Mt Hercules Pastoral Co v Cootamundra Shire Council

Mt Hercules Pastoral Co v Cootamundra Shire Council - [2006] NSWLEC 282 - NSWLEC 2006 case summary — Zoe

[42]

Scale of operation: A 2.4% reduction in maximum feedlot capacity (975 head vs 999 head), but no other material changes. Separation distances: The effects of the altered design on actual separation distances are as follows: + Bellevue residence: reduction in actual distance 60m, + Sunnyview residence: increase in actual distance of > 90m, + Bellevue shearing shed: reduction in actual distance of about 20m. However, the anticipated reduction in feedlot capacity from 999 head to 975 head will reduce the required separation distances for the residences from 447 m to 433 m. This results in: + the required separation distance (433 m) continuing to be very substantially less than the >1270 m available between the feedlot and the nearest of the residences, + the reduction in the required separation distance from the Bellevue residence (14 m) being > the reduction of the actual separation distances (< 10 m) due to the reconfigured designed (i.e. it still represent a net improvement). Surface water No significant change in separation distance from the Flooding: waterway; no change in the design of topping frequency of wastewater holding pond (i.e. the holding pond still complies with the performance criteria in the NSW Feedlot Manual); and feedlot now lies within the catchment of only a single stream (i.e. the Spring Creek catchment) instead of two catchments. Groundwater: Same design criteria for low permeability clay liners and waste management practices still apply. Wastewater The changes in site cover are reflected in an increased Management: feedlot controlled area. Thus to meet the guideline requirements the following changes to the wastewater management system would be necessary: + an increase in the design capacity of the wastewater holding pond from 9.9ML to 10.5ML (this design conforming to the NSW Feedlot Manual design criteria of not overtopping or discharging more frequently than an average of once in every 10 years), and + an increase in the capacity of the sedimentation basin from 800 cu. m to 1260 cum (this design conforming to the NSW Feedlot Manual design criteria requirement design flow velocity of 0.005m/s in a 20 year ARI design storm having a duration equivalent to the time of concentration of the controlled drainage area). Solid Waste A very slight reduction (~2%) in the amount solid waste Management: (composted manure and carcasses) produced by the feedlot.

[66]

59 With respect to the other matters raised in connection with the manual, my findings are: + Effluent control; extensive details of the effluent disposal arrangements have been provided by the applicant and included in the SEE. As the council is satisfied with these arrangements, which are specified in the conditions of consent relating to compliance with the Environmental Management Plan (EMP), I accept this issue is reasonably addressed. The EMP requires to detailed monitoring of the quality and quantity of the holding pond effluent to establish appropriate application rates for wastewater and any soil amelioration measures necessary, + Future development; whilst Mr Allen says that the site is unsuitable because higher order on development is likely in the vicinity of the feedlot, this outcome for "higher order development" is not in my opinion, a significant constraint to the development, because only 2 nearby lots have potential for additional dwellings on their farmland. There was no evidence from the owners of these properties that this is intended, and accordingly I do not accept that sterilisation of the adjoining properties will occur, based on Mr Trethewey's summary of the subdivision development controls for this area. + Hospitalisation; Mr Allen suggests that proposed combined handling and hospital pens are unsatisfactory and should be separated, incorporating an area of about 175 square metres. However it seems to me that this preference is unreasonable as the manual allows smaller feedlots (such as the proposal) to provide hospitalisation in the handling yards. + Animal welfare; this concern is in relation to cattle welfare, relative to the protection of cattle from climate extremes, calming methods, dust control, shade and shelter. From my reading of the evidence (particularly the SEE) this concern is unfounded, considering the comprehensive details for animal welfare stated, which are not supported by substantive evidence. + Rainfall; Mr Allen could not identify if rainfall had been assessed under any average recurrence interval of 20 years, and expressed uncertainty about the provision of annual water balance. Reference to the SEE shows that this issue has been addressed, and in the absence of any challenge from council, I accept the details are satisfactory. + Composting of carcasses; Mr Allen speculated that insufficient information has been provided to assert that this is the most suitable method, although he admitted not being qualified in this area. In contrast, Mr Binns has extensive experience in the design of cattle feedlots elsewhere and has incorporated details of " manure and carcass compost applications" in the EMP. This requires compost applications to the waste utilisation area to be conducted in an environmentally sustainable manner with regular monitoring and review. In the absence of any substantive evidence to the contrary, and considering councils support, I consider this aspect of the proposal is satisfactory to be covered by the conditions of consent. + Manual compliance; insofar as Mr Allen expressed dissatisfaction with several aspects the proposal, nevertheless, it appears they have been considered and included in Mr Binns' Table (p 23, Exhibit P - response report). This table cross-references requirements for the SEE and EIS in the NSW Feedlot Manual and on the basis of its acceptance by council, I do not consider any substantive matters were raised, which would lead to the rejection of this application on the grounds of inadequate compliance with the manual, taking into account that detailed conditions of consent are to be imposed to adequately control matters raised by Mr Allen.

