Benson v Tattersall Lander Pty Ltd

Land and Environment Court (NSW)|2018-02-19|Before: Sheahan J

Solicitors: Stacks Law Firm (Applicant) Long Legal Pty Ltd (First respondent) Lindsay Taylor Lawyers (Second respondent) File Number(s): 2017/76979

A: Introduction

The Applicant in these judicial review proceedings, Wayne Benson, is seeking a declaration that a development consent ("DC") granted by the Second Respondent, Wollondilly Shire Council ("the Council"), to the First Respondent, on 13 December 2016, is invalid and of no affect.
The First Respondent, Tattersall Lander Pty Ltd ("Lander"), is the firm of "development consultants", which made the relevant development application ("DA" - 2015/000316.001), on behalf of Mr and Mrs B & R Bartolo.

The proposal

The effect of the DA, as lodged by Lander on or around 5/6 May 2015, would be to increase the site's capacity, in terms of the maximum number of turkeys carried on site at any one time, from 42,000 to 75,000.
The DA was accompanied by a Statement of Environmental Effects ("SEE"), prepared by Lander, and several expert assessment reports (on Air Quality, Flora and Fauna, and Noise Impacts - SOF2). The Air and Noise Reports were authored by Benbow Environmental.
The odour assessment section of the Air Report referred to modelling of three possible scenarios - existing turkey operations, proposed turkey operations, and "proposed operations, chicken farming" (EB Vol 1 fol 75).
The SEE indicates that Lander was also seeking approval to farm up to 250,000 "poultry birds", along with approval for a potential change in operations on the farm from turkey production to chicken production. The DA proposal is defined in the SEE (pp4-5, at EB Vol 1 fols 19-20) as being for: ... an extension to three of the existing six (6) poultry sheds, six (6) new poultry sheds, and bulk earthworks which will include the extension of an existing dam for water collection (from the roof areas of the sheds) and reuse. These works will be undertaken as a staged construction. This Application is also seeking the approval to farm up to 250,000 poultry birds as per the [Environmental Planning and Assessment] Regulation 2000 Schedule 3 with the potential transfer from a turkey production operation to a chicken production operation, if market conditions change into the future.
The supporting materials (Air report, p8, table 4-1, at EB Vol 1 fol 62) explain that sheds 1 to 3 would each continue to have a capacity of 7000 turkeys (or 22,280-24,855 chickens), and the capacity of new sheds 4 to 12 would each be 9000 turkeys (or 25,560-27,540 chickens), making a total of 102,000 turkeys (or 315,242 chickens).
The Air/Odour conclusion (fol 79) was "a higher contribution from chicken farming (scenario 3) than turkey farming (scenarios 1 and 2)". Current operations and scenario 2 complied with air quality criteria, but there is a "slight exceedance" (3.2% and 1.2%) at two out of 9 receptors for scenario 3. The report recommended that: ... should the proponent wish to farm chickens at the proposed development in the future, a vegetated buffer be provided between the farm and receptors R1 and R2, to the west of the site.
The DA was amended on 29 June 2015 (EB Vol 1 fols 461-466), to withdraw the proposed construction of new sheds 9 to 12. The amended DA proposed the extension of sheds 4, 5, and 6, and construction and use of two new sheds "for poultry farming purposes", to be numbered 7 & 8 (EB Vol 2 fols 1097 and 1138). It thereby reduced the maximum capacity, in terms of bird numbers proposed to be stocked onsite, to fewer than 250,000 birds (205,514), meaning that the proposed development was no longer classified as "designated development", so overcoming the requirement for the DA to be accompanied by an Environmental Impact Statement ("EIS"). (See Tp12, L42-p13, L14, and subs par 6.)
The proposal went before Council twice - on 17 October 2016, and 21 November 2016 - and the challenged DC was issued 13 December 2016.

The challenge

The grounds of challenge set out in the summons say (emphasis mine): 1 The second respondent failed to consider mandatory matters of relevance to development under s 79C of the [EPA Act]. Particulars (a) The noise impact of allowing conversion of sheds from 75,000 turkeys to 250,000 chickens; (b) The odour impact of allowing conversion of sheds from 75,000 turkeys to 250,000 chickens; (c) The environmental impacts generally of allowing conversion of sheds from 75,000 turkeys to 250,000 chickens 2 The decision to allow the conversion of sheds from 75,000 turkeys to 250,000 chickens was manifestly unreasonable. Particulars (a) The second respondent allowed the conversion without an environmental assessment; and (b) The second respondent failed to impose conditions in accordance with its Development Control Plan 2016, including but not limited to that the development must be in accordance with "Blue Book" Code of Practice for Animal Care produced by the Department of Primary Industries. 3 The consent is invalid for uncertainty. Particulars (c) Condition 5 authorises turkeys or chickens, and condition 20 authorises a stocking rate that shall not exceed 75,000 turkeys or 250,000 chickens, but no limits are imposed where a mixture of turkeys and chickens are housed.

