Ardill Payne & Partners v Tweed Shire Council

The site

1. The site is an irregular, rectangular shape, fronting to Cudgen Road, which forms the northern boundary. To the north of Cudgen Road lies the township of Kingscliff.
2. The remaining boundaries of the site are adjacent to rural/agricultural lands, that are under various stages and types of cropping including for passionfruit, sweet corn, sweet potato and taro.
3. The area of the site is 1.813 hectares (Ha).
4. The site is vacant of structures and contains fragmented pockets of trees interspersed with grass, that slopes generally towards the south.

Relevant Planning Controls

1. The requirements of the EPA Act, specifically s 4.15 are relevant for the Court's consideration to grant consent to the DA under appeal.
2. Pursuant to cl 7 of the State Environmental Planning Policy 55 - Remediation of Land, the site must be deemed suitable for its proposed use. Based on the documents that support the amended DA and expert reports, the Council raises no contention regarding jurisdiction, and the Court is satisfied, that the applicant has provided sufficient evidence in Exhibit B (contamination assessment report and remedial action plan), which together with the agreed conditions of consent, address the requirements of cl 7, such that the site can be made suitable for the proposed subdivision.
3. Based on the area of the site, and it being identified within the Tweed Coast Koala study area, an assessment of the relevant provisions of the State Environmental Planning Policy No 44 - Koala Habitat Protection (SEPP Koala) is required to grant consent. The amended DA relies on an ecological assessment, in Exhibit B, that establishes the site does not contain koala habitat, koala activity or 'Schedule 2' designated trees. The site does not meet the definition of 'core' or 'potential' koala habitat. The Court is satisfied that the relevant provisions of the SEPP Koala are addressed, and the Council raises no contention on this jurisdictional matter.
4. Pursuant to cll 2 and 5, the State Environmental Planning Policy (Primary Production and Rural Development) 2019 (SEPP Primary) applies across the State. However, the parties agree that site is not specifically mapped as 'State Significant Farmland' in Sch 1, and there are no provisions relevant for the Court's consideration of the DA under appeal, pursuant to cl 11.
5. The site is zoned R2 Low Density Residential (R2), pursuant to cl 2.3 of the TLEP. The proposed subdivision is permissible with consent in the R2 zone, and also addresses the requirements of cl 2.6 relating to subdivision. The Court concurs with the parties, that the objectives of the R2 zone, which is the relevant zoning of the site of proposed subdivision are satisfied. The Court accepts that the zoning of the site has remained as R2 since 1987 or thereabouts, despite several amendments to the TLEP.
6. The amended DA satisfies all the relevant objectives, aims, standards and requirements of the TLEP.
7. The objectives and controls of the Tweed Development Control Plan 2008 (TDCP) relevant for consideration are specifically those described in Sections A5 (subdivision) and B26 (Kingscliff). The Court is satisfied, where contended for reasons described below, that the amended DA addresses all relevant standards of the TDCP.
8. In consideration of the amended DA under appeal, the parties draw the Court's attention to the following documents, tendered in Exhibits 2 and 4:

• Buffer zones to reduce Land use conflict with agriculture - An interim guideline, Department of Primary Industries, November 2018 (the Interim Guideline),
• Living and working in rural areas - A handbook for managing land use conflict issues on the NSW North Coast, Department of Primary Industries, 2007 (the Handbook),
• Planning Guidelines. Separating agricultural and residential land uses. Department of Natural Resources and Department Local Government and Planning, Queensland 1997 (the Planning Guidelines),
• Noise Policy for industry, NSW EPA 2017 (the Noise Policy), and
• Module 4, Drift Management Strategies. Minimising and managing spray drift risk. Grains Research and Development Corporation, Bill Gordon undated (the GRDC Guidelines).

