One operation or two?

One operation or two?

I make no claim to being a planning law specialist, however there looks to be a big unresolved question for BYV's Glan Devon proposal. It's a question Council must face directly because it relates to the nature of the application and approval. The question is simple: is the proposed facility one operation or two?

BYV proposes a biosolids operation that receives wet biosolids, dries them and ultimately turns them into a fertiliser product. That fits the Planning Scheme's High Impact Industry category for processing organic waste into soil conditioners.

It also proposes the Xetrov incinerator operation. This part of the operation receives non-recyclable waste and burns it at high temperature to produce heat. It is a waste incinerator, and the South Burnett Planning Scheme places a waste incinerator in Special Industry, not High Impact Industry.

Yet BYV's application is for High Impact Industry - Bio-fertiliser Facility. It does not separately identify the Xetrov waste-incinerator use, even though the Planning Scheme places waste incinerators in Special Industry.

That leaves Council with a fairly fundamental question: is Xetrov simply part of the biofertiliser operation because its heat is used by the dryer, or does the proposal actually contain two industrial operations — a High Impact Industry biosolids plant and a Special Industry waste incinerator?

The more you look at the proposed operation, the more important that question becomes. These are not simply two machines performing consecutive steps in a single production line. They have different inputs, different processes, different outputs and different contaminant streams. Xetrov receives NRW, prepares and burns it, and produces heat, combustion gases and solid residues. The biosolids side receives wet biosolids, dries them, produces condensate and ultimately makes a fertiliser product.

They potentially have different commercial purposes as well. The Xetrov side could potentially earn revenue for receiving and treating waste, perhaps substantial fees for difficult waste streams such as the medical waste BYV itself lists as a possible feed. The biosolids operation may have quite separate commercial arrangements for accepting and processing biosolids. We do not know BYV's actual contracts or gate fees, but it is entirely possible that there are two different revenue streams as well as two different material streams. That hints at two different businesses.

What principally connects the two operations is heat. The Xetrov incinerator produces heat and the biosolids dryer uses it. In that sense the proposal looks rather like a cartoon barbell: two substantial industrial operations at either end, connected by an energy link in the middle.

That does not mean they must be two planning uses, but it certainly raises the question. The incinerator has its own feedstock, handling system, combustion process, emissions, residues and operating requirements. The biosolids plant has its own feedstock, drying process, condensate, product stream and operating requirements. The fact that one operation produces something useful to the other does not necessarily make them one operation for planning purposes.

There is a useful Queensland planning case that helps explain why this matters. Edith Pastoral Company Pty Ltd v Somerset Regional Council involved a proposed hard-rock quarry and a concrete batching plant on the same rural property. The quarry could supply aggregate directly to the batching plant, so there was an obvious operational connection between them. The planning issue was important because the quarry was a use that could be treated favourably in the Rural zone, while the concrete batching plant was a Medium Impact Industry and an inconsistent use. If the batching plant could simply be treated as part of the quarry, that planning problem largely disappeared. Sound familiar?

The case went to the Planning and Environment Court.

The Court did not accept the argument. It found that supplying aggregate from the quarry to the batching plant was useful to the operator, but that alone did not show that one operation was subordinate to the other or existed to serve the other. There was also little evidence showing how much quarry product would actually go into the batching plant rather than being sold elsewhere. The Court said that, at its highest, the relationship was one of “co-location and convenience”, and concluded that the quarry and batching plant remained two planning units.

That is why the comparison with Glan Devon is useful. The quarry produced aggregate and the batch plant consumed aggregate. At Glan Devon, the incinerator produces heat and the dryer consumes heat. In both cases there is a real and useful connection, but the existence of that connection does not automatically answer the planning question.

The quarry case built on an earlier decision of the same judge, Caravan Parks Association of Queensland v Rockhampton Regional Council. There, Council argued that free RV camping in a carpark at Kershaw Gardens was simply part of the park's use. The Court disagreed. It held that for one use to be ancillary to another, there must be a dominant and subservient relationship, and the lesser use must actually serve the purpose of the main one, not just sit alongside it. Convenience of co-location was a weak connection, not evidence of subservience. The Court also made two points that matter for Glan Devon. Whether one use is a necessary part of another is not the test, and where neither use serves the other, they are simply separate uses. A dryer needing heat does not make the incinerator that supplies it subordinate to the dryer. Xetrov has its own feedstock, its own process, its own emissions and residues, and a scale that is significant in its own right. It does not serve the biosolids operation's purpose; it sells it a convenient input. On the reasoning in the Kershaw Gardens case, the two parts of the BYV proposal for Glan Devon look like two uses, not one.

BYV's own staging adds another piece of evidence. Pap Solutions describes Phase 1 as installation and operation of a Xetrov unit treating 6,000–8,000 tonnes a year of NRW, including contaminated agricultural plastic, treated timber and medical waste, with the first biosolids dryer only added in Phase 2. This is a useful demonstration that Xetrov can actually operate as an industrial activity in its own right.

The same applies in the other direction. A biosolids dryer requires heat, but there is nothing inherent in drying biosolids that requires that heat to come from a Xetrov incinerator. Another suitable heat source could perform the same job. The engineering attraction of BYV's proposal is that heat from one operation can be put to productive use in the other, but Council still has to decide what that relationship means for the planning approval.

The Planning Scheme itself recognises that a development can contain a combination of defined uses. So, there is nothing unusual about asking whether Glan Devon should actually be described as High Impact Industry plus Special Industry.

If they are two operations

If Council concludes that the Xetrov incinerator and the biosolids plant are two operations for planning purposes, then the proposal appears to contain both High Impact Industry and Special Industry. That matters immediately because the application before Council is for High Impact Industry.

