Blueprint Planning & Development Pty Ltd v Greater Hume Shire Council and anor

The contentions 9The First Respondent raises the following contentions:

1. impact on local and regional road system,
2. odour and amenity impacts,
3. conflict with zone objectives and/or purposes,
4. land use conflict and impact on rural character,
5. loss of agricultural land,
6. social and economic impact, and
7. inadequate information. 10The Second Respondent raises the following contentions:
8. impact on local and regional road system,
9. odour and amenity impacts,
10. land use conflict,
11. water impacts, and
12. inadequate information. 11The Second Respondent did not press that part of the water impacts contention relating to the adequacy of the available groundwater. 12A number of residents of the area provided evidence on the site inspection and the Court was provided with the submissions when the council advertised the application. The concerns expressed by the residents are generally addressed through the contentions raised by the First and Second Respondents.

The site 13The proposed compost facility will be located on a property known as 'Kalawa' about 3.5 km south east of Gerogery, to the north of Albury. It is described as Lot 1 in DP 174425 and has an area around 545.2 ha. 14The area of the proposed composting facility will be leased from the owners of Kalawa and covers around 11 ha (the site) or around 2% of the land comprising Kalawa. Of the 11 hectares of land leased for the purposes of the proposed development, the plans at the hearing indicate around 5.2 ha would be enclosed within a security fence. The fenced land would include around 3.7 hectares of operational hardstand area and 1.5 ha of grassed paddock. 15The owners of Kalawa operate other businesses on the land, including a quarry, a paintball facility and a reception centre. The owners' residence is also located on Kalawa.

Relevant planning controls 16The site is currently within Zone RU1 Primary Production Zone under Greater Hume Local Environmental Plan 2012 (LEP 2012), which came into force on 19 October 2012. There was disagreement between the Applicant and the First Respondent on the characterisation of the proposed development under LEP 2012. The Applicant maintains that the proposed development would meet the definition of 'waste or resource management facilities', which is prohibited in this zone. The First Respondent maintains that the proposed development is characterised as "Industries" which is permitted with consent in this zone. This conflict is addressed later in the judgment. 17Clause 2.3(2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 18The objectives are: · To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. · To encourage diversity in primary industry enterprises and systems appropriate for the area. · To minimise the fragmentation and alienation of resource lands. · To minimise conflict between land uses within this zone and land uses within adjoining zones. · To maintain the rural landscape character of the land. 19The development application was lodged with the council on 8 October 2012 and not determined prior to the coming into effect of LEP 2012, and as such, the application falls within the provisions of cl 1.8A that state: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 20The environmental planning instrument in force prior to LEP 2012 was Hume Local Environmental Plan 2001 (LEP 2001) where the site was within the Rural (Agriculture) Zone. Clause 10(1) provides that "Development should be consistent with the purpose of the zone". The Purposes of the zone are: (a) to identify land used for agricultural purposes, and (b) to implement the Council's strategic directions for rural land, and (c)) to encourage the sustainable use of land for agriculture, and (d) to avoid fragmentation of agricultural land in areas where large scale independent farm businesses are the predominant land use, and (e) to allow for farm restructuring, and (f) to encourage the continued use of rural land for agricultural purposes, and (g) to encourage protection and enhancement of the bio-diversity of the area, and (h) to recognise the complexities of family farm ownership, financing and management, and (i) to promote economic development that is compatible with rural activities, and (j) to encourage development of new sustainable rural enterprises, and (k) to ensure that development does not place an unreasonable burden on Hume's infrastructure and services. 21Under cl 15(2), development with consent in this zone includes any development that: (a) is designated development, or (b) is not included elsewhere in this Section of this Table as development that requires consent but is not development that is, (c) exempt development, or (d) is included in the "Prohibited" Section of this Table as development that is prohibited.' 22As the proposed development is 'designated development' and is not prohibited or exempt development, it is permissible with consent under LEP 2001. 23The proposed development is also subject to State Environmental Planning Policy (Infrastructure) 2007 (the SEPP). The SEPP aims to facilitate the effective delivery of infrastructure across NSW. Clause 8(1) of the SEPP relevantly states that: (1) ..., if there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency. 24Clause 121(1) provides that "Development for the purpose of waste or resource management facilities, other than development referred to in subclause (2), may be carried out by any person with consent on land in a prescribed zone". Zone RU1 Primary Production is a "prescribed zone" for the purposes of cl 121(1) and "waste or resource management facility" and "resource recovery facility" are defined in cl 120 as: waste or resource management facility means a waste or resource transfer station, a resource recovery facility or a waste disposal facility. resource recovery facility means a facility for the recovery of resources from waste, including such works or activities as separating and sorting, processing or treating the waste, composting, temporary storage, transfer or sale of recovered resources, energy generation from waste gases and water treatment, but not including re-manufacture of material or goods or disposal of the material by landfill or incineration.

