David Goode v Gwydir Shire Council

David Goode v Gwydir Shire Council - [2020] NSWLEC 33 - NSWLEC 2020 case summary — Zoe

Judgment

The Applicant Mr Goode is a resident of Warialda Gwydir Shire in northern New South Wales. He has commenced judicial review proceedings alleging errors or shortcomings in Gwydir Shire Council's (the Council) determination to grant development consent on 14 January 2019 to Development Application (DA) No 10.2018.13.1, a truck wash facility in Warialda. The Council is the proponent for development. Mr Goode represented himself.
The grounds of judicial review were clarified and narrowed in the hearing to be: (i) inadequate consideration of impacts and suitability of the site by the Council; and (ii) failure of the Council to process the DA as "designated development".
The inadequate consideration ground was raised with respect to: (i) siting of the truck wash facility (including odour, noise and visual impacts of the site); (ii) impact on water supply; (iii) impact on the Council's Sewerage Treatment Plant (STP); and (iv) biosecurity risks.
The relief sought and grounds of review in the amended summons filed 24 July 2019 are: Declare invalid a determination of the Gwydir Shire Council to Grant DA 13/2018. The following objections are raised: 1. The siting of the Truck Wash *Currently, livestock trucks are cleaned at the point of delivery of the livestock. The Warialda Truck Wash will create a precedent which alters existing practice. Exposure to effluent being spilt on roads will increase as trucks burdened with effluent will be encouraged to return to Warialda to be cleaned, a distance of approximately 70 kms. Gwydir Shire Council intends to compete on price with existing Truck Washes in order to encourage patronage. *The conclusion and recommendation from The Statement of Environmental Effects says that the proposal is an area that has a 450m minimum buffer from Warialda residents. This is disputed. There is one residence within 330 m on the southern side of the development and there are a number of residences on the northern side which will fall within the claimed 450m buffer. *The Truck Wash is to be situated upstream from Warialda on the Warialda Creek. The Creek flows through the town and its foreshores are well maintained to provide scenic appeal and area for recreational use. It is an ideal picnic site. A weir in the Creek is adjacent to the CDB and is occasionally used as swimming hole as are other holes in the Creek. *Unrealistic assessment of affects [sic] on amenity of the environment with especial regard to odour impact and twenty- four hour usage of the Truck Wash. *Heightened risk of public exposure to Q Fever bacteria because of increased opportunity for spillage on roads and the proximity of the Truck Wash to residential areas. This information is from a NSW Health Factsheet last updated 24/1/2018. This disease has debilitating short term effects and can produce devasting [sic] long term effects. The Factsheet can be assessed at https://www.health.nsw.gov.au/infectious/factsheets/pages/qfever.aspx Quotations "People usually get infected by breathing in the Q Fever bacteria that is in the air or dust." "while mowing grass contaminated by infected animal excretions." "when visiting, living or working in/near a high risk industry." "Even people who do not have contact with animals may be infected." "The bacteria can survive in the soil and dust for many years and be spread over several kilometres by the wind." "Infected animals have no symptoms." Currently within Warialda, heavily laden livestock trucks from the west and south proceed along the Gwydir Highway passing homes and the Primary School. They spill polluted material and potentially discharge infectious bacteria in effluent onto the roads. When this effluent dries it may release into the air endangering school children and residents. The Warialda Truck Wash will not solve this problem and may exacerbate it on roads approaching from the east and north. *What is required is priority re-allocation of government funding, to tighten and enforce regulations; to provide incentives to transport companies to update holding tanks; AND provide secure, gated, underground dump points along the journeys being travelled by these heavy livestock transport vehicles so that if necessary effluent levels in holding tanks can be reduced on route. 2. Processing of Assessment of DA 13/2018 *Gwydir Shire Council is - the applicant - owner and operator of the Truck Wash - and is the authority determining DA 13/2018 *No detail is provided in the application as to how to deal with solids from the Truck Wash and what impacts this will have on the environment. *A possible modification to DA 13/2018 is foreshadowed in Part D to deal with the solids issue. This would limit the opportunity for public comment for whatever is proposed. *There are grounds for believing that Council may intend to develop an irrigation system at the site for the disposal of effluent. [story in Warialda Standard September 30 2015] 3. Conflicting Claims as to Benefits Claims have been made that the Truck Wash will deal with threats of bio-security arising from plant material and seeds from noxious weeds being carried by trucks to/ from farms. However, usage of the Truck Wash will be restricted to those trucks carrying livestock only. [Attachment 1 Statutory Planning Considerations DA 13/2018] [Ex 1 Statement of Reasons] 4. Impact on Warialda Water Supply *Detailed analysis will be provided which challenges Council's assumptions. *Warialda has experienced Level 1 water restrictions this last summer with warnings of possible increased restrictions. *The population of Warialda is already increasing and there are prospects that this will continue as business and community groups are promoting Warialda's advantages. *Another DA is being prepared for the Council for a Greenhouse project at Warialda that may create hundreds of jobs and a huge increase of demand on water supply. 