It also means the Xetrov part of the project has to stand on its own from a planning perspective. BYV has relied heavily on the agricultural connection of its finished fertiliser when explaining why the overall project belongs on Rural-zoned land. Whatever merit that has for the biosolids operation, it does not explain why a waste incinerator belongs there. It’s hard to see a necessary rural connection for a waste incinerator.

The Planning Scheme does allow major industry in rural areas, but it says such industries must be of a nature that cannot be accommodated in towns, must bring major local or regional benefits and must respect rural production, rural character, scenic values and water quality. Once the Xetrov incinerator is considered as Special Industry, some very straightforward questions follow. Why does this waste incinerator need to be at Glan Devon? Why could it not be located on appropriately zoned industrial land? What alternatives were investigated, and what evidence shows that they were unsuitable?

That question becomes important because BYV has argued that suitable industrial land is unavailable. We already know industrial land exists in the region. SBRC’s own Circular Economy report identifies Special Industry land. Even a quick search I completed this afternoon has identified other sites with an apparently closer zoning and logistics fit than a Rural block. That does not prove that any particular alternative is suitable, but it does mean that “there was nowhere else” needs evidence behind it.

There is an important point here. The Planning Scheme test is whether this type of industry is unable to be accommodated in towns. That is not the same as asking whether BYV already controls a vacant industrial block, or whether a suitable parcel happens to be advertised for sale. Existing Special Industry land could be redeveloped, operations could potentially be co-located, and the application does not demonstrate any systematic search for a more appropriate location. Instead, it appears to start at the other end — this block at Glan Devon is available, now let's demonstrate that it is suitable for this operation.

Special Industry also makes BYV's separation argument much more important. The Planning Scheme's general direction for industry is to locate and design it to minimise impacts. But when it deals specifically with Special Industry it uses stronger language: those uses are to be adequately separated from sensitive land uses to “avoid the occurrence of environmental harm or environmental nuisance”. That difference matters. If BYV says Glan Devon needs substantial separation because of the nature of its operation, then the question is no longer simply whether the site has plenty of empty space around it. What separation does this particular incinerator actually require, and what evidence establishes that distance?

If the need for separation is part of BYV's reason for locating the facility in the countryside, then there should be a clear technical basis for the distance required. Council should be asking what separation Xetrov actually needs, what determines that distance, and whether it accounts only for normal operation or also for abnormal feed, startup and shutdown, fire, power loss, equipment failure or failure of pollution-control systems. In other words, what is the evidence that a selected separation distance is required and appropriate?

If there are two operations, the current HII-only description therefore becomes difficult to sustain. The Special Industry component needs to be recognised and assessed for what it is, rather than disappearing beneath the overall description of “Bio-fertiliser Facility”.

If Council says it is all one operation

The other interpretation creates a different problem. Council could decide that the Xetrov incinerator is simply part of the High Impact Industry biofertiliser facility because its heat is used by the dryer, but that conclusion has to make sense when applied to the actual development being proposed.

Imagine BYV builds the Xetrov incinerator and starts operating it, then for some reason the biosolids side never proceeds. The biosolids contract could be lost, the dryer could prove unsuitable, finance could fall over, market conditions could change, another required approval might not be obtained, or BYV could simply decide that the next stage no longer makes commercial sense. None of those possibilities is particularly exotic in a staged industrial project.

What would remain at Glan Devon would be a fully installed and functioning waste incinerator, capable of receiving and treating thousands of tonnes of NRW each year and potentially capable of generating its own revenue from waste treatment. There need never be a biosolids dryer or a tonne of fertiliser produced, yet the incinerator would be sitting on Rural-zoned land under an approval for High Impact Industry — Bio-fertiliser Facility, despite the Planning Scheme specifically putting waste incinerators in Special Industry.

BYV's Phase 1 proposal makes that example particularly real because they themselves propose to operate Xetrov before the dryer is installed. But the underlying issue does not depend on Phase 1. It comes from the structure of the proposal itself: two substantial operations with different inputs, different outputs and different environmental issues, joined mainly because one can supply heat to the other.

That is where the one-use interpretation creates a serious appeal risk. If Council approves the whole proposal as High Impact Industry, a submitter could put a very simple question before the Planning and Environment Court: did Council approve the right use?

The quarry case shows that this is not a fanciful planning argument. A physical and commercial connection between two operations is not necessarily enough to turn them into one planning use, even where one directly supplies an input needed by the other. In Glan Devon's case the connection is heat, while much of the rest of the two operations remains distinct.

If Council wants to approve the whole development as a single High Impact Industry biofertiliser facility, it therefore needs a convincing reason why the waste incinerator should be swallowed into that approval. If that reasoning does not stand up, then the very nature of the approved use becomes a strong and relatively clean appeal point.

A question Council needs to resolve

This is why I think Council and BYV need to deal with the issue directly before MCU26/0004 is decided. If Glan Devon is two operations, then the application appears to contain both High Impact Industry and Special Industry, with consequences for the Rural location, separation requirements and the question of alternative sites.

If Glan Devon is one operation, Council needs to explain why a substantial waste incineration business — with its own feedstock, process, emissions, residues and potentially its own revenue stream — becomes simply part of an HII biofertiliser facility because its heat can be used by the dryer. The Queensland quarry case suggests that connection alone may not be enough.

Either interpretation creates questions that need answers. What does not work is simply putting the label “Bio-fertiliser Facility” over the whole thing and assuming that settles what is actually being approved.

The question remains simple: is Glan Devon one operation or two?

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