The planning approach 25The planning approach for the proposed development involves three separate planning documents. It was agreed that the application was captured by the savings provisions in cl 1.8A of LEP 2012, not having been determined prior to the coming into effect of LEP 2012. While currently zoned under LEP 2012 the application must be considered "as if this Plan has not commenced". LEP 2012 is however, a matter that needs to be considered in accordance with s 79C(1)(a)(ii) as it is a draft plan that "has been the subject of public consultation under this Act and that has been notified to the consent authority". 26There was disagreement on whether the use was permissible under LEP 2012. Mr Galasso, for the Applicant, submits that the proposed development is appropriately characterised as a "waste or resource management facility", of which "resource recovery facility" falls within this definition. The relevant definitions are: waste or resource management facility means a waste or resource transfer station, a resource recovery facility or a waste disposal facility. resource recovery facility means a facility for the recovery of resources from waste, including such works or activities as separating and sorting, processing or treating the waste, composting, temporary storage, transfer or sale of recovered resources, energy generation from waste gases and water treatment, but not including re-manufacture of material or goods or disposal of the material by landfill or incineration. 27If characterised as a "waste or resource management facility", it is a use that is not identified in the zoning table as being "Permitted with consent" and as such is prohibited. 28Mr Seton, for the First Respondent, submits that the proposed development is characterised as "Industry". "Industries" are identified as a use in the zoning table as being "Permitted with consent". The relevant definitions are: industry means any of the following: (a) general industry, (b) heavy industry, (c) light industry, but does not include: (d) rural industry, or (e) extractive industry, or (f) mining. general industry means a building or place (other than a heavy industry or light industry) that is used to carry out an industrial activity. industrial activity means the manufacturing, production, assembling, altering, formulating, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, transforming, processing, recycling, adapting or servicing of, or the research and development of, any goods, substances, food, products or articles for commercial purposes, and includes any storage or transportation associated with any such activity. 29In considering the different approaches to the characterisation of the proposed development under LEP 2012, we prefer the submissions of Mr Galasso. The characterisation of the purpose of development must be done in a common sense and practical way (Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 114 at [45]) and where two meanings are open in statutory interpretation it is proper to adopt a meaning that avoids consequences that appear irrational and unjust and produces a fairer and more convenient operation so long as it conforms to the legislating intention (Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297 at [320]). In this case, the characterisation of the proposed development is more accurately reflected in the more specific definition of "waste or resource management facility" rather than the broader and more general definition of "Industries". In our view, this provides a more common sense, practical, fairer and more convenient answer to the disagreement over characterisation of the proposed development. 30In any event, the characterisation of the proposed development under LEP 2012 is not a significant issue given that LEP 2012 is not the principal environmental planning instrument for the consideration of the development application and in any event, the proposal is permissible by way of the SEPP. 31In terms of the assessment, the Court must consider the development application under the provisions of LEP 2001 but having regard to LEP 2012 and in the event of any inconsistency with the SEPP, the provisions of the SEPP.

Is there sufficient information to determine the development application? 32Mr Seton, for the First Respondent, and Mr McEwen, for the Second Respondent submit that inadequate information has been provided to allow the development to be considered, if the Court accepts the evidence of the experts of the First and Second Respondents. It is submitted that inadequate information has been supplied by the Applicant in relation to:

• odour,
• management and operation of the proposed development
• impacts on surface water and groundwater systems,
• impacts on storm water and wastewater management, and
• traffic and safety. 33Mr McEwen submits that the Court is being asked to accept that the proposed development will operate so as to prevent any amenity impacts on his client's adjoining property by the reliance on multiple unknown plans of management. At least six have not been provided (Stormwater Management Plan, Leachate Management Plan, Groundwater Management Plan, Sludge Management Plan, Operations Management Plan, a Traffic Management Plan (including a fog management plan)), without allowing the Second Respondent the opportunity to scrutinise the acceptability of those plans. This denies Mr Scollard the opportunity to comment on critical matters as to operations and/or management of which he may have legitimate concerns as they are being deferred for later consideration by the council, the Roads and Maritime Services (RMS) or the Environmental Protection Authority (EPA). 34In response, Mr Galasso, for the Applicant submits that either adequate information has been supplied or that additional conditions of consent could be included in any approval to address the matters raised by Mr McEwen and Mr Seton. 35For the reasons set out in detail later in the judgment, we have accepted the submissions of Mr Seton and Mr McEwen that the Applicant has provided insufficient or inadequate information to properly assess the development application in accordance with s 79C of the EPA Act, although not for all the areas as identified by Mr McEwen. 36Despite the length of the hearing, the conditions of consent were not finalised although the positions of the parties on conditions was generally understood following closing submissions. It was generally agreed that if the Court formed the view that development consent could be granted, then additional time could be permitted to address any conditions. 37We also consider that it is open for the Court to request further evidence to be provided however we were not prepared to take this course of action because of the large number of matters that require further evidence. It goes without saying that the onus of establishing the suitability of the development rests solely with the Applicant. It must also be understood that the Court is not a forum for discussing the application or testing alternatives to the application before the Court. While some amendments are a natural part of the Court process, not all changes, amendments or matters left to conditions of consent are acceptable. Put simply the obligation is clearly on the Applicant to put their best foot forward, in terms of evidence, at the hearing. 38In Mison and ors v Randwick Municipal Council and ors [1991] 191 NSWLR 734, the Court of Appeal held that if a condition imposed on a development consent has the effect of imposing conditions that leave open the possibility that the development will be significantly different from the development for which application was made, then the consent is not a consent to the application. Also, if a condition leaves for later decision an important aspect of the development, which would alter the proposed development in a fundamental respect, the consent cannot finally be determined. 39In Weal v Bathurst City Council and or [2000] NSWCA 88, the Court of Appeal held that the use of a deferred commencement condition did not free the council from the obligation to consider all relevant matters as required by s 90(1), or s 79C as it currently exists. 40We are satisfied that the Applicant has provided sufficient evidence to conclude that any odour impacts can be satisfactorily addressed, subject to compliance with the agreed conditions of the odour experts. We are also satisfied that the evidence does not establish that there any social or economic impacts that would warrant the refusal of the application. 41We are not satisfied however that the Applicant has provided sufficient evidence for us to conclude that the proposed development would not have an unacceptable impact on the "natural and built environments" in the vicinity of the site by way of:

1. the operation and management of the proposed development (see pars 99 to 106)
2. the safe movement of vehicles to and from the site. (see pars 107 to 118)
3. the management of water on the site (see pars 119 to 135), 42We do not accept the submission of Mr Galasso that because the management of water on the site and the safe movement of vehicles to and from the site need be submitted to the EPA and RMS respectively, that this somehow overcomes the obligations of the Court, under s 79C(1) of the EPA Act, to consider the impacts of the proposed development and any measures taken to address these impacts.