5. lmpact on Warialda Sewerage Treatment Plant and Infrastructure *Existing surplus capacity at the STP to degree claimed, will be challenged. *No assessment of impact of population growth has been made [please see previous statement re water supply.] *Effluent is to be pumped from the proposed Truck Wash on the eastern perimeter of Warialda to the STP on the western side through existing pipes. Blockages and breakdowns in this old system would bring further distress and unfavourable reputation to residents and businesses in this town, which prides itself on its good appearance and amenity. … 7. Lack of Precision in Calculations *The amount of animal waste in each truck will vary according to the length of journey and other factors. Council's calculations seem to be based on 2 ½ hour journeys- the distance travelled from Myola Feedlot to Bindaree Abattoir. How much will this waste increase over perhaps a 7 hour, or more, journey as stock are brought to northern feedlots over great distances from the south and west? … *Council's calculations as to operational costs do not include man and machinery hours needed to remove solids from the sludge pits utilising the skid steer loader ramp included in the plans for DA 13/2018. *Page 23 Statement of Environmental Effects "The final volume to be pumped from the site is expected to be half the total volume. The specific figures are highly variable and no detailed research for other similar facilities has been published." *The liquid effluent pumped from the Truck Wash to the sewerage treatment plant is said to represent " ...a potential increase of 20% or more of the liquid volume to be treated at the STP. Council has advised that the system available is in excess of Warialda's requirements and is considered to be suitable for purpose." *Advice from Michael Lewis Regional Operations Officer-Armidale. EPA "The Warialda STP is designed for a capacity of up to 1500 equivalent persons but currently runs at around 1400 EP, so it does have spare capacity". My comment The above figures do not represent 20% additional capacity and do not take account of population increase AND usage of the proposed Truck Wash being much in excess of what is forecast. 8. Failure to Process DA13/2018 as Designated Development I contend that the Truck Wash should have been assessed as a designated development. 1.1 refer to Schedule 3 Environmental Planning and Assessment Regulation 2000. The Truck Wash will deal with material coming from agricultural production and may release effluent sludge or other waste within 100 metres of a natural waterway in the event of overflow from a holding pond or from stockpile of dried sludge being washed by heavy rain. Warialda Creek is located approximately 100m north west of the proposed development site. Warialda Creek flows through the town of Warialda and has scenic appeal. A weir in the creek behind the CBD is occasionally used as a swimming hole or as a picnic site. 2. I refer also to item 32a[ii] [sic] of Schedule 3. Water [sic] management facilities or works that comprise more than 1000 tonnes per year of effluent. [If the Truck Wash processes 5 trucks per day it may create in excess of 100 tonnes of effluent per day. The amount of effluent in trucks will vary, depending on where the journeys commenced. Some will have travelled for many hours and hundreds of kms from the south or the west delivering cattle to Bindaree Abattoir at lnverell or feedlots to the north of Warialda. Others will commence at the feedlots and deliver cattle to Bindaree Abattoir. Given the growing demand for red meat protein, especially in Asian markets the long distance transport of cattle is set to keep on increasing. The sparsely populated districts to the north of Warialda, which also have ready access to grain supplies, will likely be used for more feedlots. Myola Feedlot is expanding from 20,000 head capacity to 35,000 head capacity. Therefore, accurate estimates of growth in demand for the Truck Wash {and therefore demand on water supply and the sewerage treatment works} are unknowable.] 3. I refer also to Part 2 Schedule 3 item 33 [sic] Are alterations or additions designated development? Alterations or additions to an approved development are not designated development if in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development. As Council intends to make alterations or additions to the development in order to dry and process sludge, the whole development should have been assessed as designated development from the beginning. …
The following overview of relevant facts was included in the Council's summary of argument and the Court does not understand these are disputed (footnotes omitted): 5.1 The development site the subject of the Consent is part of a Crown Reserve on the eastern side of the town of Warialda. The extent of the Reserve is illustrated on an aerial map. It straddles the Gwydir Highway. 5.2 The Reserve is the subject of a licence granted by the Minister administering the Crown Lands Act to the Council. The licensed area is a relatively small part of the Reserve, and corresponds to the development site. The permitted use under the licence is use for a "Truck Wash Facility". 5.3 The development site, and the Reserve generally, is zoned RU1 Primary Production under the Gwydir Local Environmental Plan 2013 (LEP). 5.4 The development site is located adjacent to a designated Warialda High Productivity Vehicle Route, a heavy truck transport route by-passing Warialda, and commonly servicing cattle trucks from the north, west and south of Warialda to an abattoir at Inverell to the east. 5.5 The development application for the Truck Wash Facility was lodged on 18 April 2018 (DA). The DA was accompanied by a Statement of Environmental Effects prepared by SMK Consultants dated April 2018. 5.6 The DA was publicly notified on 19 April 2018, with submissions required by 16 May 2018. 5.7 The applicant made the only submission to the DA. 5.8 SMK Consultants responded to the submission with further information to address the matters raised, on 30 October 2018. 5.9 SMK Consultants also provided additional information about the landscaping of the development site and a landscaping plan, on 20 December 2018. 5.10 A council officer carried out an assessment of the DA on 10 January 2019. A report was compiled for this purpose. 5.11 The Consent was granted on 14 January 2019. [Statement of Reasons dated 14 January 2019 prepared] 5.12 The Truck Wash Facility was constructed during 2019-2020, at a cost of over $1.2 million, including associated sewerage and water supply work. It is not presently in operation (pending the outcome of these proceedings). 5.13 The Truck Wash Facility was partly funded by State Government grant. 5.14 A building information certificate was issued in respect of the Truck Wash Facility, on 3 March 2020.

