Ali v Liverpool City Council [2009] NSWLEC 1327 | Case summary

Ali v Liverpool City Council [2009] NSWLEC 1327 | Case summary | Zoe

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43 Mr Leggat also submitted, if I understood him correctly, that the words "or in respect of" also had the effect of excluding my paying heed to the Infrastructure SEPP for any purpose at all. 44 However, my acceptance of Mr Leggat's submission that the effect of cl 11 of the Infrastructure SEPP means that it does not apply to the application does not mean that the Infrastructure SEPP has no work to do in these proceedings. To the contrary, in my view. 45 What cl 28(1A) of the Infrastructure SEPP does, by its creation of future opportunities for the establishment of otherwise prohibited education institutions, is affect the weight that I should accord to both the 2008 LEP and any issues where the application might be in conflict, to any extent, with its zone objectives or those in the 1997 LEP. I have reached this conclusion on the basis of the comments Mason P in the decision of the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at para 81: 81 In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. The process of making such instruments is described by Beazley JA in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 42-44. Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest (see generally Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LGERA 231 at 235). 46 I am satisfied that, consistent with what is quoted immediately above, that it is appropriate that I have regard, when considering the public interest issues under s 79C of the Act, to the position that the Infrastructure SEPP is a clear articulation of public policy to be taken into account in my assessment both of the provisions of the 1997 LEP and the weight to which I should give the prohibition in the 2008 LEP. 47 Whilst the provisions of the Infrastructure SEPP do not, for this application, provide any facultative benefit, it is clear that the government intended such facultative benefits to be available prospectively for post-February 2009 applications in this and the other prescribed zones. 48 The facultative provision in cl 28(1A) of the Infrastructure SEPP for private is, however, subject to a sunset provision contained in cl 28(1B). This reads: Subclause (1A) ceases to have effect 3 years after the commencement of that subclause. 49 I am relevantly informed about this provision by commentary in the relevant planning circular (Department of Planning Circular PS 09-009) concerning this. This circular makes it clear that the intent of the sunset provision is not to limit the operation of any such development to the end of the period defined by the triggering of the sunset provision but merely to ensure that the provision is subject to policy review and reconsideration by the executive government as a consequence of the sunset provision. 50 In addition, it is relevant to note that, although cl 28(2) permits intensification or expansion of existing educational institutions under some circumstances (wherever they may be located and no matter what the permissibility or other wise of such education institution in the zone where it is located), the effect of cl 28(1A) is only to permit the establishment of private education establishments in a number of prescribed zones identified in the Infrastructure SEPP rather than being a universally facultative provision as it is for established or existing schools. 51 Whilst any application for a new school taking advantage of cl 28(1A) would also need to satisfy a number of other provisions such as those contained in cl 32 of the Infrastructure SEPP, given that I have concluded that the facultative provisions of the Infrastructure SEPP are not applicable to this application as a consequence of cl 11, I do not need to consider if additional requirements have been met. It is sufficient to note that, if the applicant were to make a fresh application that satisfied those additional provisions, the Infrastructure SEPP would override the prohibition contained in the 2008 LEP. 52 For this reason, I am satisfied that the prohibition in the 2008 LEP should be given so little weight as to be irrelevant. However, I do consider that it does remain necessary for me to undertake an examination of the proposal against the objectives of the RU4 zone in the 2008 LEP as they remain, at least to some extent, relevant. The Growth Centres SEPP and the locality 53 As part of the Sydney Region Outline Plan, the (former) Growth Centres Commission produced an outline plan for the South-West Sydney Region. Mr Sinclair, the Federation's planner, in his statement of evidence, produced an extract from this plan for the locality upon which he had superimposed the existing road pattern and identified the site. There are a number of observations to be made about this plan before turning to consider what conclusions might be drawn from it about the future character of the locality. A copy of that extracted plan from his statement of evidence is reproduced below:

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54 The first is, as I understood was accepted by all three advocates, that the depiction of various elements such as land-use designations, flood-prone land identification and the like were broad-brush and indicative only and did not indicate, with any precision, possible or likely future land-use zoning boundaries. 55 Indeed, an examination of the larger area map of the South-West Sydney Region in evidence that shows, in its south-eastern corner, the Turner Road precinct (with its particular depiction of various land-use elements) is, in a number of respects, inconsistent with the detailed precinct plan for the Turner Road precinct which was also in evidence. These distinctions include significant variations in the broad-brush riparian corridor; the inclusion in the detailed precinct plan of an additional commercial/business area toward the north-west of the precinct on the detailed plan which area is entirely absent on the broad-brush plan; and the inclusion of a significant open space along the north-western edge (comprising an existing golf course) in the detailed in precinct plan (which open space is also absent from the broad-brush plan). 56 It therefore seems to be reasonable to approach the plan shown above as being preliminary, broad-brush and, at the most, generally indicative. Indeed, Ms Stewart, the council's planner, in her evidence, indicated that she would expect that there would be significant elements of fine-grain refinement and ground-truthing of any precinct plan for the Austral precinct that evolved from the above concept. This, I am satisfied, is a perfectly reasonable conclusion to draw in light of the nature of the detailed Turner Road precinct plan compared to that in the broad-brush document. 57 As a consequence, although it is clear that the site is identified in the broad-brush approach as being within some form of employment lands, an examination of the depicted flood affected land in the vicinity from the above map (when compared to the detailed flood affected land maps overload on an aerial photograph provided by the council) shows that any boundaries between land uses and types identified on the above map extract can be, at best, flexible and, at worst, stylised general depictions - as was the case for the Turner Road precinct.

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58 Although a deal of attention was given by the three planners (Ms Stewart, Mr Sinclair and Mr Gosling, the applicant's planner) to the question of whether or not the site was within or close to the boundary of one or other of the depicted land uses to be inferred from the broad-brush map above, the lack of meaningful reference to existing block boundaries shown on the August 2009 air photo when compared to the broad-brush map puts me in the position, I am satisfied, that I should simply regard the site as likely to be in the vicinity of the interface between an employment oriented land zone and a residentially oriented land zone without nominating which one it would be. 59 As is the position with the golf course depicted on the Turner Road precinct plan, a golf course that is in existence and has been for some time, it appears reasonable that the fine-grained planning to which Ms Stewart adverted would also have regard to existing development. A further practical example has been the case of the Turner Road Precinct Development Control Plan taking account of the fact that there is an existing poultry farm located approximately half a kilometre from the nearest element of an area in the Turner Road precinct zoned for residential purposes and some 250 m from the nearest element zoned for industrial purposes. 60 Shortly prior to the hearing, the council had written to the Department of Planning, on 28 August, seeking advice from the Department about their attitude to this application (given the imminent release of the Austral precinct for detailed planning through the process earlier discussed). No reply had been received to that letter prior to the hearing being completed and me reserving my decision. 61 However, subsequently, the council did receive an answer to its letter. A copy of that response was sent to me by Mr Marincowitz, the council's solicitor, with the agreement of the legal representatives of the applicant and the Federation. The relevant parts of the Department's response are reproduced below: DA 492/2008 - 83-87 Gurners Avenue, Austral NSW 2179 Development of an educational establishment consisting of a primary school (360 Students) and a high school (240 Students) with associated facilities.