Odour 43Mr Aleks Todoroski, provided expert evidence for the Applicant and Dr Iain Cowan provided expert evidence for the Second Respondent. They provided individual reports and a joint report. The specific contentions raised by the First and Second Respondent were that the proposed development would have an adverse impact on the amenity of residents and occupiers of rural/residential developments and business premises in Gerogery because of odours from different parts of the composting process. The Second Respondent also raised additional concerns over the odour modelling conducted by Mr Todoroski. 44Mr Todoroski and Dr Cowan reached agreement on a number of matters associated with the odour modelling based upon further modelling being undertaken by Mr Todoroski and further information as to the modelling and process being provided by Mr Todoroski to Dr Cowan. Their joint report indicated no reason why odour from the proposed development would warrant the refusal of the application. Despite strong cross examination of both experts, there was no movement from their joint position that, subject to the conditions attached to their joint report, the proposed development "can operate within the required guidelines". 45The installation and operation of an appropriate aeration system for the stormwater retention pond that could potentially overcome anaerobic conditions developing in the pond, with consequent odour problems, was discussed with Mr Todoroski and Dr Cowan and is discussed later in the judgment. 46For these reasons, adequate information has been provided on the potential odour from the proposed development to allow a finding that odour would not be a reason to refuse the development application.

Town planning 47Mr Dan Brindle, provided expert evidence for the Applicant and Mr Peter O'Dwyer provided expert evidence for the First Respondent. Mr Brindle did not prepare the town planning expert report for the applicant but adopted its contents and conclusions. The report was prepared by Mr Robert Chambers, a colleague of Mr Brindle, who unfortunately was not available to give evidence at the last minute because of an overseas family emergency. The town planning evidence addressed a number of different matters. The specific contentions raised by the First and Second Respondent were:

1. inconsistency with zone purposes (c), (f) and (i) the Rural (Agriculture) Zone of LEP 2001,
2. inconsistency with zone objectives of Zone RU1 Primary Production of LEP 2012,
3. incompatibility with the rural and agricultural character of the surrounding area,
4. impact on high natural resource value of the area,
5. loss of prime agricultural land, and
6. social and economic impact. Zone purposes/objectives - the evidence 48Mr O'Dwyer identified zone purposes (c), (f) and (i) of the Rural (Agriculture) Zone of LEP 2001 as being relevant. These are: (c) to encourage the sustainable use of land for agriculture, and . (f) to encourage the continued use of rural land for agricultural purposes, and . (i) to promote economic development that is compatible with rural activities, and 49Mr Brindle states that the proposed development will produce an acceptable outcome in relation to the purposes of the Rural (Agriculture) Zone in that:

• it will create a product which will be used in agricultural, viticultural and horticultural applications;
• the creation of compost from organic waste is a sustainable use which will contribute to agricultural productivity;
• it will promote economic development in a way that is compatible with rural activities, and
• it will not adversely affect agricultural production on nearby agricultural land. 50As the leased area comprises only around 2% of Kalawa, the proposed development will have no adverse impact on the ability of Kalawa to remain in predominantly agricultural use. Furthermore, within the 11 ha leased area, only 3.7 ha is hardstand, although other areas will be used for treatment ponds. Mr Brindle notes that the Rural (Agriculture) Zone does not only permit agricultural uses but also a wide range of non-agricultural uses. 51For the above reasons, Mr Brindle considers that the proposed development is not antipathetic to the identified purposes of the Rural (Agricultural) Zone. 52Mr O'Dwyer comes to a different conclusion. He states that it is clear that the proposed development is not related to the sustainable use of the site for agriculture nor will it encourage the continued use of the site for rural and/or agricultural purposes although he accepts it that the compost may be of benefit to other farming operations outside Kalawa. 53The site is classed as being of high - very high agricultural land quality. In his opinion, a use similar to the proposed development may be more acceptable on land that is classified as being of less than high - very high agricultural land quality. The proposal will occupy around 6.6ha of area that currently comprises sustainable and productive farming land and this land will be effectively removed from primary production. The quantum of land alienated is immaterial as the use is to be wholly contained within existing farming property rather than adjacent or nearby properties. There has been no evidence that the proposed development, including the significant vehicle movements within Kalawa, will actually impinge upon existing or likely future farm operations on Kalawa. 54The proposed development will not be a significant form of economic development in the locality. It will be an isolated or separated land use that seeks to distance itself from other rural activities including those within Kalawa rather than being necessarily compatible with rural activities. 55For these reasons, Mr O'Dwyer states that is not adequately justified in terms of zone purposes (c), (f) and (i) of LEP 2001. 56Mr Brindle and Mr O'Dwyer also address the zone objectives of Zone RU1 Primary Production of LEP 2012 and unsurprisingly come to the same conclusions as their assessments of the proposed development with zone objectives of the Rural (Agriculture) Zone of LEP 2001, for largely the same reasons. Zone purposes/objectives - findings 57Having previously found that the Court must consider the development application under the provisions of LEP 2001 but having regard to LEP 2012 and in the event of any inconsistency with the SEPP, the provisions of the SEPP, we will address LEP 2001 first. 58There was no dispute that the proposed development is a permissible use in the Rural (Agriculture) Zone of LEP 2001, being 'designated development'. Clause 10(1) provides that "Development should be consistent with the purpose of the zone". In considering the question of consistency, we have adopted the approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21. In Schaffer, her Honour expressed the following opinion at [27]: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible. 59The position of Mr O'Dwyer that the proposed development is unacceptable because it is inconsistent with zone purposes (c), (f) and (i), notwithstanding that it is a permissible use is addressed in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, where McClellan CJ relevantly states (at par 117): 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 60Some weight must be given to the proposed development, as in the words of BGP Properties "where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site". In this case, the fact that the proposed development is permissible because it is designated development would suggest that developments that can potentially have greater impacts beyond those uses that are not designated development are contemplated in this zone. This does not mean that the other matters that are required to be considered, such as s 79C(1) of the EPA Act need not be considered, or that permissibility provides an entitlement to an approval. 61As we understand the evidence of Mr O'Dwyer, he opposes the proposed development firstly, because it does not encourage the use of land for agriculture (purposes (c) and (f)) and secondly that it is not compatible with other rural activities (purpose (i)). As a starting point, there is some tension, or even conflict between purposes (c) and (f) and purpose (i). The former promotes agriculture and the latter promotes economic development (presumably other than agriculture) providing it is compatible with rural activities. The purposes highlight that there is no obligation to only conduct agriculture in the Rural (Agriculture) Zone given the other permissible uses in this zone and the use of the word "promote" in purpose (i). 62In our view, purpose (i) is more relevant as the proposed development is a permissible use that promotes economic development. There can be no doubt that it is not agriculture. The question to be answered is whether it is compatible with rural activities. 63Based on the inadequate evidence provided at the hearing, we are not in a position to find that the proposed development is compatible with rural activities because of unresolved concerns over the operation and management of the proposed development, the management of water on the site and the safe movement of vehicles to and from the site. As such we find that the proposed development is not consistent with purpose (i). 64As the proposed development does not seek to use the site for agriculture, there is limited, if any, relevance to purposes (c) and (f). 65In relation to the RU1 zone objectives and having found that the proposed development is a prohibited use in the RU1 zone it is not unexpected that there would be some conflict with zone objectives The objectives are: · To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. · To encourage diversity in primary industry enterprises and systems appropriate for the area. · To minimise the fragmentation and alienation of resource lands. · To minimise conflict between land uses within this zone and land uses within adjoining zones. · To maintain the rural landscape character of the land. 66The RU1 zone objectives under LEP 2012 have a similar approach to the zone purposes under LEP 2001 in that they also encourage the agricultural use of the land but also allow other land uses, and by dot point 4, seek to "minimise" any conflict. As with LEP 2001, we are not in a position to find that the proposed development "minimises conflict between land uses within this zone" because of unresolved concerns over the operation and management of the proposed development, the management of water on the site and the safe movement of vehicles to and from the site. As such, and having regard to the objective in dot point 4, we cannot find that there will be no conflict between land uses within the zone. Incompatibility with the rural and agricultural character of the surrounding area - evidence 67Mr Brindle states that he disagrees that the proposed development will result in a land use conflict as:
• the site is well setback from the boundaries of Kalawa (by a minimum of around 200m),
• does not diminish the ability or likelihood of the great majority of Kalawa, as an agricultural property,
• does not diminish the ability or likelihood of any adjoining or nearby property to continue in agricultural use and
• will not give rise to any unreasonable or unacceptable environmental impacts. 68Mr Brindle states that the absence of unreasonable and unacceptable impacts is indicative that the proposed development is compatible with the rural and agricultural character of the surrounding areas, and probably more so than other permissible uses on the site. As an indication of the proposal's compatibility with agriculture, 4.6 ha within the site will continue to be used for grazing purposes. 69Also, the volume or type of traffic movements associated with the proposed development will not be incompatible with an agricultural or rural area, particularly when the site is adjacent to a highway. 70Mr O'Dwyer notes that the proposed development is essentially an industrial process that does not require high quality agricultural land for its operation. Given that the proposed development could be undertaken on land of lesser agricultural value, elsewhere within the region, he considers that use of the use of the site is not the best or optimal use of the land, and would be inconsistent with the rural character or expectations for the area. 71Mr O'Dwyer further states that the use of the site for the proposed development will change the character of the area, through matters such as the presence of garbage trucks entering and leaving the site as well as the loss of amenity, particularly associated with off-site odours, excessive levels of noise from equipment (such as shredders and traffic), windblown litter and particulate matter from delivery trucks and earthmoving equipment and through possible attraction of vermin and other pest animals. 72As a consequence, Mr O'Dwyer concludes that the proposal is highly likely to be an activity that would operate at odds with the existing agricultural setting and could be readily regarded by the general public as being inconsistent with the rural character of the area. Incompatibility with the rural and agricultural character of the surrounding area - findings 73On this matter we have addressed both the physical form of the development in its rural context and secondly, the operational aspects of the development on the surrounding area, including the potential impacts on the amenity of nearby residents. 74On the physical form, we are satisfied that development will be compatible with the rural and agricultural character of the area. The proposed buildings have a form not dissimilar to rural farm sheds even though the composting facility is not associated with agricultural production. Similarly, the movement of heavy vehicles on to and from rural properties is an activity that occurs regularly on rural properties associated with rural production. We do not accept that the different forms of heavy vehicle (recycling trucks or farm trucks) has any meaningful effect on the rural character of the area. 75We also accept Mr Brindle's evidence that the area of the proposed development is a relatively small area of Kalawa, and consequently an even smaller area of the wider agricultural area surrounding this property. There was no evidence to suggest that the proposed development would affect agricultural production on Kalawa. 