Experts

1. The Court relies on evidence from the following experts: 1. Planning - Mr Dwayne Roberts for the applicant; and Mr Ian Sinclair for the respondent. The experts refer to their joint expert report, tendered as Exhibit 6. They also contributed to Exhibit 6. 2. Ecology - Messers Adam Gosling and Peter Gray for the applicant; and Mr Michael Banks for the respondent. The experts refer to their joint expert reports, tendered as Exhibits 13 and 14. 3. Agronomy - Mr Daniel Rollinson for the applicant; and Ms Melissa Van Zweiten for the respondent. Their individual expert reports are tendered as Exhibits 5 and H. They also contributed to Exhibit 6. 4. Acoustic - Mr Michiel Kamphorst for the applicant; and Mr Stephen Gauld for the respondent. The experts refer to their joint expert report, tendered as Exhibits 9 and 10, as well as the Mr Kamphorst's individual report in Exhibit K. 5. Engineering (water, stormwater, sewer, contamination and earthworks) - Messers Ryan Beavis and Mark Tunks, and Ms Helen Tunks for the applicant; and Messers Grant Malcolmson, Anthony Burnham, Nicholas Darwin and Robert Hanby, and Ms Angie Cousens for the respondent. Their joint expert reports are tendered as Exhibits 11, 12, 13 and 14. 6. Air quality - Mr Geordie Galvin for the applicant; and Mr Gary Graham for the respondent. The experts refer to their joint expert reports, tendered as Exhibits 7 and 8, as well as the Mr Galvin's individual report in Exhibit J. 7. Land use conflict - Mr Dwayne Roberts for the applicant; and Mr Tim Fitzroy for the respondent. The experts refer to their joint expert report, tendered as Exhibit 6.
2. Oral evidence was from the ecology, air quality, acoustic, planning and land use conflict experts. By agreement of the parties and concurrence of the Court, the other listed experts were not called to give oral evidence because the contentions relevant to their expertise had been resolved or sufficiently addressed based on their joint/individual reports, supporting documents and/or agreed conditions of consent.

Is there sufficient information to inform the land use conflict assessment and mitigate identified adverse impacts/risks?