B: Background/Chronology

The subject site enjoys consents for poultry farming use, granted in 2002, 2005 and 2007, restricting the keeping of birds to 28,000 at any time (see EB Vol 2 fol 1165).
On receipt of the May 2015 DA, which was described as for "integrated development", Council sought and received further information from Lander, and comments from relevant government agencies.
During June 2015, neighbours and the public were notified of the DA, and submissions were received.
On 3 July 2015, the Office of Water indicated that the DA did not need a "controlled activity approval" (EB Vol 2 fol 617, and SOF3).
On 16 July 2015, Council's Senior Environmental Health Officer (Bethany Meehan) expressed concerns about the 12-shed proposal, the additional truck movements involved, the noise they would generate, and the Bartolos' desire to keep available the possibility of growing chickens, and recommended (EB Vol 1 fol 589) that any approval of the DA be conditioned "turkeys only". That recommendation was carried forward into the Planning Reports presented to Council on both 17 October 2016 and 21 November 2016 (EB Vol 2 fols 1099 and 1168).
On 12 August 2015, Council raised no objection to the proposed amendment of the DA, but sought further supporting information (EB Vol 2 fols 684-687).
The "growing cycles" for turkeys and chickens are different - 2.5 pa for turkeys, and 5.5 for chickens - so their respective impacts are different in respect of matters such as truck movements and cleanout periods (see EB Vol 2 fols 747-752). As Dr Berveling noted (Tp4, LL35-38): ... the number of batches and the frequency of the poultry trucks for either thinning or batches arises because of the different times that it takes for the maturing of the batch of turkeys; it takes longer, compared to the chickens.
The Air Quality Report submitted with the original DA modelled scenarios for both turkeys and chickens noting that chickens are known to generate more dust and odour than turkeys. The report concluded that modelled operational activities would not result in odours or dust which would be unreasonable to the amenity of neighbours, subject to a Site Environmental Management Plan incorporating the management and operational criteria as modelled in the report. The report also recommended that, should the poultry farm include chickens, additional wind breaks would be required in the form of vegetation buffers to the west of the sheds (EB Vol 2 fol 1136).
The amended DA of late June 2015 was notified, and, again, submissions were received, during September/October 2015.
On 14 September 2015, Lander responded to Council's request of 12 August 2015, and also provided a Traffic Impact Assessment Report from SECA Solutions (EB Vol 2 fols 725-770).
Council's retained planning consultant (EB Vol 3 fols 1026-1029) worked with Council officers on the assessment of the application, and a report was prepared for consideration at Council's 17 October 2016 meeting ("1st Report" - EB Vol 2 fols 1096-1162).
Objectors were invited to a Council "community forum" on 10 October 2016, one week prior to the Council meeting, to discuss the proposal, in anticipation of its consideration on 17 October 2016, and, on 12 October 2016, Council received a traffic report prepared for local residents by McLaren Traffic Engineering (EB Vol 3 fols 1576-1593).
The 1st Report, presented to Council's committee and ordinary meetings on 17 October 2016, dealt with all the anticipated impacts, but on the basis that any consent would "be conditioned that only turkeys could be farmed and a separate application would be required if chickens were to be farmed in the future" (EB Vol 2 fol 1131). The project is described (fol 1101) as having a proposed maximum capacity of "75,000 turkeys at any one time", and no reference is made to any other type of poultry (fol 1097).
The 1st Report also assessed the project against the very comprehensive DCP, making a statement regarding compliance with the "Blue Book Code" being included in the Farm Management Plan to be submitted with the Construction Certificate (fol 1114). That item concluded "Conditions are recommended", but the Report's recommendations did not include any of consent requiring compliance with the Blue Book Code (SOF16 f(4)).
The recommendation of the report was that DC be granted, subject to conditions including the following (fols 1140 and 1156): 1. Compliance ... (5) Poultry raised and kept in Sheds 1 to 8 on the endorsed site plan are limited to turkeys only. ... 20. Occupation and Use (1) The total stocking rate for the farm shall not exceed 75,000 turkeys at any time.
On the morning of the day of that evening meeting, 17 October 2016, Councillor Matt Gould emailed Council's Director of Planning, Chris Stewart, at 5.58am (EB Vol 3 fols 1594-1595, and SOF17).
Gould introduced his series of proposed amendments to the relevant Council agenda item with the following: Can I please get an amendment to PE5 to reflect the below. The wording is only to convey my intent, please feel free to adjust as required, and let me know if you see any major issues with any of what I'm proposing. Council I please see the draft amendment before it is distributed to the other councillors.
Among the amendments he then proposed were: 1. (5) be amended to read the site be limited to turkeys or chickens only. (Note: if you feel additional condition such as enhanced veg barriers etc are required for chickens please let me know). ... 20. (1) be amended to add a limit of 250,000 chickens at any time. (Note: if you feel this is an excessive number of chickens given the number of sheds please let me know what you would consider a more reasonable number)
At 4.23pm, Stewart circulated amended conditions "for item PE5 on tonight's agenda" (EB Vol 2 fol 1458). Clearly they were not widely notified.
On the evening of 17 October 2016, Council, at its Committee and Ordinary Meetings, adopted the recommendation that DC be granted on conditions.
The minutes of that October meeting (EB Vol 2 fols 1433-1456) record that the words "or chickens" were relevantly added by the resolution of Council (moved by Councillor Gould) to conditions 1.(5) (fol 1435) and 20.(1) (fol 1450), as originally drafted, such that the conditions in the Council resolution read: 1.(5) Poultry raised and kept in Sheds 1 to 8 on the endorsed site plan are limited to turkeys or chickens only. ... 20.(1) The total stocking rate for the farm shall not exceed 250,000 turkeys or chickens at any time.
On 21 October 2016, Stewart issued an instruction to Council staff to "hold off on the issue of this consent" (fol 1457).
The Council file shows nothing in the nature of a motion to rescind the DC resolution of 17 October 2016.
However, a later, revised, and confidential/"closed", Council planning report on the DA was added to the published agenda of items to be considered by a "Closed Meeting of Council" on 21 November 2016 ("2nd Report" - EB Vol 2 fols 1163-1232. See also item PE5 on p3 of the "minutes" in Exhibit A3).
Clearly this report was not made public prior to its consideration by Council.
The executive summary notes (fol 1165 - emphasis added): • At the October 2016 Ordinary Meeting, Council considered a report in relation to this development and resolved to support the keeping of up to 250,000 birds (turkeys or chickens) at any one time. • The residents of Lakesland have indicated that they intend to challenge the matter in the NSW Land & Environment Court. • [Redacted] • Accordingly the matter is being re-presented to Council with detail relating to these impacts. ... • It is recommended that the application be approved subject to conditions.
