Mt Hercules Pastoral Co v Cootamundra Shire Council

Brundson v Council of the City of Wagga Wagga [2003] NSWLEC 168; CASES CITED: Carstens v Pittwater Council (1999) 111 LGERA 1; Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195; BGP Properties v Lake Macquarie Council (2004) 138 LGERA 237

DATES OF HEARING: 17-18/11/2005, 5 and 7/12/2005, 2 and 28/02/2006

APPLICANT Mr A. Pickles, barrister SOLICITOR Commins Hendriks

LEGAL REPRESENTATIVES: 1st RESPONDENT Mr A. Hudson, solicitor of Wilshire Webb

2nd RESPONDENT Mr A. Hawkes, solicitor of PIKE PIKE & FENWICK

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10710 of 2005 Mt Hercules Pastoral v Cootamundra Shire Council (First Respondent) and Elena Guarracino and Robert Valler (Second Respondents)

1 This appeal was lodged against council's refusal of a development proposal for a 999 head feedlot on a rural property situated at Boxells Lane, Cullinga.

2 The grounds for refusal included: + loss of social and community amenity; + concern with regard to dust, odour and noise pollution; + concerns with visual impact, and + concerns about site suitability. 3 Following further conferencing between the parties in the lead up to the appeal, agreement was reached to Consent Orders for conditional consent to the development and the objectors notified accordingly.

4 The appeal was commenced on-site with a view, where a number of neighbours were given the opportunity to present their objections. These objections generally followed the matters identified in the grounds for refusal, together with public interest considerations, which the objectors considered had not been adequately assessed.

5 Subsequently, leave was granted for the Second Respondent to participate in the proceedings and adduce further expert evidence from its environmental consultant, Mr K. Allen.

The site 6 The site comprises Lots 230 and 233 in DP 753604, known as " Cherry Grove", Wallenbeen. Lot 230 has an area of 16.545ha and Lot 233 has an area of 17.239ha.

7 The land is undulating with a low drainage line passing through both lots. It has been used for agriculture, primarily in the form of cropping with seasonal grazing of cattle and sheep.

8 The land has frontage to Boxells Lane, which is an unsealed rural road that includes existing boundary vegetation. The site is surrounded by other agricultural land and some dwellings including: + "Sunnyside" owned by R & P Boxell , located to the east and in excess of 1270m from feedlot footprint; + "Eastwood" owned by R Valler & E Guarracino, located to the northeast and separated from feedlot by approximately 1200m; + "Bellevue" owned by C & K Baldry, also located to the north west and separated from the feedlot footprint by approximately 1500m. Planning controls + State Environmental Planning Policy No 30 - Intensive Agriculture. + Interim Development Order No 1 - Shire of Cootamundra. Under this IDO the site is zoned 1 (a) Rural and "feedlots" are permissible only with the consent of Council. + Draft Local Environmental Plan 2005. Under the draft LEP, the land is zoned 1 (a) General Rural. This zone allows "extensive livestock keeping establishments", with development consent. The proposed development falls within this definition.

9 The initial application was to construct the feedlot for 999 head of cattle, on an area approximately midway between Boxell Lane and the eastern property boundary, traversing the existing accessway to "Sunnyside". It also involved the construction of associated effluent ponds.

10 However, following the commencement of the hearing, the location and configuration of the feedlot was revised by moving it closer to Boxell Lane and the existing dam on the property. The size of the feedlot was reduced to 975 head. The evidence 11 A number of detailed reports were presented to the Court including: + Statement of Environmental Effects (SEE), prepared by Mr P. Binns, of E. A. Systems. This is included in Ex. 1; + In addition to the SEE, Mr Binns, an environmental consultant prepared further reports Exhibits G and P; + Statement of evidence by Mr K Trethewey, councils Director of Environment and Community Services (Exhibit 13); + Statement evidence by Mr K Allen, environmental consultant (Exhibit 100), on behalf of the second respondent. 12 A considerable number of written objections were lodged and these are contained within council's bundle of documents. Further written and oral objections were made by a number of residents at the appeal, including Ms Guarrich's statements ( Exhibit 7, p 106) and these have been considered.