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Environmental Planning and Assessment Act 1979 (NSW)

Relevant sections of the Environmental Planning and Assessment Act 1979 (EPA Act) provide: Part 4 Development assessment and consent Division 4.1 Carrying out of development - with consent, without consent and prohibited … 4.2 Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless - (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. Maximum penalty - Tier 1 monetary penalty. (2) For the purposes of subsection (1), development consent may be obtained - (a) by the making of a determination by a consent authority to grant development consent, or … Division 4.3 Development that needs consent (except complying development) … 4.10 Designated development (1) Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations. (2) Designated development does not include State significant development despite any such declaration. … 4.12 Application … (8) A development application for State significant development or designated development is to be accompanied by an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations. … 4.15 Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. ...

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Environmental Planning and Assessment Regulation 2000 (NSW)

Relevant clauses of Sch 3 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) include: Schedule 3 Designated development Part 1 What is designated development? … 32 Waste management facilities or works (1) Waste management facilities or works that store, treat, purify or dispose of waste or sort, process, recycle, recover, use or reuse material from waste and - (a) that dispose (by landfilling, incinerating, storing, placing or other means) of solid or liquid waste - (i) that includes any substance classified in the Australian Dangerous Goods Code or medical, cytotoxic or quarantine waste, or (ii) that comprises more than 100,000 tonnes of "clean fill" (such as soil, sand, gravel, bricks or other excavated or hard material) in a manner that, in the opinion of the consent authority, is likely to cause significant impacts on drainage or flooding, or (iii) that comprises more than 1,000 tonnes per year of sludge or effluent, or (iv) that comprises more than 200 tonnes per year of other waste material, or … (d) that are located - (i) in or within 100 metres of a natural waterbody, wetland, coastal dune field or environmentally sensitive area, or (ii) in an area of high watertable, highly permeable soils, acid sulphate, sodic or saline soils, or (iii) within a drinking water catchment, or (iv) within a catchment of an estuary where the entrance to the sea is intermittently open, or (v) on a floodplain, or (vi) within 500 metres of a residential zone or 250 metres of a dwelling not associated with the development and, in the opinion of the consent authority, having regard to topography and local meteorological conditions, are likely to significantly affect the amenity of the neighbourhood by reason of noise, visual impacts, air pollution (including odour, smoke, fumes or dust), vermin or traffic. … Part 2 Are alterations or additions designated development? 35 Is there a significant increase in the environmental impacts of the total development? Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development. … Part 5 How are distances measured for the purposes of this Schedule? … 47 Waterbodies The distance from a waterbody is to be measured as the shortest distance between - (a) the top of the high bank, if present, or (b) if no high bank is present, then - (i) the mean high water mark in tidal waters, or (ii) the mean water level in non-tidal waters, and the boundary of the development site.

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Gwydir Local Environmental Plan 2013

The Gwydir Local Environmental Plan 2013 (NSW) (GLEP) defines "rural industry" as follows: Dictionary rural industry means the handling, treating, production, processing, storage or packing of animal or plant agricultural products for commercial purposes, and includes any of the following - (a) agricultural produce industries, (b) livestock processing industries, (c) composting facilities and works (including the production of mushroom substrate), (d) sawmill or log processing works, (e) stock and sale yards, (f) the regular servicing or repairing of plant or equipment used for the purposes of a rural enterprise. Note. Rural industries are not a type of industry - see the definition of that term in this Dictionary. ...
The Land Use Table for land zoned rural provides: Land Use Table Zone RU1 Primary Production 1 Objectives of zone • 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. 2 Permitted without consent Building identification signs; Environmental protection works; Extensive agriculture; Farm buildings; Forestry; Home-based child care; Home occupations; Intensive plant agriculture; Roads 3 Permitted with consent Aquaculture; Cellar door premises; Dual occupancies (attached); Dwelling houses; Extractive industries; Funeral homes; Group homes; Home industries; Intensive livestock agriculture; Offensive industries; Open cut mining; Roadside stalls; Rural workers' dwellings; Any other development not specified in item 2 or 3 4 Prohibited Advertising structures; Amusement centres; Boat building and repair facilities; Car parks; Charter and tourism boating facilities; Centre-based child care facilities; Commercial premises; Correctional centres; Educational establishments; Entertainment facilities; Exhibition homes; Exhibition villages; Health services facilities; Highway service centres; Home occupations (sex services); Hotel or motel accommodation; Industrial retail outlets; Industrial training facilities; Industries; Marinas; Mooring pens; Moorings; Passenger transport facilities; Places of public worship; Public administration buildings; Recreation facilities (indoor); Registered clubs; Residential accommodation; Respite day care centres; Restricted premises; Service stations; Serviced apartments; Sex services premises; Storage premises; Vehicle body repair workshops; Vehicle repair stations; Warehouse or distribution centres; Wharf or boating facilities; Wholesale supplies …

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Biosecurity Act 2015 (NSW)

Provisions of the Biosecurity Act 2015 relevant to Mr Goode's argument include: Part 1 Preliminary … 3 Objects of Act (1) The primary object of this Act is to provide a framework for the prevention, elimination and minimisation of biosecurity risks posed by biosecurity matter, dealing with biosecurity matter, carriers and potential carriers, and other activities that involve biosecurity matter, carriers or potential carriers. (2) The other objects of this Act are as follows - (a) to promote biosecurity as a shared responsibility between government, industry and communities, (b) to provide a framework for the timely and effective management of the following - (i) pests, diseases, contaminants and other biosecurity matter that are economically significant for primary production industries, (ii) threats to terrestrial and aquatic environments arising from pests, diseases, contaminants and other biosecurity matter, (iii) public health and safety risks arising from contaminants, non-indigenous animals, bees, weeds and other biosecurity matter known to contribute to human health problems, (iv) pests, diseases, contaminants and other biosecurity matter that may have an adverse effect on community activities and infrastructure, (c) to provide a framework for risk-based decision-making in relation to biosecurity, (d) to give effect to intergovernmental biosecurity agreements to which the State is a party, (e) to provide the means by which biosecurity requirements in other jurisdictions can be met, so as to maintain market access for industry. … 6 Act does not give rise to or affect civil cause of action (1) A provision of this Act does not confer a right of action in civil proceedings based on a contravention of the provision. (2) Except as otherwise expressly provided by this Act, this Act does not affect or limit a civil right or remedy that exists apart from this Act, whether at common law or otherwise. (3) Without limiting subsection (2), compliance with this Act does not necessarily show that a civil obligation that exists apart from this Act has been satisfied or has not been breached. … Part 23 Miscellaneous … 385 Restraint of contraventions of requirement imposed by or under Act (1) The Secretary may bring proceedings in the Land and Environment Court for an order to restrain a contravention (or a threatened or apprehended contravention) of any requirement imposed by or under this Act. (2) If the Court is satisfied that a contravention, or a threatened or apprehended contravention, will occur or is likely to occur, unless restrained by order of the Court, it may make such orders as it thinks fit to restrain the contravention or other conduct of the person by whom the contravention is committed or by whom the threatened or apprehended contravention is likely to be committed. (3) Without limiting the powers of the Court under this section, an order under this section may suspend any biosecurity registration or permit.

