Casley v Wagga Wagga City Council

Land and Environment Court (NSW)|2010-12-21

Judgment 1This is an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to a development application DA 10/0171 for a mobile asphalt batching plant and depot on Lot 5 DP 800863 known as 112 Gap Hall to Downside Road Downside (the site). 2The site is located approximately 13km north of the Wagga Wagga CBD, on the north western corner of the intersection of Gap Hall to Downside Road and Coolamon Road. The site has an area of approximately 4ha. There is one residence located approximately 220m to the east of the site on the opposite side of Coolamon Road, and a residence approximately 650m to the west along Downside Road. The surrounding land is used for agricultural purposes, mainly cropping and grazing. 3The site was previously used for rural industry uses including grain and fertiliser storage and handling operated by Graincorp, and the infrastructure on the site includes silos, storage sheds, site office, weighbridge, bunkers, vehicular movement areas, and perimeter fencing. The operation of the asphalt batching plant and depot commenced some time before December 2009, and works constructed on the site include installation of diesel storage tanks, construction of an internal sealed access road and sealing of internal roads, construction to two retention dams and an additional holding area, and a transportable laboratory building. 4On 3 March 2010 the Council served an order under s121B of the Act directing the applicant to cease operating the plant on the site. The Council commenced Class 4 proceedings against Wagga Hotmix Pty Ltd on 23 April 2010 seeking orders in relation to the conduct of the asphalt batching plant and depot on the site. The Class 4 proceedings have been adjourned pending the finalisation of this Class 1 application, subject to an undertaking that the mobile asphalt batching plant be removed from the site from 3 September 2010 and not brought to the site until such time as development consent is granted permitting such use of the site, and that the site not be used other than for the storage of equipment within existing improvements and administrative functions: Casley v Wagga Wagga City Council; Wagga Wagga City Council v Wagga Hotmix Pty Ltd [2010] NSWLEC 140. 5The issues between the parties are whether the proposed development is consistent with the aims and objectives of the Wagga Wagga Rural Local Environmental Plan 1991 (the 1991 LEP) which was in force when the development application was lodged, and whether it is consistent with the aims and objectives of the Wagga Wagga Local Environmental Plan 2010 (the 2010 LEP) which came into force after the development application was lodged. The Council contends that the development is not compatible with the surrounding rural environment; there is insufficient information on impact on the receiving environment of runoff from the site; there is excessive noise; there is insufficient information about airborne emissions from burning furnace oil; the application is not in keeping with principles of ecologically sustainable development; there is insufficient information as to whether existing electricity and water services are capable of accommodating the development; the application is not in the public interest; the application is not a suitable use for the site; there is appropriately zoned industrial land available; and the development is not consistent with the Wagga Wagga Development Control Plan 2005.

Planning controls 6The Wagga Wagga Rural Local Environmental Plan 1991 (the1991 LEP) applied to the land at the date the development application was lodged. The aims of the 1991 LEP in cl 2 included: (a) to encourage the proper management, development and conservation of natural and man-made resources within the area to which this plan applies by protecting, enhancing or conserving: (i) prime crop and pasture land, (ii) timber, minerals, soil, water and other natural resources, (iii) localities of significance for nature conservation, (iv) localities of high scenic or recreational value, and (v) places and buildings of archaeological or heritage significance, including Aboriginal relics and places, ... (i) to promote ecologically sustainable development. 7The site was zoned 1 (Rural) under the 1991 LEP. The only development permissible without development consent in the Rural zone was agriculture (other than ancillary dwellings and intensive livestock keeping establishments), and forestry (other than ancillary dwellings and pine plantations). Prohibited in the Zone No 1 (Rural) were residential flat buildings and shops (other than general stores not exceeding 100sqm in gross floor area). All other development was permissible with development consent. 