13 A detailed merit assessment of the initial proposal (assessment), was undertaken by council officers and it is included in Exhibit 1. This assessment dealt with the various consultant reports, and the S.E.E. relative to the initial feedlot position. It was accepted by the parties that this assessment was still valid for the revised feedlot position, except for the impacts on the watercourses, due to possible drainage overflows from the feedlot and effluent areas. The Second Respondent also submitted that the proximity of the revised feedlot position would increase disamenity due to visual impacts, odour and noise.

14 The initial assessment of the development was undertaken by Mr Trethewey and he subsequently reviewed the impact of the revised proposal in his response report (Exhibit 13). In summary, his review refers to most of the original merit assessment items, which remain unchanged and he identified the following matters in respect of the revised plan: + The reduction in the size of development from a 999 to 975 head feedlot is acceptable and does not increase adverse impacts; + The variations to the Environmental Management Plan documented in Report 21192.6427 prepared by EA Systems appears to strengthen the adequacy of information provided in the original SEE in terms of the conclusions of the new sections dealing with, "Community amenity management" and "Landscape management plan", and is acceptable; + Fixed odour sources; the original statements remain relevant and the report of Holmes Air Science dated 6 September 2005 reinforces the original view that fixed odour sources are adequately addressed. Considering the revised separation distances, the odour impacts are acceptable; + Water pollution potential: based on the original consulting engineers, GHD investigation that the potential for pollution of surface water and groundwater was adequately addressed. The revised and increased overall feedlot footprint area still results in the potential for pollution and surface water and groundwater being adequately addressed.

15 Accordingly, Mr Trethewey maintains his support for the conditional approval of this reduced sized feedlot.

16 As a number of the merit assessment matters were the subject of the objections and need to be considered by the consent authority, which is the Court in this case, I deal with them initially on the basis of the original assessment, so that the amended proposal can then be distinguished: + Development assessment, information and requirements; + Odour Impacts + Independent Odour assessment review; + Noise impacts; + Wastewater.

17 Development assessment; As IDO No 1 does not declare cattle feedlots of less than 1000 head as Designated Development, accordingly the proposal did not require submission of an EIS. But it is classified as Local Integrated Development under s 90 of the EPA Act and by virtue of s 91 of the Water Management Act 2000, with DIPNR then being the concurrence authority.

18 The provisions of SEPP No 30 - Intensive Agriculture 1989 apply and it contains a number of matters that must be taken into consideration. Associated with this is the NSW Feedlot Manual (NSWFM), which is an advisory document aimed primarily at applicants intending to undertake a feedlot operation with over 50 to 1000 head of cattle. Consequently the council assessment report included the following table, which confirmed the adequacy of the required assessment information, generally as provided in the Statement of Environmentally Effects (S.E.E.)

Table 1 DUAP ELIS APPLICANT DOCUMENTS Yes/No Site Inspection Separation distances Yes - SEE 3.4, SEE Response 2.5.2, 2.513 & Info request 2. VIII Surface water and flooding Yes - SEE 2.7.1 & DIPNR Response Groundwater Yes - SEE 2.7.2, SEE Response 2.5.18, 2.5.25, Info request 2. III, IV & DIPNR Response Water supply Yes - DIPNR Response & SEE 2.7 & SEE Response 2.5.25 Transport Yes - SEE 2.8, SEE Response 2.2 & Info request 2. XI, XII Socio-economic issues Yes - SEE 3.9 & SEE Response 2.5.8, 2.511, 2.5.21 Environmental issues Water management Yes - SEE 3.2, 5.4.3, SEE Response 2.2.25, Info request 2. III & DIPNR Response Waste water and solid waste management Yes - SEE 3.2, 3.3, 5.4, see Response 2.2.3, 2.5.3, 2.5.7, 2.5.27, 2.5.30 & Info request 2. IV, V Odour Yes - SEE 3.4.1, 5.4.5, SEE Response 2.2.2, 2.5.13, 2.5.30 & Info request 2.II, VIII Land protection Yes - SEE 3.5.1, 5.4.4 Noise Yes - SEE 3.4.2, 5.4.7 & SEE Response 2.2.2 Dust Yes - SEE 3.4.3, 5.4.5 & SEE Response 2.5.4, 2.5.24 Heritage Yes - SEE 2.10, 3.5.2 & SEE Response 2.5.20 Fauna and Flora Yes - SEE 3.5.3 & SEE Response 2.5.15 Hazardous Chemicals Yes - SEE 3.6, 5.4.6, SEE Response 2.5.14, 2.5.15, & Info request 2. IX Insects Yes - SEE 3.5.4, 5.4.6, SEE Response 2.5.12

From my reference to this material, I am satisfied that sufficient information has been provided by the applicant to enable satisfactory merit assessment. 19 Odour impacts; As odour disamenity is a prime concern for feedlot applications, the applicants consultant addressed this by reference to the NSW EPA 2001 Technical Notes; Draft EA Systems policy; Assessment and Management of Odour from Stationary Sources in NSW. This enables determination of acceptable separations between the fixed source of odour i.e. the feedlot boundaries and receptors such as dwellings.