The 2nd Report noted that the Air Report had suggested that the odour criteria will be exceeded if chickens were to be kept (fol 1167). Meehan's "turkeys only" recommendation was carried forward (fol 1168), but the proposed maximum capacity was stated (fol 1169) to be "75,000 turkeys or 250,000 chickens at any one time", and the particulars of farm and stock management (fols 1169-1170, c.f. fol 1101) were expanded to reflect the chicken option.
The 2nd Report repeated the assessment of the project against the DCP ([32] above), but made some changes in the assessment of impacts of the development in the key areas of odour - "the worst case scenario ... can be expected" (5.16 cf 2.64 odour units - fol 1196) - traffic (fols 1197-1198), social (fol 1199 cf 1129), and road damage (fol 1131). (See SOF20e and f.)
For completeness, I record here some changes made to the material put before Council on matters of odour and traffic:
Odour modelling was reported in the 1st (October) Report to Council (fol 1127) as suggesting that: ... odour generation will not exceed the 5 odour unit threshold when measured at residential properties surrounding the subject site. The worst case scenario suggests that a (sic) exposure level equivalent to 2.64 odour unit can be expected. whereas the 2nd (November) Report (fol 1196) says: For turkeys, the modelling suggests odour generation will not exceed the 5 odour unit threshold when measured at residential properties surrounding the subject site. The worst case scenario suggests that an exposure level equivalent to 2.64 odour unit can be expected. For chickens, the modelling suggests odour generation will exceed the 5 odour unit threshold when measured at residential properties surrounding the subject site. The worst case scenario suggests that an exposure level equivalent to 5.16 odour unit can be expected. These assumptions are based upon the original proposal for 12 sheds and the keeping of between 22,280 and 27,432 chickens in each shed (315,242 at any one time).
On traffic there are two significant paragraphs in the 1st (October) Report (fol 1128): As a consequence the frequency of truck movement is anticipated to increase but more significantly the number of days/nights required for truck movements will increase. The traffic impact assessment concludes that overall the daily and hourly peak traffic generation will not significantly increase but the number of days when truck movements are required will increase to approximately 17 additional days per annum of truck movements. The traffic impact assessment concludes that the pattern of heavy vehicle movements is not out of character with a rural area used for primary production and the increase in traffic flows and the nature of the traffic is such that it will not have a detrimental impact on the operational capacity of the local road network and intersections. The traffic impact assessment also verifies that the existing vehicle crossing and the dimension of the internal access roads are suitable to accommodate the size and frequency of proposed truck movements. whereas in the 2nd (November) Report (fol 1198) the following is substituted for the first of those paragraphs (the second being retained): Whilst the traffic impact assessment concludes that overall the daily and hourly peak traffic generation will not significantly increase, the number of evenings when truck movements are required for turkey collection will increase from 16 to 30 evenings per batch.
I also note here that the 1st (October) Report said, on the subject of social impacts (fol 1129): The Noise, Air Quality and Traffic Impact Assessments have been assessed by Council's Environmental Health Officer and determined to be satisfactory (sic) terms of reasonable impacts to the amenity of the neighbourhood. whereas the November Report (fol 1199) omits from the equivalent paragraph the words "and determined to be satisfactory (sic) terms of reasonable impacts to the amenity of the neighbourhood".
The earlier recommended conditions 1(5) and 20(1) were unchanged in the November report (fols 1210 and 1226).
However, at its meeting on 21 November 2016, the Council resolved to grant DC to the DA, subject to the following key conditions (fols 1243 and 1258 - some emphasis added): 1.(5) Poultry raised and kept in Sheds 1 to 8 on the endorsed site plan are limited to turkeys or chickens only. ... 20.(1) The total stocking rate for the farm shall not exceed 75,000 turkeys or 250,000 chickens at any time.
Again, no condition was imposed to require compliance with the Blue Book Code (SOF21).
It needs to be noted that the agenda paper for the 21 November 2016 meeting (Exhibit A3) listed five Notices of Motion ("NOM"), none of which dealt with this project.
The minutes of that meeting (also in Exhibit A3) list 15 NsOM, again with none referring to this project - the matter came before the Council by means only of a "closed report" (Tp7, LL31-38), which was not listed on the agenda (Tp8, LL13-23).
The Council issued to Lander a Notice of Determination of the DA, on 13 December 2016, referring to 21 November 2016 as the date of determination (EB Vol 2 fol 1459-1478). Condition 20.(1) read, as above (at fol 1473): The total stocking rate for the farm shall not exceed 75,000 turkeys or 250,000 chickens at any time.
On 14 December 2016, Council received and granted a s 96 Modification application, to correct a "minor clerical error" in the DC, namely in the DA number (EB Vol 2 fols 1479-1531, and SOF23).
On 23 January 2017, objectors were notified of the 13 December 2016 determination (fols 1533-1560).
The present Class 4 proceedings were commenced on 13 March 2017. As noted earlier ([18]), they challenge the 13 December 2016 determination, on the basis, primarily that: 1. the Council failed to consider the likely impacts of the proposed development; 2. Council's decision to allow conversion from turkeys to chickens was "manifestly unreasonable"; and 3. the consent is "invalid for uncertainty", in that it did not impose limits on the number of poultry stocked at the premises, in the event that there were to be a mixture of turkeys and chickens.
However, the recitation of those grounds pleaded in the summons does not comprise the whole of the Applicant's case, as Dr Berveling argued it before the Court.
He also contended that the "reconsideration" of the DA at the closed Council meeting on 21 November 2016, in the absence of a notice of motion seeking to alter or rescind the resolution reached in October, offends s 372 of the Local Government Act 1993 ("LG Act"). Hence, the November resolution should be declared invalid, as it was made without power.
Section 372(1) relevantly requires that (emphasis added): A resolution passed by a council may not be altered or rescinded except by a motion to that effect of which notice has been duly given in accordance with regulations made under section 360 and, if applicable, the council's code of meeting practice.
He also contends that there was "no plausible justification", for the resolutions adopted at both the 17 October 2016 and the 21 November 2016 Council meetings, allowing for the farming of chickens at the subject site.
He also attacks the failure of the Council to impose conditions, which would ensure compliance with the DCP, insofar as the DCP required development for intensive livestock to be in accordance with the "Blue Book" Code of Practice for Animal Care, produced by the Department of Primary Industries.
Before turning my attention to the Applicant's submissions, I will set out some relevant and important statutory provisions.