8The objectives of the Rural zone as provided in the 1991 LEP are: 1 Objectives of zone The objective of this zone is to promote the proper management and utilisation of resources by any one or more of the following: (a) protecting, enhancing and conserving: (i) agricultural land in a manner which sustains its efficient and effective agricultural production potential, (ii) soil stability by controlling and locating development in accordance with soil capability, (iii) forests of existing and potential commercial value for timber production, (iv) valuable deposits of minerals and extracted materials by controlling the location of development for other purposes in order to ensure the efficient extraction of those deposits, (v) trees and other vegetation in environmentally sensitive localities where the conservation of the vegetation is significant to scenic amenity or natural wildlife habitat or is likely to control land degradation, (vi) water resources for use in the public interest, (vii) localities of significance for nature conservation, including localities with rare plants, wetlands and significant wildlife habitat, and (viii) places and buildings of archaeological or heritage significance, including Aboriginal relics and places, (b) preventing the unjustified development of prime crop and pasture land for purposes other than agriculture, (c) ensuring that any allotment created for intensive agricultural pursuits is potentially and physically capable, on its own, of sustaining a range of such pursuits or other agricultural purposes as a commercial agricultural operation suitable to the locality, (d) facilitating farm adjustments, (e) minimising the cost to the community of: (i) fragmented and isolated development of rural land, and (ii) providing extending and maintaining public amenities and services, and (f) providing land for future urban development, for future rural residential development and for future development for other non-agricultural purposes, in accordance with the need for that development, (g) providing for a range of rural living styles in appropriate locations within the area to which the plan applies, and (h) encouraging the establishment of rural industries within the area to which the plan applies. 9Clause 9(3) of the 1991 LEP provides that the Council shall not grant consent to the carrying out of development on land to which the plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 10Clause 10 of the Rural LEP contains general considerations for development within the rural zone. 11The site is zoned RU1 Primary Production under the Wagga Wagga Local Environmental Plan 2010 (the 2010 LEP), which came into force on 16 July 2010. It was common ground that the proposed development would be an "industry" as defined in the 2010 LEP, and prohibited in the RU1 zone. Development for the purpose of a "rural industry" would be permissible in the RU1 zone with development consent. The objectives of the RU1 zone 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 the zone and land uses within adjoining zones. · To foster strong, sustainable rural community lifestyles. · To maintain the rural landscape character of the land. · To allow tourist and visitor accommodation only where it is in association with agricultural activities. 12A "rural industry" is defined to mean: rural industry means an industry that involves the handling, treating, production, processing or packing of animal or plant agricultural products, and includes: (a) agricultural produce industry, or (b) livestock processing industry, or (c) use of composting facilities and works (including to produce mushroom substrate), or (d) use of sawmill or log processing works, or (e) use of stock and sale yards, or (f) the regular servicing or repairing of plant or equipment used for the purposes of a rural enterprise, undertaken for commercial purposes. 13The aims of the 2010 LEP are set out in cl 1.2: (2) The particular aims of this Plan are as follows: (a) to optimise the management and use of resources and ensure that choices and opportunities in relation to those resources remain for future generations, (b) to promote development that is consistent with the principles of ecologically sustainable development and the management of climate change, (c) to promote the sustainability of the natural attributes of Wagga Wagga, avoid or minimise impacts on environmental values and protect environmentally sensitive areas, (d) to co-ordinate development with the provision of public infrastructure and services. 14Clause 1.8A of the 2010 LEP provides: 1.8A Savings provision relating to pending development approvals 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. 15The application proposed a production capacity of approximately 15,000 tonnes of hotmix per annum. While this volume is less than the 30,000 tonnes per annum referred to in cl 5(1)(a) of Schedule 3 to the Environmental Planning and Assessment Regulation 2000, the distance of the site to a non-associated residential dwelling within the 250m referred to in cl 5(1)(b)(ii) means that the proposed development is designated development. The development application was accompanied by an environmental impact statement, and a revised environmental impact statement (the revised EIS) was provided in August 2010. 16State Environmental Planning Policy (Rural Lands) 2008 applies to the site. The Wagga Wagga Development Control Plan 2005 (the DCP) applies to the site.