20 The EPA Odour guidelines: + "aim to ensure that offensive odours do not cause unreasonable interference with the community" and indicate that the most effective way to do this is by "implementing good design, good management practices and appropriate separation distances", + recognise the effect of climatic conditions, population densities and the variations in feedlot size, location, design and management. + provide for a range of feedlot Classes 1 to 4, which allows calculation of appropriate separation distances. In this case the applicant has applied for a Class 1 application, which results in the following separation distances to various receptors: Table 2 Feature Required distance (metres) Public road - except roads described below 200 Public road - unsealed with less than 50 vehicles per day excluding feedlot traffic 50 Watercourse as defined by a blue line on a current 1:50,000 NSW topographical map 100 Neighbouring rural residence ***200

*** the variable distance must also be calculated and the greater used as the separation distance 21 The SEE uses these fixed separation distances and also uses the variable separation distance method to calculate the allowable separation distances between the feedlot and the surrounding dwellings as follows:

Table 3 Residence Owner Minimum separation (m) Actual separation (m) "Sunnyside" R & P Boxsell 447 1,270 "Eastwood" R Valler & E Guarracino 447 1,280 "Sunnyview" C & K Baldry 447 1,500

With regard to the "Bellevue Shearing Shed, the SEE estimates an allowable separation distance of 181 m, compared to an actual distance of 211 m. 22 Movable odour sources is another component of the odour issue. As the SEE initially proposed the disposal of all excessive liquid waste by irrigation and solid waste by spreading the over land owned by the applicant, reference was made to the following minimum separation distances that apply to any spreading of liquid waste and solid waste on the land: Table 4 Feature Required distance (m) Public road - except roads described below 200 Public road - unsealed with less than 50 vehicles per day excluding feedlot traffic 50 Watercourse as defined by a blue line on a current 1:50,000 NSW topographical map 100 Neighbouring rural residence 450

Because of the proposals numerical compliance with these separation distances, it was supported for conditional consent. 23 Independent odour assessment review; In recognition of the difficulty and sensitivity in estimating odour amenity, the initial odour assessment undertaken by EA Systems on behalf of the applicant, was reviewed by Holmes Air Sciences (HAS). This review involved: + a summary of odour impact assessment requirements, + odour issues relating to cattle feed lots, + review of the odour impact assessment undertaken by EAS, + review of matters raised by the residents.

24 HAS acknowledged that the assessment of odour impact is difficult due to the problems of measuring odour in the ambient air and the range of sensitivities of individuals to odour. Therefore the assessment is based on the NSW Department of Environment and Conservation (DEC) draft policy. This contains a three level system of odour assessment for odour sources, of which the following is considered appropriate in this case: Level 1: a simple screening exercise to identify the potentially affected zone and site suitability for a proposed facility or expansion of an existing facility.

25 This method incorporates an approach of calculating separation distances for proposed cattle feed lots of a particular size using information on operating practices and site-specific practices including terrain, meteorology, vegetation, local rainfall and the type of receptors, i e, whether it is a rural residence or a large town.

26 The HAS document review confirmed that proposed displacement from the development site and the odour impact receptors, comfortably satisfied the prescribed separation distances. Although it states that "It is important to note that the DEC policy does not guarantee that odour will be undetectable. It is designed to result in a tolerable level of odour. On this basis the 999 head feedlot would comply with the required separation distance".

27 With regard to the issues raised by residents, which concerns possible underestimation of atmospheric conditions and odour from decomposing carcasses, HAS undertook a further sensitivity assessment based on the more restrictive requirements for a Class 2 feedlot. Under these circumstances, the change in stocking factor S1 for a Class 2 feedlot in an area with rainfall greater than 750 mm would go from the assumed 52 to 95. This would result in an increase in separation distance to the nearest receptor to 815m, which would still be well within the displacement distance, to the existing residences.