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Bundle of material (Ex A)

From his bundle of material (Ex A), Mr Goode relied on an email from the Department of Industry Lands & Forestry which included details of Licence RI 589484 (Licence) issued to the Council by the Department for the purposes "amenities building, concrete ramp, drain water, effluent disposal system, landscaping, parking area, road construction, settling ponds, tank [and] waste disposal". Mr Goode included a copy of Condition 23 of the Licence requiring the holder not to commit nuisance including any noxious nuisance or offensive trade business or any act resulting in nuisance, damage or disturbance to the owners or occupiers of adjoining or neighbouring lands and buildings. The entire Licence was included in the Council's bundle of material (Ex 1).
An extract from the report Australian Animal Welfare Standards and Guidelines: Land Transport of Livestock published by the Commonwealth Department of Agriculture, Fisheries and Forestry in 2012 titled "Transport vehicles and facilities for livestock" stated "there should be a cleaning program for livestock crates and containers between journeys".
Six A4 coloured photographs showed the truck wash facility from various angles. The first five photographs appeared to show the truck wash facility under construction as visible from the road. The sixth photograph appeared to be a closer depiction of construction work on the site.
Three aerial satellite images created by Mr Goode using a Google Maps application showed the truck wash facility in the context of Warialda town. Digital measurements created by Mr Goode using Google Maps were displayed on each map between the truck wash facility and different points selected by Mr Goode. Distances of 449.40 metres and 448.19 metres between the truck wash facility and residential dwellings were shown on two images, and 90.32 metres between the truck wash facility and Warialda Creek were shown on one image.
As part of the assessment process, Council staff prepared a site analysis plan that showed the proposed truck wash facility site and surrounding area. This plan, originally annexed to the Council's "Development Assessment Checklist & Site Inspection", was included in Mr Goode's bundle of material with the addition of highlighting to draw attention to measurements between boundaries of the truck wash facility and buildings/dwellings at three points, being 350 metres, 391 metres and 330 metres.
A "Wind Rose" diagram from weather forecast website https://www.willyweather.com.au/ showed a Warialda wind forecast based on a five year average. Mr Goode relied on this diagram to submit that the dominant wind was easterly.
An extract from "Beef cattle feedlots: waste management and utilisation" issued by Meat & Livestock Australia titled "Managing human exposure to contaminants" Appendix 2 outlined the contaminants found in feedlot manure.

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Affidavit evidence

The Council read two affidavits of Max Eastcott affirmed 11 October 2019 and 13 March 2020 respectively. The text of the affidavits is largely relevant to the exercise of the Court's discretion. It need only be considered if Mr Goode is successful in his proceedings. Some of the material annexed to the affidavit was referred to in the course of argument.
The 11 October 2019 affidavit was accompanied by an exhibit marked ME1 which the Council tendered in the hearing (Ex 1). Mr Eastcott has been General Manager of the Council for 18 years and in that time has been responsible for its operations and functions under the Local Government Act 1993. Mr Eastcott deposed that the truck wash facility is a component of a larger development of the new "Warialda High Productivity Vehicle Route" (Route). The objectives of developing the Route are to improve the local agricultural freight industry, improve road safety, and improve amenity values in the centre of town.
Warialda is a vital link for the agricultural industry however current road and infrastructure is insufficient to safely and efficiently meet industry demands within the Council municipality. The Route will provide freight vehicles with a new 3.7 kilometre bypass enabling freight vehicles to avoid a significant hazard intersection.
The truck wash facility is located so that it is easily accessible for those using the Route. The truck wash facility will assist in preventing spread of weed seeds and contaminants by allowing drivers to remove foreign matter from vehicles and machinery. This will include cattle trucks emptying effluent tanks and cleaning manure, avoiding environmental harm through the spread of foreign plant material and disease present in effluent waste. Building the truck wash facility will mean trucks are no longer required to travel significant distances to be able to wash down in an environmentally friendly facility. Wastewater from the truck wash facility will be captured and cleaned in the existing STP, reducing water loss and minimising local environmental impacts.
The truck wash facility has been supported by the NSW Government as part of the "Fixing Country Truck Washes Program". The Council secured $364,900 in funding from the NSW Government for the project.
Annexed to the affidavit of 13 March 2020 was a contract with Lachlan Hall Constructions (Annexure B), photographs of the truck wash facility site taken by Mr Eastcott (Annexure C), Building Information Certificate (Annexure D), liquid trade waste application (Annexure E), letter from the Council to NSW Department of Planning, Industry and Environment (DPIE) (Annexure F), email from NSW Environment Protection Authority (EPA) to the Council dated 18 February 2020 (Annexure G), and letter from EPA to the Council dated 11 March 2020 (Annexure H).
On or about 1 February 2019 the Council entered into a contract with Lachlan Hall Constructions for the concreting component of construction of the truck wash facility. Work was commenced on the site on or about 5 April 2019. Lachlan Hall Constructions have carried out the following construction: wash down ramps, effluent dump pits, sludge put bases, and sludge pits. In addition to works carried out by Lachlan Hall Constructions, the Council also completed the following works: completion of stormwater network, installation of internal sewer and electrical networks, completion of water network including site supply tank, completion of amenities building, completion of roadworks, and installation of solar lighting.
Construction was completed on 12 March 2020. The Council issued Building Information Certificate BIC 9/2020 in respect of the truck wash development on or about 3 March 2020. The Council lodged an application for approval to discharge liquid trade waste into the Council's sewer on 12 March 2020. On the same date the Council sent a letter to the Trade Waste Regulatory Team at DPIE seeking comment and concurrence.
A regional operations officer of the EPA attended and inspected the truck wash facility on 18 February 2020. On 19 February 2020 Mr Eastcott instructed the Council to carry out minor maintenance works as raised in the course of the EPA carrying out its inspection. These works have either been completed or are scheduled to be undertaken when the facility becomes operational.