Evidence 17The hearing commenced with a view of the site. Expert planning evidence was given by Mr Colby Farmer (on behalf of the Council) and Mr Garry Salvestro (on behalf of the applicant). Mr Farmer and Mr Salvestro provided individual reports, and a joint report, and gave oral evidence on the first day of hearing. 18Expert evidence on acoustic issues was provided in individual reports and in a joint report by Mr Louis Challis (on behalf of the Council) and Mr Alan Subkey (on behalf of the applicant). Mr Challis and Mr Subkey were not required for cross-examination. 19Expert evidence on soil and water management issues was provided by Mr Stephen Gray (on behalf of the Council) and Mr Erwin Budde (on behalf of the applicant). Mr Gray and Mr Budde each provided a statement of evidence, and prepared a joint report dated 14 December 2010 (exhibit 8). On the second day of hearing the applicant was granted leave to obtain additional evidence on two issues, being odour, and stormwater management. Mr Budde provided a Second Supplementary report dated 3 March 2011 (exhibit F), and he and Mr Gray provided a further joint report dated 7 March 2011 (exhibit G). Mr Budde and Mr Gray were not required for cross examination. 20Pursuant to the leave granted on 21 December 2010, an odour impact assessment (dated 18 February 2011) was provided on behalf of the applicant by Mr Simon Welchman (exhibit H). Mr Welchman was not required for cross examination. 21The material before the Court included the revised EIS dated 3 August 2010, which included a letter of support for the application signed by 13 local residents; responses to notification to public authorities of the application; and a response to notification of the application received from the residents of 27 Incarnie Crescent raising concerns about traffic.

Consideration 22It was common ground that the proposed development is permissible with consent under the 1991 LEP, and that, as an "industry", it would be prohibited in the RU1 zone under the 2010 LEP. While cl1.8A of the 2010 LEP requires that the application be determined as if the 2010 LEP had not commenced, it was common ground that it has come into force and should therefore be regarded as imminent and certain. The parties agreed that the correct approach to be adopted in determining the weight to give to the 2010 LEP is that outlined by Lloyd J in Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290 at [30]: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 23The applicant submits that notwithstanding that the proposed development is prohibited under the 2010 LEP, it is consistent with the relevant aims and objectives of both the 2010 LEP and the 1991 LEP. The Council submits that the proposed development detracts from the aims and objectives of the 2010 LEP. The Council contends that the application is inconsistent with the aims and objectives of the 1991 LEP and the Rural zone, and applying cl 9(3) of the 1991 LEP must be refused. 24There is a degree of overlap in the way the aims and objectives are expressed in the 2010 LEP and the 1991 LEP, however the two instruments must be considered independently. While the aims and objectives of the 2010 LEP must be given appropriate weight in the assessment under s79C(1)(a) of the Act, by virtue of cl9(3) of the 1991 LEP development consent cannot be granted unless I am satisfied that the carrying out of the development is consistent with the zone objectives. 25In undertaking that assessment, I note that in Blackmore Lloyd J held that "consistent with" means "not antipathetic"; there is also authority to the effect that "consistent with" means "compatible": see Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [45].