C: Relevant Statutory Provisions

Section 79C(1) of the EPA Act relevantly provides: (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application … (a) the provisions of: … (iii) any development control plan … (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality
I have already set out above ([62]) s 372(1) of the LG Act, but I now quote the whole section: 372 Rescinding or altering resolutions (1) A resolution passed by a council may not be altered or rescinded except by a motion to that effect of which notice has been duly given in accordance with regulations made under section 360 and, if applicable, the council's code of meeting practice. (2) If notice of motion to rescind a resolution is given at the meeting at which the resolution is carried, the resolution must not be carried into effect until the motion of rescission has been dealt with. (3) If a motion has been negatived by a council, a motion having the same effect must not be considered unless notice of it has been duly given in accordance with the council's code of meeting practice. (4) A notice of motion to alter or rescind a resolution, and a notice of motion which has the same effect as a motion which has been negatived by the council, must be signed by 3 councillors if less than 3 months has elapsed since the resolution was passed, or the motion was negatived, as the case may be. (5) If a motion to alter or rescind a resolution has been negatived, or if a motion which has the same effect as a previously negatived motion, is negatived, no similar motion may be brought forward within 3 months. This subsection may not be evaded by substituting a motion differently worded, but in principle the same. (6) A motion to which this section applies may be moved on the report of a committee of the council and any such report must be recorded in the minutes of the meeting of the council. (7) The provisions of this section concerning negatived motions do not apply to motions of adjournment.
Part 3 Division 3 of the Land and Environment Court Act 1979 ("the Court Act") includes the following provisions: Division 3 Orders of conditional validity for certain development consents 25A Application of Division (1) This Division applies to: (a) a development consent granted, or purporting to be granted, under [EPA Act]: (i) by the Minister, and (ii) whether before or after the commencement of this subsection, and (b) a development consent granted, or purporting to be granted, under the [EPA Act]: (i) by any other consent authority, and (ii) in respect of a development application made on or after the commencement of this subsection. (2) This Division extends to invalidity arising from any steps preliminary to the granting of a development consent to which this Division applies, whether those steps were taken, or should have been taken, by the Minister or any other consent authority, or by any other person or body. (3) In particular, this Division extends to invalidity arising from non-compliance with requirements declared to be mandatory requirements under section 102 of the [EPA Act]. (4) A reference in this Division to the Minister is a reference to the Minister responsible for the administration of the [EPA Act]. 25B Orders for conditional validity of development consents (1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order: (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation): (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act. 25C Orders for validity of development consents (1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order: (a) declaring that the terms have been substantially complied with, and (b) declaring that the consent is valid, and (c) revoking the order of suspension. (2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 103 of the [EPA Act], the Court may make an order: (a) declaring that the terms have been complied with, and (b) declaring that the development consent has been validly regranted, and (c) declaring that the suspended development consent has been revoked, and (d) revoking the order of suspension. 25D Power to grant another development consent Nothing in this Division prevents the grant of another development consent in relation to the same matter, during or after the period of suspension, pursuant to a development application duly made. 25E Duty of Court It is the duty of the Court to consider making an order under this Division instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part.