76The reference by Mr O'Dwyer to the proposed development being "essentially an industrial process" is, in our view, misrepresenting the proposed development, particularly as it is a permissible development and has found to be consistent with the purposes of the zone under LEP 2001 and the objectives of the zone under LEP 2012. The fact that the proposed development is not associated with agricultural production is addressed earlier in the judgment and found not to be a reason to refuse the development application. 77In relation to the concerns of Mr O'Dwyer that the proposed development could be undertaken on land of lesser agricultural value, elsewhere within the region, the question the Court must answer is not whether there is more appropriate land for the proposed development but whether the site is acceptable for the proposed development. 78On the operation of the development, we are not satisfied that adequate information has been provided to find that there are impacts on the amenity of nearby residents. The potential effects of wastewater from the site however, remain unanswered because of the absences of multiple management plans, importantly including the Plan of Management (POM) relating to the general operation of the facility. Impact on high natural resource value of the area - the evidence 79This contention states that the development application should be refused because the proposed development is not compatible with the Principles for Economic Development and Infrastructure in s 5.4 of the Strategic Directions DCP or the Principles for Rural Land Use and Agriculture in section 5.5 of the Hume Shire Land Use Plan Strategic Directions Development Control Plan (Strategic Directions DCP). 80Mr Brindle and Mr O'Dwyer agree that the Strategic Directions DCP applied at the time the development application was lodged however they also agree that the Strategic Directions DCP is no longer in force. 81Mr Brindle notes that Section 5.3 of the Strategic Directions DCP is entitled "Natural Resource Areas, Heritage and Environmental Management". The "Strategic Directions DCP" which dates from 1999 refers to the achievement of "ongoing maintenance and protection of... natural resource areas, heritage features and environmental assets from inappropriate development" through "the use of new planning provisions including a rural environmental zone that introduces more comprehensive environmental assessment criteria". Mr Brindle concludes that this contention appears to relate more to the Rural (Environment) Zone, than to the Rural (Agricultural) Zone in which the site was located under LEP 2001. 82Mr O'Dwyer, in respect to "Environmental and Resource Management' within the DCP relies on the following Principles at Section 5.3 Establishing an effective planning balance between the provision of urban and rural living areas against the need to maintain long-term and sustainable land management practices across the Shire Encourage appropriate development according to supply and demand where it demonstrates sound integrated catchment management practice and sustainable long-term natural resource utilisation 83Mr O'Dwyer further states that from a review of the large volume of material supplied by the Applicant in support of the development application, apart from a willingness of the landowner to lease the site, there has not been any other obvious reason provided in terms of demand that would support the selection of a site located outside of the regional collection district for treating organic waste. The proposal has nothing to do with sustainable long-term natural resources utilisation of any land or resource located within the LGA. Impact on high natural resource value of the area - findings 84As we understand this matter, Mr O'Dwyer seeks to rely on the Strategic Directions DCP (that no longer applies) to reinforce his position that there are better alternate sites for the proposed development that are not located on prime agricultural land. Again, we must reject this and reiterate that the proposed development is a permissible use within the zone, the zone permits development other than agricultural uses and that the question the Court must answer is not whether there is more appropriate land for the proposed development but whether the site is acceptable for the proposed development. 85It goes without saying that a DCP cannot prohibit a development if it is permissible in the zone where it is located. Loss of prime agricultural land - evidence 86This contention maintains that the development application should be refused because the development application is not compatible with the Principles for Economic Development and Infrastructure in s 5.4 of the Strategic Directions DCP or the Principles for Rural Land Use and Agriculture in s 5.5 of Strategic Directions DCP. 87Mr Brindle states that because the proposed development will form part of ongoing agricultural concern (i.e. Kalawa) and will occupy around only 2% of the total area of Kalawa, the proposed development will:
• not diminish the ability of Kalawa to continue as an ongoing agricultural concern,
• not diminish the ability of adjoining rural lands to continue in agricultural production, and
• sustainably produce a soil conditioning product for agricultural, horticultural and viticultural applications, 88Mr Brindle sees no conflict with these provisions of the Strategic Directions DCP. 89Mr O'Dwyer states that the proposed development is in conflict with s 5.4 of the Strategic Directions DCP where it states that: '"... development must not be allowed to compromise the integrity and features of the Shire that have attracted residents into the area in the first place". Council will seek out economic development opportunities which have defined outcomes, benefits for local business and employment, demonstrate support from private sector and government agencies and which do not compromise or place at risk significant community assets including productive agricultural land and other natural resource areas. 90Mr O'Dwyer states that the proposed development is in conflict with s 5.5 of the Strategic Directions DCP where it states that: ...Council will protect those remaining areas in the Shire where the predominant landuse remains in productive broad-acre farming through the use of the rural planning zone and performance criteria in the new Land Use Plan. + Non-agricultural uses and development on productive agricultural land in rural areas will not be encouraged by Council 91Having regard to the above, Mr O'Dwyer concludes that the contention has relevance as a ground for refusal. Loss of prime agricultural land - findings 92This raises similar issues to the previous matter and we must again reject Mr O'Dwyer's approach, as the proposed development is a permissible use within the zone, the zone permits development other than agricultural uses and that the question the Court must answer is not whether there is more appropriate land for the proposed development but whether the site is acceptable for the proposed development. Social and economic impact - the evidence 93Mr O'Dwyer states that the issue of likely social impact is quite complex, including a wide and flexible concept of amenity that includes social amenity. In considering amenity, it must always be a question of fact whether amenity of a locality will be affected or is likely to be affected by a development. Mr O'Dwyer states the proximity of the site to Gerogery township has been significantly downplayed to the point of almost being ignored within the EIS and supporting documentation. The analysis of odour and noise impacts on nearby receptors appears to continue to exclude the reception establishment (Peregrines) despite guests of this establishment being completely unrelated to the development. There has been no demonstrated evidence provided that the proposal will have any positive social impact not only for on the residents of Gerogery but also the wider community. From objections received it is evident that there is unlikely to be any community benefit rather that there is a demonstrated lack of community interest. 94Mr Brindle notes that of all of the issues raised by Mr O'Dwyer, other than "lack of community interest in the proposal", he cannot discern any adverse social impacts likely to arise from the proposal that are not dealt with under other contentions. 95On the issue of economic impact, Mr O'Dwyer states once operational, the proposal will provide little or no direct economic benefit to the local and/or broader community of the LGA. Only four new full time jobs will be provided at the operational phase. Mr O'Dwyer reiterates his previous concerns over alienation of valuable prime rural land, the potential impact on the agricultural operation of valuable prime rural land, additional traffic movements and the potential to adversely impact upon rural enterprises in the locality that rely on existing and likely future rural character to support their business model. 96Mr Brindle states that the proposed development represents a significant investment (around $8.5m), which will create employment during construction and operation. It will also provide an economic and sustainable use of organic waste that otherwise is likely to be directed to landfill with no associated economic benefits whatsoever. No economic activity other than grazing on around 1.2% of the total area of Kalawa will be displaced by the proposed development but significant additional economic activity will arise on the site as a consequence of the proposal proceeding, thereby contributing to the diversification of use on Kalawa as a whole. Social and economic impact - findings 97We are satisfied that the proposed development will not create any economic impacts that would warrant the refusal of the development application. Contrary to the evidence of Mr O'Dwyer, there is no obligation on the Applicant to substantiate an economic benefit to the local or broader community of the LGA even though we would readily accept four new full time jobs is a positive aspect of the proposal. We are not aware of any evidence that establishes other potential or likely economic impacts. 98We also do not accept there are any social impacts that would warrant the refusal of the development application. When asked to identify the specific social impacts, Mr O'Dwyer stated that they were firstly, the amenity impacts such as odour and noise and secondly, the perception that the site and Gerogery would be seen in a negative way as being the garbage dump for other LGA's waste. We do not accept this evidence as firstly, odour and noise can be adequately controlled based on the expert evidence and secondly, the appearance of trucks, in our opinion, will not give a negative perception of the site and wider area, particularly given the levels of heavy vehicles that use the Olympic Highway. The fact that some trucks may exit the Olympic Highway to attend the site, that is not visible from the Olympic Highway, does not establish that the proposed development will have an adverse social impact.