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Development consent

From its bundle of material (Ex 1), the Council relied on the "Notice of Determination of a Development Application D/A 13/2018" granted on 14 January 2019 by the Council (development consent). The development consent was granted subject to conditions of consent. The scope of the approval required the Council to carry out development generally in accordance with the DA, the conditions of consent, the SEE, additional information in response to Mr Goode's submission (SMK Consultants 30 October 2018), and additional information on landscaping (SMK Consultants 20 December 2018). Three plans were approved with the development consent as part of the SEE. Two locality plans generated on Google Earth showed the truck wash facility in the context of Warialda. The "General Arrangement Plan" showed the arrangement of the truck wash facility including, inter alia, drainage, water mains, pipework, sewer mains, sludge pits, stormwater detention, washdown ramp and wash bays. The Council also provided an A3 version of this plan which was marked MFI 2.
The conditions of consent included operating conditions for occupation of the truck wash facility including, with respect to holding ponds and solids usage, storage or sale: 2. Maintaining of holding ponds a. The holding ponds must be maintained to ensure that sedimentation does not reduce their capacity by more than 20% of the design capacity. b. All holding ponds, evaporation ponds and associated drains must be maintained to prevent infiltration.
The future treatment of sludge was not the subject of the consent as provided in the following condition: 3. Solids usage, storage or sale The use, storage or sale of sludge from or on the site does not form part of this approval and must be considered under a modification or separate application.
The conditions of consent required certain landscaping works as follows: 7 Landscaping The applicant shall implement the vegetation screening/ landscaping plan in accordance with the document "Warialda Truckwash - Additional Information on Landscaping" (prepared by SMK Consultants and dated 20 December 2018) and the following: a. Revegetation works Revegetation works should allow for at least 3 shrub/groundcover species per tree planted. b. Local species All species used in landscaping shall generally be native vegetation which occurs locally. c. Irrigation To assist in the management of urban salinity in the local area and to contribute to water sensitive urban design goals, a "smart" irrigation system shall be installed on the site to prevent unnecessary watering of vegetated areas (that is, automatic sprinklers should not activate during rain or at times of adequate soil moisture and irrigation periods should be appropriate for the species being watered). d. Maintenance All landscaping on the site shall be maintained in a healthy state for the life of the development, and in the event that any vegetation dies or is removed, that vegetation shall be replaced by vegetation of the same species and as much as practicable the same maturity as that which dies or was removed. e. The landscaped area of the development is to be maintained at all times in accordance with the approved landscape plan. Reason: To ensure that the landscape component of the development is maintained to an acceptable standard. f. All unbuilt upon or unsealed areas are to be grassed and planted with appropriate trees and shrubs. Reason: To enhance the development and protect the amenity of the area. j. This development consent does not imply any approval or permit the removal of trees or native vegetation from the site (other than that required tor removal as a bushfire hazard reduction measures). Reason: To comply with the requirements of the Environmental Planning and Assessment Act, 1979.

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Statement of Environmental Effects

A SEE dated April 2018 was prepared by SMK Consultants. Under the heading "Local Planning Instruments", the SEE said the truck wash facility is best described as a "rural industry" as defined in the GLEP.
The proposed development was outlined in the SEE as follows: 1.1 Proposed Development Outline The proposed development is for a truck washdown facility to be located adjacent to the Warialda High Productivity Vehicle Route - Gwydir Highway intersection. The site is located on part of Lot 7311 in Deposited Plan 1136470. The development site is zoned RU1 - Primary Production under the Gwydir Local Environmental Plan 2013 (LEP) and comprises an area of approximately 2.21 hectares. The Truck Wash Facility is designed to prevent the spread of weed seeds and contaminants by allowing drivers to remove weed seeds, soil and other foreign matter from vehicles and machines. The facility will be regularly utilised by cattle trucks moving cattle through the district. In accordance with Section 11 of the 2008 Roads Regulation which states that a person must not allow liquid, loose or waste material to escape onto a road, a penalty can apply for each breach of the regulation. Cattle trucks are therefore required to empty their effluent tanks and clean the manure from within the trailer to avoid regulatory issues whilst hauling stock to and from regional farms. The facility will therefore provide one option for stock carriers to empty their effluent holding tanks. The washdown facility in this area will benefit rural landholders and industry to reduce the potential spread of weeds and other contaminants by vehicles travelling between sites throughout the area.
In considering matters of environmental assessment, the SEE indicated that the closest surface water is Warialda Creek, located approximately 100 metres north-west of the truck wash facility. Potential impacts on the creek from the development would be erosion and sediment transport during construction and potential spillage or addition of pollutants to the waterway.
In relation to water supply, the SEE outlined predicted peak flows from the wash-down ramp and dump points at 12.4 litres per second. With each wash taking an estimated 20-45 minutes, at 30 minutes per truck the truck wash facility was expected to utilise 22,320 litres. On water supply, the truck wash facility would be connected to the town water supply. A static on-site water supply tank of 100,000 litres would be regularly refilled from the water main. Water for amenities would be supplied by a rainwater tank.
Regarding quantities of effluent, an average truck using the truck wash facility would have a tank capacity of approximately 350 litres. With 30-40 trucks using the truck wash each week, total effluent tank volume would be in the order of 10.5 kilolitres to 14 kilolitres per week, or between 1.5 and two kilolitres per day. Total wastewater generated on the site will range between 660 kilolitres to 907 kilolitres. Tank effluent is a minor component in this volume and includes sludge which will be settled and then removed for disposal as organic solids. This could potentially be incorporated in sewage solids or sold to local farmers for application on cropping areas once dried. Total discharged waste volume of between 300 to 450 kilolitres per week represents a potential 20 per cent increase of the liquid volume of effluent generated by Warialda residents to be treated at the STP. The system available exceeds Warialda's requirements and would be suitable for purpose.
On air quality, air pollution can result from exhaust emissions from machinery used during construction and dust generated during earthworks. Standard dust control measures would minimise these impacts.
On noise impacts, the manoeuvring of trucks and a pressure washer were assessed and the existing buffer distance between the site and closest residences was considered sufficient to allow appropriate attenuation of general noise from the truck wash. The pressure washer has potential to generate excessive noise and the SEE recommended the design of the facility include shielding of the pump associated with the pressure washer or selection of a quiet motor.
On odour, sources of odour would include cattle trucks, effluent from trucks, and liquid effluent generated during washing trucks. Holding ponds and spilt liquid effluent would be the key sources of odour. The general prevailing winds would take the odour away from the town area and into open woodland and grazing country. The closest residence to the facility is located north-west at approximately 450 metres. The potential for unacceptable odour generation from the site is considered low.