Objectives of the Rural zone under the 1991 LEP 26Objective (a)(i) of the Rural zone refers to protecting, enhancing and conserving agricultural land in a manner which sustains its efficient and effective agricultural production potential. It was common ground that the site is not currently used for agricultural production, and there is no evidence that it could be returned to agricultural production. The site is surrounded by land used for agricultural purposes, and the focus of the evidence, and submissions, was on the surrounding land. 27The Council submits that there is insufficient evidence as to detail of the sediment dams on the site to assess impact on the harvesting of water and seepage to groundwater, and insufficient evidence as to availability of water supply to meet dust suppression requirements; insufficient detail in the Soil and Water Management Plan, including inconsistencies in the evidence as to the quantity of furnace oil that will be stored in tanks adjacent to the plant; insufficient evidence as to emissions from the burning of furnace oil; and insufficient evidence as to the structure and location of the proposed acoustic barrier. The Council submits that as a consequence, the proposed development is not consistent with the zone objectives 1(a)(i) or (vi), or the aims in cl2(a)(i) and (ii) of the 1991 LEP, and is not consistent with the aims in cl2(a), (b) and (c), or the first dot point in the zone objectives, of the 2010 LEP. 28The applicant submits that the evidence of the acoustic experts and stormwater experts is that any impacts from contaminated stormwater leaving the site and from noise have been appropriately assessed and can be adequately managed. The applicant submits that the proposed condition requiring confirmation before operations commence that the sediment basins are clay lined and adequately compacted ensures that there is no risk to the receiving environment or uncertainty, and that to the extent that there may be inconsistencies between the proposal for the acoustic barrier and the stormwater management that is a matter that can be left to the detailed design stage. 29Mr Salvestro's evidence was that adequate mitigation measures are proposed; Mr Farmer's oral evidence was that if the relevant experts in other disciplines were of the view that there were no unmanaged impacts then the development would be relevantly consistent with the aims and objectives related to those matters. 30The revised EIS included a noise assessment which included measurements taken when the asphalt plant was in operation. The revised EIS noted (at p41) that if the Industrial Noise Policy were strictly enforced a 20dB reduction to the existing ambient LAeq levels produced by the asphalt plant would be required. Neither neighbour to the east indicated great concern about the noise levels of the plant. The letter of support from 13 neighbours noted that in contrast to when the site was used as a grain receival centre, the plant was "quiet and road friendly". 31The acoustic experts agreed that the appropriate project specific criteria are those provided in the Industrial Noise Policy Noise Emission Goals and Guidelines, and agreed on noise control procedures which would enable the proposed development to fulfil those requirements. Those measures are the construction of an appropriately braced and structurally sound 30m noise barrier 4.5m in height extending from the existing store shed on Coolamon Road, with a wiping seal at the base of foil faced barium vinyl coated terylene with a minimum surface mass of 4kg/sqm or in the form of a mixture of gravel and sand with a minimum height of 300mm against the base of the wall; the enclosure of small items of noisy equipment; and the provision of a noise barrier of a height equal to or greater than the top safety railing of the bag filter housing. The applicant has agreed to a reduction in the proposed hours of operation to 7.00am to 6.00pm Monday to Friday and 7.00am to 1.00pm Saturday. 32I find, based on the agreed expert evidence, that noise impacts to nearby residential properties from the operation of the plant can be ameliorated by the erection of the acoustic barrier and other provisions now incorporated as condition 17 of the draft Conditions of Consent, and by reducing the proposed hours of operation as agreed. 33It was common ground that the infrastructure on the site includes that previously constructed to enable the use by Graincorp for a grain handling facility, and additional infrastructure constructed by the applicant. The additional infrastructure includes, as accepted by the applicant's experts, three water storage and sediment ponds. 34Mr Budde's evidence was that the stormwater flows occurring on the site are runoff from roofs, surface runoff from open-air stockpiles, surface runoff from the proposed plant, and other runoff from ground surfaces. The stormwater discharge points are near the southwest corner passing through a culvert into an unnamed creek; in the southeast corner flowing into a table drain in Coolamon Road; and east of the eastern sediment basin where overflow is directed offsite in the table drain in Coolamon Road. 35Mr Budde's evidence, which was not contradicted on this issue, is that the site is within the catchment of Houlaghans Creek, which is a major unregulated tributary of the Murrumbidgee River. It was his opinion (exhibit B) that the sediment ponds would hold an extremely small amount of runoff, and would not hold and store any amount of water such as to have an impact on the broader catchment or Houlaghans Creek. 