28 The review also dealt with the proposal to dispose of carcasses by burial rather than composting as outlined in the SEE. Whilst noting the virtual impossibility of locating a feedlot downwind of all sensitive receptors, nevertheless "even if there were a high frequency of winds (> 60%) from a particular direction which would increase the required separation distance by 50%, adding to this increase distance calculator for a Class 2 feedlot with a high rainfall would bring the separation distance to 1223m, still in the separation distance to the nearest residence". HAS expressed reduced concern for users of the Bellevue woolshed because of its "occasional-use factor".

29 Consequently, HAS concluded that the level of odour assessment is appropriate and that any odour generated will be within acceptable DEC guidelines.

30 Noise impacts; A review of the noise impacts was initially undertaken by consulting engineers GHD. This covered the noise generated by the cattle as a likely to be the major noise source emitted from the proposed development during its operation, traffic noise due to increase be the movements and construction noise. GHD stated that although the risk of significant noise impact occurring would likely be low, nevertheless some formal qualitative noise assessment should have been provided. The applicant's response is that this issue be dealt with in the Environmental Management Plan. 31 Wastewater; GHD also provided an assessment of wastewater impacts, which included conditions to minimise the risk of contamination of waterways and natural streams downstream of the site in accordance with current industry standards.

32 DIPNR identified the presence of a mapped saline area, down slope of the proposed development site and accordingly required the imposition of conditions to avoid the adverse impact on this area. Amended proposal 33 Having outlined the aforementioned assessment matters on the original proposal, I now turn to the amended plan as the second respondent raised a number of issues and public interest considerations. Mr Binns provided the following details and commentary on the amended proposal. I have referred to the aspects of change in order to assess the overall merits of the revised proposal. Site plan; A slightly larger site coverage (revised cover of 55600 sq m vs original of 47535 sq m) due to: + an additional area of internal roads and laneway has been required to service two rows of feedlot pens instead of the original single row, and + the revised layout incorporating a larger and more practical design for the stock handling and loading facility.

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.

Visual amenity: Existing vegetation should shield the site from more observers and the placement of the feedlot lower in the landscape and its more compact design should reduce the impact on observers still able to see the site when compared to the previous, more exposed and more elevated design. 34 As I have noted, Mr Tretheway reviewed these amendments and considers they are acceptable to allow development consent to be granted, as originally determined by council.

Second respondents review matters 35 On behalf of the second respondents, Mr Allen identified various aspects of the principal issues which he did not consider had been adequately addressed. These deal with public interest considerations, watercourse and other possible environmental impacts. Accordingly, I deal with these concerns on the following basis:

36 Public Interest; Mr Hawkes made submissions about the wider public interest considerations by reference to a number of cases including: + Carstens v Pittwater Council (1999) 111 LGERA 1, and + Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195; 37 Also, reference was made to the precautionary principle consideration stated in: + BGP Properties v Lake Macquarie Council (2004) 138 LGERA 237.

38 For my assessment of this development application, I have carefully considered all the evidence presented, within the context of the s 79C requirements, together with all issues raised by the objectors, particularly the second respondent.

39 With respect to the precautionary principle I rely on Mr Pickles response that the precautionary principle applies where there is a lack of scientific certainty. In this case the comprehensive evidence does not indicate there is a lack of scientific certainty that would warrant application of the precautionary principle. Instead, I am satisfied that compliance with the detailed conditions of consent adequately mitigate the potential for any environmental harm.

40 In summary, I accept Mr Pickles response that the second respondent has not identified any likely harm to the environment derived from the project, when the measures taken to minimise harm are taken into account.

41 Watercourses; In this regard, Mr Allen is concerned that part of the holding pond and sedimentation basin is located too close to a lateral waterway, considering that the guidelines require a feedlot to observe a 100m setback from watercourses designated by a "blue line" on the topographic map. Whilst the amended proposal identifies the main north/south creek through the property, to which it observes a minimum 100m buffer, nevertheless Mr Allen considers the development is too close to the lateral waterway. 42 Mr Allen stated that: "During my site inspection the waterway is identified as an area that contains a flat base about 80 - 100m wide with part containing more narrow channels in the centre".