1. The Council primarily contends that the amended DA is not supported by sufficient information to accurately address land use conflicts arising from acoustic and air quality impacts to the future potential dwellings on the site from surrounding agricultural land use. The DA is not supported by an accurate and reliable LUCRA to inform appropriate mitigation strategies.
2. Council considers that the Court cannot be satisfied that the proposed subdivision and any future residential development (not the subject of this DA) on the site poses an acceptable risk, because the amended DA does not sufficiently: mitigate the harm to human health (as a sensitive receptor); protect amenity of future residents; or address the potential for adverse constraint on adjoining agricultural lands. Acceptable risk is understood to consider the probability of a hazard-related incident or exposure occurring, and the severity of harm or damage that may result being as low as reasonably practicable and tolerable (to the future residents of the site).
3. The LUCRA report relied on by the experts is described in Exhibit 6, which was prepared by both the LUCRA experts, on the advice of the air quality, acoustic, ecology and agronomy experts. The LUCRA is prepared in consideration of the Handbook and Appendix E of the TDCP, as well as the Planning Guidelines with respect to air quality impacts, and the Noise Policy for noise impacts.
4. The Court understands from the experts that there are two key steps to assessing the land use conflict risk associated with the proposed subdivision on the site, being: firstly, define the activity/hazard, and rank the acceptability of the risk; and secondly, identify any appropriate mitigation strategies which could reduce the assessed risk to a level that is deemed as acceptable (risk ranking).
5. The LUCRA 'ranks the risk' for the proposed subdivision (and future dwellings) under two different cropping scenarios for a range of activities(/hazards). The cropping scenarios considered are: existing crops, described as 'vegetable crops'; and potential crops, specifically 'macadamias'. The agricultural activity (and associated hazards) for each assessed crop, include: chemical storage and uses; farm noise; dust; and odour (for macadamias only). For each crop scenario and associated activity, a risk (ranking) in relation to the site is then derived. This is based on an understanding of the surrounding (current and potential) agricultural practice on surrounding rural lands, topography and weather conditions. The risk ranking assesses the 'acceptability' of identified risks, and then determines whether there is a method of control (mitigation measure) that could change the rank (reduce the risk) to an acceptable level (if firstly assessed as unacceptable).
6. The experts do not agree as to whether the activities that describe the potential air quality or acoustic impacts have been properly assessed and are sufficiently addressed by the amended DA.
7. It is noted that although the amended DA relates to subdivision of the site, the LUCRA and mitigation strategies assessed by the experts primarily consider potential impacts to future residents on the site, which is acknowledged does not form part of the amended DA before the Court under appeal. The experts agree that this consideration however informs the suitability of the site for future residential dwellings, or other development, consistent with the R2 zoning on the site.
8. In assessment of the expert evidence and documents that support the amended DA, the primary concern of the experts relates to: the noise of tractors and sprayers; and the aerial extent/impact of chemicals, specifically pesticides. Possible mitigation strategies considered focus on protecting human health and ensuring the well-being of future residents of the site.
9. The experts agree that the crop scenarios and activities that inform the LUCRA are relevant and appropriate to the site context and are based on the advice of the agronomy experts.
10. For the reasons provided below, I find that the LUCRA (in Exhibit 6) relied on by the amended DA, has been prepared with sufficient information to identify and inform the assessment of land use conflict risks associated with the proposed subdivision on the site (for future residential development) and the use of adjoining agricultural land.
11. I am satisfied that the identified activities and the assessed associated risks have been sufficiently mitigated or are capable of being mitigated to an acceptable level consistent with residential development on the site. I am satisfied that the sensitive receptor, being future residents, are capable of being adequately protected from adjoining agricultural practice. I am also satisfied that the proposed subdivision will not cause adverse and unnecessary conflict with the surrounding agricultural land use.
12. I adopt the opinion of his Honour Moore C in Bailey v Oberon Shire Council [2006] NSWLEC 815 at [51], whereby I must assume that the agricultural activities of the adjoining lands will be conducted in a lawful and safe manner. The proposed mitigation strategies, which are considered and support the amended DA, therefore seek to address any unforeseen or unplanned circumstances, such as weather changes.
13. I accept, after consideration of the LUCRA report (Exhibit 6), expert reports and oral evidence of the experts, that the dust and odour related activities/hazards are assessed as being sufficiently mitigated to an acceptable (risk) level under both the existing (vegetable) crop and potential (macadamia) crop scenarios.