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Odour impact from the chicken farm 73 Odour impact is a matter raised by the Federation as part of its submissions on planning grounds. It warrants separate detailed consideration. 74 The impacting odours are said to be those from the nearby chicken farm to the east. The Federation and several resident objectors say that these would cause unacceptable impacts on the school. As a consequence, the Federation says it is likely that to locate the school within an area impacted by such an odour would increase the probability of complaints about the odour from the chicken farm and thus the pressure for closure or curtailment of the activities of the chicken farm. This is said to result in the application being contrary to the first objective for its zone in the 1997 LEP and contrary to the first, fourth and fifth objectives for its zone in the 2008 LEP. 75 The chicken farm is located on the opposite side of Gurner Avenue to the site approximately 200 m or so to the east of the eastern boundary of the site. It contains six chicken sheds with a capacity of 122,000 chickens. Although the chicken farm has been located on its site since the 1950s, its most recent expansion, from 80,000 chickens to 122,000 chickens, took place in 1997 when the council granted development consent for the additional two sheds comprising this expansion. 76 During the hearing, I heard from two odour experts, Mr Harris, for the applicant, and Mr Todoroski, for the Federation. Each of these experts visited the locality on one occasion only prior to the site visit during the hearing. Their prior site inspections occurred on different days. 77 The conflict between their opinions is stark. At the conclusion of their oral evidence, the position adopted by each was as follows: · Mr Harris said that, while there may be some detectable odour from time to time on the site, in summary, this was not offensive and should not prevent a school being established on the site; and · Mr Todoroski said that, for virtually the whole of the site (if not the whole of the site), anybody on the site would experience an odour that those who were not familiar with and accepting of the odours that might be experienced in a rural residential locality would find offensive. In particular, because of the high number of pupils and staff that would be present on the site (if it were being used for a school), the site was inappropriate to be used for this purpose. 78 Mr Todoroski agreed, during his oral evidence, that he had not visited the chicken farm and that, whilst he was certain that the smell that he detected did not come from dead chicken carcasses, the poultry manure odour he detected could have come from stockpiled manure outside the confines of the poultry sheds as well as from within the sheds. 79 During the course of the site inspection, I indicated to Mr Leggat that I had concerns about odour material that had been filed on 18 August on behalf of the Federation. That material comprised a letter from Mr Todoroski to Mr Leggat's instructing solicitor and a document from an odour consultancy, PAE Holmes. This latter document was of a technical nature and concerned the site. These two documents had been filed with the Court under a cover sheet entitled Statement of Evidence (which cover sheet did not identify the person whose Statement of Evidence these documents purported to comprise). 80 It is necessary, for the purposes of this discussion, to describe, in brief, the technical report that had been filed. The first page describes it as a "Report" and as "Odour Assessment - 83-85 Gurner Avenue, Austral (Kemps Creek)". The first page is dated 17 August 2009. The second page is reproduced below:

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81 On page 16 of this report, there appear conclusions that are written in the first person plural. The document is unsigned and has no curriculum vitae of its author attached to it. It contains no acknowledgements of any relevant provisions of the Uniform Civil Procedure Rules 2005. 82 Subsequently, in Court, Mr Leggat sought to tender this material as an expert report authored by Mr Todoroski. 83 I demurred and indicated my concerns about non-compliance with the relevant parts of the Uniform Civil Procedure Rules 2005 applying to expert witnesses and that I did not consider, from the face of the technical document, that there was any proof that it had been authored by Mr Todoroski - to the contrary, indeed, there was an express statement (visible above) that made it clear that it had been authored by Mr Rahaman and merely reviewed by Mr Todoroski. 84 On the following day, Mr Leggat sought leave to introduce a Statement of Evidence explicitly from Mr Todoroski that comprised an affidavit which effectively adopted the contents of his earlier letter to Mr Leggat's instructing solicitor (but now in affidavit form) to which was annexed a new version of the technical report. However, overnight, the technical report had been transmuted to a form that now claimed that it had been written by Mr Todoroski and was now in the first person singular. 85 The first page of this new incarnation of the document describes it as a "Revised Report" and as "Odour Assessment - 83-85 Gurner Avenue, Austral (Kemps Creek)". The first page is now dated 16 September 2009. The second page of the "Revised Report" is reproduced below: 86 I admitted those relevant matters contained in the affidavit that formalised the contents of Mr Todoroski's letter to Mr Leggat's instructing solicitor [except for a number of paragraphs that imported material from (or, by implication, the totality of) the contents of the technical report]. 87 I rejected the technical report. I did so because the earlier document made it expressly clear (unmistakably so from the first image immediately above) that it had not been authored by Mr Todoroski and a mere overnight assertion to the contrary on the second image immediately above (coupled with re-badging and "adjustment" of the relevant first person pronouns from plural to singular) was not a proper basis upon which I could conclude that, overnight, the base metal prose from Mr Rahaman had been turned into the gold of authorship by Mr Todoroski - a feat of transmutation of which Dr John Dee would have been proud. 88 Both expert odour witnesses are appropriately technically qualified. However, Mr Leggat took me through Mr Todoroski's curriculum vitae to establish the fact that he had, for many years, as an officer of the Department of Environment and Climate Change, been responsible for: · the development of relevant odour policy documents; and · making assessments for odour impacts for planning purposes in the north-west and south-west growth centre sectors of Sydney. 89 His curriculum vitae also showed that he had given expert evidence in the Court in the past. Mr Leggat submitted, on the basis of Mr Todoroski's qualifications and experience, these should lead me to prefer Mr Todoroski's evidence to that of Mr Harris. 90 To understand why I decline to do so, it is necessary to set out the totality of the relevant material admitted from Mr Todoroski's affidavit. It is in the following terms:

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On Tuesday 7 July I inspected the area around 83-85 Gurner Avenue Austral. I was at the site from 3 pm until around 4 pm. I was accompanied by Mr Ian Sinclair and Dr Kerry Holmes.
The purpose of the inspection was to obtain first-hand experience of the local setting and the odour levels in the area. Prior to arriving, and again after leaving the site I drove around the roads in the area. It is generally a rural/ rural residential area comprised of large rural residential lots, commercial chicken and greenhouse operations, grazing hobby farms and so on.
I parked my car in Fourth Avenue very near the intersection with Gurner Avenue. This location is alongside 83-85 Gurner Avenue. I observed that it was an overcast, moderately windy day with winds of somewhat varying strength from a consistent south, south-east direction. It was quite cool. There was a faint smell of pasture and cow dung present in the prevailing wind, as would be expected downwind of a cattle paddock.
From my car I walked, accompanied by Mr Sinclair and Dr Holmes to the east along Gurner Avenue towards the chicken farm some 300 to 400 metres away. The road slopes down towards a gully along a nominally north-south axis. Approximately 100 or so metres along the road I was able to detect chicken farm odour. This is in the vicinity of a cream coloured metal fence that runs to the north off Gurner Avenue.
A little further on, approximately half way towards the farm, the odour was strong and offensive. The odour intensified as I neared the farm.
From the road in front of the farm I observed some white chickens in the nearest two sheds. The chickens I could see appeared to be relatively mature birds.
The chicken odour diminished rapidly as I walked further east along Gurner Avenue past the chicken farm.
I returned to the corner of Gurner Avenue and Fourth Avenue. The nature and strength of the odour that I had detected earlier along the route was still present when I retraced the route.
I then walked north along Fourth Avenue which runs along the western side of the site at 83-85 Gurner Avenue. Some 100 metres or so from the intersection with Gurner Avenue along the Fourth Avenue, I could smell an odour somewhat like, but different to the chicken farm odour I had experienced earlier along Gurner Avenue. This odour was not as strong and had a "sweet" silage-like element to it (somewhat like fermented grass). This point was not immediately downwind of the chicken farm as I judged it, but it was downwind of the start of what appeared to be animal enclosures/ hutches on 83-85 Gurner Avenue.
A little further along Fourth Avenue this odour became stronger and mildly offensive. There was a muddy bog-hole with an abandoned car in it on the site at 83-85 Gurner Avenue. A load of white bread had been dumped nearby and a flock of perhaps 40 or so ibis were feeding on the bread. This location was also more directly downwind of what appeared to be animal enclosures on 83-85 Gurner Avenue.
A little further along Fourth Avenue, some 200, to 250 m from the intersection with Gurner Avenue, I could smell the chicken farm odour, distinctly from what appeared to be the odour of the closer activities on 83-85 Gurner Avenue.
The chicken farm odour could be detected, and times at a moderately strong level some 200 metres or so past the end of 83-85 Gurner Avenue along Fourth Avenue. I walked for around 800 metres to one kilometre from the corner and then returned along the same path.
I smelled the same odours, at about the same strength in about the same locations along my return route.
In consideration of the prevailing weather conditions and the relative locations of the chicken farm and the site comprising 83-85 Gurner Avenue, I conclude that at the time of the site visit, offensive odour from the chicken farm was present on 8385 Gurner Avenue, particularly at the middle to rear (northern) part of the site.
Knowing that the windy weather conditions I experienced are conducive to relatively good dispersion, and that southerly winds are common to that area, my impression after the site inspection was that the odour from the chicken farm is likely to adversely affect the majority of the site at 83-85 Gurner Avenue, and that complaints, and disruptions to learning activities would be likely if a school were to operate there.
At the time of weather conditions that lead to significant odour impact, (clam [sic] steady wind drift to under stable conditions), the terrain in the locality, mainly a north, north westerly draining and shallow gully, is most likely to channel odour laden air from the chicken farm to the NNW. Such odour laden air is likely to affect the middle and lower reaches of 83-85 Gurner Avenue strongly in the late evenings and early mornings, and at night under inversion conditions.
Such conditions are also likely to occur from time to time later in the morning and in the early evening, particularly in winter.
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I also consider that the area of greatest potential odour impact is likely to be the middle and rear (northern) parts of the site at 83-85 Gurner Avenue as these are low lying areas where odour from the farm is likely to collect or drain into to under conditions of slow, southerly katabatic drift that are characteristic of the area. Such conditions are not well represented by dispersion modelling, which generally requires appropriate interpretation.

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In consideration of the prevailing weather conditions and the relative locations of the chicken farm and the site comprising 83-85 Gurner Avenue, I conclude that at the time of the site visit, odour from the chicken farm was present on 83-85 Gurner Avenue; that this odour would regularly and frequently occur virtually throughout the day; that this odour would affect virtually all of the site; and this odour would be offensive to those using 83-85 Gurner Avenue as a school if this site was permitted to be developed as a school, particularly at the middle to rear (northern) part of the site. 95 This, of course, is a significant alteration from the position otherwise conveyed by the simple language of his affidavit as written. The first proposition is one of general applicability whilst the second calls up a special impact applicable only to development of a school on the site. 96 If I accept this version of Mr Todoroski's evidence, Mr Leggat's "killer point" is the conclusion noted in bold above. 97 Contrary to either of these positions, Mr Harris's evidence was, as I understood it, that he did not experience any offensive odour on the day which he visited the site; there were rural activity odours that would be experienced, from time to time, in the vicinity, particularly in the early morning and late afternoon/evening periods when it was cold and there was little breeze. The summary of his opinion, however, as I also understood it, was that this would not be sufficient to make it inappropriate to approve a school on the site. 98 I also note that the experts agreed that there was no odour impact, at its worst, that would cause health problems to anybody playing sport on the proposed playing fields at the northern end of the site. 99 The concept of the offensive odours and the meaning of and implications from such odours is not merely a matter for these proceedings but are at the very heart of the assessment of odour impacts of by experts in this field. It is, therefore, at the very heart of Mr Todoroski's expertise and is a matter about which, on the basis of the strengths of his curriculum vitae to which Mr Leggat took me, he must frequently make odour assessments and express technical opinions based on his qualifications and expertise.

