Lees and anor v Cessnock City Council [2011] NSWLEC 1098 | Case summary

Will the reduced setback increase the potential odour nuisance? The evidence 12The basis for a large number of the council's contentions is that the reduced setback will potentially increase the likelihood of an objection about odour from the residential dwelling, the subject of the modification application, about the adjoining poultry farm and that may lead to its closure or reduced productivity. This will be inconsistent with the general objective of protecting, maintaining and supporting agricultural activities in rural areas. 13The contention as described in the evidence of Ms Sharp, the council's town planner, (at par 1.8.1) states: Under Chapter c.4 Land use Conflict and Buffer Zones , dwellings on land adjoining land to poultry sheds are required to have a minimum separation distance of 150 m. Under this Chapter where an application is received which is likely to result in a conflict with the existing law likely future adjoining land uses, it will be the responsibility of the "encroaching development" to provide the recommended buffer areas or satisfactorily reduce or remove the conflict through some other approved method. In this instance the dwelling is the encroaching development on existing poultry sheds. The consent issued by the Court require the dwelling to be located a minimum distance of 150 m and arboreal screen (10 m by 70 m long) A minimum distance of 150 m is required to residual emissions such as (deleted after objection by applicant) odour etc which can cause nuisance or discomfort to human beings a risk to health and well-being 14Mr Allen, the applicant's town planner, disagrees on Ms Sharp's interpretation of the DCP. He states that s 4.2.3 in Chapter 4 categorises different land uses to assist in determining whether or not a conflict/buffer investigation should be undertaken, and to what extent. In the table to this section "Residential development" and "Rural residential development" are defined as Category A land uses and "Poultry farms" are defined as a Category C land use. Section 4.3.12 addresses Rural Residential Development and under the heading of "Methods for Reducing Conflicts", the third dot point states: Where Category C uses are located nearby, setback will be determined on the merits of the case. 15Mr Allen states that the DCP is clear and unlike the requirement for a 150 m setback for a new poultry farm from existing residences, there is no stipulated setback distance for a new dwellings proposed near an existing poultry operation. Therefore the suggestion of Ms Sharp that the dwelling does not comply with the prescribed 150 m separation distance is not applicable. 16Further evidence was provided for the applicant by Mr Ronin Kellaghan, an environmental scientist with expertise in odour monitoring and assessment. His report addressed the difference in the likely odour from the nearby poultry shed between the approved separation distance of 150 m and the existing setback of 134.5 m. He states that: Analysis of the predicted odour impact at the distance of 135 m and 150 m metres indicates the relative difference in odour would be less than 10%. Evidence suggests that a doubling of odour concentration is required to change the perception of odour. On this basis, a 10% difference in predicted odour concentration at 135 m and 150 m is unlikely to be perceivable. 17He further states: It is also noted that under the Australian Standard for the measurement of odour by dynamic olfactometry (AS 4323.3 : 2001), the accepted repeatability for two samples of the same testing material will not be greater than a factor of 3 at a 95% confidence level. In other words, duplicate samples analysed by a laboratory cannot differ by more than a factor of three. The percentage difference in odour predicted at 135 m and 150 m (10%) would therefore not be able to be measured in accordance with the Australian standard. 18The evidence of Mr Kellaghan was challenged by the council and is addressed later in the judgment (see pars 25 to 27). Findings 19The issue of the separation distance between the proposed dwelling (as it was at the time of the original approval) and the nearest poultry shed on the adjoining property was the principal issue in the original proceedings. 20The contentions raise provisions in REP 1989 (although now repealed) and the Rural Lands SEPP as providing support for the refusal of the application. While of some relevance, these documents provide general and broad planning objectives that are largely directed at guiding detailed planning at the local level (see par 26 of REP 1989) or general considerations for certain forms of development (see par 10 of the Rural Lands SEPP). In any event, the DCP (as distinct from REP 1989 and the Rural Lands SEPP) specifically addresses the relationship between potential conflict between rural activities and residential use and, in this case, is the more relevant planning document for the main contention in the proceedings. 21At the time of the appeal, the applicant's tendered documents from their consultant indicated that a dwelling could be located on the site that satisfied all three setback criteria. This, however has proved to be incorrect. In addressing the setback to be poultry shed, the judgment relevantly stated (at par 10): 10. With the benefit of the site view, I accept that the position adopted by the council of maximising the setback and providing a vegetative screen is reasonable and an appropriate response to the particular characteristics of the application and the site. A setback greater than 150 m would effectively sterilise the use of the site as the use of the rear portion of the site has limitations through requirements for protection from bushfires. The approach adopted by the council is consistent with cl 4.1.2 of DCP 2006 of minimising land-use conflicts between potentially incompatible land uses. Part 6.6 deals specifically with the impact of further development or subdivision around poultry farms. Part 6.6 deals with conflict of minimisation and proposes means of dealing with the potential impacts. The potential impacts include visual, noise, lights, odour and dust. I note that Part 6.6 relies on vegetative screening as a consistent mechanism to address these impacts. 