Air quality impacts

1. With regards to air quality, the Council contends that there is insufficient information to the prepare the initial (LUCRA) risk ranking or to assess the effectiveness of the proposed mitigation/control, being a 10m vegetative buffer located along the southern boundary of the site.
2. Council considers that the proposed vegetative buffer is not wide enough, not sufficiently continuous and does not adopt the appropriate plant spacings to create porosity that ensure airborne droplets of chemical (pesticide), applied to crops on the surrounding/adjoining farmland, are sufficiently captured. Therefore, the health of future residents of the dwellings is not adequately protected.
3. The parties agree that the TDCP explains that a buffer is recommended to be established between existing agricultural land and future dwellings, and which should be applied to the site of the proposed subdivision. The TDCP at section 5-32, under 'Buffers' states: "There is a need for buffer areas between subdivisions and some other specified land uses to minimise land use conflicts, protect water quality and environmentally sensitive areas, minimise risk to life and property and protect agricultural, environmental and extractive resource assets. See Appendix E for recommended buffers from identified land uses."
4. It is accepted that there is no specific section in the TDCP that relates to the identification and management of land use conflict, such as describing the application of a LUCRA. The LUCRA is however referenced in the Handbook, and the Planning Guidelines, which describe the dimensional considerations for a buffer. This informs the expert evidence.
5. The experts also reference Appendix E of the TDCP, which describes below the types of buffers appropriate for subdivisions: "'Buffer area' means an area of prescribed width and treatment created between two or more landuses (including environmentally sensitive areas) for the purpose of mitigating the impacts of one or more of those landuses. 'Biological buffers' mean a buffer that assists the capture of airborne pesticide droplets through the creation of a vegetation filter. Vegetation screens can prove effective barriers to spray drift where they meet the following criteria: • are of a minimum width of 30 metres; • contain random plantings of a variety of tree and shrub species of differing growth habits, at spacings of 4 to 5 metres; • include species which have long, thin and rough foliage which facilitate the more efficient capture of spray droplets (see Clause A5 Appendix 1 for suitable species); • provide a permeable barrier which allows air to pass through the buffer (at least 50% of the screen should be open space).
6. At A5E.1 in Appendix E of the TDCP, it is noted that "Except for buffers also contained in other statutory instruments or legislation, the buffers recommended in this Appendix are advisory only" (emphasis added). Further to this, the Handbook (at page 97) states "The process is not meant to applied literally. Rather it should be applied as a guide…".
7. It is agreed by the parties and accepted by the Court that there are no statutory requirements for the proposed subdivision to install a vegetative buffer (or a 'biological buffer') on the site. The experts however consider that a vegetative buffer is an appropriate precautionary measure, to protect human health, particularly if there was a situation of adverse climatic conditions and/or farmer activities are not done strictly in accordance with the requirements of the Pesticides Act 1999. The Pesticides Act 1999 establishes at ss 7 and 10, that a person applying pesticides must not wilfully cause harm to other persons or property. This is agreed as the first level of defence to protect human health on the site. The proposed buffer area is considered as a complimentary measure and provides a second level of defence to protect health.
8. It must be recognised that there is no assumption or suggestion that the landholder of the adjoining or surrounding agricultural lands seeks to cause harm to future residents of the site. In fact, the Court recognises that there have been no complaints of adverse spray (impact) to the current residents of Kingscliff from the surrounding agricultural lands, as evidenced in Exhibit C.
9. The issue in contention relates to the 'potential' for unforeseen circumstances where chemicals, such as pesticide spray, can cross the boundary of the site and be transported towards the future dwellings, and which could detrimentally harm human health. It is on this basis that a vegetative buffer is proposed on the site.