[82]

76 Other matters; I have considered the other matters raised by Mr Allen, including farming practices involving possible restriction aerial spraying, social and economic impacts and insufficient proposal details. However in the absence of any new compelling evidence, I am satisfied to rely on the agreement by the applicant and council that these matters are adequately covered by the conditions of consent. Conditions 77 As I have noted previously, the imposition of conditions of consent can reasonably address some of the issues raised. I note that the applicant and Council have reached agreement on the conditions and incorporated some of the second respondent's suggestions. But there are still some outstanding aspects of these conditions, which are raised by the second respondent and I deal with them as follows: + Condition 1; Insofar as the second respondent suggests the incorporation of the SEE and other requested preliminary information into this condition, it seems to me that this may be confusing as some details have been superseded by the amended application. All the relevant details have been considered in the assessment of the proposal and therefore the consent should provide reference to the approved plans and associated conditions, to act as a stand alone document, + Condition 3; Identifies the clear intent of the development is to prohibit any association with the adjoining stock yards. This condition may be strengthened by the requirement for the maintenance of a permanent fence between Lots 226 and 230. + Condition 4; The agreed condition requiring all activities to be carried out in accordance with the relevant occupational health and safety requirements is reasonable. + Condition 5; This condition covers the tree planting/screening and I am satisfied the agreed condition is reasonable. In this regard I rely on the council acceptance of the nominated species in the landscape plan to provide effective screening within a reasonable time. This condition also requires the applicant to maintain the vegetation for the life of consent. + Condition 6; Agreed condition is reasonable, when considered in conjunction with condition 19 that requires operations to be in accordance with the Environmental Management Plan (EMP). This EMP details the approved operations and requires annual review. Any changes are to be submitted to and approved by Council, which is reasonable. + Condition 13; As the lighting could cause dis-amenity, I consider it reasonable that its specification be determined by the applicant initially and submitted for consideration as part of the Construction Certificate approval process. + Condition 15; Agreed condition is reasonable as it requires complete drainage designs for the entire feedlot development. + Condition 19; This condition specifies requirements for the EMP operation and I am satisfied it substantially covers the detailed operating requirements and review mechanism, which is subject to councils control for this class of development. However I consider further performance criteria should be incorporated into s 2.7 Noise Management, which is based on the appropriate noise criteria for this area. Such criteria to be established by a practicing acoustic consultant and approved by council, so that the stated noise review can be objectively assessed as indicated in GHD's review 23/11404/34087 (Section 2). This may involve the identification of specified receptor points at which noise emissions can be assessed. + Condition 22; I consider the agreed condition is reasonable to control the feedlot waste application, on the basis of the specified receptor distance separations, with council being the relevant authority. Presumably reference by Council to other authorities can occur as and when required. + Condition 28; The approval of development is for a feedlot and therefore the agreed conditions cover the site to which it applies and is considered adequate + Condition 31 (b); The agreed condition appears adequate and the submission to include the Catchment Management Authority as another regulatory authority is not established, considering its primary function is policy formulation. + Condition 33; I accept the council submission that the agreed condition adequately covers the making and keeping of monitoring records, which are to be provided to council on request. Apparently the annual environmental report should provide sufficient details for Council. Presumably the more detailed records can be obtained through Council, if required by other parties. + Condition 34; This deals with the contents of the Annual Environmental Report and I consider the submission to incorporate details of any of the "adverse trends" is reasonable, so the responses can be tracked over successive periods, to allow effective review. Conclusions. 78 Having considered the evidence, the submissions and undertaken review I now satisfied that consent orders should be granted subject to finalisation of the conditions of consent. The amended proposal has been the subject of a detailed compliance assessment against the current controls, particularly SEPP 30 and the NSW Feedlot Manual, resulting in councils support for conditional consent of the application.

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Judgment (89 paragraphs)

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Cases Cited (4)