22While the interpretation of the DCP by Mr Allen is strictly correct, it is not overly helpful in determining the appropriate setback to the poultry shed as it simply calls up a merit assessment. In my view, this could reasonably involve an odour modelling exercise. I note that while the DCP provides the option for odour assessment through modelling (s 4.3.1(a) 3), this was not an option taken up by the council for the original development application notwithstanding evidence from the Department of Primary Industries. In this regard, the judgment relevantly states (at par 6); 6. Ms Glenda Briggs, a Resource Officer with the Department of Primary Industries also provided evidence on site. She stated that it was the policy of her department to help resolve conflict between potentially conflicting land uses such as a dwelling and a poultry farming establishment. In her opinion, it would be more appropriate to conduct modelling of odour impacts rather than rely on a 150 m setback as proposed by the council. Based on a simple modelling exercise, she calculated that a setback of 347 m was required although she conceded that this was likely to be overly conservative. She supported the use of a vegetated screen providing it was of sufficient depth and planting. 23The 150 m setback relied upon in the previous approval and by Ms Sharp in this appeal, comes from s 4.3.1 of the DCP however this subsection relates to " New poultry developments". I accept the evidence of Mr Allen that the 150 m setback distance does not strictly apply to this application. However, it is a standard that has been adopted by the DCP, that in general terms, is an acceptable separation between a poultry shed and a dwelling, putting aside the question of what is a new land use and what is an existing land use. Given the absence of any other numerical standard in the DCP and the reliance on this numerical standard in the original approval and this appeal, I see no reason why it should not be used as the basis for the consideration of the modification application. In my view, it would be unreasonable to adopt a totally different assessment regime for a modification application (as submitted by Mr Mallik) when there has been no change to the assessment regime in the DCP and was used for the consideration of the original application. 24Ms Briggs again provided evidence for the council and largely reiterated her evidence in the original application. Again, I see no reason why the assessment regime that was used for the consideration of the original application should not be followed, given the specific requirements in the DCP relating to land use conflict (Chapter C.4). 25This leads to the odour assessment report prepared by Mr Kellaghan. Mr Mallik objected to the expert report of Mr Kellaghan on the basis that his report relied on work undertaken by other persons and specifically the statement that " The odour modelling presented in this report has been performed by Fardasur Rahaman, Senior Air Quality Engineer at PAEHolmes (Curriculum Vitae attached as Appendix A)" Mr Mallik submitted that Mr Rahaman had not complied with Rule 31.23 of the Uniform Civil Procedure Rules 2005 (the Rules) and consequently the expert report was not admissible. For support he cited the decision in Ali v Liverpool City Council [2009] NSWLEC 1327 (pars 81 to 90). 26Mr Williams, for the applicant, submitted that Mr Rahaman's role was to carry out odour modelling on behalf of Mr Kellaghan. Mr Rahaman was not the author of the expert report and that Mr Kellaghan adopted the modelling undertaken by Mr Rahaman and relied on that modelling for his conclusions. This was confirmed by Mr Kellaghan in his oral evidence at the hearing. Further, Mr William submitted that the role undertaken by Mr Rahaman, in this case, is clearly anticipated and acknowledged in Rule 31.27(1)(f) where it states that an experts report must include " any examinations, tests or other investigations on which the expert has relied, including details of the qualification of the person who carried them out," 27On this matter, I accept the circumstances in Ali can be clearly distinguished from the circumstances in this case and I have little trouble in concluding that the input of Mr Rahaman falls squarely within Rule 31.27(1)(f) and there is no reason why the expert report of Mr Kellaghan cannot be relied upon by the Court. 28Chapter C.4 addresses land use conflict and buffer zones. Clause 4.1.2 identifies the purpose of the chapter as: To provide consistent development guidelines for residents, developers, the Council and assessment staff when considering applications for development which: + may conflict with the existing development or environmentally sensitive areas because of emission of odour, noise, vibration, visual impact or other nuisance and may therefore require a separation or other means of reducing the conflict to an acceptable level; + is proposed to the location where there is an existing development which adversely affect it and may therefore need to provide its own separation or other means of reducing or removing the conflict in order to minimise land-use conflicts between potentially incompatible land uses. 29Even accepting the evidence of Ms Sharp that the appropriate separation distance is 150 m in the DCP, and contrary to her evidence, it does not necessarily follow that the setback requirement cannot be modified. The emphasis to be given to a development control plan (DCP) is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative (my emphasis). 30In this case, the unchallenged evidence of Mr Kellaghan is that if the separation distance of 150 m is reduced to 134.5 m, then any change in odour from the poultry shed is unlikely to be perceivable at the subject dwelling. I am satisfied that the relevant purpose of minimising land-use conflicts between potentially incompatible land uses is maintained through the reduced setback. 31I am also satisfied that there are no requirements in the DCP, LEP 1989, REP 1989, the Rural Lands SEPP or the draft LEP relating to the potential impact on rural activities, that would support the refusal of the application given the evidence of Mr Kellaghan.

Lees and anor v Cessnock City Council

At a glance

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Decision date

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Judgment (7 paragraphs)

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Cases Cited (7)