D: The "re-presentation" point

The primary written submissions made by Dr Berveling were (pars 10-13 - footnotes omitted): 10. The 1st Report: a. did not enable the respondent counsellors (sic) to take into consideration the likely impacts of the proposed development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, and b. provided no plausible justification for a resolution to allow the farming of chickens. 11. In relation to the report to Council's meeting 21 November 2016 (the 2nd Report): a. it was provided without any Notice of Motion having been lodged seeking to alter or rescind the 2nd respondent's resolution on 17 October 2016; b. It contains insufficient material regarding the farming of chickens, and what material there is provided no plausible justification for a resolution to allow the farming of chickens. 12. The 2nd respondent's resolution made 21 November 2016 was without power, as it had spent its power to determine the DA through its resolution made 17 October 2016, in respect of which no notice of motion for alteration or rescission had been lodged. 13. In addition, similar to the 1st Report, the 2nd Report: a. did not enable the 2nd respondent counsellors (sic) to take into consideration the likely impacts of the proposed development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, and b. provided no plausible justification for a resolution to allow the farming of chickens
It seems to me that the Applicant's submissions regarding s 372 of the LG Act (11a , and 12 above) should be dealt with as a threshold issue, which might prove determinative of the challenge.
The recommendation developed through the Council's assessment of the DA was put to the Council on 17 October, and a decision was reached upon it.
Council's power to determine the DA was, therefore, fully spent at that stage.
While that decision was not then "implemented" by the usual processes of issuing a Notice of Determination, etc., it was a firm Council decision, to which s 372, by dint of its explicit terms ([62] and [67] above), must apply.
In Shanahan v Strathfield Municipal Council ("Shanahan") [1973] 2 NSWLR 740, at 744 D/F, Street CJ in Eq said: Running throughout this line of cases is the requirement of a decision, and a communication of that decision, by a council before approval such as is here under consideration passes beyond the subsequent control of the council, whether by way of rescission or alteration. And equally running throughout that line of cases is the necessity for the communication of the approval to have some formal character as being authenticated on behalf of the council. Admittedly it need not be under the seal of the council. But clearly enough it must be more than that which took place in the present case, namely a mere informal ascertainment by the second plaintiff, an alderman of the council, of what had taken place in the council meeting during his absence. I consider, accordingly, that the decision by this council that the building approval be granted had not gone beyond the recall of the council, in that it had not been the subject of notice to the applicants so as to tie the council's hands.
Rescission is now provided for, comprehensively, by s 372 of the LG Act.
The most relevant case I have found on the issue, in this Court, is Lloyd J's decision in Townsend v Evans Shire Council ("Townsend") (2000) 109 LGERA 336; [2000] NSWLEC 163.
His Honour considered and followed Shanahan, referring to the paragraph quoted above, and also to an earlier decision by an earlier Street J, namely Ex parte Renouf (1924) 24 SR(NSW) 463, in which Street ACJ said (at 466-467): Before a decision on an application has been communicated to the applicant, and therefore, before it can have been acted on in any way, I can see no reason why the council should not reconsider any determination it may have come to. Without alleging anything in the nature of want of good faith, circumstances will readily suggest themselves in which in the interests of good municipal government it would be proper and desirable that an application should be reconsidered, and it would be unreasonable that the council should not have the power of reconsideration. I do not overlook the argument that applications of this kind are not matters of mere domestic or internal concern, but that, in such cases, the council is exercising a statutory power of interfering with individuals in the exercise of their rights of ownership over land, and that no power of reconsideration is conferred in terms by the Act; but I do not think that this concludes the matter. I think, on the contrary, that as long as the council acts in good faith it has an inherent power to reconsider its determination before notifying its decision to an applicant, ... but a decision is not effective until the applicant is notified of it, and, ... I see nothing in the language of the Act to prevent it from reconsidering an uncommunicated determination, which may have been ill-considered or too hastily formed.
Street ACJ seems to have considered that a council ought have a legislated power of reconsideration, and such a power has since been enacted in s 372.
Lloyd J concluded (Townsend at [21]): I see no reason why the above-mentioned judgement of Street ACJ should not be as valid today as it was then. Moreover, section 372 of the [LG Act] expressly allows the rescinding or altering of resolutions of a council. ... In my opinion the council was not acting unlawfully in failing to issue a notice of determination pending the outcome of the rescission motion, particularly since the determination of the development application is not effective until formally communicated to the applicants. ...
It was perfectly appropriate for Council in the present case to revisit its October decision, before it was notified and acted upon, but the proper processes ought to have been followed.
I accept Dr Berveling's submission that the Council resolution of 21 November 2016 was made without power, rendering invalid the DC subsequently notified.
However, that submission, although, in my view, fatal to the DC, was not made a specific ground of challenge in the summons, in respect of which the Respondents filed their submitting appearances.
It is, therefore, necessary to address the pleaded grounds before coming to any decision on the challenge overall.