43 He denoted this section of waterway alignment A-B on the plan at p 20 of Exhibit 100, and identified it predominantly from the applicants base contour map. However in cross- examination, he admitted that this identification of the waterway was not by way of any actual site inspection.

44 Support for this proposition was given by Mr Chapman, who is a farmer that has lived in the area over 60 years and worked on the subject land, when it was owned by his sister. He thought there was a creek or gully approximately 3 feet wide and 2 feet deep where water ran but was subsequently filled in by his nephews in later years.

45 Against this, Mr Binn's contends that the Feedlot Manual is principally concerned with locating feedlots away from permanent watercourses and domestic water supplies, not intermittent or ephemeral streams, as suggested by Mr Allen. Accordingly, he identifies the following elements to indicate a watercourse: (a) banks; (b) a degree of organisation of catchment runoff into a stream; (c) identifiable stream tracks; (d) riparian vegetation.

46 However it appears that the land in the vicinity of alignment A-B has been cropped for many years and does not exhibit any of the aforementioned elements. I am persuaded to accept Mr Binns' evidence that whilst there may be a slight depression identifiable from the larger scale DA drawings (1:1250 scale), as compared to the 1:50000 topographic maps, this is not of sufficient magnitude to warrant rejection of the proposal.

47 Therefore I am satisfied that proposal provides an acceptable buffer, which is in excess of the minimum 100 m, from the "blue line" on the topographic map. Furthermore, that the proposed drainage system along the A-B alignment is to be designed and constructed with sufficient capacity, which allows overtopping of the holding pond in storm events in the order of 1:10 years and the sedimentation pond, which precedes the holding pond, is designed to overtop 1:20 years. According to Mr Tretheweys evidence, this frequency of overtopping is well within acceptable guidelines, for this type of development which confirms the acceptability of this aspect of the proposal, in my assessment.

48 Salinity; This concern was raised by Mr Allen because of an indication of salinity on the "hazard" mapping. But the applicant addressed this issue initially by obtaining a soil profile description and undertaking a groundwater investigation, including the use of piezometers to determine the water table for the specific site, as required by DIPNR. This soil profile revealed an extensive clay layer, which indicates it is not prone to salinity, despite the broader mapping reference scale.

49 Notwithstanding this clarification, Mr Allen's main concern was in relation to potential increase in salinity due to overtopping of the holding pond in flood events. However, I rely on Mr Binns response to this concern that salinity is a long-term change to the environment, usually generated by change to the hydrology of the landscape resulting in movement of soils into rivers and onto land in an accelerated manner, which would not be derived from flood events of a 1:10 year frequency. Furthermore, that the dilution of water in an overtopping event is such that is most unlikely to result in any discharge water from the feedlot remaining in the discharge areas long enough to increase salinity potential.

50 For these reasons then, I do not consider that that the proposal should be rejected on this issue.

51 Pathogens; By reference to a document entitled "Pathogens Movement and Survival in Groundwater and Raw Water Storages ", Mr Allen suggests there could be potential problems from having a feedlot development with no buffer zone immediately adjoining a watercourse. He identified a number of matters of concern including: + juvenile cattle shed the most cryptosporidium, and also shed the highest concentration of E coli, + all domestic livestock should as far away from watercourses as possible, + rain offence may belie significant concentrations on cryptosporidium and E. coli … 52 From this, he says that absent the risk of any accidental spillage, storm overflow events will occur in the settlement pond on average once in 10 years, which is unlikely to cause pollution in the water courses.

53 However it appears to me from the evidence that these concerns are not well founded. Condition 2 requires that cattle must not enter with weights less than 250 kg, which is an adult cow, from which the pathogen movement is less. But more importantly, the proposal observes a minimum 100m buffer/setback from the designated water course, which is within acceptable standards. As I do not accept Mr Allen's contention that the depression is a designated water course, I do not consider the application warrants rejection on the basis of this speculation.

54 NSW Feedlot Manual (manual); Insofar as Mr Allen makes a number of assertions about non-compliance with the manual, I note, Mr Hudson's submission that SEPP 30 refers to the feedlot manual in the following terms: 3. In determining whether or not to grant consent to a development application for the purposes of a cattle feedlot or piggery to which clause 6 applies, the consent authority must take into consideration:-

(h) the consistency of the proposal with, and any reasons for departing from, environmental and planning assessment aspects of any guidelines for the establishment and operation of cattle feedlots or piggeries published, and made available to the consent authority, by the Department of Agriculture and approved by the Director of Planning.