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Modifications to the proposal 120 During the course of proceedings, I raised with Mr Ayling SC, counsel for the applicant, the approach now taken by the Court over recent years (which approach I liken to the amber light in a set of traffic lights). This approach says that, if a proposal is not appropriate to be given approval in the form being considered but, with minor and identifiable amendments consistent with the application before the Court, it would be capable of approval, the Court should make a determination: · setting out the changes that are required to render the proposal acceptable; · requiring the applicant to make those changes, whether by preparation of amended plans or by Court imposed conditions settled between the parties; and · when such modifications are incorporated (thus rendering the proposal acceptable), approval should be given to the amended proposal. 121 In this case, a number of modifications emerging from the objectors' evidence and the concurrent evidence given by the town planners led to a number of propositions being put to Mr Ayling for the applicant to consider. These propositions were not put on any basis to indicate that I had already formed any conclusion concerning the overall merits of the proposal but were merely put in response to comparatively minor matters raised where these matters appeared, to me, both to have merit warranting consideration and being of comparatively easy scope to address. 122 The amendments discussed below are matters capable of adaption within the amber light process leading to what the former Chief Judge of the Court, McClellan CJ, described as "the best community outcome". 123 A number of these amendments related to matters of amenity for the residents of the property immediately to the east of the site. These involved: · relocating a number of the car parking spaces from the staff car park to provide greater landscaping between the neighbours' residence and the administration building at the front of the property. This relocation would also have the effect of removing any headlight shine from staff members' cars in the direction of this residence; · ensuring that appropriate barriers were used to limit use of the road along the eastern boundary linking the two car parks. Construction of this perimeter trail is was required by the Rural Fire Service; and · relocating the acoustic barrier from the eastern boundary fence to a location significantly set back from the boundary to the property thus reducing the visual impact of what was originally proposed to be a 3 m high acoustic barrier along the eastern boundary. 124 The relocation of some of the western landscaping to outside the acoustic barrier on this side was also raised with Mr Ayling. Subject to working out the detail for the implementation of these changes, Mr Ayling indicated that they were acceptable to the applicant. 125 One of the concerns raised by Mr Sinclair, in his oral evidence, was that the presentation of the administration building, to Gurner Avenue at the front of the site, was that of a long and continuous built form that was out of character with the present and currently emerging streetscape of Gurner Avenue. His objection was based on the two-storey nature of this structure and, at least as I understood it, that this was a building with but a single unbroken facade. It was on this basis that he said that this element of the proposal did not satisfy the first element of cl 37 of the 1997 LEP (discussed, in more detail, later). 126 This element of the proposal is set back some 38 m from the street frontage, a considerable distance further than much of the remaining development, including the emerging dual occupancy development pattern. 127 The fencing proposed for the street frontage to Gurner Avenue, of a metal picture of style fence electric gates is consistent with a number of the other fencing and driveway entrance presentations in this streetscape. The front setback is to be significantly landscaped but not so as to obscure, in its entirety, any view of this building - it thus will be a significant element in the streetscape. 128 Although I do not consider that this aspect of Mr Sinclair's evidence would warrant refusal of the proposal, nonetheless I consider that his criticism of this building is well founded but easily able to be remied. I indicated to Mr Leggat that if I were to accept this evidence but considering that the project otherwise did not warrant refusal, I would be minded to require a degree of articulation to the building at the point where the entrance hall joined the administrative offices on the ground floor - that is that a point to approximately 1/3 of the way along the building when viewed from its eastern end. Mr Ayling indicated that the applicant would accept such a requirement. 129 I do consider that the present proposed aspect of the administration building would, because of its present unbroken design, not be acceptable when assessed against the requirements of cl 37(a) of the 1997 LEP. However, I am satisfied that an appropriate response to this would be to require a degree of articulation in the facade and the roof form of this building at the point that I have indicated. This can be achieved by adjusting the façade, at all levels including the roof form, at that point to create a 1.5 m return so that the eastern element becomes that distance forward of the western element. 130 I will leave it to the applicant to determine the precise adjustment on the plan - whether by bringing that element of the building's facade forward by that distance or otherwise adjusting the location of the western portion of the building to the north to provide for that. 131 There is, in making this provision, no need to do alter the rear elevation of the building and the adjustment can be achieved by a modest increase in the buildings floorspace as I do not consider that such an increase to the presentation of the east and elevation of the building would be unacceptable in the streetscape when viewed approaching from the east.

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138 I have dealt separately and in detail with the issue of odour from the chicken farm. I therefore deal with the more general question of agricultural potential of other land in the immediate vicinity of the site. By this, I mean that I should set out the existing restrictions caused by activities already being undertaken in the immediate vicinity of the site that create the position that there are no further restrictions on agricultural potential of any rural land in the locality that would arise as a consequence of approval of the school. The restriction on the agricultural potential in the immediate vicinity, as discussed below, arises from existing land uses rather than the possible approval of the school. 139 It was Ms Stewart's evidence, as I understood it, that two significant impediments lie in the path of any future application for an intensive agricultural use in the vicinity of the site. The first arise from the provisions of the buffer distances for intensive agriculture proposals contained in the Council's Development Control Plan 40 Intensive Livestock Agriculture (Poultry Farming) and Intensive Plant Agriculture (Greenhouses / Igloos / Market Gardening) (DCP 40). 140 DCP 40 deals with minimum lot sizes, setbacks and buffer zones for new chicken farms and intensive horticultural enterprises. For chicken farms, it also deals with these issues for applications to intensify existing chicken farms. It was by consideration and application of this development control plan that, on Ms Stewart's evidence, the council refused an application to expand the existing chicken farm to the east on the Gurner Avenue from 120,000 chickens to 200,000 chickens. This evidence is confirmed by the documents relating to this application that were tendered for the council. 141 Although this DCP, adopted in 2001, is a successor to an earlier or similar development control plan, no submission has been made by Mr Leggat that the development and adoption of the this development control plan and/or its predecessor were not appropriately undertaken using a process consistent with that discussed by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. 142 Although the evidence given related to DCP 40, its buffer distances have also been repeated, unchanged, in Part 5 of the consolidated Liverpool Development Control Plan 2008 - a DCP that came into effect on 8 July 2009.

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177 The first two matters raised by Mr Sinclair - that is the nature of the acoustic fencing and the presentation of the administration block at the southern end of the site in the streetscape context of Gurner Avenue - are, as I understood his evidence, unacceptable in design, siting and landscaping (for the fence) and as to scale, bulk, design and siting (for the administration block). 178 I turn, first, to the fence. The applicant has accepted two changes, as earlier discussed, to the perimeter fence. These are a relocation of the proposed acoustic barrier on the eastern side to a point inboard of the fence so that it will not visually dominate the neighbouring property to the east. Similarly, some of the landscaping along the western boundary is to be relocated outside the fence to soften the presentation of the fence. I do not consider that there is any necessity to make any alterations to the fencing along the northern boundary as a development on the adjacent property to the north will be significantly constrained by the flood mapping affectation to the north and north-east of this fence and by the existing vegetation in the vicinity on the adjacent property. As a consequence, I do not consider that the proposed fencing for the site transgresses cl 37(a). 179 I have, elsewhere, discussed the question of the design of the administration block and its presentation to Gurner Avenue. I do not propose to repeat them in any detail save to observe that the unrelieved facade will now, as was indicated was acceptable to the applicant, be modified by a design change to incorporate a degree of articulation in its facade. 180 The administration building is to be set back some 38 m and to have what will present as a semicircular driveway in the front setback to Gurner Avenue. The setback is significantly more generous than of the adjacent residence to the east and the driveway presentation is not inconsistent with other driveways in the locality. Finally, although the building is a lengthy one, it is setback at least as far as (and, most probably, significantly further than) the new two-storey dual occupancy developments in Gurner Avenue to the east. I am satisfied that the presentation, landscaping and changing to the facade of this building means that this specific building is compatible with the character and amenity of nearby areas (both existing and likely future).