[16]

Statement of Reasons

The Statement of Reasons dated 14 January 2019 was issued by the Council with the development consent and addressed the issues considered in granting development consent.
The Statement of Reasons included staff comments on various aspects of the truck wash facility. On whether the truck wash facility is compatible with RU1 zoning objectives under the GLEP, the staff comment concluded that the facility complements regional biosecurity controls by enabling effective activities servicing the agricultural industry by decreasing the risk of vehicles acting as weed or pathogen vectors between rural properties. Further, the truck wash facility supports ongoing operations of agricultural enterprises in the area by providing infrastructure contributing to biodiversity control measures and maintenance of animal welfare standards. This enables expansion and development of the regional agricultural industry.
On water supply, the staff comment on the expected peak flows of 12.4 litres per second was that despite the SEE not clearly indicating whether the existing Warialda town water supply bore licence would be sufficient to cater for the increased usage, the Council's Town Utilities and Plant Manager has confirmed that the current water licence and current usage would mean the water supply has capability to absorb extra daily usage by the truck wash facility.
On wastewater generation, the staff comment referenced the Council's Town Utilities and Plant Manager's verbal confirmation of the ability of the existing sewerage treatment system to absorb extra flows generated by the truck wash facility.
On odour emissions, the staff comment noted the truck wash facility would be located at sufficient distance from the nearest dwelling to minimise the impact of any odours. This did not mean dwellings in the area would not be affected by odour from time to time particularly in adverse weather conditions. A vegetation screen along northern, western and southern sides of the truck wash facility would assist in odour disbursement.
On hazards, the staff comment observed that the site of the truck wash facility is not subject to local flooding or subsidence slip. It is however prone to bushfire and it was hence proposed in the staff comment that no hazardous chemicals be used in the operation of the truck wash facility.
On suitability of the site for development under s 4.15(1)(c) of the EPA Act the staff comment indicated that the truck wash facility was consistent with the purposes listed under the Licence. The truck wash facility will be ideally located alongside the Route and will be readily accessible to trucks travelling in all directions. The slope of the land lends itself to effective controlled drainage.

[18]

Mr Goode's submissions

Mr Goode submitted that inadequate consideration was given to various aspects of the suitability of the site for a truck wash facility and its impacts as identified in the part of the amended summons pressed at the hearing and in those parts of the written submission he was allowed to rely on (a new issue was not permitted). These should have been taken into consideration in determining the DA as required by s 4.15(1) of the EPA Act.
The siting of the truck wash facility is inappropriate as it will require trucks to travel up to 70 kilometres from feedlots and abattoirs in the region. Existing practice is that trucks are cleaned at the point of delivery of livestock. According to Roads Regulation reg 11, trucks should be washed after delivering stock and before leaving the delivery facility. By requiring trucks to travel long distances to the truck wash facility, the Council is encouraging vehicles to breach the Australian Animal Welfare Standards and Guidelines: Land Transport of Livestock. This is also contrary to Criteria 5 in the Transport for NSW "Fixing Country Truck Washes Program Overview" document (Ex B) which says that truck washes should help reduce spillage on roads and prevent the spread of weeds or disease. The biosecurity risk this creates is expanded on below.
Mr Goode submitted that the travel times between the truck wash facility and feedlots and abattoirs considered in the Statement of Reasons did not account for the increase in effluent arising from journeys of more than 2.5 hours, which should be anticipated given the location of the truck wash facility. This increase will impact on town water supply and capacity of the STP, bringing into question the suitability of the site. Further, the Council has not adequately considered what will be done with waste in holding ponds and the use, storage or sale of sludge from on the site. A suggestion in the SEE to on-sell waste as organic manure is not appropriate as the waste cannot be considered organic.
The siting of the truck wash facility is also inappropriate because of the odour, noise and the visual amenity impacts of the site. The site analysis plan and Google Maps measurements show that residential dwellings are within the 450 metre buffer between the site and dwellings contemplated in the SEE. This discrepancy reflects the quality of the approval process and shows that impacts of odour and noise on property values and amenity were inadequately considered. Neither the SEE nor the Statement of Reasons acknowledged the easterly wind shown in the Wind Rose diagram that will carry odour across the town of Warialda. The photographs tendered by Mr Goode show that because of how the truck wash facility is positioned the rear of trucks being emptied will be in clear view of those driving past. Sufficient consideration was not given to the spoiling effects of the truck wash facility upon entry to the town.
On water supply, Mr Goode submitted that the 20-45 minutes per wash estimate in the Statement of Reasons was an underestimate. If the time taken to wash a 5B double truck extends to 60 minutes, the water said to be available at the truck wash facility will be exceeded by 449,600 litres. The estimate for water usage is clearly incorrect and the actual amount needed will have undesirable social and economic impacts that are against the public interest. There is no evidence of consultation with the NSW Office of Water regarding water supply prior to preparation or approval.
On overloading the STP, Mr Goode submitted that the final volume of liquid effluent to be pumped from the truck wash facility will be half of the total volume of wastewater generated on the site. It also represents a 20 per cent increase of liquid volume to be treated at the STP. A more realistic calculation of times needed to wash trucks as submitted above would lead to a much greater estimate of effluent. There is no evidence of consultation with the EPA regarding STP capacity.
On biosecurity, Mr Goode submitted that inadequate consideration had been given to the impacts of biosecurity hazards and risks to humans posed by pathogens and chemicals in feedlot waste that would come to the truck wash facility in manure, particularly through increased exposure to the bacteria causing Q Fever. No consideration was given by the Council to information such as that in the "Managing human exposure to contaminants" document extracted from "Beef cattle feedlots: waste management and utilisation" issued by Meat & Livestock Australia, specifically that pathogens and chemicals may remain active in water discharged into Warialda Creek and onto the golf course. The distance travelled by trucks between feedlots and abattoirs and the truck wash facility does not comply with Criteria 1 or Criteria 5 of the Transport for NSW "Fixing Country Truck Washes Program Overview" document (Ex B).
The truck wash facility also amounts to a noxious nuisance which is against the conditions of the Licence granted to the Council by the Department of Industry Lands & Forestry.
In reply, Mr Goode submitted that Council's reference to the adequate capacity of the STP was to a verbal agreement only. No signed document can attest to its adequate capacity. Further, landscaping to deal with the visual impact of the truck wash facility would not cover the entire line of sight from the road meaning the facility would remain exposed to the public.