36Based on the calculations of MJM Consulting Engineers, which were not challenged by the Council, Mr Budde's evidence was that the pond on the southwestern part of the site ("Pond 1") has a capacity of 990,000L; the pond on the northwestern part of the site ("Pond 2") has a capacity of 250,000L; and the pond on the eastern boundary of the site close to Coolamon Road ("Pond 3") has a capacity of 420,000L. 37Mr Budde's evidence was that pond 1 collects runoff from a shed and the immediate surrounds and would be used as a water supply for dust suppression; and pond 2 is not a constructed pond, rather a depression with earth bunding, and captures only water that falls directly into it. Pond 3 is a combined sediment basin and pollution control structure, and collects runoff from the aggregate bunkers, the mobile asphalt hardstand area, and from the area underneath the steel silos. In Mr Budde's opinion the purpose of pond 3: ...is to collect potentially sediment-laden runoff from the bunkers and collect any potential spills from the plant and the plant hard stand area, preventing such runoff and spills from leaving the site in an uncontrolled manner. It would also be used for dust suppression. 38Mr Budde's evidence was that the batching plant was fully contained and required no chemical input, and that the sources of chemical pollution would be furnace oil spill and bitumen spill. Based on calculations complying with the Blue Book (Soils and Construction 2004), Mr Budde was of the opinion that pond 3 has sufficient capacity to contain the required amount of runoff (162,000L) and potential maximum catastrophic spill involving failure of the furnace oil holding tank (5000L) and catastrophic failure of the bitumen tank (30,000L). Mr Gray agreed that the basin sizes are adequate according to the criteria in the Blue Book. I note that while there is a discrepancy with the stated capacity of the furnace fuel tanks adjacent to the plant as provided in the EIS (1,000L and 10,000L), at the higher amount pond 3 would still appear to have sufficient capacity. 39Mr Budde did not agree that a Soil and Water Management Plan was required in accordance with the recommendations of the Blue Book, however he agreed that in the interest of providing the best possible system for site soil and water management a Soil and Walter Management Plan should be prepared. The Soil and Water Management Plan dated 3 March 2011(exhibit F) includes an Erosion and Sediment Control Plan, and Water Discharge Procedure, and proposes conditions requiring implementation and maintenance of the proposed controls. The Soil and Water Management Plan states that the general strategy for managing erosion and sedimentation from the site works would involve the following:

Containment of the plant operating area and collection of runoff from this area
Containment of the runoff from aggregate and gravel storage areas
Filtration of runoff from other areas of the site 40Mr Gray and Mr Budde agreed in their final joint report of March 2011 that the size and location of the sediment ponds, and the discharge criteria specified in the Soil and Water Management Plan relating to pH, electrical conductivity, turbidity, oil and grease, and colour, were in accordance with the requirements of the Blue Book, and were appropriate. Mr Gray agreed that the site contour data provided in February 2011 and incorporated into Mr Budde's second report (exhibit F) met requirements. 41Mr Gray's statement of evidence included photographs taken on site in August 2010 which confirm the present unregulated flow of water from pond 3 into the swale drain parallel to Coolamon Road. In that statement Mr Gray stated that site runoff was not controlled and as such off-site flow of polluted runoff into the receiving environment is possible; that there were no facilities in place to empty the sediment basins leading to a lack of capacity for follow up rainfall events; and that there were no procedures in place to test, treat and discharge runoff held in basins. 42The Erosion and Sediment Control Plan contained in the Soil and Water Management Plan dated 3 March 2011 provides that pond 3 should have an operating capacity of no more than 50 percent, so that discharge of water would be undertaken at higher water levels. The Sediment Basin Discharge Procedure provides for monitoring, water quality discharge criteria, water treatment, discharge, and maintenance of the ponds. However, no detail is provided for the mechanism for discharge, other than a recommendation that it is better to use 2 inch pipes or equivalent. Mr Budde recommends construction of an asphalt containment bund to prevent ponding of runoff from the plant operating area, and use of sediment fencing at the final discharge points along the eastern and southern site boundaries. Detail of the recommended sediment fencing is provided, and an indication of its proposed location. There is, however, no indication as to how the positioning of the drain and the sediment fencing would relate to the proposed acoustic barrier, which would, according to the joint report of the acoustic experts, be located directly above the existing discharge point from pond 3 and the earth bunding and require a seal as described in [31] above. 