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181 With respect to the number of two-storey buildings on the site, which Mr Sinclair considered transgressed cl 37(a), I later discuss questions of scenic character and have concluded that, from the relevant viewing point, the overall nature of the proposal makes a modest positive contribution compared to that which is presently on the site. 182 As discussed in the context of the various zone objectives for both the 1997 and 2008 LEPs, I am satisfied that, to the extent that there are tensions with compatibility with the existing character of nearby areas that is within the locality, for reasons discussed elsewhere that the future planning direction for the Austral precinct will, necessarily, in its fine-grained planning, make accommodation for contemporary development in the locality. Such contemporary development in the locality will not merely be the school but also other development such as the new detached dual occupancies to the east. 183 In addition, given the nature of at least two of the dual occupancy developments that were observed during the course of the bus inspection being, in each instance detached, two-storey dwellings, I do not think it likely, in the longer term, that the future character of the locality will remain at the scale preponderant amongst the existing structures. 184 For reasons broadly discussed in the context of the zone objectives, I do not consider that the form of the proposed school will have any impact on the existing or likely future amenity of nearby areas. This consideration deals with the totality of the development in the context of the second limb of the prayer of cl 37. 185 I have, elsewhere, set out the nature of the visual presentation, within the precinct, of its various agricultural structures (whether from the chicken farm or from the various types of intensive horticultural activity). These built forms, as noted, often lack any formalised landscaping treatment for them and merely appear as industrialised structures in rural landscape. 186 The site coverage of these rural structures, on a number of these sites, is more extensive than that envisaged for the present development. Whilst there will be more two-storey structures, the school's overall site coverage will not be as intense as some of the other rural developments in the locality and the landscaping, building separations and building pattern will be more varied and visually interesting, albeit softened by landscaping, than some of the rural developments such as the chicken farm. 187 Considering all of these various elements which, together, comprise the agglomeration of matters to be considered arising from cl 37(a) when considering the totality of the proposal, I am satisfied that these elements come together to form a development that is compatible with the existing character of the nearby area. 188 As discussed elsewhere, the future character of the area will be determined by the planning for the Austral precinct to take place as part of the strategy is to be developed pursuant to the Growth Centres SEPP. For reasons discussed elsewhere in the context of this SEPP, I am satisfied that the proposal, when considered against matters in cl 37(a), is compatible with the future character of nearby areas.

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189 To the extent that the operation of the school calls up, by virtue of cl 37, questions of the number of people who will be on the site, the only possible matter arising here, in my view, concerns the school and odour from the chicken farm. As dealt with elsewhere, I am satisfied that this is not a matter of concern and, as a consequence, there being nothing else specifically raised concerning the operation of the school, I am satisfied that it is compatible with the present and future amenity of the area. The operation of the school will not impact on the present and future character of the area and is, in my view, therefore neutral in this regard. It is, it follows, also therefore compatible. 190 Traffic generation and car parking are the third of the elements that require consideration - pursuant to cl 37(c). The council is satisfied that the car parking and internal road layout of the school are acceptable. Changes resulting from discussions during the course of the proceedings will lead to the removal of car parking spaces on the eastern side of the internal roadway to the east of the administration building and their relocation to the car park at the northern end of the buildings on the site. This will remove a minor impact on the residence to the east and the additional landscaping thus available will also improve the amenity of that residence. The incorporation of barriers to prevent the eastern boundary fire trail being used as a through traffic route will also improve the amenity of the residence to the east. Whilst neither of these measures is necessary, in a strict sense, they are embraced by the applicant. 191 Whilst the extent of the car parking on the site will be different from that which presently occurs in the locality, it is of an orderly and organised nature. The preponderance of the car parking will not be visible from any public place and, as a consequence, will not impact on the present character of the locality. 192 With respect to traffic generation, as discussed elsewhere, the primary method of transportation of pupils to the school will be by buses and the applicant accepts a condition requiring all bus movements to the school be via Fourth Avenue for safety and road capacity reasons. The upgrading of Fourth Avenue to the south of the intersection with Gurner Avenue and the upgrading of that intersection when coupled with works proposed for Fourth Avenue in the council's 2009/10 works program means that the local road network improvements (that will also benefit the community in the locality) render the overall traffic generated by the site compatible with the present amenity of nearby areas. 193 Although there will be additional car movements for staff and, to some extent, for pupil arrival and collection, the improvements to the local road network will ensure that these have no impact on the present amenity of the area. 194 During the course of the evidence on site, one of the resident objectors gave evidence of the truck and bus movements, from his own trucking business and that of several more trucking businesses in the vicinity, along Gurner Avenue and along Fourth Avenue from Gurner Avenue. He mentioned that one of these businesses also ran a number of buses in the area. During the course of the bus inspection undertaken during the site view, I observed buses and trucks parked on a property on Gurner Avenue, across Kemps Creek and just beyond the boundaries of the locality. 195 The combination of the present level of bus and truck movements along Gurner Avenue together with the future improvements to the local road network mean that the traffic generation from the proposed school is compatible with the character and amenity of nearby areas at the present time. 196 For reasons discussed elsewhere, the changes envisaged as a consequence of the Growth Centres SEPP mean that future development in the locality and nearby areas are likely to involve more heavy vehicle and car movements in the vicinity of the site. As a consequence, I am satisfied that the traffic generation from the site will be compatible with the likely character and amenity of nearby areas in the future.

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197 For all these reasons, I am satisfied that the traffic generation and car parking that will arise from the proposed school is compatible with the character and amenity of nearby areas (both existing and likely future). 198 With respect to cl 37(d), noise issues have been dealt with, I am satisfied, by the acoustic shielding measures to be undertaken as will lighting to be implemented by the requirement for a lighting management plan proposed in the council's conditions of consent. There will be no dust or odour nuisance arising from the school. As a consequence, I am satisfied that the conditions of consent measures with respect to noise and light coupled with the absence of dust and odour impact mean that the school, on these matters, will be compatible with the character and amenity of nearby areas (both existing and likely future). 199 The setbacks from the site's boundaries ensure that there are no privacy impacts [cl 37(e)] from the school and, as a consequence, it is compatible with the character and amenity of nearby areas (both existing and likely future) in this regard. 200 With respect to stormwater drainage [cl 37(f)] the council agrees that the proposed stormwater management for the site is acceptable and that there will be no adverse off-site consequences. This being the case, I am satisfied, on this head of consideration, that the proposed school is compatible with the character and amenity of nearby areas (both existing and likely future). 201 The hours of operation [cl 37(g)] of the school have been restricted in order to ensure that there is no adverse impact arising from. In addition, the nature of the operation of any school ensures that the year is punctuated with significant breaks for school holidays, public holidays, and in the instance of this school, possibly additional religious observance holidays. Nothing in the hours or pattern of operation of the school is incompatible with the character and amenity of nearby areas (both existing and likely future). 202 Finally, in the heads of consideration pursuant to cl 37, I turn to the question of overshadowing [cl 37(h)]. There will be no adverse or unacceptable impacts of overshadowing caused by the school. In this context, therefore, the school will be compatible with the character and amenity of nearby areas (both existing and likely future). 203 As a consequence, I have concluded that there is nothing called up by cl 37 of the 1997 LEP that would warrant consideration of refusal or requiring any further amendment to the plans or any other aspect of the proposed school. Conclusion concerning the second zone objective - 1997 LEP 204 As the assessment pursuant to cl 37 is satisfactory, I am satisfied that there is no inconsistency between the school and the first element of this zone objective. As earlier noted, it is agreed that the school does not satisfy the second element of this zone objective. This failure is dealt with in my overall conclusion concerning the zone objectives of the 1997 LEP.