The argument

The first ground relied upon by the Applicant is that the Council failed to consider mandatory matters of relevance, namely some likely environmental impacts of the development (noise, odour, and generally), as required by s 79C of the EPA Act.
The first component of the second ground was that the decision to allow conversion of the sheds' use from turkeys to chickens was manifestly unreasonable, because it was made without the required environmental assessment.
The 1st Report, considered at the meeting on 17 October 2016, spoke mainly of turkey operations, existing and proposed, making only minor and passing references to the possible farming of chickens, and its impact, in the context of (1) the position that a separate/different application would be needed, and (2) the officer's recommendation of a condition limiting the approval to "turkeys only".
The impacts of a chicken operation were not fully addressed in the materials placed before Council in either October or November.
Impacts of a mixed turkey/chicken operation were not addressed at all.
Specifically, in October, there was no mention made of the predicted increase from 2.64 odour units from the proposed turkey farm to 5.16 odour units generated from a chicken farming operation.
Similarly, traffic assessment was limited to expansion of the turkey operation, and did not cover possible conversion to chickens. The SECA Solutions report ([28] above) relevantly states (s4.4.1 at EB Vol 2 fol 750) There is no increase in daily or hourly traffic flows associated with the proposed expansion of the poultry farm but rather an increase in the operational periods of each campaign throughout the year. The overall impact upon the daily traffic flows in the locality will be low and within the capacity of the local roads. … The development will generate 1 additional feed truck per week. At the end of each batch, two to three times a year, there will be an additional 4 days/evenings associated with the cleanout period with up to 20 truck movements over each single day/evening. During the thinning periods three additional days of truck movements associated with outbound product will occur. This is a total of 17 additional days/evenings per annum allowing for 2.5 batches per year. …
For the proposed chicken operation, the traffic impact would be necessarily greater, for a range of reasons, including the greater number of batches within the growing cycle for chickens.
The Applicant also drew attention to the following statement within the 1st Report, in its section on increased road damage from a rise in truck movements (EB Vol 2 fol 1131): ... (it should be noted that the application is proposed to be conditioned that only turkeys could be farmed and a separate application would be required if chickens were to be farmed in the future):…
The 1st Report also included the following statement in its section on social impacts arising from the proposed development (fol 1129): The Noise, Air Quality and Traffic Impact Assessments have been assessed by the Council's Environmental Health Officer and determined to be satisfactory terms (sic) of reasonable impacts to the amenity of the neighbourhood.
As recorded above ([39]), the Council nonetheless embraced chickens in the conditions it imposed on its approval of 17 October 2016.
Councillor Gould's email recommending such amendments to the proposed conditions came very much at the "last moment", well after the exhibition/consultation period had concluded, and also after the community forum had been held, and the issues he raised were ultimately put before a closed meeting of the Council.
The Applicant contends that even the 2nd Report, presented to the Council on 21 November 2016, also provided insufficient material on the likely impacts of conversion to chickens, despite the comment in the Executive Summary ([44] above) that "the matter is being re- presented to Council with detail relating to these impacts".
I have already adverted ([47]-[49]) to the changes made to the 1st Report in the 2nd Report, but Council still had before it, in November, (1) the view of at least one senior relevant officer, that the conditions of consent should limit any approval to "turkeys only', and (2) evidence that the odour criteria would be exceeded, and additional traffic generated, by the keeping of chickens.
I have also adverted above ([50]) to the Report's moderation of the favourable recommendation made in October, that social impacts were found to be "satisfactory" and "reasonable".
The Council resolved to grant approval on 21 November 2016, on the basis that the keeping of chickens was allowed.
Dr Berveling submitted (Tp14, L41-p15, L5) that the 2nd Report: ... did not enable the councillors to take into consideration the likely impact of the proposed development and it provided no plausible justification to allow the farming of chickens. I earlier referred your Honour to various parts in that 21 November report, where there were some changes between the first report and the second report, and yes, it did make statements about impacts, in particular about odour, and now made reference to, if it were chickens, the odour could be 5.16, but it still also retained the worst case scenario of 2.64 for the turkeys. It made some changes to the traffic impact section in the report but then still maintained the comment that the issue in relation to the roads and the submissions in respect of thereof- should be noted that the proposal should be limited to, and conditioned, to turkeys only. So there's all this prevarication within the second report but, with the greatest of respect, none of that said it's ok to convert it to chickens and the recommendation actually maintained the limitation to turkeys only, both in its condition 1(5) and 20(1).
Dr Berveling also submitted (par 14) that: ... Council's resolutions of both 17 October 2016 and 21 November 2016 failed to take into consideration the amendment to the DA reduce the number of sheds from 12 to 9, consequently reducing the capacity of birds able to be accommodated from a maximum of 102,000 turkeys to 66,000 turkeys, or from approximately 315,000 chickens to 205,000. This further rendered the 2nd respondent's resolutions to allow a maximum of 250,000 birds without plausible justification.
The Applicant also relies upon inadequate attention being paid by Council to its 8-volume DCP (EB Vol 3 fols 1937-2207).
The current version of the 2016 DCP (fol 2196) provides (Vol 8 section 3.3.1, Control 2): 2. Development must be in accordance with the relevant NSW Department of Primary Industry Codes of Practice.
The earlier version of that control (in Exhibit A4) said: 2. Development must be in accordance with the "Blue Book" Code of Practice for Animal Care produced by the Department of Primary Industries.
Neither printed version, before the Court, of the relevant control, is dated, but Dr Berveling told the Court that he downloaded the version in Exhibit A4 in January 2018 (Tp15, LL30-41).
The EB includes (Vol 3 fols 1681-1838) extracts from three departmental "manual" documents, all entitled "Best Practice Management for Meat Chicken Production in NSW".
The EB index says that all three documents are "undated", and they sit in the EB between items dated "12.10.16" and "2011", in a group of documents headed "Further documents to be relied upon by the Applicant" (as distinct from the Council file). One is an undated Executive Summary, and the other two are clearly marked "first published September 2012".
The Court was not taken to them.
Dr Berveling submits (pars 17 and 18 - see also Tp15, LL47-50)): 17. Despite the requirement for the development to be in accordance with the "Blue Book'' Code of Practice for Animal Care produced by the Department of Primary Industries, no conditions to ensure this were imposed. 18. By reason of the failure to include conditions to ensure that the development would be [carried out] in accordance with the "Blue Book" Code of Practice for Animal Care produced by the Department of Primary Industries, in accordance with the DCP, the 2nd respondent's decision to grant consent without conditions to ensure this was without plausible justification and manifestly unreasonable. (In oral submissions (Tp15, L49), he drew attention to Zhang v Canterbury City Council ("Zhang") [2001] NSWCA 167 in this respect.)

The Relevant Law

In support of the Applicant's submission that the Council failed to take into account relevant matters, the following cases are relied upon: Parramatta City Council v Hale ("Hale") (1982) 47 LGRA 319; Weal v Bathurst City Council ("Weal") [2000] NSWCA 88; (2000) 111 LGERA 181; Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257; Bat Advocacy (NSW) Inc v Minister for Environment Protection, Heritage & the Arts [2011] FCAFC 59; (2011) 180 LGERA 99; Kindimindi Investments Pty Ltd v Lane Cove Council ("Kindimindi") [2006] NSWCA 23; (2006) 143 LGERA 277.
Judicial Review is not an appeal on the merits: Weal at [82]. In considering whether a decision maker has properly weighed up the relevant considerations, the court must proceed with caution "lest it exceed its supervisory role by reviewing the decision on its merits": Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 42; Weal, at [82].
The manifest unreasonableness ground of judicial review sets a "high bar for a challenger": Platford v van Veenendaal and Shoalhaven City Council ("Platford") [2018] NSWLEC 27, at [30].
In the absence of direct evidence of the Council's failure to consider evidence, an inference may be drawn that a relevant matter was not taken into consideration: Hale at 337. This inference may be supported from what the Council resolved, including the terms of the resolution to give consent, and how the Council went about doing so, and the inference should be drawn after "anxious consideration" of the Court: Hale, at 340 and 345 per Moffitt P; Weal at [83].
A failure to take matters into consideration can arise where the decision maker is shown to have inadequate personal acquaintance with the facts and issues: Hale; Weal at [11]. "Mere advertence" to a matter does not constitute the requisite level of consideration: Zhang; see also Hale, at 339 per Moffitt P.
The Applicant also highlighted the warning given by Basten JA in Kindimindi at [79], in relation to the dangers of giving too much weight to qualifying terminology in judicial review, such as the often quoted requirement to give "proper, genuine and realistic" consideration, lest there be an expansion into review on the merits.
In respect of the submissions made regarding the Council's lack of "plausible justification", I draw attention to the statement of Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290: Just as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course.
It is also to be recalled that the Court of Appeal held in Pselletes v Randwick City Council (2009) 77 NSWLR 287; [2009] NSWCA 262 that it is the determination to grant consent to a DA which constitutes the consent, and that the Notice of Determination is "merely evidence of it" (per Tobias JA, at [47]).
What that authority means in the present case is that if the consent notified on 13 December 2016 falls, the resolution of 17 October 2016 revives as the consent granted by Council to the project, and must become the subject of the present challenge.