Management and operation of the proposed development The evidence 99Mr Geoffrey Hemm, the Organics Processing Manager for Transpacific and Mr Anthony Kanak, an Organics Resources Consultant, provided expert evidence for the Applicant and Mr Simon Leake, an Agricultural, Soil and Composting Scientist provided expert evidence for the Second Respondent. The experts provided a joint report and oral evidence. 100Mr Leake states that his concerns relate to the potential sources of liquid food and organic wastes (FOGO) particularly if it is sourced from Wodonga Rendering and Vitasoy. In his experience, FOGO from these sources have very high odour levels. Mr Leake also raised concern over the make up of the waste from different parts of the collection area, the seasonal variation and the consequent availability of green waste to mix with food waste, garden waste or FOGO to provide the 80:20 mix (green waste:food waste) for composting. Also, Mr Leake expressed concern over the ability to remove 90% of the compost off the site within 4 weeks of the composting cycle, particularly as his previous assumption that compost would be given away free was now incorrect. 101Mr Hemm responded by stating that FOGO could be sourced from Wodonga Rendering and Vitasoy but it would only be allowed on site if adequate green waste was available to achieve the 80:20 mix by weight for the compost. The company had the ability to deny access to the facility as material deposited at the facility is by negotiation and it is not open to the general public. The ability to maintain the 80:20 mix is achieved through stock piling of straw or saw dust to adjust the mix. Experienced staff are responsible for ensuring the 80:20 mix prior to shredding and composting. When asked about the absence of a POM, Mr Hemm stated that it was unnecessary as it would create undue control but he would accept a POM if considered necessary by the Court. Findings 102In accepting that the final form of the conditions had not been settled, the First Respondent proposes a deferred commencement condition as part of the draft conditions of consent for the preparation of POM "that is subject to the satisfaction of Council..." although their principal position is that the application should be refused because of the absence of an POM. We understand that this is also the position adopted by the Second Respondent. The Applicant seeks an operational condition of consent "that is subject to the satisfaction of EPA (and notified to Council)..." 103In our opinion, the POM is a critical and necessary requirement for the proposed development. The composting process identified earlier in the judgment highlights the human involvement required for the proper processing of the raw materials. Consequently, it is important that any potential problems associated with human error are minimised to the maximum possible extent. While the EIS provides a description of the different phases involved in the composting, the POM should describe the human involvement in some detail to ensure that these actions are sufficiently well documented and the staff sufficiently trained to undertaken the specific tasks in the process. 104For example, the need to maintain an 80:20 ratio is important. It is one of the matters identified by the odour experts as being necessary to maintain reasonable odour levels and forms part of their conditions in concluding that the odour issues can satisfactorily be addressed. The evidence of Mr Hemm was unconvincing on the reason for his reluctance to provide a POM (despite the urging of the First Respondent) even though he stated that it could be provided after the operation had commenced. 105Mr Hemm stated that the 80:20 ratio was maintained through experienced staff by visually assessing the different loads of material. Training of staff in this role was undertaken by other experienced staff, including Mr Hemm. Notwithstanding his assurance that the ratio could be judged reasonably accurately and that the ratio was confirmed at the sampling phase, we do not accept this to be a satisfactory response to such a critical issue, particularly as the consent runs with the land and the approval could be sold at any time. There is also merit in the submission of Mr McEwen that in the absence of an POM, it is impossible to test the effectiveness of the POM based on the principles for plans of management in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 [at 53-55]. 106We are satisfied that the absence of an POM leaves open the possibility that the development will be significantly different from the development for which application was made and as such, a condition of consent requiring a POM is not appropriate. Similarly, the requirement that a POM be provided through a deferred commencement condition, in our view leaves for a later decision important aspects of the development, which could alter the proposed development in a fundamental respect. In coming to this conclusion we have had regard to the type of operation and the potential for impacts outside the site if it is not operated in a proper manner. This, in our opinion, can only be done with a POM that sets out the relevant detail contained in the EIS and matters not addressed in the EIS that directly relate to the operation of the facility.