[104]

209 With respect to the first of these, the proposal is to be connected to reticulated water from the Sydney Water network and there is no evidence that would suggest that such water demand by the school would be unreasonable or unable to be accommodated by Sydney Water's existing infrastructure. 210 For effluent disposal, it is not proposed that the school will be connected to the trunk main sewerage system but will operate on an effluent pump-out system through private contractors. Whilst Mr Sinclair gave evidence that he was aware of "problems" occurring with such systems, he was not specific as to how they would arise; what they would be; nor as to what demand, let alone an unreasonable demand, such problems, if they were to occur, would pose for public services. I am, therefore, satisfied that there is no issue of that nature. 211 A similar non-issue position applies with respect to connection to electricity and telecommunications networks, as there is no suggestion that their various prospective suppliers would be unable to meet any demand from school from existing network infrastructure. 212 Waste is to be removed by a private contractor and, as a consequence, there will be no additional demand on public services. 213 Pupils are to be conveyed to and from school by chartered buses, in the main, or by private vehicle. There is, therefore, in this regard, no additional demand on public services let alone an unreasonable one. As I understand it, comparatively few of the pupils are likely to come from the local area and, as a consequence, demand for separate bicycle paths would be so limited as not to require any works by the school as part of this approval. 214 That, therefore, leaves to be considered the question of what additional demand for the public service of improvements to local road network might arise from the proposal and whether or not that demand, in itself, is unreasonable. 215 With respect to roads, the Federation says that, as a consequence of the expected number of additional car movements and the expected number of bus movements that will be associated with the school, the school should meet the cost of upgrading Gurner Avenue immediately in front of the school; the intersection of Gurner Avenue and Fourth Avenue (with the installation of a roundabout at that intersection); and the upgrading of Fourth Avenue - a distance of approximately 3/4 of a kilometre or so to the south to its intersection with Fifteenth Avenue. 216 Proposals advanced by Mr Sinclair for conditions to require kerb and guttering and street lighting for this section of Fourth Avenue were abandoned by him toward the conclusion of the town planners' evidence. The section of Fourth Avenue that the Federation says requires upgrading would, on Mr Sinclair's position, be upgraded to 2 lanes in each direction.

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217 On the other hand, Mr Gosling and Ms Stewart agreed at the council's condition of consent (accepted by the applicant) - that simply requires the upgrading of Gurner Avenue immediately in front of the school; upgrading of the intersection of Gurner Avenue and Fourth Avenue and reconstruction of Fourth Avenue for 200 m to the south of that intersection - is a reasonable proposition. 218 Mr Gosling, whilst accepting that the above is a reasonable proposition (and accepted by the applicant), also says that, in light of the traffic report by a specialist traffic management consultancy [which report was provided to the council with the original development application (an application based on 1000 students at the school) and showed that the local road network was already adequate to cope with such traffic as might be generated by the school] meant that, although the applicant accepted the condition, it did not, by that acceptance, also agree that it was necessary that these works are carried out as a consequence of approval of the school. 219 In addition to this agreement, the council has already included the remaining length, several kilometres of it, of Fourth Avenue in its works program for local roads for the 2009/2010 financial year. Whilst the local residents who were asked about this during the course of the on-site evidence were sceptical about whether the council would, in fact, undertake this work, I consider that it is appropriate that I assume, unless there are presently unforeseen circumstances, that these works will be carried out as scheduled by the council. 220 It seems to me, therefore, inevitable and irresistible that, because the council already proposes to undertake this work (whether or not the school is approved), I must conclude that there is an existing necessity for the council to undertake that upgrade of Fourth Avenue. 221 If that be the case, the existence of the school, in the future, cannot create a demand for those works to be undertaken let alone be an unreasonable demand for those works to be undertaken - as I consider that very inclusion in the council's works program demonstrates that the council, itself, is satisfied that there is already a reasonable demand for those public works. The consequence of that is that I am satisfied that the proposed school is not in conflict, in any fashion, with this zone objective. Fourth zone objective - 1997 LEP 222 The final objective for the zone is in the following terms: (d) to ensure that development is compatible with the ecological attributes of the area.

[108]

First zone objective - 2008 LEP 226 The first of the zone objectives of the 2008 LEP requires me to consider the extent to which the proposal enables sustainable primary industry and other compatible land uses both on site itself and elsewhere in the locality. 227 Whilst such uses might be regarded, in light of the future planning objectives for the Austral precinct as being ones with comparatively limited futures, they nonetheless require consideration as required by clause 2.3(2) of the 2008 LEP. 228 Although, from the site inspection, it was evident from the dilapidated rural structures that there has been some intensive horticultural activity on the site in the past, clearly, such opportunity will not remain if the school is to be approved. 229 In addition, on Mr Sinclair's evidence, there would be a carrying capacity, for grazing purposes, of between 10 and 20 sheep or alpacas and half that number of cattle or horses on the grassed area of the site. There is no suggestion, as I understood it, that this grazing capacity constituted a viable sustainable primary industry for the site. 230 The extent of the building detritus that was visible in the soil of the grassed area of the site as we walked around it meant that it was unlikely, as I earlier noted was my assessment, that any intensive in-ground market garden activities could be conducted on this portion of the site without extensive remediation and soil conditioning. Making that comment is not founded on any assumption by me that the site is contaminated, in any statutory sense, but is a reflection of my assessment of soil's cropping utility. 231 I am, therefore, satisfied that I have no basis in these proceedings to conclude that there is any sustainable viable primary industry opportunity for the site. 232 The interrelationship between having a school on the site and primary industry activities on other properties in the locality are discussed earlier as are issues relating to the compatibility of the school with other land uses in the locality. As discussed, I am satisfied that there is no inappropriate or unacceptable tension capable of being caused by a school on the site and such other land uses. 233 I have, therefore, concluded that there is nothing in the first objective for this zone that acts as an impediment to the approval of the school on the site.

[109]