10. The experts refer and rely on Appendix E of the TDCP and the Planning Guidelines to establish the relevant height, width and porosity (thickness) of the vegetative buffer to mitigate to an acceptable level the risk to human health from chemical related activity. The experts agree that the recommended buffer area in these documents is 300m and a vegetative buffer of 40m, and that this is not required on the site. They agree that the primary focus of the assessment should be addressing the potential impact from pesticide spraying (as the highest likely hazardous activity for air quality) associated with the adjoining agricultural land, under both the current and potential crop scenarios.
11. The experts agree that the recommended (vegetative) buffer dimensions must be assessed and considered in the context of the site, topography/landscape, adjoining agricultural practice, weather conditions and the possible location of future dwellings on each lot after subdivision.
12. I understand that the experts cannot agree whether the proposed width of the vegetative buffer or its continuity is sufficient to reduce the 'chemical related activity risks' to an acceptable level, under both cropping scenarios. The experts also do not agree whether the proposed vegetative buffer can attain/maintain a growth that is sufficiently thick (and porous) to attenuate the transmittal of the airborne (pesticide) droplets.
13. The applicant relies on the proposed location and dimension of the buffer area (Exhibit M), and the vegetative controls in the VMP (Exhibit R). The Council refers to the inadequacy of the buffer area, showing the indicative relationship of building envelopes, vegetative buffer and easements in Exhibit 19.
14. I accept that the proposed buffer area is sufficient to acceptably address the (chemical and airborne) risks to future residents on the site, particularly associated with pesticides as applied on adjoining agricultural land, under both cropping scenarios. I find that the proposed subdivision addresses and satisfies the recommended buffer requirements for future residential development, as described in the TDCP and Planning Guidelines. I also consider, although do not rely on, that the GRDC Guidelines (Module 4, Drift Management Strategies. Minimising and managing spray drift risk. Grains Research and Development Corporation, by Bill Gordon, undated) is adequately addressed by the proposed vegetative buffer. I accept that there are no jurisdictional requirements for the design of the buffer area on the site as it relates to the proposed subdivision.
15. I understand that the proposed 10m wide vegetative buffer will be separated from the (southern) boundary of the site by a ~6.5m wide sewer/drainage easement that extends between proposed Lots 2 and 17. I also understand that there is a further distance of at least 8.3m from the edge of the vegetative buffer to the proposed building envelopes (subject to future development approval), which is planned as open space. I also note that the proposed building envelope on Lot 1 will be separated from the southern boundary by a 5.2m 'offset area', a 10m vegetative buffer, and then a planned 16m of open space. The planned open space/easement areas across the site plus the vegetative(biological) buffer combine across the site to create a sufficient 'buffer area', as defined in the TDCP. The proposed buffer area acts as both a separation buffer and vegetative/biological buffer.
16. Messers Roberts and Gray maintain that the proposed vegetative buffer, as described in the VMP, is capable of attaining the required (0.5) porosity based on the buffer plantings, depth and spacing proposed, and will achieve a sufficient canopy coverage over the easement. The canopy of the trees will likely extend beyond the 10m buffer, due to the species proposed to be planted. The proposed two rows of tree plantings are sufficient to address any loss of trees in the buffer over time, and to achieve the required 0.5 porosity, with replacement of trees specified in the VMP. This supports the continuity of the buffer. I accept their assessment.
17. Messers Banks and Fitzroy are however concerned that the vegetative buffer will not be maintained to a suitable porosity, particularly if tree loss is significant and situational before residents occupy the site. They are not satisfied that they have sufficient information to assess the continuity of the buffer across the easement, although accept that the canopy of trees will likely extend beyond the 10m vegetative buffer due to the proposed tree plantings.