[19]

Council's submissions

The Council submitted that all the issues raised in relation to inadequate consideration by Mr Goode seek to impermissibly review the merits of the development consent and do not fall within the scope of judicial review: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 at [79] (Basten JA); Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council (2010) 174 LGERA 67; [2010] NSWCA 145 at [110] (Tobias JA). The Council submitted that no basis was made out to impugn the validity of the development consent on this ground and sought dismissal of the summons.
On the siting of the truck wash facility and alleged impacts including odour, noise and visual amenity, the Council submitted that Mr Goode's contentions went to his lack of confidence in the assessment by the Council. Mr Goode's allegations disputed matters of fact, or the merits of the development. The matters raised suggest a larger disagreement with policy decisions about truck routes and consequential potential for spillage of effluent on public roads, which are not matters the subject of the development consent. Hence, no judicial review ground was identified. In any event, significant consideration was given to these issues in the SEE and the Council's determination as identified in the Statement of Reasons.
In relation to odour and capacity of holding ponds for sedimentation, a condition of consent limits the extent of storage in a holding pond to 20 per cent. In relation to landscaping for the purposes of ameliorating visual impact, a plan was approved.
Mr Goode's submissions on the impacts of the inadequate consideration of the truck wash facility on water supply were an impermissible challenge to the merits of the Council's decision. In any event, water availability was expressly considered in the SEE and in the determination.
Similarly, the availability and capacity of the STP was also expressly considered in the SEE and in the determination and Mr Goode's submissions on this topic were also a challenge to the merits.
On biosecurity, the Council submitted that Mr Goode's complaint was not justiciable: Biosecurity Act ss 6, 385. In any event, the complaint rests on the premise that trucks would be encouraged to return 70 kilometres to Warialda to be cleaned after unloading. There is no proper basis for this premise, nor is a judicial review ground raised. Mr Goode's submission that the truck wash facility is a noxious nuisance in contravention of the Licence issued by the Department of Industry Lands & Forestry is irrelevant to the validity of development consent.
Regarding conflicting claims as to benefits, the Council submitted this claim arises from a false premise that the truck wash facility will be restricted to those trucks carrying livestock only. This restriction was not proposed by the DA or imposed by the development consent. In any event, this is a challenge to the merits of the decision.
The alleged lack of precision in calculations raised by Mr Goode seeks to engage in merits review.

[20]