Second zone objective - 2008 LEP 234 I turn, now, on the second of the zone objectives of the 2008 LEP. This is in two parts, relating first to the rural character of the land and, second, to the scenic character of the land. 235 With respect to the first of these elements, it is clear that, except to the extent that the playing fields for the north of the site are open and green and that, around other parts of the site, there will be extensive (but largely perimeter) landscaping, it could not be said that the predominantly two-storey characteristics of the buildings proposed to be erected for the school will maintain the rural character of the site. 236 However, an examination of the air photos shows that in, in the locality, there are extensive built form elements for the various rural productive activities carried on within the locality. 237 The chicken sheds and the various covered horticultural production areas (comprising greenhouses and, predominantly, igloos) show, from both the aerial photographs and from the bus inspection of the precinct noted at the commencement of this decision, that the rural character of the locality is not one of green open fields - either exclusively or visually dominantly as one moves about the locality or the precinct traversed during the bus inspection. 238 Indeed, these productive agricultural activities mean that there is a very significant (and, from my observation during the bus inspection, often unscreened by landscaping), intrusion into the natural landscape. The extent of this, coupled with the rate at which I have concluded, as discussed elsewhere, this landscape will change to the future planned direction for the Austral precinct causes me to conclude that, to the limited extent that the proposed school may differ in scale to the present built form, it does not do so in a sufficiently disharmonious form to warrant any concern. 239 At the commencement of this decision, I described in the view over the locality to be obtained from a point on the crest of the hill on Fourth Avenue to the south of Gurner Avenue. 240 It was at that point, during the final stage of the bus inspection of the locality and of the precinct, that I observed what was necessary to assess what could be considered the "scenic character of the land". 241 Essentially, the view from this point to the site, the only relevant place, in my assessment, from which it would be appropriate to make any assessment of the extent, if any, that the land actual might have "scenic character", would lead to the inclusion that, both individually and contextually, the land did not have any significant scenic character. 242 The view from the bus at this point was to the market garden and its igloos to the west of the private road; the non-descript and rundown rural and residential buildings on the site and the substantial residence and the even more substantial storage areas for construction materials (earlier noted as being present) on the site immediately to the east. 243 While there is undoubtedly significant green space in the dogleg grasslands around the jumble of structures on the site, the grasslands could certainly not be described - if undertaking a view impact assessment pursuant to Tenacity Consulting v Waringah [2004] NSWLEC 140 - as comprising elements of an iconic view. 244 Whilst the school will undoubtedly comprise a significant change to the observable character of the locality, to the extent that the school could be viewed, I am satisfied that the landscaping and structures of the school, with its playing fields to the north, will not merely "maintain the …. scenic character of the land" but will provide a visual improvement to it and its immediate surrounds. 245 There is, therefore, in my view, nothing arising from the second of the zone objectives in the 2008 LEP that causes me any concern as to the acceptability of the proposal.

[111]

Fourth zone objective - 2008 LEP 247 I turn, now, on the fourth of the zone objectives of the 2008 LEP. This is in the following terms: To minimise conflict between land uses within the zone and land uses within adjoining zones. 248 With respect to this zone objective of the 2008 LEP, the question of potential conflict between the school and the activities of the chicken farm, being an impact said to arise because of odour emitted by the chicken farm, was earlier accorded separate consideration. No issue, as earlier discussed, arises. 249 From the evidence, the other activities within the zone that are potentially impacted by the school are those in the immediate locality. On the evidence from the planners, the air photographs and the resident objectors, there are, on my understanding, three distinct activities in the locality, other than the chicken farm, where it may be said that there might be some impact by the school. These are: · the intensive horticultural activity on the property immediately to the west of the private road along the western boundary of the site; · trucking movements from transport operations run on properties within the locality or immediately beyond the locality to the west along Gurner Avenue; and · rural residential occupancies within the locality. 250 The possible conflicts that might exist between the school and the market garden operations on the property to the west are capable of resolution, as submitted by Mr Marincowitz by adaptive and neighbourly management of its operations being adopted by the proprietors of the market garden. 251 As Mr Marincowitz submitted and I accept, when one takes into account the restricted operations of the school (where no activities are permitted on weekends) when coupled with the number of ordinary school holidays, public holidays and, possibly, a number of special religious holidays associated with the school, there is more than sufficient time for the proprietors of the market garden to arrange their activities in a fashion which did not conflict with the school. Such adaption merely requires a little neighbourly respect and assumes, for the purposes of this submission, that there may be some potential for adverse impact that would arise on the market garden from the school (by complaints, for example). 252 In this regard, I note that the written objections, as best I am able to do understand the various addresses on them, do not include any objection from the proprietors of that market garden. 253 Reaching the conclusion that an appropriate neighbourly management regime could resolve any difficulties which might potentially arise between the school and the market garden is merely to be satisfied that a reasonable resolution to such a problem is available if the problem were to exist - it does not mean that I have reached any conclusion that, as a matter of fact, such a problem would exist. 254 The concerns that were expressed by the trucking operator who was amongst the resident objectors related to the width of the road and the potential conflict caused by increased car and bus traffic servicing the school. I am satisfied that this, again, does not constitute a problem of any significance. There are a number of reasons for this. 255 First, the hours of operation of the school are predictable and the commencing time for the school's activities in the morning is likely, in most instances, to be later than the departing time for vehicles undertaking transport business activities. 256 However, to the extent that this might not be the case, the upgrading that the school is required to undertake, as part of this project, for portion of the Fourth Avenue together with the scheduling that the council has made for works to the remainder of the Fourth Avenue should mean that turning right from Gurner Avenue into Fourth Avenue to go left or right at Fifteenth Avenue should be the preferred direction of operation for such trucking activities. 257 Indeed, the concerns that the resident objectors raised about safety issues at the intersection of Craik Avenue and Fifteenth Avenue (observed to be well founded during the bus inspection) means that the upgrading of Fourth Avenue, whether the school was to be present or not, should, merely for road safety reasons, be the preferred route to those purposes. 258 In addition, although there will undoubtedly be some private car use by parents and staff, the primary focus for transporting pupils to and from the school will be by bus and the applicant has agreed to a condition that will confine any bus operations authorised or organised by the school to be along Fourth Avenue. A condition of consent, to that effect, is to be in the conditions of consent. 259 As a consequence, I do not consider that there is any incompatibility between the school and these activities. 260 With respect to the same objective, the only possible conflict between the school and broader rural residential activities would be traffic impacts and there is no expert evidence that would suggest that there are any unacceptable traffic impacts of the proposal. 261 Finally, specific amenity issues arise with respect to the property immediately to the east. During the course of the hearing, Mr Ayling agreed to a number of amendments to the proposal, dealt with earlier, that will provide specific ameliorative changes to the proposal that, I am satisfied, will have the effect of removing any inappropriate impacts on the residence immediately to the east. 262 I note, in this regard, that there is no submission that the development of the school will have any specific, identified impact on future uses of the Federation's land. As a consequence, I am satisfied that the first limb of this same objective is not conflicted to any extent other than, perhaps, the necessity for management adaption, not unreasonable in extent, by the market garden to the west. 263 I do not understand that there is any suggestion that the proposed school will have any impact on any activity in adjoining zones thus the second limb of this zone objective is not engaged. 264 It therefore follows that I have concluded that there is nothing arising from this zone objective of the 2008 LEP that would act as any impediment to granting approval to the school.