Consideration

The Council has twice purported to grant consent to this project - at meetings on 17 October and 21 November 2016.
In relation to the resolution of 17 October 2016, I am satisfied, on the evidence before me, that the Council did in fact fail to consider matters relevant to satisfy section 79C of the EPA Act, especially odour and traffic impacts, stemming from the proposed conversion of turkey farming operations to chicken farming. These are mandatory considerations pursuant to s 79C.
The very late movement in Council's consideration, following Councillor Gould's intervention, precluded any reasonable opportunity for Council advisors, and Councillors themselves, to give proper consideration to the impacts of any conversion to chicken farming.
The 1st Report had failed to address the circumstance in which chickens would be farmed, and also the impacts arising from any conversion to poultry farming operations.
It had noted that any proposal to convert to chicken farming should be made the subject of a separate application, which would then have to be subjected to detailed impact assessment.
The Court can properly infer from these circumstances that the Council did not adequately consider the application on 17 October 2016.
Street CJ said in Hale, at 334-335 (emphasis added): I have quoted or described sufficient of the chief town planner's critical recommendations and the changed conditions as imposed by the council to demonstrate the extent of the departure made by the council from the recommendations of its expert officers. I do not suggest, of course, that the council was bound in any way by the views or recommendations of its officers. Indeed, quite the contrary: the council had the ultimate responsibility under the Act to make its own decision. I find it impossible, however, to avoid the conclusion that the tactics adopted by a group of aldermen at the critical meeting on 16th October, 1981, bore directly upon the question whether the council, as a body, failed to give such consideration to these matters of parking, traffic and access as was required by s 90(1) [now s 79C]. A normal prerequisite to taking a matter into consideration is that the members of the council should have an opportunity of understanding the relevant implications of the proposal before them in relation to the topics that they are required to take into consideration. This is not an inescapable prerequisite inasmuch as, even if not (sic) such opportunity was afforded to the council, it may, nevertheless, have adequately understood the relevant implications and properly fulfilled its duty under the section in question. ... The absence of a reasonable opportunity for a council to understand the significance of the decision about to be made in relation to the mandated matters, followed by a decision which, in material respects leaves important aspects virtually at large, will go far towards establishing objectively that the council, as a group, did not take those mandated matters into consideration as required by the law.
If the Respondents are compelled to rely on the 17 October 2016 resolution as the granting of the relevant consent to the DA as amended, the Court finds it invalid.
Similarly, in relation to the resolution of 21 November 2016, there was a failure to consider relevant matters, despite the inclusion in the 2nd Report of some additional references to chicken farming.
Those references were not sufficient to allow for adequate assessment of impacts of chicken farming, and Council still had before it advice from relevant officers that any DC should allow turkeys only.
On the question of a "plausible justification" for the decision to allow the farming of chickens, the Court has only the reference in the SEE to that possibility, and then the last minute Gould email, immediately prior to the October meeting.
The 1st Respondent did not adequately address the impacts of a chicken development in its materials, and the Gould email made no case for it (Tp14, LL1-5).
Having reduced the DA from a 12 shed to an 8 shed project, the maximum capacity on site would be 66,000 turkeys or 205,514 chickens. Hence, the Applicant contended in his oral submissions that "the resolution to allow a maximum of 250 000 birds was not able to be accommodated and was not considered at all" (Tp15, LL17-22). According to the Applicant, this further deprived the Council's resolutions of any plausible justification (subs par 14).
I accept Dr Berveling's submissions on these aspects of the challenge.

F: Pleaded Ground 2(b) - the Development Control Plan and the "Blue Book"

Section 79C(1)(a)(iii) specifically requires a consent authority to "take into consideration", if relevant, the provisions of any DCP applying to the subject land.
The 2nd ground of challenge relied on by the Applicant relates specifically to the failure of both the October and November resolutions to impose conditions on the DC requiring compliance with the "Blue Book" Code of Practice for Animal Care, or even some other relevant code produced by the Department of Primary Industries.
The Applicant submits (pars 3a(3) and 3b(4)) that there was no plausible justification for the failure of both the October and November resolutions to impose such a condition, and its omission was manifestly unreasonable.
The 1st Report made reference to assessment against the DCP, noting the requirement laid down in control 3.3.1(2), and that "Compliance with the 'Blue Book Code' is to be included in the Farm Management Plan to be submitted with the Construction Certificate. Conditions are recommended" (EB fol 1114). The 2nd Report also makes reference to compliance with the "Blue Book" (Tp15, L28).
The Applicant relied on Zhang, which concerned a Commissioner's alleged failure to consider a control within the relevant DCP regarding the location of a brothel. It was held that compliance with a control in question must be a "fundamental element in, or a focal point of, the decision making process": at [72]-[76]. See also North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23, per Cole JA at 28
It was recognised in Zhang that, although the relevant clause in the DCP was entitled to be afforded "significant weight" in the decision making process, relevantly, that clause was not to be determinative.
In my opinion, this case can be distinguished from Zhang.
Here, the Applicant has failed to establish that the absence of a condition requiring compliance with the "Blue Book" (or perhaps other relevant Department of Primary Industries guidelines) was a "fundamental element" of council's consideration, such that the absence of such a condition was without plausible justification, and/or was manifestly unreasonable.
The absence of a condition which specifies compliance with the Blue Book or DCP does not necessarily demonstrate a failure to comply with that control, or with the DCP as a whole.
Although conditions concerning compliance with the "Blue Book" were recommended, the absence of such conditions from the consent, rather than contemplation of their inclusion in a construction certificate, does not satisfy me that the DCP was not considered - the DCP features prominently in the materials submitted to Council.
Given the high bar (Platford) set for establishing manifest unreasonableness, I do not think it is correct to say that the failure to include conditions ensuring compliance with a control will necessarily render a consent manifestly unreasonable. It was certainly not so in the present case.
Accordingly, I do not uphold the Applicant's submission in regard to this aspect of the DCP.