Traffic and safety The evidence 107Mr Craig Hazell, provided expert evidence for the Applicant and Mr Craig McLaren provided expert evidence for the Second Respondent. The specific contentions raised by the First and Second Respondent were:

• the increased impact of the proposed development on the local road network, and
• the increased impact of the proposed development on the intersection of Rodgers Road with the Olympic Highway, particularly with regard to sight distances and reaction times during the presence of fog. 108The increased impact of the proposed development on the intersection of Rodgers Road with the Olympic Highway was a matter raised consistently by the local residents who gave evidence. 109Mr Hazell and Mr McLaren provided a joint report and a supplementary joint report. The supplementary joint report was provided to correct an error in the joint report where it was assumed that all heavy vehicles associated with the proposed development would arrive from and depart to the south. The correct position is that 25 heavy vehicles per week transporting composted material would turn right and proceed to the north. Mr McLaren provided additional information on acceleration times for different capacity trucks and the corresponding required safe gap times. 110Schedule 3 of the SEPP provides the types of traffic generating development that must be referred to the RMS. "Landfill, recycling facilities, waste transfer station" with any capacity are the relevant types of traffic generating development that require referral to the RMS. The Olympic Highway is also a classified State Highway that is under the care and control of the RMS whereas Rodgers Road and Patterson Road are local roads under the care and control of Greater Hume Shire Council. The RMS provided General Terms of Approval (GTA's) on 27 November 2012 and 12 April 2013. The latter addresses the issue of fog and includes a GTA requiring a Traffic Management Plan to address times when there is fog. In their GTA's, the RMS of 12 April 2013 required the following: 6. For road safety and driver safety reasons a Traffic Management Plan for fog conditions shall be prepared to the satisfaction of the Council and Roads and Maritime Services. This plan may include implications for traffic movements to and from the development and the placement of physical measures along the Olympic Highway (MR78). The approved plan shall be implemented for the lifetime of the proposed development on the subject site. 111The joint report of Mr Hazell and Mr McLaren raised no issue with the increased impact of the proposed development on the local road network or the intersection of Rodgers Road with the Olympic Highway. However the supplementary joint report raised the previously unaddressed issue of 25 heavy vehicles per week transporting composted material from the site and turning right from Rodgers Road north onto the Olympic Highway. Mr Hazell and Mr McLaren agree that:
• there should be no right turn by heavy vehicles onto Olympic Highway from Rodgers Road and no left turn from the Olympic Highway into Rodgers Road during fog events;
• due to the 100km/h speed limit and the downhill grade for vehicles approaching from the north that the addition of an acceleration lane on the Olympic Highway for vehicles exiting Rodgers Road and travelling south on the Olympic Highway is required.
• an illuminated warning sign is required at the intersection of Rodgers Road and the Olympic Highway during fog events, 112Mr Hazell states that there are no safety issues associated with a left turn into Rodgers Road from the Olympic Highway and/or a right turn out of Rodgers Road into the Olympic Highway in times when there is no fog. Mr McLaren however maintains that there are unacceptable safety impacts arising from these movements for vehicles over 12.5m in length. Semi-trailers and truck-and-dog trailer combinations have a maximum weight in excess of 14 tonnes (with Gross Combination Mass of up to 30-42 tonnes) with associated lower acceleration rates, particularly up hills, compared to a truck carrying less weight. Also, the gap distance is only approximately 15 seconds (being the time taken for southbound vehicles approaching from the north reaching the intersection). On this basis, if drivers select a shorter gap, this may lead to serious safety outcomes for highway traffic. The decision of the driver will be governed by the distance of the south bound vehicle approaching from the north rather than the vehicle approaching from the south even though the sight distance complies with the relevant requirements. In Mr McLaren's opinion, the slow speed of the truck will cause the vehicle from the south to have to slow or overtake the truck. 113While accepting that an illuminated warning sign or multiple signs are required at the intersection of Rodgers Road and the Olympic Highway, Mr McLaren states that insufficient detail is known about the proposed warning signs to be used in fog conditions, including their proposed locations and method by which and by whom they are to be activated. Mr Hazell maintains that this can be addressed through a condition of consent given that similar signs are currently in operation in other locations. Findings 114The intersection of Rodgers Road and the Olympic Highway was seen by local residents, particularly Mr Scollard, as a significant obstacle to any approval of the development because the safety problems with the intersection are multiplied when there is fog in the area. Fog was also accepted by Mr McLaren and Mr Hazell as being a potential problem that required additional works to the intersection (see par 111). 115While the RMS provided GTA's for the proposed development, Mr McLaren maintains that it would be appropriate for a safety audit to be prepared to address the right turn movements from Rodgers Road although this was not accepted by Mr Hazell. 116Given the unchallenged evidence that the Olympic Highway and Rodgers Road intersection presents a potential safety issue in fog times, we find that there is insufficient information to address the traffic implications of the proposed development. To properly consider the traffic implications, in light of the concerns expressed over fog, we would expect to see, at a minimum how the intersection would operate and how compliance would be achieved, including how the illuminated warning signs would operate. 117For the Court to fully consider the "the likely impacts of that development" it would be necessary for the "Traffic Management Plan for fog conditions" be available and be the subject of scrutiny at the hearing. The absence of this information, in our opinion, has the effect of imposing conditions that leave open the possibility that the development will be significantly different from the development for which application was made.

Water Evidence 118Dr Stephen Perrens, provided expert evidence for the applicant and Dr Daniel Martens provided expert evidence for the Second Respondent. The specific contentions raised by the First and Second Respondent were:

• the impact on groundwater conditions is not clear in the absence of a groundwater assessment,
• the impact of contaminated leachate on waters has not been properly assessed given the volume of liquid in the waste,
• the impact of contaminated stormwater on waters has not been properly assessed given the pollutant loads from the proposed development, the inadequate stormwater system, the underestimating of pollutant generation from the stormwater modelling and the absence of a POM,
• the sediment pond will not provide an adequate level of water quality treatment prior to release to the environment or re-use on site,
• the impact of pathogens to be released to the receiving environment has not been properly assessed, and
• there is no facility for the aeration of the polluted water in the ponds to prevent anaerobic conditions. 119The EIS relevantly describes the treatment of water generated from the proposed development as: Overflow into surface water: The sedimentation pond would treat water through sedimentation, evaporation and UV treatment processes. The sedimentation pond would collect site surface water runoff and is designed to provide storage for storm events. Water from the sedimentation pond would be reused in the composting process. If operated as proposed it is unlikely that water from the sedimentation pond would contaminate surface water. Surface Water Runoff: Leachate and suspended solids Surface water runoff is captured by drains and collected in the sedimentation pond. The composting facility is designed to avoid infiltration of rainwater into the compost. Therefore no leachate should be captured in the stormwater runoff. A stormwater management plan would also be established. Vegetated swales and the sedimentation dam are designed to detain and collect suspended solids Compost Material: Leachate or runoff from liquid waste processing; Leachate would not be generated during the composting process. The compost material would be stored and processed on a bunded hardstand. Liquid waste to be deposited onto an absorbent layer of green waste within sealed concrete troughs. 120The experts agree that there is an adequate water supply for the development and that the proposed development is unlikely to result in the contamination of groundwater however there are a number of matters still in dispute. Size of the detention pond 121Dr Martens states that on the basis of the EPA's requirement that the pond should be a minimum volume of 7ML, the plan of the detention pond is clearly deficient. With the current design of a 600mm maximum depth and a 7ML minimum volume, the detention pond will at least double and will be possibly 3.5 to 5 times the area shown on the Applicant's plans. This has implications in terms of design in order to achieve a grade to drain the pond. Dr Martens states that a 7ML pond capacity in that current layout cannot be constructed. In response, Dr Perrens suggested that the pond could be deeper and pumped out. There is sufficient area within the site to accommodate a larger detention pond without affecting the operation of the proposed development. A final design could be the subject of a condition of consent. The size of the bio-retention basin 122Dr Martens states that the area of the bio-retention basin needs to be a minimum size of 1,500m2 whereas Dr Perrens suggests that 500m2 is appropriate, based on the requirements of the EPA. Water discharge 123There was a dispute between Dr Martens and Dr Perrens as to whether the water to be discharged should be neutral and beneficial (Martens) or in accordance with the requirements of the EPA (Perrens). Aeration of pond 124Dr Martens maintains that the pond needs to be aerated and could not adequately be retrofitted due to the large size and shallow depth of the pond. Dr Perrens disagreed and confirmed that no aeration was needed but could be retrofitted, if required. Dr Martens raised a number of concerns with retrofitting an aeration system to the pond. 125Mr McEwen submits that the development application contains insufficient information in relation to leachate management, water management and as to the civil works proposed showing final sizes and locations of all drainage infrastructure, roads and buildings and wastewater management systems. The development application should be refused on this basis. 126Mr Galasso submits that the water experts have recommended that a number of management plans be developed and that the surface water management system be modified slightly so as to ensure that the development has no adverse impact on surface waters. Mr Galasso further submits that the EPA has reviewed the proposed development and issued GTA's which canvass, among other things, the control of water pollution. The only significant issue in dispute between the water experts relates to the permissible pollutant loads of water discharged from the site. Mr Galasso submits that Dr Perrens correctly states that the appropriate standards to apply are those set by the EPA. The EPA is the regulatory authority and there is no reason why the Court should go behind its determination as to discharge criteria. 127In circumstances where any water discharged from the site will drain across a large grassy paddock a significant distance from any watercourse, Mr Galasso submits that there is no justification for seeking to impose more stringent water pollution standards than required by the EPA. Findings 128We are not satisfied that sufficient information has been provided to properly consider the development application. We are also not satisfied that the lack of information can be addressed by way of conditions of consent. 129It was accepted by Dr Perrens that the detention pond was undersized based on the EPA requirements although both experts agreed that the 7ML pond required by the EPA may be excessive given the inclusion of a bio-retention system. Dr Perrens suggested that it could be made deeper although this approach was rejected by Dr Martens who stated that without a proper design, the size could not accurately be determined given the need to provide batters and drainage. Ultimately, Dr Perrens and Dr Martens agreed that further discussions need to take place with the EPA to determine appropriate the area and volume of the detention pond. 130The other significant disagreement centred on the reliance of Dr Perrens on the EPA outputs or the more conservative approach by Dr Martens of adopting outputs that provided a neutral and beneficial result. 131In principle, we prefer the approach of Dr Martens as we accept that the surrounding area that would receive any discharge from the site is high quality agricultural land. The potential impact of the development, through run off, on existing agricultural operations was a consistent concern of residents who provided evidence to the Court. Also, the depressions and creek lines near the site ultimately direct water discharge to the Hume Reservoir, the potable water supply for the area. In our opinion, the more conservative approach adopted by Dr Martens is the only sensible approach to ensure that the adjoining and wider areas have the best possible protection from activities on the site. 132We accept Dr Martens' evidence that the EPA discharge criteria do not appear to have been determined on any reasonable basis. Dr Martens went as far as to question whether there had been a typographical error in the criteria. Dr Martens states that the nutrient concentration levels of the EPA are significantly higher than the Australian and New Zealand Guidelines for Fresh and Marine Water Quality (ANZECC guidelines). Based on his modelling of run off from the site, Dr Martens found that his run off figures were close to the ANZECC guidelines and substantially lower than the EPA criteria. In his oral evidence, Dr Martens referred to a number of technical papers that supported his position that, if the EPA criteria are adopted, the nutrient concentration levels are likely to detrimentally impact downstream receiving environments. This has the effect of Dr Perrens' underestimating the potential impacts from the site and while we accept Dr Perrens evidence that the ANZECC guidelines are not necessarily to be used for individual development applications, the difference in the ANZECC guidelines and the EPA criteria is disturbing. Dr Martens' evidence should be preferred as the ANZECC guidelines are closer to the run off criteria from the site specific modelling undertaken by Dr Martens. 133On the matter of aeration, it was agreed by Mr Todoroski and Dr Cowan that the stormwater retention pond could potentially become anaerobic with consequent odour problems, if not aerated, so there seems little doubt that aeration is required. 134We also note that in their joint report, Dr Perrens and Dr Martens agreed that further POM's are required for groundwater and sludge management. These POM's were not available at the hearing and this further highlights the inadequacy of information provided by the Applicant.

Orders 135The orders of the Court are:

1. The appeal is dismissed.
2. DA 42-12/13 for the construction and operation of a compost facility located at 92 Pattersons Road, Gerogery is refused.
3. The exhibits are returned with the exception of exhibits 2, 101, B and K.

G T Brown Commissioner of the Court

R Speers Acting Commissioner of the Court 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: 02 October 2014