18. I accept that the vegetative buffer is dissected in plan view by the drainage/sewer easements along the western edge of proposed Lot 2 and eastern edge of proposed Lot 17, and where the easements bend in its transect. The experts agree, and I accept that no planting of the buffer is proposed or permitted within the easement, to ensure its functionality. The experts also agree, and I accept that the eastern boundary adjacent to the site will retain the existing vegetation, which is primarily located on the adjoining property (of the objector heard in the hearing).
19. I find that the proposed vegetative buffer will be an effective continuous length along the southern length of the site. Based on the expert evidence, I assess that the vegetative buffer is: 'effectively' a continuous length, suitable for its purpose; located along (and outside) the northern bank of the easement channel and designated offset area; and has sufficient vegetative insets on the southern bank of the easement (where it bends). I consider that the proposed vegetative buffer is capable of providing sufficient coverage between any future residential dwellings and the adjoining agricultural land.
20. The experts agree, and I concur that the vegetative buffer must be an appropriate height, maintained at a minimum of 3 m, as described in the VMP (Exhibit R). The buffer height must effectively be at least 1.5 times above spray height. I accept that no aerial spraying is proposed or currently undertaken (Exhibit D) on adjoining land, and that any future spraying will likely be close to ground level and consistent with the requirements of the Pesticides Act 1999. The height of a vegetative buffer is understood to be an important consideration to reduce the potential for spray to drift over the top of the vegetative buffer into the open space and towards the future residences. I accept that the proposed height of the vegetative buffer is sufficient.
21. The experts do not agree as to whether the proposed spacing of the trees to be planted within the (vegetative) buffer, as shown in the VMP (Exhibit R), are capable of attaining 0.5 porosity, and therefore able to sufficiently attenuate the transmittal of pesticide spray droplets. It is understood that the importance of a sufficient (0.5) porosity of the vegetative buffer is to ensure that air droplets (with pesticides) can be captured within the buffer, and that chemical laden droplets do not go over the (buffer) trees (due to too dense plantings) or go all the way through (due to too thin plantings).
22. I accept the proposed spacing of plantings, as shown in Exhibit R, and as described by Messers Roberts, Gosling and Gray, is appropriate and sufficient to mitigate the potential air quality impact to the sensitive receptor (future dwellings) by pesticide spray derived from adjoining agricultural lands. I am satisfied that the proposed vegetative buffer is capable to attain the recommended (0.5) porosity, as designed, and together with the planned open space buffers on either side, forming the effective 'buffer area', will sufficiently mitigate the air quality risk from chemical activity (specifically from pesticides) to future residents, to an acceptable (level) ranking, under both cropping scenarios.
23. I am satisfied that the land use risk assessment, relied on by the amended DA is informed by sufficient information to determine the acceptability of the risk rating. I find that the proposed buffer area, which includes the drainage/sewer easement, vegetative/biological buffer and further open space is sufficient to achieve an acceptable level of risk (rating) for all assessed crop scenarios and chemical related activities associated with adjoining agricultural land. Specifically, the proposed vegetative buffer is of sufficient depth, width and location to mitigate adverse impact to sensitive receptors on the site from chemicals, including pesticide spray. The recommendations of the Planning Guidelines, Handbook and TDCP are effectively achieved in the context of the site and proposed subdivision.
24. The proposed subdivision has adopted the appropriate control measures to mitigate the potential risk to future (site) residents from adverse air quality, with a specific focus on pesticides, as assessed by the experts. I recognise that the landholder of the surrounding agricultural land is bound by relevant legislative requirements, including the Pesticides Act 1999, and that the proposed subdivision further assists to reduce the potential risk to human health to an acceptable level.
25. I am satisfied that based on the evidence before the Court and the conditions of consent described below, that this contention is resolved. The relevant requirements of the TDCP, Handbook and Planning Guidelines are addressed, and relevant matters of consideration in s 4.15(1) of the EPA Act are satisfied.

