of particular concern to many in the community. Regardless, the Council approved the project. Following a resident’s appeal, the Council’s approval was upheld by a court in 2007. The court decided that the development approval would expire in November 2011.
The 2011 application for extension and court case
On the last day of the approved development period Cleveland Power applied for an extension. This application was refused by the Council (led by Mayor Hobson) on the basis of an extensive report by Council officers.
Cleveland Power appealed the Council’s 2011 refusal decision in the Planning and Environment Court. The Council is reported to have spent $340,000 on legal costs responding to the appeal. But when the matter got to court, in March 2013, the Council (now led by Mayor Williams) offered no arguments against granting the extension. This backflip has never been properly explained to the community. There is no account of it in any publicly available Council records or in the records of this court case: Cleveland Power P/L v Redlands Shire Council (2013) QPEC (Files 5192 of 2011).
The Judge said he put little weight on the Council’s change of mind. But we will never know what might have happened if the Council had advocated strenuously on behalf of the community with the benefit of legal advice obtained by Council, at considerable expense, prior to the court case.
The community deserves a full explanation of why the Council did not advocate against granting the extension during the 2013 court case.
The latest extension
The development approval was extended by the court to 20 March 2015. Again, the project stalled and on the last day of the development period a further extension was sought. At its meeting on 6 May the Council voted to extend the development approval period by 18 months to 20 September 2016.
In considering the application for an extension, councillors were directed by officers to Section 383 of the Sustainable Planning Act which states that in considering a request for an extension, the assessment manager (i.e. Council) must only have regard to:
(a) the consistency of the approval, including its conditions, with the current laws and policies applying to the development, including, for example, the amount and type of infrastructure contributions, or infrastructure charges payable under an infrastructure charges schedule; and
(b) the community’s current awareness of the development approval; and
(c) whether, if the request were refused—
(i) further rights to make a submission may be available for a further development application; and
(ii) the likely extent to which those rights may be exercised; and
(d) the views of any concurrence agency for the approval given under section 385.
Community awareness of the chicken poo power project
The Officers reported that the legal situation in 2015 was by and large no different to that in 2013. This, despite reporting that since 2011 there had been more than 400 new lots in the locality. But since the application was lodged in 2004 it is estimated that there are now a further 1,000 new homes in the vicinity and the population has grown by 3,000 people. The normal churn as people move in and out of the locality means further changes to the make up of the community.
The project is located in Division 6 represented by Cr Julie Talty. She reported to the Council meeting that her community was aware of the application to extend the approval as she had written to the local community on the matter. This was disputed by a resident in the public gallery. It seems that Cr Talty did not issue her letter until 4 May which means that many people did not receive it until after the Council meeting. Cr Talty’s letter, with attached copy of the decision from the 2013 Court case, may have perplexed recipients not accustomed to the subtleties of planning law.
During the Council’s recent deliberation it was stated, by Deputy Mayor Alan Beard, that the developer’s community consultation had been “less than satisfactory” and “misleading”. Cr Talty advised other councillors that she had just resigned from the committee liaison committee.
Government policies relevant to planning decisions change from time to time as new information and issues arise.
There is an increasing level of concern about harm to people from airborne particulates, especially very small particles (pm2.5) and dioxins. This is discussed in a 2013 Senate Committee report on Impacts on health of air quality in Australia.
An Australian Medical Association submission to the Senate Inquiry stated:
In terms of potential to harm human health, particulate matter (PM) is one of the most important pollutants as it penetrates into sensitive regions of the respiratory system, contributing to significant acute and chronic health problems and, potentially, premature mortality. Despite a substantial and compelling body of evidence demonstrating the short- and long-term health impacts of particulate matter (PM), Australia standards and regulations relating to particulates lag behind international best practice and reveal significant shortcomings. Existing epidemiologic evidence indicates that there is no lower limit of exposure to particulates below which there is no impact.
In 2012 the Government issued planning guidelines for meat chicken farms. Driven by bio-security concerns(including Avian Flu) these guidelines call for separation of 1,000 metres between new and existing meat chicken farm complexes and 5,000 metres between a meat chicken farm complex and a meat chicken breeder farm. The implications of these guidelines and the issue of Avian Flu is another example of an issue that could be more significant now than when the project was originally proposed in 2004.
The majority group of councillors clucked knowingly about the need to make their decision only having regard to a strict interpretation of Section 383 of the Sustainable Planning Act which defines just four matters that Council must have regard to. Then they proceeded to peck away at the issue of legal costs in the event that they were to refuse a decision and have to defend this decision in court. This discussion was outside the scope of the four matters that they were supposed to have regard to.
Cr Ogilvie proposed that Council obtain expert legal advice about the prospect of making a legally valid decision to refuse an extension. Not much interest from the majority group of councillors.
The bigger picture
To arrive at their position most Councillors put great weight on Section 383 of SPA. During the debate there was no reference to broad intend of the Sustainable Planning Act. But Section 5 of the Act deals with advancing the Act’s purpose which intends that decision-making processes:
(i) are accountable, coordinated, effective and efficient;
(ii) take account of short and long-term environmental effects of development at local, regional, State and wider levels, including, for example, the effects of development on climate change; and
(iii) apply the precautionary principle; and
(iv) seek to provide for equity between present and future generations….
The time lapse between the lodgement of the application and the recent request for an extension is almost generational. A massive population growth in the locality means that many people could have foisted upon them a heavy industry in the form of a power station.
How long should a development application be allowed to sit “in abeyance” creating uncertainty for the community?
Finally, the discussion ended and the Officers recommendation to approve an 18 month extension for the development application was approved by a margin of 6 to 5.
Surprisingly, Cr Talty voted against granting the extension. Would this have been the case if her vote was needed to achieve a majority vote for granting the extension?
Where to from here?
The chicken poo power project has development approval that is now valid until 20 September 2016. But does the project have a social licence to operate?
A social licence to operate has to be earned through effective community consultation. This project appears to have treated the community with contempt. If the developer wants to turn community perceptions around then genuine community engagement should be an early priority.