55 From this, I accept Mr Hudson's submission that the terminology makes it clear that the environmental planning and assessment aspects of the feedlot manual are not mandatory and what is assessed is consistency and reasons from departing from those guidelines.

56 It then seems reasonable to me, to accept Mr Binns' evidence that the current best practice procedures have evolved from the unamended 1998 manual. In so far as reference is made to the (manuals) figure of 20-28 square metres/per beast for pen sizes, this is qualified as a "rule of thumb", to indicate that an area of 40ha / 10000 head of cattle is appropriate.

57 More specific guidelines in the "design and construction " section indicates a range of 10-25 square metres, depending on the type of animal, topography and climate. The larger pen size is required in areas of higher rainfall to minimise odour disamenity. In this regard, I am satisfied to rely on Mr Binns' evidence that the site has a rainfall in the order of 650mm, which is below the 750mm/annum threshold identified in the aforementioned Technical Notes, which I accept represents current practice.

58 Accordingly, the proposal provides for 15 square metres per beast, which I consider demonstrates reasonable compliance with the design and construction standards for a class 1 feedlot in an area of less than 750 mm rainfall, and is not reasonable grounds for refusal.

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.

60 Odour; The second respondent expressed concerns about the reservations in Dr Holme's report that the odour will not be undetectable and the consequential possibility for disamenity. In particular, reference is made to potential odour impacts from "mobile" sources arising from the subsequent use of fertiliser produced from the excrement.

61 In response to this concern, I note Dr Holmes particular expertise in this field, and her statement that the level of assessment is appropriate and there is easy compliance with the EIS criteria. Also there is still compliance with the guidelines if a much more conservative approach is adopted in terms of the operation of the feedlot, annual rainfall and wind frequency towards any receptor.

62 Also relevant, the conditions of consent set out separation distances for dispersion of any liquid or solid wastes. These distances comply with the fixed separation distances provided for in the Odour Guidelines and therefore, I consider it would be unreasonable to reject the application on the basis of the second respondent submissions in this regard.

63 In further support of the proposal, I note that the applicant has acknowledged that there are contingency opportunities to spread and disperse the waste on any of the adjoining large land holdings of the applicant. Should these contingency arrangements become necessary, presumably, they can be satisfactorily implemented by way of the EMP.

64 The other submission made in this regard, concerns the reference to the case of Brundson v Council of the City of Wagga Wagga, which related to a designated development application for a large intensive straw based piggery facility for up to 7380 pigs. However, I am satisfied to rely on Mr Hudson submissions that this case is distinguished from the subject case because it was for designated development and there were factual under-estimates of critical factors such as rainfall and spreading areas presented to the Court, which contributed to its refusal. Therefore, I do not rely on any line of authority from that case to reject the subject proposal.

65 With regard to Mr Allen's proposition that further subdivision, and/or dwelling house development along Boxells Lane would be compromised, it seems from Mr Tretheweys assessment that these opportunities are very limited and the concern is misplaced. In any case, the conditions of consent, require the surrender of a dwelling entitlement that currently applies to the applicant's own land.

66 Flora and fauna; According to Mr Allen, no significant fauna assessment has been done. But he qualifies this on the basis that if the assessment of salinity is not found to be the adverse, then there is little potential for the feedlot to adversely impact on flora and fauna. Further reasons stated earlier, I accept Mr Bins evidence that salinity is not an issue at this site.

67 Notwithstanding this, the evidence indicates to me that this issue was considered by council initially. Further information was requested about threatened species likely to be impacted upon by the development, following submissions by local residents. This was assessed and based on the fact that the subject land has been cleared and used for cropping since the early 1960s, Mr Tretheweys following comment seems reasonable: "I consider that a fauna and flora study was unnecessary, given the previous farming use of the site over many years ."

68 In reaching the decision to enter consent orders, I am satisfied this issue has been adequately covered and is not grounds for rejection of the proposal.

69 Traffic; The traffic concerns mainly relate to the opportunities for subdivision/construction of additional dwelling development along Boxells Lane. Mr Allen did not identify any traffic figures for Boxells Lane, and suggested there could be some problems arise if his clients estimate of between 60 and 100 traffic movements per day were substantiated.