43There is no evidence as to how the sediment ponds were constructed. Mr Budde agreed in both joint reports that the pond walls "need to be adequately compacted and clay-lined to prevent leakage and seepage". The applicant has proposed a condition requiring a suitably qualified person to confirm "that the sediment basins are clay lined and adequately compacted by performing a Standard Proctor Compaction Test on the sediment basins and confirming they attain 95% compaction". 44During the course of these proceedings, including the adjournment granted in December 2010, the applicant has provided evidence in response to the Council's contention that insufficient information has been provided to demonstrate that the development will not negatively impact the receiving environment by polluted runoff leaving the site in an uncontrolled manner. I find, based on the agreed expert evidence, that ponds 1 and 3 are of a location and volume adequate to hold likely runoff and possible spills of furnace oil and bitumen of the volume estimated by both experts, and that the water quality criteria to be met before discharge from pond 3 are appropriate. However, the evidence before me does not address in detail the management of flow of discharges from pond 3, nor provide detail of facilities for the emptying of pond 3, particularly in the event of a spill of furnace oil or bitumen, even assuming that the pond is confirmed as being adequately compacted so as to retain the water and sediment flows predicted. Pond 3 is, as accepted by the applicant's expert, the primary pollution control basin for the plant and material stockpile, and is intended to retain up to 35,000L of chemical spill in the event of a catastrophic failure of the furnace oil holding tank and the bitumen tank. I am not persuaded that these are matters of detail that can properly be deferred to detailed design in the context where there is apparent on the evidence a conflict between implementation of the acoustic measures and stormwater management. 45In the state of uncertainty as to the impacts of the proposed development arising from management of pond 3 including the flow of discharges to the surrounding environment, I am not persuaded that the proposed development is compatible with, or is not antipathetic to, objective 1(a)(i) of the Rural zone. 46Objective 1(h) is to encourage the establishment of rural industries within the area. The Council submits that the development does not service the surrounding rural land, and would displace potential rural industrial uses. The applicant submits that the site will not be used for a grain handling facility, based on Mr Salvestro's evidence that Graincorp ceased its use of the site because it was unviable in the absence of a rail link, and that the Council has not identified any likely viable rural industrial use that would be displaced. The applicant submits that there needs to be objective evidence to demonstrate the viability of alternative uses before it could be said that those uses are put in jeopardy by the proposed development, and there is no such evidence. 47It was common ground that the site is highly disturbed and could not be returned to agricultural use, and that it is surrounded by rural properties that are prime crop and pasture land. I agree with the applicant that there is no evidence before me as to any alternative rural industrial uses to which the site could be put. However, I am not persuaded that such evidence is required. The authorities relied upon by the applicant, Ratsep v Bathurst Regional Council [2007] NSWLEC 115 and Collins v Wagga Wagga City Council [2008] NSWLEC 16, concerned objections under State Environmental Planning Policy No 1 - Development Standards to minimum lot sizes for subdivision of rural land. In both matters, evidence of the agricultural viability and sustainability of the proposed lots was required for consideration of whether the proposed development met the objectives of the relevant controls. In this instance, the issue is whether the use of this site for an "industry", rather than it being available for use for a rural industry (or some other use permissible in the RU1 zone), would be consistent with the objective of encouraging rural industries in the area. Mr Salvestro's evidence was that the proposed development would not discourage the establishment of rural industries in the area, however that is not how objective 1(h) is expressed. I accept the evidence of Mr Farmer that approval of the application would remove the ability for use of the site for an agricultural or rural enterprise. I am not satisfied that that would be consistent with objective 1(h). 48My conclusion that the proposed development is not consistent with objective 1(a)(i) or (h) of the Rural zone of the 1991 LEP means that development consent must be refused. However, since the matter was fully argued it is appropriate to consider whether the proposed development would be consistent with the aims and objectives of the 2010 LEP.