G: Pleaded Ground 3 - Uncertainty

The Applicant also contends that both the October and November Council resolutions, and so also the consent, are invalid for uncertainty.
Condition 20(1) of both resolutions imposes a limit on the stocking rates of poultry - 250,000 turkeys or chickens (October), and 75,000 turkeys or 250,000 chickens (November).
The Applicant contends that condition 20(1) in both the October and November resolutions ignored the maximum stocking rates which were provided in the Odour Report. After the DA had been amended to include a proposal for 8 sheds rather than 12, the Odour Report calculations indicated that the site could provide for maximums of 66,000 turkeys or 205,514 chickens.
The Applicant submits that there are no limits imposed, by either version of condition 20(1), on the stocking rates of various poultry, in the event that there were to be a mixture of turkeys and chickens on the farm, so rendering the consent invalid for uncertainty.
The Applicant further submits that, pursuant to Randwick Municipal Council v Pacific-Seven Pty Limited ("Pacific-Seven") [1989] NSWLEC 229, as condition 20(1) "cannot be simply excised from the consent", the whole consent is invalid for uncertainty. In Pacific-Seven, Stein J found that the impugned condition was "fundamental and went to the very root of the consent", such that its excision would change the character of the consent. The whole consent failed in that case.
The principles surrounding uncertainty were subsequently discussed by the Court of Appeal in Kindimindi - a consent will fail for uncertainty where it leaves open the possibility of a significantly different development. Basten JA stated (at [28]): Although different language is used in relation to the separate categories of invalidity, it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. On other hand, a consent may fail, within the first category, where a condition of great precision and certainty of operation results in a significantly different development. Whichever category is preferred in the case of a consent which lacks certainty or finality, it is helpful to bear in mind the relationship between the two tests.
In the present case, the applicant for consent clearly sought approval (in the SEE) to convert from one operation (turkeys) to the other (chickens), but only if and when market conditions changed.
A mixed use involving both does not appear anywhere as an objective. The use of the word "or" in the condition also reinforces the conclusion that turkey and chicken farming operations were envisaged to be alternatives. The situation of mixed poultry farming propounded by the Applicant in these proceedings was not envisaged by the proposed development, even as amended.
I, therefore, conclude that the consent does not leave open the possibility of a "significantly different development", merely because of condition 20(1).
Accordingly, I reject this ground of challenge, but I acknowledge that much of the material before the Council on both occasions simply ignored the impact on carrying capacity of the reduction from 12 sheds to 8.

H: Findings

The handling of this DA by the Council, as evidenced by its file, as incorporated in the EB, falls well short of the thorough, transparent, and community-sensitive development assessment practice expected to be followed these days by local councils in this State.
In this respect, it is sufficient to note that a proposed reduction of the original DA project was publicly notified, but a subsequent, major expansion of environmental issues involved in it was not, and the amended project was then accepted by Council at a "closed" meeting.
While not all of the challenges brought by the Applicant - an aggrieved citizen, neighbour and objector - have been made out, the "re-presentation" point and pleaded grounds 1 and 2(a) have been upheld.
The consent purportedly granted by Council, on either 17 October or 21 November 2016, cannot stand.

I: Sections 25A - 25E of the Court Act

As the Applicant notes, the Court is obliged, by the above findings, and by s 25E of the Court Act, to consider making an order under Part 3 Division 3 of that Act ([68] above), rather than declaring the development consent invalid, whether in whole or in part.
The Applicant's primary submission is that the Court would not apply those provisions, but Dr Berveling also submitted (pars 29 and 30) some formulas the Court could perhaps apply if it took the s 25B course.
Having found that the November resolution was made wholly without power, leaving the material before Council in an inadequate (even contradictory) state, I do not consider that the Court ought to suspend the consent under these provisions, even on the terms Dr Berveling suggested.

J: Conclusion

The consent(s) granted by Council should and will be struck down, leaving the proponent to reformulate, and the Council to re-assess, on a proper basis, any development project for the subject farm, for which consent will be sought in the future.

K: Orders

The Orders of the Court will, therefore, be: 1. The Court declares that any development consent purportedly granted by Wollondilly Shire Council to DA 010.2015.00000316.001, in October/November 2016, for the extension of existing poultry sheds 4, 5 and 6 and construction of two additional sheds, is invalid and of no effect. 2. The First Respondent is restrained from carrying out development in accordance with any such purported Consent. 3. Costs are reserved. 4. The Evidence Book, Court Book and other Exhibits are returned.

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: 24 August 2018

(2004) 135 LGERA 257

(2006) 143 LGERA 277

(2000) 109 LGERA 336

(2000) 111 LGERA 181

At a glance

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Judgment (17 paragraphs)

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Cases Cited (18)