No failure to properly consider by Council

The onus of proof lies on Mr Goode as the Applicant in these judicial review proceedings to establish his case on the balance of probabilities, if a cause of action is identified. As the Council submitted the merits of the Council's decision to grant itself development consent are not relevant to these judicial review proceedings. The merits of a decision cannot be considered in judicial review proceedings: Gilbank v Bloore (No 2) [2012] NSWLEC 273 at [48] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 42 (Peko-Wallsend); and Teys Australia Southern Pty Ltd v Burns (2015) 206 LGERA 186; [2015] NSWLEC 1 at [90] citing Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35-36 (Brennan J). Grounds alleging a failure to properly consider relevant matters face a high hurdle where there is material prepared and assumed to be considered by the Council on those matters: Peko-Wallsend at 39 cited in Gilbank v Bloore (No 2) at [48]. Unfortunately these observations apply to all the matters identified by Mr Goode as relevant to this ground. A fair reading of the grounds in the amended summons which are set out above in [4] and Mr Goode's written submissions summarised above is that the matters identified, which Mr Goode no doubt sincerely considers are important, are relevant to a merits assessment of the truck wash facility.
Mr Goode is critical of the location of the truck wash facility away from activities such as saleyards and feedlots. He considers the location near Warialda Creek is unacceptable and has amenity impacts on the town of Warialda and its surrounds due to odour, noise and visual impact. He also considers that the calculation of the amount of water to be used is understated. Those are merit matters.
Mr Goode alleges a biosecurity risk due to possible increased spillage on roads citing Q Fever, and identifies a current problem in this regard. As the Council submitted, no part of the Biosecurity Act can be availed of by Mr Goode in the context of this case in light of ss 6 and 385. Under s 6(1) no right of action is conferred by a contravention of any provision. Only the Secretary can bring proceedings in the Court to restrain a breach of that Act under s 385. I also note that one of the justifications for the project as identified in the SEE is the need to reduce biosecurity risks such as contaminants from travelling stock trucks.
Mr Goode alleges the truck wash facility does not comply with Criteria 1 or Criteria 5 of the Transport for NSW "Fixing Country Truck Washes Program Overview". I note that the Council secured funding of $364,900 for the truck wash facility under this program, according to Mr Eastcott as outlined above at [27]. This suggests that the objectives of this program are met by the truck wash facility. Once again this is not strictly a matter I need consider as it is a merit issue.
The provisions of the Roads Regulation relied on by Mr Goode do not assist his case other than to identify other means by which the problem of spillages from trucks on roads are regulated.
For the reasons identified by the Council in its submissions summarised above at [65]-[71] all the issues identified by Mr Goode were identified and considered in the SEE and the Statement of Reasons.
The siting of the truck wash facility and its odour and noise impacts on residences were considered in the SEE and Statement of Reasons as outlined above at [42]-[44] and [51]. On odour, a condition of consent limits the extent of storage in a holding pond to 20 per cent as outlined above at [33]. While Mr Goode relied on the Wind Rose diagram he tendered to suggest that an easterly wind was the prevailing wind and there would be impacts on Warialda, the issue of odour was considered by the Statement of Reasons. To the extent Mr Goode submitted that residences were inappropriately closer than 450 metres, relying on the site analysis plan outlined above at [17], the 450 metre distance in the SEE was an observation about the proximity of the closest residence to the truck wash facility, not a prescribed buffer as outlined above at [44].
On visual amenity, landscaping was expressly considered and a landscaping plan approved as part of the conditions of consent as outlined above at [35]. That Mr Goode considers that plan to be inadequate is not relevant in a judicial review ground.
The impact of the truck wash facility on water supply was expressly considered in the SEE and Statement of Reasons as outlined above at [40] and [49]. Likewise the amount of effluent to be produced and the capacity of the STP was considered as outlined above at [41] and [50].
Further, the Council's consultants addressed concerns raised by Mr Goode in his letter of May 2018, as outlined above at [5].
A further issue identified in relation to the processing of the DA was that no detail was provided on how the solids from the truck wash facility would be dealt with. A condition of consent Part E condition 3 specifically requires a modification or new DA to deal with that matter. Mr Goode is critical that a modification to the DA to deal with that issue is referred to, rather than a new DA, because this would limit public comment. No reference was made to authorities such as Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA 349 where the Court of Appeal has held that failing to assess an essential environmental impact of a proposal can result in invalidity of a development consent. I am not being critical of Mr Goode in any way in making that observation. His assertion that such a matter should have been dealt with as part of the DA is however no more than that.
Assertions about lack of precision in calculations and conflicting claims as to benefits are assertions about matters of merit.
This ground of review fails.

[24]

Council's submissions

The Council accepts that if the proposed development is designated development within the meaning of the EPA Regulation, the DA would have needed to have been accompanied by an environmental impact statement (EIS): EPA Act ss 4.10, 4.12(8). However, the proposed development is not designated development.
The issue that arises from Mr Goode's allegation is the proper characterisation of the purpose of the development: Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60 at [78]-[85] (Talbot J); Moore v Yarrowlumla Shire Council (2002) 120 LGERA 109; [2002] NSWLEC 62 at [13]-[18] (Pearlman J); Evans v Maclean Shire Council (2003) 138 LGERA 229; [2003] NSWLEC 352 (Talbot J).
Characterisation of purpose should be dealt with in accordance with well-settled principles as summarised by Preston CJ in Chamwell Pty Ltd v Strathfield Municipal Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (Chamwell) at [27]-[45]. The focus should be on the end purpose, rather than individual components or aspects, of an activity. Both the SEE and the Council in determining the DA characterised the purpose of the development as rural industry under the GLEP. Rural industry is defined to include the regular servicing or repairing of plant or equipment used for the purposes of a rural enterprise. The purpose of the truck wash facility is consistent with this definition. It is designed to prevent the spread of weeds and contaminants by allowing the washing of trucks and machines. Ancillary to that purpose, stock carriers can carry empty effluent holding tanks. Not all trucks are equipped with such tanks. The washing of trucks and machines is the appropriate and correct characterisation, focusing at the appropriate level of generality: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310 (Royal Agricultural Society of NSW). The dominant purpose of the truck wash facility is not waste disposal. As a result of truck washing, wastewater and some solids will be produced. That does not render the dominant purpose to be waste disposal.
If characterisation of the land use as rural industry was not accepted and it was instead found to be a "waste management facility", the requirements of clause 32 of Sch 3 are nevertheless not met. Therefore even if the land use was characterised as a waste management facility it would still not be designated development.
If cl 32(1)(d) is relevant in relation to locational criteria concerning proximity to Warialda Creek the SEE identifies that the creek is located approximately 100 metres north-west of the proposed development site. Clause 47 of Sch 3 provides a rule for measurement of distances to waterbodies. It prescribes distances to be measured from the top of the high bank. No evidence has been adduced by Mr Goode of where the high bank is located nor evidence to establish a distance of less than 100 metres between a high bank to the development site. Even if the truck wash facility is a waste management facility, the application of this clause has not been established by Mr Goode.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (28 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (19)

Cited By (1)