Acoustic impacts

1. With regards to potential acoustic impacts, the Council contends that there is insufficient information supporting the amended DA, to specify or quantify the potential for adverse amenity impacts to future residents of the site, specifically from noise created by the operation of machinery on the adjoining agricultural lands, which is an activity described in the LUCRA.
2. Council accepts that the proposed acoustic treatment to windows of future dwellings on the site is sufficient to attain indoor amenity, and that this is conditionable. However, Council considers that it is unreasonable for future dwellings to have the windows closed during noisy operations on adjacent land and also that there is an unacceptable impact to the outside amenity (of the dwelling), which cannot be mitigated. It was posed that it is unreasonable to expect persons to remain inside during extended tractor and/or sprayer use on the adjoining agricultural land. Therefore, the amenity and well-being of future residents of dwellings on the site cannot be adequately protected.
3. The applicant relies on an environmental acoustic assessment (Exhibit 9), based on the guidelines of the Noise Policy and which was considered in the LUCRA. This is accepted by the experts.
4. The experts agree that the predicted noise level from a tractor on the adjacent (agricultural) land could be 'significant', being up to 16 decibels (dB) above noise criteria in the day, and 'infrequent'. Tractor use during the evening and night could result in higher exceedances of the noise criteria (up to and in exceedance of 29 dB), that would disturb sleep if windows were left untreated (acoustically). The noise level to future residents of the site could be up to 59dB.
5. The experts agree that the 'Offensive Noise Test' (ONT) described in Section 2.1.4 in the Noise Guide is appropriate to determine whether the noise from adjoining agricultural land to future residents of the site could be potentially be offensive. The ONT establishes a checklist of six questions to be considered when assessing the offensiveness of noise, being: "Q1: Is the noise loud in an absolute sense? Is it loud relative to other noise in the area? This establishes that the noise is likely to be heard by neighbours. Its volume alone may be annoying. An example would be music being played at a very high volume in a residence so it can be heard over very noisy activity outside, such as construction work. The noise may also be loud relative to the background noise. An example would be loud fireworks set off late at night. Noise measurements using a sound level meter would help to determine how loud the noise is relative to the background noise level in the area. Q2: Does the noise include characteristics that make it particularly irritating? The presence of tones, impulses or fluctuations in volume can make people more likely to react to the noise. These can be judged subjectively but noise measurements will help to quantify the extent of these characteristics. Examples might be screeching sounds from poorly maintained equipment or a 'beeper' alarm that uses a pulsed sound made up of one or two alternating frequency tones, usually higher pitched, that are louder than the background noise in the area. Q3: Does the noise occur at times when people expect to enjoy peace and quiet? People usually expect their surroundings to be quieter during the evening and at night. Talk to the complainants about how the noise affects them to see if it is interfering unreasonably with their comfort at home. Is it regularly disturbing their sleep, making it difficult to have a conversation, study, read or hear the TV? Noise that regularly disturbs sleep is likely to be considered offensive by complainants and this should be taken into account in your assessment. Q4: Is the noise atypical for the area? Where noise from an activity that is causing nuisance is new or unusual for an area, people are more likely to react. Look at the typical uses of the area and determine whether the activity is consistent with the local environmental plan. An example might be a community event with amplified music affecting a residential area that has not traditionally been affected by such events. Q5: Does the noise occur often? Noise can be more annoying when it occurs frequently. Examples might be a leaf blower used every morning or a band that practises frequently without regard to the impact on neighbours. Q6: Are a number of people affected by the noise? Only one person needs to be affected by the noise for it to be deemed offensive. However, talking to other neighbours likely to be exposed to the same noise about how it affects them may assist in deciding what action to take. Some councils have a policy of requiring a minimum number of complaints from different individuals before taking formal action."
6. The experts agree that in applying the 'offensive noise test' in the Noise Policy, the noise from a tractor on the adjoining land could be considered as loud, infrequent, offensive in the evening and night, and would likely affect future residents on the site sporadically.
7. The experts agree that the acoustic assessment or the LUCRA does not specifically assess the noise level from a (airblast) sprayer, although the experts consider that this noise would not be any more offensive than a tractor. They accept that the tractor, sprayer and other related mechanical noise from the adjoining agricultural land is considered appropriately as 'farm noise' in the LUCRA.
8. The LUCRA has assessed farm noise (to future residents) as unacceptable due to the sound levels that residents could be exposed to. The types and periods of noise likely to occur under both cropping scenarios have been advised by the agronomy experts to inform the LUCRA.
9. The experts agree that the proposed buffer area will not have a significant effect to mitigate any noise generated from the adjoining agricultural land. The experts also agree that there is no appropriate mitigation strategy that could reduce offensive noise outside of the dwelling. They accept that farm noise is a typical consequence of residents living close to agricultural lands.
10. The experts agree, and the Court accepts that mitigation is required and is feasible to address sleep disturbance, by acoustic treatment of windows. The experts agree to draft conditions of consent, in Exhibit 20, which address the potential noise impact within any future dwellings. This is accepted by the Court.
11. It was explained to the Court that based on the proposed acoustic treatment, the likely low frequency, and limited duration of the 'farm noise', which will predominantly occur after 7 am and before 10 pm, the farm noise is assessed in the LUCRA as having an acceptable (level) ranking.
12. I am satisfied that the LUCRA that supports the amended DA has been informed by sufficient information, assessed by the relevant experts, and that the agreed mitigation strategy to reduce sleep disturbance results in 'farm noise' that is at an acceptable level to any future residents of the site.
13. I find that the amenity of the future residents on the site is sufficiently protected in the context of the rural surroundings, and from the adjoining agricultural practice.
14. I am satisfied that the agreed acoustic treatment of windows (for future dwellings by condition) together with the proposed buffer area, sufficiently protects the amenity of the future residents from noise under both cropping scenarios, consistent with Section A5.E.11 of Appendix E of the TDCP and the Noise Policy.
15. I do not agree with Mr Sinclair that it is unreasonable for future residents on the site to have some effect from noise whilst outside, particularly from machinery on the adjoining agricultural land, which I find is consistent with the rural context of the site. The outside amenity of future residents will not be unreasonably impacted.
16. The proposed subdivision is unlikely to adversely impact the future operation of the adjoining agricultural land. Residents should expect some level of noise being in proximity to agricultural lands. It is noted that the proposed noise mitigation strategy on the windows is applicable to future dwellings and will address potential sleep disturbance.
17. I am satisfied that based on the evidence before the Court for the amended DA and the conditions of consent described below, this contention is resolved. The relevant requirements of the TDCP and Noise Policy are sufficiently addressed, and the relevant matters for consideration in s 4.15(1) of the EPA Act are addressed.