70 Against this, I note that Mr Trethewey, arranged for a traffic survey, which resulted in daily average of 6.3 vehicle movements/day for a 2-week period in midwinter 7 June - 21 June 2005. In the circumstances of this case, it seems that even if some contingency is made for additional traffic generation, the resultant traffic is still likely to the much less than that estimated by the residents. I also accept Mr Pickles submission that as there is no rural residential housing in this locality, reference to the higher daily trip rate in nearby Mulwaree Shire Council is not relevant.

71 In my assessment of this issue, I am satisfied to rely on the order of magnitude of the council traffic estimates, rather than the speculation by the residents. On this basis, the projected traffic volumes are much lower, and therefore the risk of traffic disamenity is within reasonable limits, according to council's evidence, on which I rely. 72 The other aspect raised concerns the recreational use of Boxells Lane. Apparently it is used by some residents for horseriding and walking and as their rate of movement would be slower than vehicles, their exposure to odour for longer periods is considered an additional health risk.

73 With respect to these recreational activities, I accept that some odour discomfort may arise during certain conditions. However, it seems to me that the activities that have been identified, could be reasonably undertaken in alternative locations, in those adverse weather situations. In this regard, I note that Boxells Lane terminates some 1 km to the south of the proposed feedlot, which would likely limit it is recreational opportunities.

74 Visual impacts; Mr Allen raised this issue on the basis that the feedlot will be noticed, acknowledging that this is an issue capable of being addressed by landscaping. His principal concern is the speed at which the trees can be established and maintained to become effective. Whilst Ms Guarracino raised concerns are about loss of visual buffer from the removal of trees in this any of the existing cattle yards, it became evident that those trees on did not provide any screening of the feedlot when viewed from her property.

75 In my assessment, this concern can be reasonably addressed by the conditions of consent, requiring landscaping, including supplementary landscaping along common body with the existing stockyards, as offered by the applicant. In this regard, I rely on the council's approval of the species shown on the landscape plan as being appropriate for this locality.

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.

79 This support is despite considerable local opposition from the residents who acknowledge that while a feedlot is permissible, this site is not suitable. However the Court is required to assess the merits of the application submitted and on the basis of the foregoing assessment, I am satisfied the application merits conditional consent.

80 Insofar as the second respondent raised a number of issues, I have considered these within the aforementioned planning framework, which permits with consent this Class 1 feedlot on the subject site. Whilst development will result in some changes to the area, I do not consider the objections are such as to warrant rejection of the proposal, or that the matters raised could not be covered by reasonable conditions of consent. 81 In this regard I note that the feedlot is required to operate within detailed performance guidelines contained within the Environmental Management Plan, which covers odour amenity, wastewater control, noise and landscaping. More stringent performance conditions are imposed to contain noise to a reasonable limit.

82 The development is classified as Local Integrated Development under s 91 of the EPA & Act and by virtue of s 91 of the Water Management Act 2000. At the appropriate time, DIPNR was the concurrence authority and after consideration of the applicant soil profile testing, required conditions to be imposed which would divert surface waters away from identified vulnerable areas of the site. Satisfactory evidence has been provided by the applicant to indicate that drainage structures can be constructed to address this matter. Accordingly conditions of consent are imposed.

83 The question of possible discharge of effluent from holding ponds is addressed to council's satisfaction on the basis that the design of the holding basins capacity is to accommodate a 1:20 year storm, which exceeds the requirements of the NSW Feedlot Manual.

84 The main controls are contained within SEPP 30, wherein cl 7 (3) states a number of matters that the consent authority must take into consideration. I am satisfied these matters, together with the associated controls and guidelines have been adequately addressed by the parties, based on the detailed evidence presented to the Court for consideration. From my assessment then, the Court intends to make the following consent orders, subject to prior satisfactory resolution of the conditions. 1 The appeal is upheld. 2 Development consent is granted to DA05/0037 for the construction and operation of a 975 head feedlot and associated effluent ponds at Lots 230 and 233, DP 75364, Parish of Cullinga and County of Harden, subject to the conditions in Annexure A. 3 The exhibits may be returned except for exhibits 12, 13, 14, 100, K, L, M, N, O, P, Q and R.

                      R Hussey
                      Commissioner of the Court
                      Rjs/ljr

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