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267 The Federation says that the proposal for a school on the site is in conflict with the second limb of the policy in that, the Federation says, adding the school does not protect agriculture from adverse forms of other development and, in indeed, is inimical to this provision. A number of matters discussed earlier concerning the zone objectives in the 1997 and 2008 LEPs, in my view, cover similar territory. However, for the purpose of completeness, I assess this proposal against the strategies in this provision of the Hawksbury-Nepean River Plan. 268 Strategy (a) concerns giving priority to agricultural production in rural zones. This priority is afforded to production by the zone objectives of both LEPs. As earlier discussed, the only impact on rural operations that the proposed school will have is the removal of the agricultural potential of the land upon which it is to be located. That agricultural potential, for reasons earlier discussed, is minimal. I do not, therefore, consider that there is any inconsistency between this strategy and the proposed school. 269 Strategy (b) is directed at the zone objectives and minimum lot sizes in each of the LEPs relevant to this application but the strategy does not require any consideration concerning this application as it is directed to those of framing those local environmental plans not to assessment of individual applications. 270 Strategy (c) deals with buffer distances for noise, odour and visual impacts. Consideration of this topic is earlier dealt with concerning buffer distances pursuant to the council's development control plan provisions. For the reasons enumerated in that discussion, I do not consider that the proposed school transgresses or has any impact on agricultural potential in the locality as a consequence of its existence. The existence of other identifiable activities already being undertaken on properties that surround site do so in a fashion that, effectively, provides a ring shielding of the proposal from causing any impacts on any other rural activities in the locality. 271 Strategy (d) is also addressed by the earlier discussion concerning agricultural sustainability in the context of these applicable zone objectives of the two LEPs. I do not consider that any further specific comment beyond that which I have earlier written is wanted concerning this strategy. 272 Strategy (e) concerns the long-term sustainability of the proposed development. As the Federation has presented no evidence on this point and no contention is raised by the council with respect to it, there is nothing for me to consider and this strategy, therefore, cannot stand in the path of the proposal. 273 The final strategy, (f), concerns aquaculture and fisheries industries and is clearly irrelevant. 274 Further, if I be wrong about the Hawksbury-Nepean River Plan, as I observed concerning the Growth Centres SEPP, that SEPP has an overriding provision to ensure that outcomes mandated by planning pursuant to that SEPP will not be inhibited by other environmental planning instruments such as this plan. Given the conclusions which I have reached, as earlier discussed, concerning the current transition and future character of development in the Austral precinct, generally, and in this locality, specifically, even if there were any tension of any significance between the Hawksbury-Nepean River Plan and the proposal, I am satisfied that such tension could be ignored as a consequence of the changed future planning outcomes for the Austral precinct and this locality pursuant to the Growth Centres SEPP. 275 As a consequence, I am satisfied that, considering the all matters called up by cl 6.8 of the Hawksbury-Nepean River Plan, this plan poses no barrier to or raises even any minor concern about approval of the proposed school. Economic impact in the locality 276 I turn, now, to the question of whether or not the proposed school will have some adverse economic impact on the locality. Mr Sinclair, in his statement of evidence at pages 12-14, provides a deal of statistical information from the Australian Bureau of Statistics concerning agricultural production in the Sydney Basin. He provides no statistical information concerning agricultural production of the Austral precinct level or of the agreed locality within which the site is located. Based on the statistical information, he makes a number of broad and sweeping assumptions about the impact that the school will have on agricultural economic activity in the locality and by some unspecified rippling effect, well beyond it. 277 However, as earlier discussed in my consideration of the relevant zone objectives and as also noted above with respect to the Hawkesbury-Nepean River Plan, the rural residential uses of allotments in the immediate vicinity to the east; across the intersection of Gurner Avenue and Fourth Ave.; and second to the west from the site on Gurner Avenue effectively provide a shield, by the restrictions that arise for future agricultural activities in the locality by virtue of the existing use of those allotments, that there can be no such impact caused by the present proposal - save to the extent that the agricultural potential (and thus the contribution to the economic activity within the Sydney basin) made by the 10 to 20 sheep or the 5 to 10 cows/horses capable of being grazed on the property will be lost. 278 I am satisfied that this loss is so trifling as not to warrant consideration. Absent any proper evidentiary foundation to establish that there is likely to be some specific adverse economic impact on identified businesses in the locality, the sweeping assumptions made by Mr Sinclair in this regard provide no assistance to the Federation's case. 279 Even if the sweeping assertions by Mr Sinclair did require some further consideration, I am satisfied that any adverse economic impact on agricultural production in the locality that is likely to occur over the foreseeable future will come as an inevitable consequence of the future planning direction identified for the precinct by planning pursuant to the Growth Centres SEPP and will certainly not come from the existence of the proposed school. Conclusion 280 As a consequence of everything set out above, I am satisfied that proposed development satisfies the various matters canvassed by the Department of Planning in the correspondence quoted earlier. In particular, I am satisfied that the proposed school will not preclude land future uses identified in the relevant Structure Plan. 281 For the reasons set out in detail earlier, I am also satisfied that there is no significant impact by or on the proposed school that raises any merit issue warranting refusal of the application. 282 Although there are a number of minor areas where the proposal does not mesh perfectly with the zone objectives of the 1997 LEP and, similarly, with the zone objectives of the 2008 LEP, these are not, individually or collectively, such that I should set aside the proposed consent orders or require any significant modification of the proposal. 283 As to the predominant planning framework considerations, a combination of the availability of the Infrastructure SEPP to provide a platform of permissibility if the application were resubmitted coupled with the inference I consider it entirely reasonable to draw that approval of the application is not inconsistent with the Department of Planning's view of the long-term planning outcomes for the Austral precinct (provided the assessment undertaken by this appeal were to have been undertaken and found satisfactory - as has been the case). 284 This conclusion, coupled with the fact that I am satisfied that the transition has, in effect, at least to some extent, already commenced informally in the locality, leads me to conclude that there is no basis from the old, the current or the future planning regimes for the locality or the Austral precinct should cause me to refuse to give effect to the consent orders agreed to by the applicant and the council. 285 I should expressly repeat, as a summary of my conclusion concerning the odour issues posed by the Federation and a small number of resident objectors, that odour does not provide any basis upon which I could decline to give effect to the agreement between the applicant and the council. 286 However, as I raised within Mr Ayling on several occasions during the course of the hearing, there are a number of minor changes, all of which were said by Mr Ayling to be acceptable to the applicant, that are required to be made to render the proposal more acceptable. All of these changes, as I understood the position, were acceptable to the council and do not alter the consent order status of the outcome of these proceedings. These changes relate, as earlier noted, to: · provision of a step in the facade of the administration building; · removal of the staff parking on the eastern side of the perimeter trail adjacent to the administration building and facing the residence to the east with this space to be replaced by landscaping and the parking spaces relocated to the staff car park to the north of the buildings; · installation of barriers to prevent this perimeter trail being used other than for the purposes for which it is required by the Rural Fire Service; · some of the landscaping along the western boundary fencing and acoustic shield is to be planted outside this structure to soften its presentation; and · relocation of the acoustic wall (with appropriate overlapping gaps to permit any required emergency service access), away from the eastern boundary of the site in order to improve the amenity of the existing residence to the east. 287 As also discussed with Mr Ayling, the conditions of consent are to require all bus movements under the school's control to be via Fourth Avenue. Orders 288 It therefore follows that the orders of the Court, by consent, will be:

Ali v Liverpool City Council

At a glance

Court

Decision date

Before

Source

Judgment (116 paragraphs)

Parties

Cases Cited (11)

Cited By (21)