Conditions

1. Based on the findings described above, I hereby grant conditional consent to the DA as amended, pursuant to s 4.16(1)(a) of the EPA Act, and impose conditions described in Annexure A, pursuant to s 4.17(1).
2. I adopt the conditions of consent agreed by the parties, as described in Exhibit 21. I address below, the conditions that remain in dispute between the parties.
3. I accept Council's proposed conditions 33 and 92, consistent with my determination seeking an agreed porosity and height of the vegetative buffer as an effective mitigation strategy. I consider that the achievement of the recommended vegetation buffer at the subdivision certificate stage, rather than at occupation of the future dwellings (as sought by the applicant), provides sufficient time for the 'buffer' trees to establish and for plantings to be replaced, if required, as per the VMP, and prior to residents living in the future dwellings.
4. Also, I accept Council's position on condition 33 that remediation of contamination on the site should not be constrained by proximity to the vegetation buffer.

Conclusion

1. The proposed subdivision has been assessed, based on the evidence before the Court, including the DA's (amended) supporting plans, documents, expert reports and conditions of consent. I am required to assess the proposed subdivision as amended and which is in evidence before the Court.
2. After consideration of the evidence, I am satisfied that the proposed subdivision, as amended, addresses the relevant jurisdictional requirements and satisfies the matters of relevance for consideration of the amended DA, as established in s 4.15 of the EPA Act. There are no unresolved jurisdictional issues requiring the Court's consideration of the amended DA.
3. The proposed subdivision and associated works satisfies the relevant requirements established in s 4.15(1) of the EPA Act. The relevant standards and provisions of the TLEP and TDCP, specifically those relating to amenity, supporting continued agricultural use and protecting public health, are addressed to my satisfaction.
4. I am satisfied that the requirements of s 4.15(1)(a) of the EPA Act are addressed. Of particular focus of the experts was the requirements of the TDCP, which as contended, are addressed by the appropriate LUCRA assessment and proposed mitigation strategies including a buffer area and acoustic treatment of windows for future dwellings.
5. I am satisfied that there is unlikely to be an adverse impact from the proposed subdivision on the natural, surrounding agricultural or built environment. Therefore, s 4.15(1)(b) of the EPA Act is addressed.
6. I find that the site is suitable for the proposed subdivision (and future residential dwellings), satisfying the requirements of s 4.15(1)(c) of the EPA Act.
7. I have considered the contentions raised by Council and issues submitted by residents. I find that the proposed development does not adversely affect the amenity of future residents of the site, function of surrounding agricultural lands or amenity of existing residents of Kingscliff. I am satisfied that the proposed development is in the public interest, and that subss 4.15(1)(d) and (e) of the EPA Act are addressed.
8. I find that the proposed subdivision complies with the relevant standards of the TDCP, which have been assessed in context with the site and relevant zoning, and that s 4.15(3A) of the EPA Act is addressed to my satisfaction.
9. The appeal for DA 20/0383, as amended, is approved, pursuant to s 4.16(1)(a) of the EPA Act, and subject to conditions of consent in Annexure A.

Orders

1. The Court notes that: 1. That the Tweed Shire Council, as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the application for development consent (DA20/0383). 2. That the Tweed Shire Council has uploaded the amended application on the NSW planning portal on 18 (footpath plan) and 21 (VMP) October 2021. 3. That the applicant has filed the amended application after uploading, consistent with that which was tendered in evidence, and granted leave by the Court.
2. Consequently, the orders of the Court are as follows: 1. The appeal is upheld. 2. Development Application DA20/0383 for the Torrens title subdivision of one lot into 17 lots, removal of vegetation, establishment of a vegetative buffer and associated earth/civil works on Lot 101 DP 1056576, along Cudgen Road, Cudgen, is approved subject to the conditions in Annexure A.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2021