Aims and objectives of the 2010 LEP 49The Council submits that the proposed development is not compatible with the character, context or setting of the rural locality. The applicant submits that the physical appearance of the proposed use would maintain the rural character of the land, and that any odour emitted would be imperceptible and would not detract from the rural character of the locality. 50The expert planners agreed that the new infrastructure required for the development would be visible from surrounding properties and by people travelling through the zone. Mr Farmer was of the opinion that the proposed acoustic wall would not maintain a rural landscape or rural character; however he agreed in oral evidence that the proposed acoustic wall could potentially be made to look like an extension of an existing shed so that it could be made to look rural in character, and that with the acoustic wall the plant would potentially not be visible from Coolamon Road. Based on the expert acoustic and planning evidence I am satisfied that the proposed acoustic barrier could fulfil both a noise attenuation function and assist in screening elements of the plant from view from surrounding properties and Coolamon Road, and, if constructed of galvanised iron or colorbond or otherwise treated so as to appear to be one of those materials (in accordance with the applicant's proposed condition), could be a less intrusive element. However, the screen would still represent a large addition to the existing infrastructure acknowledged by Mr Salvestro to be industrial in character. 51Based on the odour impact assessment provided by the applicant, which was not challenged by the Council, I am satisfied that while there would be emissions of odour and odorous compounds (Acetaldehyde, Toluene and Xylene) perceptible at the nearest residences, the concentrations would be well below the Department of Environment Climate Change and Water criteria for isolated rural residences and for populated areas. 52The applicant submits that the proposed development is an adaptive reuse of the site that is consistent with the object of the Act of promoting and co-ordinating the orderly and economic use and development of land: s5(a)(ii). The applicant submits that continued use of the site by Graincorp as a grain handling facility is not viable, that there is no suggestion that there is any probability of the significant rehabilitation required to ever be able to put the site to an agricultural use, and that since Graincorp will never use the site again and would impose restrictions on successors, the land will never be put to any economic use other than that proposed. 53I am not persuaded that the evidence before me establishes the proposition urged by the applicant. The evidence as to the circumstances in which Graincorp ceased use of the site as a grain handling facility, while not challenged by the Council, comes indirectly through Mr Salvestro; and there is simply no evidence before me that would establish that as a consequence no other economic use of the site is possible other than that proposed by the applicant. I agree with the Council that the circumstances of this case do not demonstrate the element of public benefit as outlined by Roseth SC in Michael Hesse v Parramatta City Council [2003] NSWLEC 313 at [16], and that any saving of resources through use of some of the existing infrastructure must be considered in circumstances where the applicant has also constructed further infrastructure including ponds, a ramp, and sealed roads and would have to install water management infrastructure and noise barriers. 54The aims of the 2010 LEP include (a) "to optimise the management and use of resources and ensure that choices and opportunities in relation to those resources remain for future generations". The objectives of the RU1 zone include "to encourage sustainable primary industry production by maintaining and enhancing the natural resource base". For the reasons given above as to the uncertainty of management of potentially contaminated flows from pond 3, and the apparent conflict between that and the agreed acoustic requirements, I am not persuaded that the proposed development is consistent with the zone objective, or with the aim in cl2(a) of the 2010 LEP for management and use of resources of the surrounding land. 55The objectives of the RU1 zone also include "to maintain the rural landscape character of the land". I agree with Mr Farmer that the presence of the large acoustic wall, in the context of a site that is industrial in appearance, is not compatible with the maintenance of the rural landscape character of the land in which the site is located, and I am not persuaded that the proposed development is consistent with this zone objective.

Conclusion 56I am not satisfied that the proposed development is consistent with the objectives of the Rural zone under the 1991 LEP, and applying cl9(3) of the 1991 LEP, development consent cannot be granted. Further, the 2010 LEP is to be treated as imminent and certain, and the proposed development is not consistent with its aims and objectives. It is not necessary to consider the remaining contentions raised by the Council. 57The orders of the Court are: (1)(The appeal is dismissed. (2)(Development application DA10/0171 for a mobile asphalt batching plant and depot on Lot 5 DP800863 known as 112 Gap Hall to Downside Road Downside is refused. (3)The exhibits are returned, except for exhibits 1 and L. Linda Pearson 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: 12 April 2011

(2001) 118 LGERA 290

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Judgment (8 paragraphs)

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Cases Cited (7)